The U.S. to End Country-Specific COVID-19 Travel Bans & Begin Requiring COVID-19 Vaccination for Air Travel to U.S. on November 8, 2021

On October 25, 2021, President Biden issued Presidential Proclamation 10294 which moves “away from the country-by-country restrictions previously applied during the COVID-19 pandemic” and adopts “an air travel policy that relies primarily on vaccination to advance the safe resumption of international travel to the United States.” Previously, the U.S. had country-specific travel bans for 33 different countries, including the U.K., 26 Schengen countries in Europe, Ireland, China, Iran, Brazil, South Africa and India, which will end at midnight on November 8, 2021. Beginning on November 8, 2021, the new order will require that all nonimmigrants traveling to the U.S. by air from anywhere in the world be fully vaccinated for COVID-19, with few exceptions.

Who Must be Fully Vaccinated for COVID-19 to Travel to the U.S.?

The order restricts entry to the United States by air travel of any nonimmigrants who are not fully vaccinated against COVID-19, with certain exceptions. Nonimmigrants are not U.S. citizens or lawful permanent residents of the U.S., and are seeking admission to the U.S. pursuant to a temporary visa, such as B-1 business visitor, B-2 tourist, E-1 or E-2 investor, E-3 Australian worker, F-1 student, H-1B or H-1B1 worker, H-3 trainee, J-1 exchange visitor (e.g. au pair, student, camp counselor, physician, professor, intern, trainee, researcher, teacher, etc.), L-1 intracompany transferee worker, O-1 extraordinary ability worker, P athlete or performer, R-1 religious worker, TN Canadian or Mexican worker, as well as their immediate relative family members also traveling on temporary dependent visas. The order has no impact on the issuance of nonimmigrant visas by U.S. Consulates abroad, which do not presently require COVID-19 vaccination. Instead, foreign travelers will need to provide proof of vaccination to the airline before boarding a plane to the United States.

Who is Exempt from the COVID-19 Vaccine Requirement?

The order does not apply to United States citizens, lawful permanent residents, or those traveling on immigrant visas. It is worth noting, however, that COVID-19 vaccination has been a requirement for all green card applicants, including those applying for immigrant visas at U.S. Consulates abroad, beginning on October 1, 2021, meaning new lawful permanent residents entering on new immigrant visas will already be fully vaccinated for COVID-19.

Additionally, the order creates several other exemptions to the COVID-19 vaccine requirement, which presently includes the following exemptions:

• Entry by land or sea: The order only applies to air travel.
• Children:Children under the age of 18.
• Clinical trials:Those who have participated or are participating in clinical trials for COVID-19 vaccination, as determined by the CDC Director. Documentation of clinical trial participation is required.
• Medical exemptions:Those for whom approved COVID-19 vaccination is medically contraindicated. A letter must be provided to the airline from a licensed physician documenting the contraindication before boarding, be signed and dated with official contact for the physician, clearly state the contraindication, and have identifiable personal information for the traveler. Note that the CDC defines the medical conditions that satisfy this criteria.
• Humanitarian and emergency exemptions:The Director of the Centers for Disease Control (CDC) may in limited circumstances grant exemptions based on humanitarian or emergency reasons for those who need to travel to the U.S. for their health and safety and are unable to complete the vaccine requirement before doing so. The request must be submitted to the U.S. Consulate, which will forward the request to the CDC.
• Limited vaccine availability:Travelers from a country where less than 10% of the population is fully vaccinated against COVID-19 who are seeking to enter the U.S. on a temporary visa that is NOT a B-1/B-2 visa (or ESTA). The CDC maintains and updates the list of countries that meet this criterion and the traveler must be a citizen of this country to qualify under this exception.
• Members of the U.S. Armed Forces and their immediate family:These individuals will need to show a U.S. military identification document, such as a military ID, Common Access Card, DEERS ID card, or other proof that the individual is a member or spouse/child of a member of the U.S. Armed Forces.
• National interest exception (NIE):Just as was the case under the country-specific travel bans, the new order allows national interest exceptions in certain circumstances deemed important by the U.S. government and with their approval.
• Diplomats and others traveling for government purposes:Those seeking entry pursuant to the following visa classifications: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO classifications).
• United Nations travel:Individuals traveling for legal purposes for or at the invitation of the United Nations.
• Sea crew members:Those seeking entry as sea crew members traveling pursuant to C-1 and D visas. They will be required to comply with separate COVID-19 protocols.
• Airline crew members:Individuals seeking entry to the United States as a crew member on official duty assigned by the airline. They will be required to comply with separate COVID-19 protocols.

Most importantly, there are currently no exemptions based on religious or moral objections to the vaccine. Furthermore, there are currently no exemptions for those who were fully vaccinated against COVID-19 using a vaccine that has not yet been authorized by the Food and Drug Administration (FDA) or World Health Organization (WHO), with the exception of diplomats.

Testing Requirements for All Vaccinated and Unvaccinated Travelers to the U.S.

