As we previously reported, the White House announced (on September 20, 2021) that it would ease its country-specific COVID-19 air travel restrictions, at least for fully vaccinated travellers. However, the White House announcement applied to air travel only. This is because the COVID-19 land travel restrictions, which permit only “essential” travel at land ports of entry and ferry terminals, were implemented by U.S. Customs and Border Protection (USCBP), not the White House.

At the time of the White House announcement, USCBP did not announce any intention to implement an exception for fully vaccinated persons at the land ports of entry. In fact, on September 22, 2021, USCBP extended the existing “essential” travel restrictions along the United States - Canada Border and the United States - Mexico Border until October 21, 2021. However, on October 12, 2021, Secretary of Homeland Security Alejandro N. Mayorkas announced that the U.S. Department of Homeland Security (DHS) intended to permit non-essential travelers, who have been fully vaccinated, to enter the United States at land and ferry ports of entry.

On October 21, 2021, USCBP again extended the existing land travel restrictions along the United States - Canada Border and the United States - Mexico Border until 11:59 p.m. EST on January 21, 2022. However, this time, the notices also mentioned that the land travel restrictions could be modified by the Secretary of Homeland Security at any point prior to January 21, 2022, to allow non-essential travel for fully vaccinated nonimmigrants. Any such modifications would be accomplished via a posting to the DHS website followed by a publication in the Federal Register.

On October 25, 2021, President Biden issued A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic (the Proclamation), which revoked the existing COVID-19 air travel restrictions and replaced them with a vaccination requirement (the New Air Travel Restrictions), as of 12:01 a.m. EST on November 8, 2021. On the same day, the Centers for Disease Control and Prevention (CDC) issued an Order Implementing Presidential Proclamation on Safe Resumption of Global Travel During the COVID-19 Pandemic (the Original CDC Order) and Technical Instructions (the CDC Instructions), to implement and further clarify the New Air Travel Restrictions. On October 30, 2021, the CDC issued an Amended Order Implementing Presidential Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic (the CDC Order), which replaced the Original CDC Order.

On October 29, 2021, DHS announced on its website that it would also allow non-citizens (not a U.S. citizen, U.S. national, lawful permanent resident, or traveling to the United States on an immigrant visa), who are fully vaccinated for COVID-19 and have appropriate documentation, to enter the United States for non-essential purposes at land ports of entry and ferry terminals as of November 8, 2021 (the New Land Travel Restrictions). The announcement stated that, as of that date, when arriving at a U.S. land port of entry or ferry terminal, they should be prepared to:

1. Provide proof of COVID-19 vaccination, as outlined on the CDC website (the announcement includes a link to the CDC’s guidance on the New Air Travel Restrictions); and
2. Verbally attest to their reason for travel and COVID-19 vaccination status during a border inspection.

It is still possible for foreign nationals to enter the United States at land ports of entry and ferry terminals without being vaccinated, if they can establish that they are entering for essential reasons, at least for now. However, starting sometime in January 2022, all foreign nationals seeking to enter the United States at land ports of entry or ferry terminals – whether for essential or non-essential reasons – will need to be fully vaccinated for COVID-19 and provide proof of vaccination.

Further details regarding the New Air Travel Restrictions and the New Land Travel Restrictions, which became effective on November 8. 2021, are described in detail below.

The New Air Travel Restrictions

Overview

The foundation for the New Air Travel Restrictions is the Proclamation. However, as noted above, the New Air Travel Restrictions are implemented pursuant to the CDC Order and the CDC Instructions.

According to the Proclamation, the New Air Travel Restrictions suspend and limit the entry of nonimmigrants who are travelling by air and who are not fully vaccinated against COVID-19. A limited list of available exceptions to the New Air Travel Restrictions appears in the Proclamation itself.

According to the Proclamation, the New Air Travel Restrictions do not affect the issuance of nonimmigrant visas prior to entry. This is the case even if the visa applicant will ultimately be prevented from traveling to the United States as a result of the New Air Travel Restrictions.

