The Trump administration announced an expansion of its COVID-19 travel ban to include those seeking to enter the U.S. from Brazil.  The new Proclamation issued on Sunday, May 24, 2020, bars all non-U.S. citizens who have been physically present in Brazil during the 14-day period prior to entering or attempting to enter the United States.

Brazil joins the following countries that are already subject to similar COVID-19 travel bans: China; Iran; the European Schengen area: (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, Switzerland, Monaco, San Marino, Vatican City); the United Kingdom and the Republic of Ireland.

Who is Covered?

The new Brazil proclamation includes several important qualifiers and exemptions.  It only extends to “aliens” (non-citizens of the United States), but it includes both immigrants (those coming to stay indefinitely) and nonimmigrants (those coming temporarily).

It bars entry for aliens who have been physically present in Brazil during the 14 days prior to attempting to enter the U.S.  That means it does not just bar Brazilian citizens and it would not apply to Brazilian citizens attempting to enter the U.S. after spending two weeks in a non-barred country.  In other words, an Australian coming to the U.S. from Brazil is barred, but a Brazilian coming directly to the U.S. after 14+ days in Australia is free to enter.

The new proclamation does not apply to the following classes:

  • Lawful permanent residents (aka green card holders), but it does apply to immigrants, meaning it should bar those seeking to enter on immigrant visas to become lawful permanent residents.
  • The spouse of a U.S. citizen or lawful permanent resident.
  • The parent or legal guardian of a U.S. citizen or lawful permanent resident as long as the U.S. citizen or lawful permanent resident is unmarried and under 21.
  • The sibling of a U.S. citizen or lawful permanent resident as long as the U.S. citizen or lawful permanent resident and the sibling are both unmarried and under 21.
  • The children, foster children, or wards of a U.S. citizen or lawful permanent resident a certain prospective adoptees.
  • Those invited by the U.S. government to fight the Corona virus.
  • Those traveling on certain crewman and transit nonimmigrant visas.
  • Nonimmigrants in most diplomatic statuses.
  • U.S. Armed Forces members and their spouses and children.
  • Those whose entry would not pose a “significant risk” of spreading the virus as determined by HHS and CDC.
  • Those whose entry would “further important law enforcement objectives” as determined by DOS, DHS, and DOJ.
  • Those whose entry would be in the U.S. national interest, as determined by DOS and DHS.

In addition, the proclamation should not affect any applicant for asylum and other related humanitarian relief such as Withholding of Removal or protections under the Convention Against Torture.

The proclamation also mentions the president Trump’s commitment to “facilitating trade” between the U.S. and Brazil, but provides no specific exceptions for anyone traveling to the U.S. in furtherance of that objective.  Effectively, that means anyone on trade-related travel to the U.S. requires individual authorization under one of broad exceptions for not posing a “significant risk” or being in the “U.S. national interest.”

When Does the Brazil Ban Start and How Long Will it Last?

The proclamation’s ban will go into effect at 11:59 PM Eastern Daylight Time (EDT) on May 26, 2020 and remain in effect until terminated by the President.  The Ban was originally announced to go into effect on May 28, 2020, but was unexpectedly moved up two days.  Prior travel bans have now been in effect for several months and with no official end in sight.

Some prognosticators believe lowering rates in effected countries could see bans lifted in the coming summer months, while others believe the bans will remain in place through 2020.  It is likely that on-the-ground case numbers in each country will determine the White House’s willingness to lift travel restrictions.  It has shown a willingness to withhold travel bans for countries that have been effective in combating the outbreak, such as South Korea, which was affected early in 2020, but deployed effective countermeasures and has kept infection and death rates low compared to the U.S. and many other countries.

Are More Travel Bans Coming?

This open-ended travel ban may not be the last.  The White House is constantly monitoring conditions across the world and has mentioned on several occasions that it will utilize travel bans as broadly as necessary to protect the United States.

Brazil recently passed Russia as the country with the second highest number of COVID-19 cases, but Russia remains off any official U.S. travel bans.  The United States continues to have the most confirmed COVID-19 cases in the world, with more than the next five countries combined as of the date of this blog post.

Squire Patton Boggs will continue to monitor and provide updates on these fast-moving developments.  Please contact the author with any questions.