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US Update: THE BIDEN ADMINISTRATION PLANS TO RESCIND COVID-19 TRAVEL BANS
23/09/2021On September 20, 2021, the Biden Administration, through the American Immigration Lawyers Association (“AILA”) announced its plans to rescind the COVID-19 regional travel bans on certain foreign nationals who have been physically present in one of thirty-three (33) countries, beginning November 2021. Once these travel bans are rescinded, “all international travelers will be required to prove that they have been fully vaccinated against COVID-19, as well as provide proof of a negative COVID-19 test within three days of boarding a flight to the United States.”
This announcement means that beginning November 2021, fully vaccinated foreign nationals who have been present in countries previously subject to the COVID-19 regional travel bans will be able to travel directly to the United States without having to first secure a National Interest Exception (“NIE”).
While this announcement is long-awaited great news in U.S. immigration law, many of the important details remain undefined or undecided. The Biden Administration advised AILA that it will need until early November 2021 to establish the proper processes and procedures, which will involve input from the U.S. Department of State (“DOS”), Centers for Disease Control and Prevention (“CDC”), and all airlines.
Rescission of the COVID-19 Travel Bans: Knowns and Unknowns
Based on the Practice Alert issued by AILA, which included Q&As shared by the White House, we know the following will occur as of early November 2021:
The U.S. will no longer be requiring NIEs for individuals who are fully vaccinated.
All international travelers will be required to prove that: (a) they have been fully vaccinated against COVID-19 and (b) they have a negative COVID-19 test within three (3) days of boarding a flight to the United States.
There will be very limited exceptions to the above rule for: (a) children; (b) COVID-19 vaccine clinical trial participants; and (c) humanitarian exceptions for people traveling for an important reason and who lack access to vaccination in a timely manner.
Individuals who are exempted from the vaccine requirement will be required to be vaccinated upon arrival.
Unvaccinated travelers entering the U.S. will be required to provide: (a) a negative COVID-19 test result taken within one (1) day of their departure; and (b) proof that they have purchased a COVID-19 test to be taken after their arrival.
The administration will: (a) continue the mask mandate through January 18, 2022; (b) expand pre-departure and post-arrival testing requirements; and (c) implement a contact tracing order for airlines.
Here are the issues that must be resolved before November 2021:
- Who is considered “fully vaccinated”? What vaccines are acceptable?
The Practice Alert issued by AILA and the White House Q&As do not define who is considered “fully vaccinated” and what vaccines are acceptable, stating that the CDC will provide guidance.
The CDC has, however, provided guidance in other contexts. For example, the CDC’s guidance to the general public via its website states that the Agency generally considers individuals “fully vaccinated” two (2) weeks after receiving their second vaccine in a 2-dose series, such as the Pfizer or Moderna vaccine, or two (2) weeks vaccines after receiving a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.[1]
- What type of proof of vaccinations is acceptable?
The Practice Alert issued by AILA and the White House Q&As do not define what documentation constitutes acceptable proof of vaccination and states that the “type of proof required will be worked out as the detailed implementation plan is developed.”[2]
It is helpful to note, however, that the USCIS August 25th policy states that acceptable evidence confirming receipt of the COVID-19 vaccinations must include a vaccination record or medical chart with entries made by physicians or appropriate medical personnel.[3]
Conclusion
The Biden Administration’s decision to rescind these regional travel bans and develop a science-based system to help curb the spread of COVID-19 is welcome news. We are cautiously optimistic that the processes and procedures implemented to carry out these common-sense, science-based protocols will help to ease the significant visa backlogs and delays that we have been witnessing, and our clients have been experiencing, at the U.S. Embassies and Consulates abroad. We are also hopeful that the rescission of the COVID-19 travel bans will ease the significant economic harm suffered by many U.S. employers who have been unable to bring their essential employees to the United States, many of whom are highly educated professionals, highly skilled multinational managers, executives and specialized knowledge employees, and artists, scientists, and business people of extraordinary ability.
Our continued advice to all NIV holders in the United States is to avoid non-essential travel as we cannot guarantee there won’t be any adverse decisions by immigration and customs officers, even in the case of individuals who are currently permitted to travel and re-enter the United States. We also cannot guarantee that significant changes will not occur while an individual is outside the United States which may preclude their re-entry.
[1]https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html
[2] AILA Doc. No. 21092014
By Anthony F. Siliato, Scott R. Malyk & Lin R. Walker, Meyner And Landis LLP, US, a Transatlantic Law International Affiliated Firm.
For further information or for any assistance please contact usimmigration@transatlanticlaw.com
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