FAQ on the Coronavirus European Travel Ban

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Updated March 14, 2020

Introduction

On the evening of March 11, 2020, President Trump issued a proclamation to prevent certain foreign nationals from coming into the United States from most countries in Europe.¹ Fueled by the rapid spread of COVID-19, popularly known as the coronavirus, the proclamation came hours after a determination by the World Health Organization that the virus had officially become a pandemic.² In a national address, the President explained that the ban was a "strong but necessary" measure "[t]o keep new cases from entering our shores."³ Since then, he has extended the ban to cover additional parts of Europe.

Questions about the European travel ban were raised as soon as President Trump announced it. In light of those questions and the considerable confusion that remains, we have put together an FAQ on the ban that is current as of 3 p.m. ET on March 14, 2020.

Since the situation remains fluid, we advise readers to consult the websites of the Centers for Disease Control and Prevention and the Departments of State and Homeland Security for any updates.⁴

Who or what does the ban cover?

Subject to certain exceptions (see below), the ban originally applied to all foreign nationals who were physically present within the "Schengen Area" at any point during the two weeks immediately prior to their attempt to enter the United States. Specifically, the Proclamation suspends "[t]he entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States."⁵

The "Schengen Area" refers to a zone in Europe where internal borders have been abolished. It includes 26 countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. It does not include Croatia, Cyprus, Turkey and Ukraine.⁶

Trump indicated during a press conference that the ban would be extended at midnight on Monday, March 16, to Ireland and the United Kingdom, which initially were not included in the scope of the Proclamation.⁷

Are U.S. citizens barred from traveling to or from Europe under the ban?

No, the Proclamation does not halt the travel of U.S. citizens.

However, the ban will make travel to and from Europe more difficult as airlines cut back on flights. For example, in the hours after the ban's announcement, passengers encountered exorbitantly priced tickets, limited flights, and hours-long lines at airports.⁸

Additionally, the Department of Homeland Security has stated that all Americans returning to the United States from any restricted country after the effective date of the ban will be required to travel through one of thirteen airports.⁹ Upon arrival, they will go through enhanced screening; the Department advises that "[p]assengers will then be given written guidance about COVID-19 and directed to proceed to their final destination, and immediately home-quarantine in accordance with CDC best practices."¹⁰

Does the ban cover trade or cargo?

No, it does not. President Trump suggested during his announcement that the ban would "apply to the tremendous amount of trade and cargo" between the United States and Europe.¹¹ Nothing in the Proclamation itself, however, affects trade, and the President himself quickly clarified on Twitter that "trade will in no way be affected."¹²

Some experts, however, nevertheless anticipate indirect effects. For example, restrictions on passenger travel are likely to lead to fewer flights overall, potentially creating bottlenecks in the supply chain.¹³

What exceptions are there to the ban?

Section 2 of the Proclamation creates a number of exceptions:

• First, the ban does not apply to lawful permanent residents (i.e., green card holders).¹⁴
• Second, the ban does not generally apply to the immediate families of U.S. citizens or lawful permanent residents, defined as spouses, parents, legal guardians, siblings, children, foster children, wards, and prospective adoptees.¹⁵ However, that is subject to certain conditions.¹⁶
• Third, the ban does not apply to foreign nationals connected to certain U.S. law enforcement or national security interests.For example, the ban exempts members of the U.S. armed forces and their spouses and children,¹⁷ as well as foreign nationals "traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus."¹⁸ More generally, the Proclamation gives the Secretaries of State and Homeland Security the power to exempt other foreign nationals "whose entry would further important United States law enforcement objectives"¹⁹ or "would be in the national interest."²⁰
• Fourth, the ban does not apply to "any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew."²¹
• Fifth, the ban does not apply to any foreign national seeking entry into or transit through the United States pursuant to certain specialized visas²² or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement.²³

Finally, the Proclamation creates an exception for "any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee."²⁴ As of March 14, the CDC Director had not used this authority to create additional exceptions.

When does the ban go into effect?

Under Section 5, the ban went into effect at 11:59pm EST on March 13, 2020, but it did not apply to anyone aboard a flight scheduled to arrive in the United States that departed prior to that time.²⁵

How long will the ban last?

It is unclear. On its face, the Proclamation has no expiration date, and Section 4 states it will "remain in effect until terminated by the President.²⁶ President Trump stated during his remarks, however, that the ban will last for only thirty days,²⁷ and Vice President Pence stated the same during an interview.²⁸

What is the legal authority for the ban?

The President has issued the Proclamation pursuant to the authority vested in him by Sections 212(f) and 215(a) of the Immigration and Nationality Act.²⁹

Section 212(f) of the Act states that "[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."³⁰

Section 1185(a) similarly states that, among other things, "it shall be unlawful . . . for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe."³¹

Each of those provisions was also invoked by the President in issuing the first travel bans of his administration, and the Supreme Court upheld the President's reliance on those provisions in Trump v. Hawaii, 138 S. Ct. 2392 (2018). It is therefore unlikely that any legal challenge to the President's authority to issue the European travel ban will succeed.

What has Europe's reaction been?

European officials have reacted angrily to the President's Proclamation. President of the European Commission Ursula von der Leyen and President of the European Council Charles Michel issued a joint statement in which they criticized "the fact that the U.S. decision to impose a travel ban was taken unilaterally and without consultation."³² Other European leaders have also been critical of what they perceive as a precipitous and poorly reasoned decision.³³

What other countries have been subjected to coronavirus-related travel bans?

President Trump previously restricted travel from China and Iran to the United States.³⁴ He also issued travel advisories for areas of Italy and South Korea struck hard by the virus.³⁵

What other, similar steps might President Trump take?

It is unclear. President Trump may extend the ban to cover other countries, as he did on March 14, or he may narrow some of the ban's existing exceptions. During his remarks, he characterized COVID-19 as a "foreign virus" and made clear that border protection will be the centerpiece of his administration's efforts going forward.³⁶ For example, the President indicated two weeks ago that he is also looking at restrictions on the United States's southern border, and that as a general matter, "[w]e're thinking about all borders."³⁷

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John Bellinger and Ambassador Tom Shannon are the co-chairs of Arnold & Porter's Global Law & Public Policy Practice, which advises the firm's U.S. and non-U.S. clients on a range of international issues. Bellinger formerly served as the Legal Adviser for the Department of State from 2005–2009 and as Senior Associate Counsel to the President and Legal Adviser to the National Security Council from 2001–2005. Shannon spent more than three decades as a Foreign Service Officer and served most recently as Under Secretary of State for Political Affairs from 2016–2018. The firm's Global Law & Public Policy Practice also includes Sam Witten, who served at the U.S. State Department for 22 years, in positions including Deputy Legal Adviser (equivalent to Deputy General Counsel), Principal Deputy Assistant Secretary of State, and Assistant Legal Adviser for Law Enforcement and Intelligence.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.