Application

As mentioned above, the New Air Travel Restrictions only apply to individuals seeking entry as nonimmigrants. The CDC Instructions clarify that the New Air Travel Restrictions do not apply to the following individuals:

1. U.S. citizens;
2. U.S. nationals;
3. U.S. lawful permanent residents; or
4. Immigrants (individuals seeking entry to the U.S. as immigrants are instead subject to the medical examination and vaccination requirements implemented under 8 U.S.C. 1182(a)(1)(A) 42 CFR part 34).

The Proclamation also confirms that the New Travel Restrictions do not apply to a nonimmigrant seeking entry as a crew member of an airline or other aircraft operator, provided that the crew member or operator adheres to all industry standard protocols for crew member health issued by the CDC or by the Federal Aviation Administration. Further guidance on the criteria applied to crew members can be found in the CDC Instructions.

Finally, the Proclamation confirms that it does not affect any individual’s eligibility for asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws and regulations of the United States.

The CDC Order and the CDC Instructions distinguish between two groups of travelers:

1. A “Covered Individual” is any passenger that is covered by (i.e., subject to) the New Air Travel Restrictions; and
2. An “Excepted Covered Individual” is a Covered Individual who is not fully vaccinated against COVID-19 but also meets the criteria for one of the enumerated exceptions (i.e., a person who qualifies for an exception to the New Air Travel Restrictions).

According to the CDC Order, a Covered Individual seeking to enter the U.S. by air, who is not fully vaccinated against COVID-19, may only board an aircraft destined for the U.S. if they qualify as an Excepted Covered Individual under the Proclamation. In other words, unless they meet one of the limited exceptions established by the Proclamation, Covered Individuals are required to provide proof of being fully vaccinated against COVID-19 as a condition of travel to the United States from a foreign country.

Available exceptions 

The Proclamation establishes a limited number of exceptions to the New Air Travel Restrictions:

1. Diplomatic and official foreign government travel

An exception is available for any noncitizen who is seeking entry into or transiting the U.S. under one of the following nonimmigrant visa classifications:

A) A-1 and A-2 (diplomats or foreign government officials);

B) C-2 (transiting through the U.S. to or from the United Nations (UN) Headquarters District, under provisions of United Nations Headquarters Agreement);

C) C-3 (foreign government official or immediate family members of such officials);

D) E-1 (as an employee of the Taipei Economic and Cultural Representative Office or the Taipei Economic & Cultural Office, or the employee’s immediate family members);

E) G-1, G-2, G-3, and G-4 (officials and employees of a designated international organization); and

F) NATO-1 through NATO-4, or NATO-6 (officials and employees of the North Atlantic Treaty Organization (NATO), or seeking to enter as a nonimmigrant in one of those NATO classifications).

2. Travel on behalf of the UN

An exception is available to any noncitizen whose travel falls within the scope of Section 11 of the United Nations Headquarters Agreement, or who is traveling pursuant to United States legal obligation (as evidenced by a letter of invitation from the UN or other documentation showing the purpose of such travel). The additional guidance provided in the CDC Order, which apply to diplomatic and official foreign government travel, also apply to this exception.

3. A child under the age of 18

An exception is available for any noncitizen for whom, given their age, requiring vaccination would be inappropriate, as determined by the Director of the CDC, taking into account global vaccine availability for individuals in that age group. According to the CDC Order, persons under the age of 18 will meet this age-based exception.

4. A participant in certain COVID-19 vaccine trials as determined by the CDC

An exception is available for any noncitizen who has participated or is participating in certain clinical trials for COVID-19 vaccination, as determined by the Director of the CDC. The CDC Instructions advise that this exception requires the traveler to present official documentation (e.g., clinical trial letter, participant card, or modified vaccination card) of clinical trial participation that includes the following information:

A) The passenger has participated or is participating in a Phase 3 COVID-19 vaccine trial with a qualifying vaccine candidate; and

B) The passenger received the full series of an active (non-placebo) COVID-19 qualifying vaccine candidate, and lists name of the vaccine product and the date(s) received.

The CDC Instructions maintain a list of qualifying COVID-19 vaccine candidates that meet the requirements for this exception. This list currently includes: (a) Ad5-nCoV (manufactured by CanSinoBIO), (b) SCB-2019 (manufactured by Clover Biopharmaceuticals), and (c) SARS-CoV-2 Vaccine (Vero Cell), Inactivated (manufactured by Sinopharm/WIBP).

