Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On October 25, 2021, President Biden issued a presidential proclamation revoking prior proclamations restricting country-by-country travel into the United States. The new proclamation, which took effect on November 8, 2021, imposes a COVID-19 vaccination requirement for noncitizen nonimmigrants wishing to enter the United States by air travel. All adult noncitizen nonimmigrants must provide proof a pre-departure negative COVID-19 test and proof of full COVID-19 vaccination in addition to the previously established safety precautions issued by the Centers for Disease Control and Prevention (CDC), including wearing a face mask during travel.
The proclamation directs the secretary of the Department of Health and Human Services, through the director of the CDC, to implement the proclamation by defining all requirements, which shall adhere to the CDC’s independent public health judgment. These requirements, among other things, define and specify who is “fully vaccinated,” which vaccines are acceptable, and how individuals must prove compliance with all CDC requirements. The CDC has released detailed guidance on its requirements.
Any noncitizen, nonimmigrant adult who is not fully vaccinated may not enter the United States through air travel, except for those who qualify under the listed exempted categories. Among those exemptions delineated in the proclamation are noncitizen nonimmigrants whose entry to the United States would be in the national interest, as determined by the secretary of state, the secretary of transportation, the secretary of homeland security, or their designees. At the moment, it is unclear whether prior National Interest Exceptions (NIEs) granted pursuant to previous proclamations fall into the aforementioned category or whether they became obsolete on November 8, 2021. The proclamation does not provide any criteria or elaborate on whether NIEs will still be issued, and if so, who is eligible for an NIE to the vaccine requirement. As of November 8, 2021, the regional and country-specific presidential proclamations restricting travel to the United States will be replaced by the new testing and vaccination requirements.
Although individuals may be granted an exemption to the vaccine requirements to travel to the United States by air, they will be required to adhere to the following measures to be allowed entry:
- Provide proof of pre-departure negative COVID-19 test taken within one day of travel to the United States;
- Take precautions during air travel to protect against further introduction, transmission, and spread of COVID-19, including by wearing a face mask, as determined by the director of the CDC;
- Provide proof of having arranged post-arrival testing for COVID-19;
- Provide proof of having arranged to self-quarantine or self-isolate; and most importantly,
- The foreign national must (a) agree to become fully vaccinated against COVID-19 within 60 days of arriving in the United States or within some other timeframe as determined by the CDC; and (b) provide proof of having arranged as much within 19 days of arriving in the United States.
The only nonimmigrant noncitizens exempt from agreeing to be vaccinated in the United States are (1) those whose intended stay is sufficiently brief, as determined by the director of the CDC, (2) those who cannot obtain the vaccine due to age or medical status, (3) those who have participated, or are participating, in certain COVID-19 clinical trials and (4) certain diplomats or other case-by-case determinations as warranted by the director of the CDC.
Please feel free to reach out to counsel should you require more personalized assistance on noncitizen nonimmigrant foreign travel and potential restrictions arising from the proclamation.