More Details Released on New COVID-19 Vaccination US Entry Requirement*
On October 25, 2021, President Biden issued Presidential Proclamation 10294
rescinding the geographic COVID-19 travel bans and adopting COVID-19 vaccination requirements for all international air travelers to the United States. It will be effective at 12:01 AM on November 8, 2021, which means that it applies to air passengers on planes that depart from their foreign destination at or after 12:01 AM Eastern Time on November 8.
The Proclamation governs the entry into the United States of nonimmigrants traveling to the United States by air. With limited exceptions, it suspends entry of noncitizen nonimmigrants who are not vaccinated and requires those individuals seeking an exception to follow health and safety requirements determined by the Director of the Center for Disease Control (CDC).
The White House and agencies such as the Department of State and the CDC have issued additional guidance concerning the implementation of the new travel requirements.
Rescission of COVID-19 Geographic Travel Restrictions
The first section of the Proclamation rescinds the geographic COVID-19 travel bans that restricted travel for those from China (PP 9984), Iran (PP 9992), the Schengen Area, UK and Ireland, Brazil, South Africa (PP 10143), and India (PP 10199) at 12:01 AM ET on November 8, 2021.
Section 4(d) orders the Secretaries of State, Transportation, and Homeland Security to review regulations, orders, guidance, policies, and agency actions developed pursuant to these proclamations and to consider revising or revoking them, in line with the new proclamation and requirements.
Coverage and Requirements
The Proclamation suspends the entry into the United States via air travel of noncitizen, nonimmigrants who are not fully vaccinated against COVID-19, with certain exceptions. It notably does not suspend visa issuance for those whose travel is suspended. Travelers will be required to be fully vaccinated and provide proof of that vaccination before boarding a plane to the United States.
Per a White House Fact Sheet
issued on October 25, 2021, passengers will need to provide proof of vaccination to airlines who will:
- Match the name and date of birth to the information on the vaccination documentation.
- Determine that the record was, in fact, issued by an official source (public health agency, government agency, or authorized vaccine provider) within the country it was given.
- Review the information to determine if the vaccination meets the CDC's definition of full vaccination, including being approved or authorized by the FDA or included on the WHO list of emergency use vaccines.
- The received dosage, relevant dates of administration, and the location of the vaccination will also be reviewed.
In its Technical Instructions
, the CDC has identified three documentation categories considered acceptable proof of COVID-19 vaccination, which 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.
Per the CDC Technical Instructions, airlines and other aircraft operators must be able to confirm proof of vaccination and review other required information. If documents are in a language other than English, check with the airline or aircraft provider before travel to determine whether a translation will be needed.
The CDC has confirmed that for purposes of travel to the United States, vaccines approved or authorized by the Food and Drug Administration or on the World Health Organization emergency use listed (EUL) vaccines will be accepted. The list of vaccines is available here and below.
- Janssen/Johnson & Johnson (Single Dose)
Individuals will be 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.
Exceptions to Vaccine Requirement
The Proclamation does not apply to United States citizens, lawful permanent residents, or those traveling on immigrant visas. Those applying for an immigrant visa abroad or who seek to adjust status from within the United States are required to receive, among other vaccinations, an authorized COVID-19 vaccination as of October 1, 2021.
In addition, Sections 2 and 3 of the Proclamation provide several exceptions to the vaccine requirement. Procedures to request these exceptions have been expanded upon by the CDC here.
- 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. The CDC has provided a list of qualifying vaccine candidates that meet this exception. See Table 3 here. Documentation of clinical trial participation is required.
- Contraindications: 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. The letter should be signed and dated with official contact from the provider, clearly state the contraindication, and have identifiable personal information. Letters not in English may require translation.
- Humanitarian and Emergency Exceptions: Those granted humanitarian or emergency exceptions by the Director of the CDC in limited circumstances for individuals who need to travel to the U.S. for their health and safety and are unable to complete the vaccine requirement before doing so. These individuals should contact the U.S. embassy or consular post nearest to their country providing relevant information about the request. The post will then transmit the information to CDC.
- Limited Vaccine Availability: Citizens of a country with less than 10% of the population vaccinated with any available COVID-19 vaccine, who seek to enter the United States pursuant to a nonimmigrant visa, except for a B-1/B-2 visa. See below for additional information on this exception. A passport/proof of citizenship AND a valid nonimmigrant visa that is not a B-1/B-2 visa will need to be shown.
- Members of the U.S. Armed Forces and their Spouses and Children: 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 Exceptions: Those whose entry would be in the national interest, as determined by the Secretaries of State, Transportation, Homeland Security or their designees. These individuals will need to show an official U.S. government letter documenting approval of the exception. It is unclear if the current process for obtaining an NIE will continue.
- While DOS has not issued information about the validity of existing NIEs in its FAQ, the U.S. Embassy in London noted in FAQ 7.6 that once Proclamation 10294 takes effect, "all travelers will need to meet new travel requirements regardless of any previous National Interest Exception they obtained." As such, it appears that previously issued NIEs will no longer be valid for purposes of the vaccination requirements.