The CDC Instructions also note that if a passenger has received the full series of an accepted COVID-19 vaccine (non-placebo) in a clinical trial, the passenger is considered fully vaccinated against COVID-19.

5. Medical contraindication to an accepted COVID-19 vaccine as determined by the CDC

An exception is available for any noncitizen for whom accepted COVID-19 vaccination is medically contraindicated, as determined by the Director of the CDC. According to the CDC Instructions, those who claim this exception must present a signed letter (paper or digital copy) from a licensed physician documenting a medical contraindication. Such a letter must:

A) Be signed and dated on official letterhead that contains the name, address, and phone number of the licensed physician who signed the letter;

B) Clearly state that the passenger has a contraindication to receiving a COVID-19 vaccine, and list the name of the COVID-19 vaccine product and the medical condition; and

C) Have sufficient personally identifiable information (full name plus at least one other identifier such as date of birth or passport number) to confirm that the person referenced in the letter matches with the passenger’s passport or other travel documents.

The CDC Order and the CDC Instructions both clarify that medical contraindications to COVID-19 vaccination include immediate or severe allergic reaction (e.g., anaphylaxis) after a previous dose or known allergy to a component of a COVID-19 vaccine. However, they also clarify that objections to vaccination based on religious or moral convictions do not qualify under this or any other exception.

6. A humanitarian or emergency exception as determined by CDC and documented by an official U.S. Government

An exception is available for any noncitizen who has been granted an exception by the Director of the CDC for humanitarian or emergency reasons, as determined by the Director of the CDC. The CDC Order clarifies that this exception will be applied extremely narrowly, such as when an individual must travel to the U.S. to preserve health and safety (e.g., emergency medical evacuations), and is unable to complete the vaccination requirement before travel.

The request for this exception must be submitted to the U.S. embassy or consulate in or nearest the country from which the individual will depart for the U.S., and the request will then be sent to the CDC for consideration. Those whose requests have been approved must present an official U.S. government letter.

7. A valid nonimmigrant visa holder (excluding B-1 or B-2 visas) and citizen of a foreign country with limited COVID-19 vaccine availability as determined by the CDC

An exception is available for any noncitizen who is a citizen of a foreign country where the availability of COVID-19 vaccination is limited, as determined by the Director of the CDC, and who seeks to enter the United States pursuant to a nonimmigrant visa, except for a B-1 (business visitor) or B-2 (visitor for pleasure) visa.

The Proclamation and the CDC Order define a country where the availability of COVID-19 vaccination is limited as a foreign country where less than 10% of the country’s total population has been fully vaccinated with any available COVID-19 vaccine, or is otherwise determined by the Director of the CDC to qualify as a country where the availability of COVID-19 vaccination is limited.

The full list of countries that will qualify a traveler for this exception appears in the CDC Instructions. The list currently includes 50 countries.

8. A member of the U.S. Armed Forces, or spouse or child (under 18 years of age) of a member of the U.S. Armed Forces

An exception is available for any noncitizen who is a member of the United States Armed Forces or who is a spouse or child of a member of the United States Armed Forces. The CDC Order states that, as the U.S. Armed Forces observe U.S. Department of Defense guidance to prevent the transmission of COVID-19 (as set forth in Force Protection Guidance Supplement 20), members of the U.S. Armed Forces, and their spouses and children, if traveling with a U.S. military identification document or other proof of status as a member of the U.S. Armed Forces, will be eligible for this exception. 

9. A sea crew member traveling pursuant to a C-1 and D nonimmigrant visa

An exception is available for any noncitizen seeking entry as a sea crew member traveling pursuant to a C-1 and D nonimmigrant visa, if such crew member adheres to all industry standard protocols for the prevention of COVID-19, as set forth in relevant guidance for crew member health by the CDC. Those who qualify under this exception must present the appropriate nonimmigrant visa and documentation (paper or digital) from their employer confirming that their entry to or transit through the U.S. is required for the purpose of operating a vessel that will depart from a U.S. seaport.

10. A person whose entry is in the U.S. national interest as determined by the Secretary of State, the Secretary of Transportation, the Secretary of Homeland Security, or their designees

An exception is available for any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Transportation, the Secretary of Homeland Security, or their designees. Those who qualify under this exception must present an official U.S. government letter (paper or digital) documenting their approval.