The order amends the testing requirements for all persons entering the United States, including U.S. citizens and lawful permanent residents.

All vaccinated individuals, including American citizens, lawful permanent residents, and foreign nationals traveling to the U.S. on immigrant (permanent) or nonimmigrant (temporary) visas will be required to produce a negative COVID-19 test (NAAT or PCR) result within 3 calendar days of travel to the U.S.

Unvaccinated travelers, including U.S. citizens, lawful permanent residents, or those who qualify for an exception above, will be required to show documentation of a negative COVID-19 test taken within 1 day of travel to the United States.

Children between the ages of 2 and 17 will be required to take a pre-departure test. If the child is not fully vaccinated but traveling with a fully vaccinated adult, they can show proof of a negative viral test taken within 3 calendar days before departure, much like vaccinated adults. If they are traveling alone, they will be subject to the same testing requirements as unvaccinated adults.

What is Required of Foreign Travelers Before Boarding a Plane to the U.S.?

According to the White House Fact Sheet, impacted travelers will need to provide proof of being fully vaccinated for COVID-19 before boarding their flight to the U.S. An individual is considered fully vaccinated after two weeks of receipt of the last dose of a vaccine, the first dose of an approved single-dose vaccine, or any combination of two doses of an approved vaccine (mix and match). For more information on the “mix-and-match” combination see CDC guidance. The CDC has confirmed that only vaccines approved or authorized by the FDA or WHO will be accepted, which presently include the following:

• Janssen/Johnson & Johnson (Single Dose)
• Pfizer-BioNTech
• Moderna
• AstraZeneca
• Covishield
• BIBP/Sinopharm
• Sinovac

The airline agent will then verify the identify and authenticity of the documentation provided. In its Technical Instructions, the CDC has identified three documentation categories considered acceptable proof of COVID-19 vaccination, which will require varying review processes by the airlines:

• Verifiable digital or paper records: This includes, but is not limited to, examples such as vaccination certificates or digital passes accessible via QR code (such as the UK NHS COVID Pass and the European Union Digital COVID Certificate);
• Non-verifiable paper records: A paper vaccination record or a COVID-19 vaccination certificate issued by a national or subnational level or by an authorized vaccine provide (such as the CDC vaccination card);
• Non-verifiable digital records: Digital photos of vaccination card or record, or a downloaded record or vaccination certificate from an official source (e.g., public health agency, government agency, or other authorized vaccine provider), or a record shown on a mobile phone app without a QR code.

Those seeking an exemption will need to present evidence of qualifying for the exemption to the airline agent. For example, those seeking a medical exemption will present a letter from their physician, or those seeking an exemption based on age or unavailability of the vaccine in their country will present their passport.

Vaccination, Testing & Quarantine Requirements for Exempted Travelers After Arrival

Individuals who qualify for one of the exceptions above and are able to travel to the U.S. without being fully vaccinated for COVID-19 will be subject to more rigorous testing requirements, quarantine requirements, and will need to get vaccinated against COVID-19 within 60 days of arriving in the U.S. Depending on the category of exception, individuals may also be required to attest that they will:

• Be tested with a COVID-19 viral test 3–5 days after arrival in the United States, unless they have documentation of having recovered from COVID-19 in the past 90 days;
• Self-quarantine for a full 7 days, even if the post-arrival COVID-19 test result is negative unless they have documentation of having recovered from COVID-19 in the past 90 days; and
• Self-isolate if the result of the post-arrival test is positive or if they develop COVID-19 symptoms.

In addition, a new contact tracing order issued by the CDC requires airlines to collect information for all inbound international travelers, including full name, phone number, email, and address where they can be reached in the United States. This information will be kept on hand and turned over to the CDC when requested for contact tracing purposes.

The following exempted travelers will not be required to get the COVID-19 vaccine within 60 days of arriving in the U.S.:

• Those whose intended stay is less than 60-days;
• Children whose vaccination would be inappropriate given their age;
• Those who have participated or are participating in clinical trials for COVID-19 vaccination, as determined by the CDC Director;
• Those for whom approved COVID-19 vaccination is medically contraindicated;
• Those entering via the nonimmigrant visa categories for diplomats listed above, provided they have previously received a COVID-19 vaccine authorized or approved by their country of nationality;
• It is determined that the COVID-19 vaccine is not warranted for the individual in question.

Requirements for Land and Ferry Border Crossing

Beginning in early November 2021, Customs & Border Protection (CBP) will first allow non-essential travel across the land and ferry borders for fully vaccinated individuals, while still allowing essential travel for unvaccinated individuals. In early January 2022, CBP will require all foreign travelers to be fully vaccinated, whether essential or not. There will be limited exceptions to these requirements, such as for children, but as of the date of this writing, CBP has not yet provided details with regard to either of these phases or any exemptions.

Contact an immigration attorney at Minsky, McCormick & Hallagan, P.C. if you have questions about the new vaccine requirement for travel to the U.S.