On October 25, 2021, the White House issued a new Presidential Proclamation announcing that the country-specific travel bans which have been in place since the Spring of 2020 would be rescinded effective November 8th, 2021. The bans will instead be replaced by new vaccine and testing requirements for international travelers coming to the United States. The Center for Disease Control (CDC) and Department of State subsequently released updated guidance and FAQs outlining the specifics of the new travel requirements, the details of which are summarized below.
Overview
The new travel requirements will take effect November 8th, 2021 and will apply to all U.S.-bound air travel (they do not apply to individuals entering the U.S. via land border crossings or at seaports, and separate, forthcoming guidance will apply to travelers from Canada and Mexico entering through land or sea).
In sum, as of the effective date of the proclamation, all adult noncitizens, nonimmigrants ages 18, and over must provide proof of vaccination or demonstrate that they are eligible for an exception.
In addition, all air passengers ages 2 and older, regardless of citizenship and vaccination status, must show a negative result of a COVID-19 viral test or documentation of recovery from COVID-19 before they board a flight to the United States.
While unvaccinated nonimmigrants will be eligible to apply for and receive visa stamps (long consular backlogs notwithstanding), the visa stamp alone will not permit them to travel to the U.S. unless they comply with vaccination requirements or qualify for an exception.
Who is Subject to the New Requirements?
Requirements for Nonimmigrants
Anyone who is not a citizen or lawful permanent resident of the United States (e.g., individuals on nonimmigrant visas such as H-1B, O-1, L-1, TN or those traveling as a visitor on a B visa or ESTA) must have the following available in order to board a flight to the United States:
Proof of being fully vaccinated against COVID-19; and
Proof of a negative COVID-19 test result taken no more than 3 days before travel
Note that proof of a positive antibody test alone is not sufficient to circumvent the vaccine requirement.
Requirements for Citizens and Lawful Permanent Residents
While U.S. citizens and lawful permanent residents (LPRs) are exempt from the vaccine requirement, the testing requirements still apply and they differ for vaccinated and unvaccinated citizens and residents as follows:
Fully Vaccinated U.S. Citizens and LPRs - In addition to proof of being fully vaccinated against COVID-19, proof of a negative viral test must be taken no more than 3 days before the flight’s departure from a foreign country.
U.S. Citizens and LPRs who are Not Fully Vaccinated - Proof of a negative viral test taken no more than 1 day before the flight’s departure from a foreign country will be required for U.S. Citizens and LPRs who cannot show proof of being fully vaccinated against COVID-19.
Children under 2 years old do not need to be tested.
Individuals who have documented recovery from COVID-19 in the past 90 days may instead travel with proof of recovery from COVID-19 (i.e., a positive COVID-19 viral taken no more than 90 days before the flight’s departure and a letter from a licensed healthcare provider or a public health official stating that you were cleared to travel).
Which Vaccines will be Accepted?
The United States will accept all vaccines that have received FDA approval or emergency use authorization by the World Health Organization (WHO). This currently includes:
Janssen/J&J
Pfizer-BioNTech
Moderna
AstraZeneca
Covishield
BIBP/Sinopharm
Sinovac
Who is Considered “Fully Vaccinated”?
Noncitizen nonimmigrants must be fully vaccinated to be eligible to travel to the U.S. You are considered fully vaccinated on the 14th day after the vaccination series was completed. For example, if your last dose was any time on October 1st, then October 15th would be the first day that you meet the 14-day requirement.
The CDC defines “fully vaccinated” as:
14 days after an accepted single-dose COVID-19 vaccine
14 days after your second dose of an accepted 2-dose series (or of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart)
14 days after you received the full series of an active (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials
What Proof of Vaccination Will be Accepted?
Verifiable records (digital or paper) - these include vaccination certificates with QR codes and digital pass via Smartphone application with QR code 1. The QR codes must link to information confirming the credential was generated from an immunization record in an official database and is protected from tampering digital pass (e.g., United Kingdom National Health Service COVID Pass, European Union Digital COVID Certificate)
Non-verifiable paper records - these include printouts of COVID-19 vaccination record or a COVID-19 vaccination certificate issued at national or subnational level or by an authorized vaccine provider (e.g., the CDC vaccination card)
Non-verifiable digital records - these include digital photos of vaccination card or record, downloaded vaccine record or vaccination certificate from official source (e.g., public health agency, government agency, or other authorized vaccine provider), or a mobile phone application without QR code
All forms of COVID vaccination proof must have:
Personal identifiers (at a minimum, full name and date of birth) that match the personal identifiers on the passenger’s passport or other travel documents
Name of official source issuing the record (e.g., public health agency, government agency, or other authorized vaccine provider)
Vaccine manufacturer and date(s) of vaccination
Travelers should check with their airline or aircraft operator if translations of foreign language vaccine certificates will be required.
Are There Any Exceptions?
Nonimmigrants who meet the criteria for an exception to the vaccination requirements include:
Persons on diplomatic or official foreign government travel
Children under 18 years of age
Persons with documented medical contraindications to receiving a COVID-19 vaccine
Participants in certain COVID-19 vaccine trials
Persons issued a humanitarian or emergency exception
Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability (the CDC keeps a list of these countries on its website). Note that residency in these countries alone is insufficient, the individual must show a passport or other proof of citizenship.
Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
Sea crew members traveling pursuant to a C-1 and D nonimmigrant visa
Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees). Note that further guidance on the criteria should be forthcoming but it is expected that these will be granted only in extremely limited cases.
Individuals who fall under one of these exceptions will need to meet the certain additional requirements to travel by air to the United States, which can include attesting to the following:
You will be tested with a COVID-19 viral test 3–5 days after arrival in the United States, unless you have documentation of having recovered from COVID-19 in the past 90 days;
You will self-quarantine for a full 7 days, even if the test result to the post-arrival viral test is negative, unless you have documentation of having recovered from COVID-19 in the past 90 days; and
You will self-isolate if the result of the post-arrival test is positive or if you develop COVID-19 symptoms.
Based on the category of the exception, unvaccinated individuals who intend to stay in the United States for longer than 60 days may additionally be required to attest that:
You agree to be vaccinated against COVID-19; and
You have arranged to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, or as soon thereafter as is medically appropriate, unless (for children) you are too young to be vaccinated.
There are no religious or moral conviction based exceptions available.
Note that failure to comply with the above attestations can be considered to constitute willfully providing false or misleading information and may lead to criminal fines and imprisonment.
D&S will continue to provide updates as more information becomes available and any foreign national employees with questions about the applicability of the new vaccine requirements to their specific circumstances should contact their D&S attorney.