U.S. Announces Sweeping Changes for Nonimmigrant Air Travel to the U.S. – Q&A

Seyfarth Synopsis: The CDC issued new guidance clarifying President Biden’s October 25, 2021 Executive Order that impacts nonimmigrants’ international air travel to the U.S.  Fully vaccinated nonimmigrants can enter the U.S. via air starting November 8, 2021, but must comply with pre-arrival COVID-19 testing requirements.  However, nonimmigrants who are not fully vaccinated cannot enter the U.S. unless they meet one of the narrow exceptions.  Nonimmigrants who meet an exception must comply with more stringent pre-testing requirements and may need to comply with post-arrival restrictions, depending on their category.  This alert amends and updates Seyfarth’s previous guidance on this matter.

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Q&A:

1.  If I am a nonimmigrant,  how does the Executive Order impact me?

The Executive Order revokes country-specific travel bans and replaces them with certain restrictions based on vaccination status.  Starting November 8, 2021, nonimmigrants who are fully vaccinated can enter the U.S. with proof of vaccination and a negative COVID-19 test administered within 3 days of departure (or proof of recent recovery).  However, nonimmigrants who are not fully vaccinated may enter the U.S. by air, but only if they meet a narrow exception.  As described further below, unvaccinated nonimmigrants who fall within an exception allowing them to travel to the U.S. must meet more stringent pre-testing requirements and may need to comply with post-arrival requirements such as additional testing, self-quarantining, etc.  Nonimmigrants who meet an exception and stay longer than 60 days in the U.S. may also need to show proof that they will become fully vaccinated.

2.  I am a nonimmigrant and fully vaccinated, what should I know?

If you are a fully vaccinated nonimmigrant, you may travel to the U.S. via air with proof of vaccination and a negative COVID-19 test administered within 3 days of departure.  You should confirm that you meet the definition of “fully vaccinated” based on the CDC guidance and can provide the required evidence to the airline (see below).   Nonimmigrants should always confirm that they have the appropriate travel document(s) before boarding the flight. 

3.  I am a U.S. citizen or Lawful Permanent Resident (LPR), does this Executive Order impact me?

The Executive Order issued on October 25, 2021 does not impact U.S. citizens or LPRs.  It only impacts nonimmigrants.  However, the CDC released additional guidance on October 25, 2021 that updates pre-testing requirements that impacts all individuals traveling by air to the U.S., regardless of citizenship.  This alert will only discuss the impact to nonimmigrants.

4. What does “fully vaccinated” mean, and what are the acceptable vaccines? 

The U.S. will accept COVID-19 vaccines approved or authorized by the U.S. Food and Drug Administration (FDA) or vaccines that have been granted Emergency Use (EUL) by the World Health Organization (WHO).  There are four ways to be considered “fully vaccinated”

• 2 weeks (14 days) after your dose of an accepted single-dose COVID-19 vaccine (e.g., Janssen (J&J)); or
• 2 weeks (14 days) after your second dose of an accepted 2-dose series COVID-19 vaccine (e.g., Moderna or Pfizer-BioNTech); or
• 2 weeks (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; or
• 2 weeks (14 days) after you received 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.

The only accepted single-dose vaccine is Janssen/Johnson & Johnson. 

The currently accepted two-dose vaccines are Pfizer-BioNTech; Moderna; AstraZeneca; Covishield; BIBP/Sinopharm; and Sinovac.

5. What evidence do I need to provide to show that I am fully vaccinated?

Airlines will accept three types of documentation listed below.  If you have questions about whether your documentation is sufficient, please reach out to the airline directly.

• Verifiable records (digital or paper): Vaccination certificate with QR code or digital pass via Smartphone application with QR code (e.g., United Kingdom National Health Service COVID Pass, European Union Digital COVID Certificate). The QR code is a verifiable vaccination record that links to information confirming the credential was generated from an immunization record in an official database and is protected from tampering.
• Non-verifiable paper records: Printout 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: 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.

Acceptable documentation must also include the following:

• 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.

6. What if I have proof of antibodies but no positive COVID-19 test taken within 90 days of departure to the U.S.?

The CDC guidance indicates that you would be considered not fully vaccinated.  You would need to either become fully vaccinated or meet one of the below exceptions if you are a nonimmigrant.

7. I am traveling via the border between Canada or Mexico. Does the Presidential Order impact me?

No, this policy only impacts passengers arriving by air.

8. I am a nonimmigrant and not fully vaccinated. Can I come to the U.S.?

If you are a nonimmigrant and not fully vaccinated, you will need to meet one of the below exceptions and comply with additional restrictions before being allowed to board a flight to the U.S., provided that you have the appropriate entry document(s). 

