Brown: New COVID-19 global travel requirements

By Jenifer M. Brown

After almost 20 months of historic restrictions, travelers are once again being welcomed into the United States with proof of vaccination and a negative COVID test. The Biden administration’s “Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic” took effect at 12:01 a.m. on Nov. 8. While the president’s new guidance primarily focuses on noncitizen travelers, all travelers (including U.S. citizens and permanent residents) should take note of requirements relating to vaccination, testing and enhanced contact tracing when entering the U.S. The president’s proclamation is intended to move away from country-specific restrictions previously in place to an air travel policy “allowing the domestic and global economy to continue its recovery” from the pandemic. New land entry rules are also effective beginning Nov. 8 and will mirror the new air travel guidance, although vaccines will not be required for “essential” travel until January 2022.

Most notably, nonimmigrant travelers (foreign nationals seeking temporary admission as visitors or work-authorized visas) entering the U.S. by air who are 18 years of age and older must provide proof of full vaccination and a negative COVID-19 test taken within three days of the departure of their flight to the U.S. All travelers, regardless of citizenship or vaccination status, also must continue to produce a negative viral test (the timing of which depends on vaccination status) and submit contact tracing information.

Since early 2020, a variety of country- and region-specific travel restrictions had been in place severely limiting the number of foreign tourists and business travelers to the United States. Various presidential proclamations issued by the prior administration prohibited foreign nationals from entering the U.S. if they had been physically present in any of the 26 Schengen countries in Europe, the United Kingdom, Ireland, India, China, Brazil, South Africa or Iran within 14 days prior to travel to the U.S. United States citizens, permanent residents and other limited groups were exempt from the numerous proclamations. Other individuals sought national interest exceptions (NIEs) if their planned work activity fit within certain areas deemed to be in the national interest. Such NIE determinations were issued by the U.S. Department of State through consulates and embassies around the globe and/ or by pre-travel application with certain offices of U.S. Customs and Border Protection. This resulted in a highly discretionary and inconsistent patchwork of processes and criteria depending on the relevant proclamation, local country conditions, individual circumstances and visa class. When possible, some applicants bypassed the proclamations by seeking a 14-day refuge in a country not subject to the travel  restrictions.

With now more than 5 million COVID-19-related deaths globally and ongoing concerns related to new and existing variants, the new proclamation summarized here will remain in effect until terminated or modified by the president. Policy changes are likely to evolve as U.S. and global health organizations continue their evaluation of vaccine efficacy.

Vaccination

The president’s new proclamation revokes all prior country-specific travel suspensions and instead suspends entry of all unvaccinated nonimmigrants, with limited exceptions. No exceptions are available for religious or moral convictions. Exceptions are available for certain airline and sea crew who are otherwise compliant with COVID-19 industry protocols, members of the U.S. Armed Forces and their families, certain foreign diplomats, COVID-19 clinical trial participants, those qualifying for humanitarian or emergency exceptions, or for whom vaccination is medically contraindicated.

Additionally, certain nonimmigrants (other than those seeking entry as B-1/B-2 visitors) may qualify for an exception if they are citizens of a country where vaccine availability is limited. The Centers for Disease Control and Prevention-approved list will be reviewed and updated every 90 days. As of Oct. 25, the CDC has identified 50 countries that have less than 10% vaccination coverage. Citizens of these countries will be required to produce a passport from the listed foreign country and a valid nonimmigrant visa (other than B-1/B-2) to qualify for an exception.

Unvaccinated travelers qualifying for any of the limited exceptions will be required to attest to their qualifying exception and affirm that they will be tested three to five days after arrival in the U.S., self-quarantine for a full seven days even with a negative viral test and self-isolate if the test is positive or symptoms develop. Depending on the basis of the qualifying exception, unvaccinated travelers intending to stay in the U.S. for more than 60 days will also be required to attest to arrangements for becoming fully vaccinated within 60 days of entry.

Qualifying vaccines include those approved or authorized by the U.S. Food and Drug Administration or listed for emergency use by the World Health Organization. Travelers are considered to be fully vaccinated two weeks after their second dose of a two-dose vaccine or two weeks after a single-dose vaccine. Proof of vaccination may be digital or paper and must include the traveler’s full name and date of birth (matching personal identifiers in passport), name of official source issuing the record (public health agency, government agency or other authorized provider) and vaccine manufacturer and date(s) of vaccination. Individuals with documents in a language other than English are encouraged to check with their airline prior to travel.

Testing

All vaccinated travelers (including U.S. citizens and permanent residents) must produce proof of vaccination, as well as a negative viral test result within three days of travel. All unvaccinated travelers (including U.S. citizens and permanent residents) must produce a negative test within one day of travel.

Children under the age of 2 years old are not required to undergo testing. For children between the ages of 2 and 17 traveling with a fully vaccinated adult, the unvaccinated child can test within three days of travel; if traveling with an unvaccinated adult, the unvaccinated child must test within one day of travel.

The viral test must be either an antigen test or a nucleic acid amplification test (NAAT), which may include but is not limited to RT-PCR, RT-LAMP, TMA, NEAR and HDA. Alternatively, for those who have a documented recovery from COVID-19 in the past 90 days, the traveler may be able to produce a positive test result and documentation of recovery (such as a signed letter on official letterhead from a licensed health care provider or public health official stating the passenger has been cleared for travel and/ or to end isolation).

Contact tracing

As a part of the president’s proclamation, the CDC has also issued a new and enhanced contact tracing order for additional data collection and record retention requirements for airlines in the event follow up with inbound air travelers becomes necessary. All air passengers, regardless of citizenship or vaccination status, must provide contact information to airlines no more than 72 hours prior to boarding flights to the United States.

There is no denying that we remain in the midst of a very challenging period in human history. “But the sun comes up and the world still spins,” as Broadway reminds us. With the additional burden of evolving COVID-19 protocols, as well as ongoing national security priorities coupled with the government’s own labor shortages, all travelers should continue to expect delays at airports, U.S. embassies and consulates and at U.S. ports of entry. For additional information on global travel requirements and recommendations, including sufficient proof of vaccination, viral testing requirements and the current list of countries with limited vaccine availability, please see the CDC’s website.•

• Jenifer Brown is a partner at Brown Glier Law practicing exclusively in the area of immigration law. Opinions expressed are those of the author.