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:
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:
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:
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:
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.:
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.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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