The list of exceptions for nonimmigrants who are not fully vaccinated include the following:

• Certain persons on diplomatic or official foreign government travel;
• Children under 18 years of age;
• Individuals with documented medical contraindications to receiving a COVID-19 vaccine with a signed letter from a licensed physician documenting a medical contraindication to receiving a COVID-19 vaccine;
• Participants in certain COVID-19 vaccine trials;
• Individuals issued a humanitarian or emergency exception with a letter from the U.S. Department of State;
• Individuals holding a valid visa that is not a B-1 (business) or B-2 (tourism) visa who are citizens of a foreign country with limited COVID-19 vaccine availability (i.e., less than 10% vaccine coverage)(the CDC will update this list every 90 days) - individuals qualifying under this exception must possess a valid passport or other proof of citizenship of a country determined to have limited COVID-19 vaccine availability;
• Members of the U.S. Armed Forces or their spouses or children (under 18 years of age);
• Sea crew members traveling with to a C-1 and D nonimmigrant visa; and
• Individuals 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).

If you meet one of these exceptions, you will also have to comply with additional pre-arrival measures.  Specifically, you will need to obtain a negative COVID-19 test administered within 1 day of your departure to the U.S.  (unless you are under the age of 2), or alternatively, provide proof of a positive COVID-19 test within 90 days of departure and a letter from a physician clearing the travel.  Additionally, you will need to comply with post-arrival measures, including submitting attestations with the airline. 

Unless you qualify as a member of the armed forces (or spouse/child) or the CDC confirms that your diplomatic or government travel would be consistent with the purposes of government travel, you will also be required to perform the following after arriving to the U.S.:

• 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.

9. If I am an unvaccinated nonimmigrant and comply with the following: provide a negative COVID-19 test administered within 1 day (or provide proof of recent recovery), meet one of the exceptions and can provide the required proof, and agree to the above attestations, is there anything I need to do?

Yes, unless you are a child under 18 years of age, have a contraindication to COVID-19, or are a participant in a COVID-19 vaccination trial, AND you intend to stay in the U.S. longer than 60 days, you must agree to be vaccinated and 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.  You must provide proof that you have arranged to be fully vaccinated during this period of time.

10. I have a child. What should I know?

Children under the age of 2 do not need to submit a negative COVID-19 test.  However, you should be aware of an important distinction for children who are flying with fully vaccinated parents:

• Children between the ages of 2 and 17 who are not fully vaccinated may board a flight to the U.S. with a negative pre-departure COVID-19 viral test administered within 3 days before departure (i.e., Qualifying Test for Fully Vaccinated) if traveling accompanied by fully vaccinated parents or guardians.
• If traveling unaccompanied or if one or more of the parents or guardians accompanying the child is not fully vaccinated, a child between the ages of 2 and 17 must present a negative pre-departure COVID-19 viral test administered within 24 hours before departure.

While children under 2 years of age are not required to get a test, the CDC recommends a pre-departure test for these children whenever possible.

Additionally, provided that your child is under 18, your child is exempt from the vaccination requirement.

11. If I am an unvaccinated nonimmigrant and do not meet one of the exceptions, can I enter the U.S.?

No, unless you meet one of the exceptions, you will not be able to enter the U.S. until you become fully vaccinated.

12. I have an approved NIE waiver that is still valid, and I am unvaccinated. Can I enter the U.S. with my NIE waiver?

The U.S. Department of State and the U.S. Customs & Border Protection have not released guidance to confirm that NIE waivers are still valid under the new Executive Order.

13. I am applying for a visa. Does the Executive Order or CDC guidance impact me?

No, the Executive Order or CDC guidance will not impact the processing of your visa application.  The Executive Order impacts travel to the U.S. once the visa is issued. We are awaiting additional clarity from the U.S. Department of State on the protocols to submit an emergency/humanitarian exception request, as well as additional guidance from the respective agencies that will process exceptions to the vaccination requirement for individuals who qualify in the “national interest.”  For visa applicants who are vaccinated, we recommend bringing proof of vaccination status to your visa appointment.

14. Should I bring proof of vaccination status and test results with me when I travel?

Yes, airlines will be responsible for confirming whether travelers meet the definition of fully vaccinated and have completed the pre-testing requirements.  The airlines will also be responsible for determining whether nonimmigrants meet an exception and obtaining attestations on post-arrival requirements (i.e., additional testing, self-quarantining, etc.).

15. Is there anything else I should consider?

Yes, in light of the burden placed on airlines and U.S. Customs and Border Protection, Seyfarth expects significant delays in processing at airports, both internationally and domestically.  We recommend that travelers arrive early to the airport so that the airline can review your documentation prior to boarding. 

Please note that requirements and policies are subject to change.  We urge travellers to review the latest requirements on the CDC website before making travel plans. 

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop.  Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.