Person holding open passport book.

On October 25, 2021, the White House issued a presidential proclamation revoking the following proclamations with country-specific COVID-19 travel restrictions: Proclamation 9984 (China); Proclamation 9992 (Iran); Proclamation 10143 (Brazil, Ireland, the Schengen Area, South Africa, and the United Kingdom); and Proclamation 10199 (India). In their stead, the White House has announced a travel policy that would permit only fully vaccinated noncitizen nonimmigrants entry into the United States, with notable exceptions and exclusions. This new travel policy applies only to the entry of noncitizen nonimmigrants into the United States via air travel and does not affect visa issuance at U.S. consulates.

Although the new policy largely restricts the entry of unvaccinated nonimmigrants, it provides several paths for unvaccinated nonimmigrants to enter the United States under limited conditions. For instance, the policy does not apply to those under 18 years of age, members of the U.S. Armed Forces and their immediate family members, airline crew members, “[those] who [have] participated or [are] participating in certain clinical trials for COVID-19 vaccination,” nonimmigrants entering as officials of foreign governments or the United Nations, nonimmigrants for whom “COVID-19 vaccination is medically contraindicated,” and nonimmigrants who have “humanitarian or emergency reasons” for entry as determined by the director of the U.S. Centers for Disease Control and Prevention (CDC).

Moreover, exemption would be permitted for any nonimmigrant whose entry would be in the national interest as determined by the U.S. Department of State, U.S. Department of Transportation (DOT), and U.S. Department of Homeland Security (DHS). Exemptions would also be available for individuals seeking nonimmigrant visas who are from countries where the availability of COVID-19 vaccination is limited, defined as countries “where less than 10 percent of the country’s total population has been fully vaccinated with any available COVID-19 vaccine or [as] otherwise determined by the Director of the CDC to qualify as countries where the availability of COVID-19 vaccination is limited.”

Unvaccinated nonimmigrants who are permitted entry to the United States via an exception listed above must attest to abide by applicable CDC-determined public health precautions, which may include proof of pre-departure and post-arrival COVID-19 testing, as well as post-arrival quarantine arrangements. In addition, such unvaccinated nonimmigrants must attest that they have arranged to become fully vaccinated within 60 days of arrival  unless the intended stay is under 60 days, the nonimmigrant is too young for vaccination, the nonimmigrant is participating in COVID-19 related vaccination trials, COVID-19 vaccination for the nonimmigrant is medically contraindicated, or the CDC otherwise determines that COVID-19 vaccination is not warranted.

The CDC has provided guidance on the definition of “fully vaccinated,” documents demonstrating acceptable proof of vaccination, and post-flight requirements for unvaccinated nonimmigrants who enter the United States via an exemption. The CDC further states that all nonimmigrant noncitizen air travelers to the United States must show proof of vaccination before boarding their flights unless they qualify for an exemption. The CDC has also updated prior guidance from January 2021 in relation to pre-flight COVID-19 testing requirements. Vaccinated travelers, including U.S. citizens and lawful permanent residents (i.e., green card holders), will be required to demonstrate a negative COVID-19 test result within three days of boarding a plane to the United States. Unvaccinated travelers, including U.S. citizens and green card holders, will be required to demonstrate negative COVID-19 test results within one day of boarding a plane to the United States.

The new travel policy will go into effect at 12:01 a.m. eastern standard time on November 8, 2021, but it will “not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. eastern standard time on November 8, 2021.” The proclamation will remain in effect until terminated by the president and it will be reviewed on a monthly basis.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

Caroline Tang is shareholder in the Austin office of Ogletree Deakins.

Mark Wu is an associate in the Austin office of Ogletree Deakins.

Honey Blakeman is a 2020 graduate of the George Washington University Law School and is currently awaiting admission to the District of Columbia Bar.


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