- Diplomats or Persons on Official Government Travel: Individuals 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). These individuals will need to travel with an official letter, such as a letter from the U.S. government or foreign government.
- United Nations Travel: Individuals whose travel falls within the scope of section 11 of the UN Headquarters Agreement or who is traveling pursuant to United States legal obligation. If they have been invited to the United Nations, they will need a letter documenting the purpose for their travel.
- Sea Crew Members: Individuals seeking entry as sea crew members traveling pursuant to C-1 and D visas, provided the crew member adheres to industry standards for the prevention of COVID-19. They must provide an official letter (paper or digital) from their employer indicating that their entry to the United States is required for the purpose of operating a vessel that will depart from a U.S. seaport.
- Airline Crew Members: Individuals seeking entry to the United States as a crew member on official duty assigned by the airline or aircraft operator that involves operation of aircraft, or the positioning of crew not operating the aircraft (i.e., on “deadhead” status, or are maintenance personnel or contractors whose travel purpose is for flight operation or the safety of the aircraft, are also exempt if they are operating under an air carrier’s or operator’s occupational health and safety program. The exception does not apply to crew members who are traveling for training, commuting to or from work, or for business reasons not associated with the operation of the aircraft, or personal reasons. To be exempt, they must provide an official letter (paper or digital) from their employer confirming the purpose of travel and that specifies that the crew member meets all other criteria to be considered not subject to the Presidential Proclamation and CDC’s Order as set forth above.
An individual may be required to attest to the exceptions before traveling to the United States, via an Excepted Covered Individual Attestation. Providing false or misleading information, including false test results or vaccination cards, may lead to criminal fines or imprisonment.
- There are no exceptions to the vaccine requirement for religious reasons or other moral convictions under the Presidential Proclamation and CDC's Order.
- There are also no specific exceptions for individuals who have received a vaccine authorized by their country, that has not yet been approved or authorized by the FDA and WHO, except for diplomats.
Vaccination Requirements After Arrival
While the categories of persons above are excepted from the vaccination requirement, these individuals will be subject to more rigorous testing requirements (as discussed below), as well as a requirement that they be vaccinated against COVID-19 within 60 days of arriving in the United States. The Proclamation provides limited exceptions for the 60-day vaccination requirement:
- Those whose intended stay is sufficiently brief.
- 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.
Other Required Protective Measures
Depending on the category of exception, the CDC has issued guidance indicating that excepted 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.
The CDC recommends that all travelers follow the above steps, whether or not they are subject to the vaccine requirements or have been fully vaccinated.
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.
Countries with Low Vaccination Rates
As discussed in the Proclamation and confirmed via CDC guidance, individuals seeking entry with a nonimmigrant visa, other than B-1/B-2, who have a passport or proof of citizenship from a country where less than 10% of the population are vaccinated are eligible for an exception to vaccination requirements under the Proclamation. Please note that per CDC guidelines, this exception does not apply to an individual residing in a covered country but who is not a citizen of that country. A passport or other proof of citizenship for a covered country will be required to qualify.
The list of countries considered to have limited COVID-19 vaccine availability can be found here. It will be updated every three months.
Testing Requirements for Vaccinated and Unvaccinated Adults and Children
Per guidance issued after the issuance of the Proclamation, the United States is also amending testing requirements for all persons entering the country, whether the Proclamation covers them or not.
All vaccinated individuals, including American citizens, lawful permanent residents, and foreign nationals traveling to the United States on immigrant or nonimmigrant visas, will be required to produce a negative viral test (NAAT or PCR) result within three calendar days of travel to the United States, or before boarding the first flight in a series of connection to the United States. The example provided by the Department of State is as follows:
- If a traveler is departing for the United States at 10 PM on January 19, they would have to present a negative test result for a test taken any time after 12:01 AM on January 16.
Unvaccinated travelers, whether U.S. citizens, lawful permanent residents, or those who qualify for an exception under the Proclamation, will be required to show documentation of a negative test taken within one 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 three 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.
Requirements for Land and Ferry Border Crossing
DHS Secretary Mayorkas announced that DHS will lift Title 19 restrictions for land and ferry border crossings from Canada and Mexico in two phases. In early November 2021, consistent with the rescission of the INA 212(f) COVID-19 entry bans for air travelers, DHS 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, the DHS 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. This announcement only applies to regular land and ferry border crossings and does not lift the Title 42 restrictions for irregular land and ferry border crossings.
Please note that since the announcement of the November 8, 2021, effective date, CBP has not issued any guidance concerning its implementation of the first phase described above. AILA will provide an update as soon as one is available.
Impact on Individuals Seeking Humanitarian Protection
The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.
The proclamation will remain in effect until terminated by the president. The Secretary of Health and Human Services will, after no more than 60 days, and the final day of each calendar month after, recommend whether the Proclamation should be continued, modified, or terminated.
*The above information is courtesy of the American Immigration Lawyers Association of which Klug Law Firm is a member in good standing.
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