Mandatory attestations

According to the CDC Order, each Covered Individual who is permitted to enter the U.S. must complete certain attestations in written or electronic form. There are also additional attestations which must be completed by Excepted Covered Individuals. These attestations, which will be collected by airlines or aircraft operators on behalf of the U.S. Government, must be completed before boarding an aircraft destined for the U.S. The attestations can be found in Attachment A to the CDC Order.

The two attestations that must be completed by all Covered Individuals are as follows (collectively, the Covered Individual Attestations):

1. All passengers (including Covered Individuals, U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants) two years of age or older must attest (or someone must attest on their behalf) to having complied with U.S.’ revised pre-departure COVID-19 testing requirement, as implemented by the relevant CDC Order. This requires passengers to attest (or someone must attest on their behalf) to one of the following:

A) If fully vaccinated against COVID-19, having received a negative test result for a viral COVID-19 test that was conducted on a specimen collected from the person no more than three days before the flight’s departure;

B) If not fully vaccinated against COVID-19, having received a negative test result for a viral COVID-19 test that was conducted on a specimen collected from the person no more than one day before the flight’s departure;

C) Having received a positive test result for a viral COVID-19 test that was conducted on a specimen collected from the person no more than 90 days before the flight’s departure and having been cleared for travel by a licensed healthcare provider or public health official;

D) If between the ages of 2 and 17 and not fully vaccinated against COVID-19, having received a negative test result for a viral COVID-19 test that was conducted on a specimen collected from the person no more than three days before the flight’s departure and the person is traveling with a fully vaccinated parent or guardian; or

E) Having received a humanitarian or emergency exemption to the pre-departure COVID-19 testing requirement, as determined by the CDC and documented by an official U.S. Government letter.

2. All Covered Individuals must attest (or someone must attest on their behalf) to either:

A) Being fully vaccinated against COVID-19; or

B) If not fully vaccinated, being excepted and indicating the particular exception that applies in their case.

Excepted Covered Individuals must (with some variation, depending on the applicable exemption), additionally attest (or someone must attest on their behalf) to the following attestations (collectively, the Additional Attestations):

1. To be tested with a COVID-19 viral test three to five days after arriving in the U.S. (the Post-Arrival Test), unless they possess documentation of having recovered from COVID-19 within the preceding 90 days;
2. To self-quarantine for a full seven days, even if the test result for the Post-Arrival Test is negative, unless they possess documentation of having recovered from COVID-19 in the preceding 90 days;
3. To self-isolate if the result of the Post-Arrival Test is positive or if they develop COVID-19 symptoms; and
4. Agree and to arrange to become fully vaccinated against COVID-19 within 60 days of arriving in the U.S., or as soon thereafter as is medically appropriate, if the intention is to remain in the U.S. for more than 60 days.

The CDC Order defines “self-quarantine” to mean actions taken by an Excepted Covered Individual after arriving in the U.S., including staying in a home or other residence for a full seven days and observing public health precautions as set forth in the CDC’s guidance on quarantine and isolation.

The CDC Order also defines “self-isolation” to mean actions taken by an Excepted Covered Individual who receives a positive test result for the Post-Arrival Test or develops COVID-19 symptoms. Such actions include:

1. Separating from other individuals, staying in a home or other residence for at least ten days after symptom onset and after resolution of fever for at least 24 hours and improvement of other symptoms; or
2. Separating from other individuals, staying in a home or other residence for ten days after the first positive test if asymptomatic; and
3. Observing other public health precautions as set forth in the CDC’s guidance on quarantine and isolation.

The required attestations will vary depending on the particular exception claimed:

1. Diplomatic and official foreign government travel

The CDC Order states that a traveler who meets the requirements for this exception must complete the Covered Individual Attestations and the Additional Attestations. However, such a person will be exempt from the Additional Attestation for Post-Arrival Vaccination, if they:

A) Intend to remain in the U.S. for less than 60 days; or

B) Have previously received a COVID-19 vaccine that is not an accepted COVID-19 vaccine, but is authorized or approved by their country of nationality.

Additionally, if it is determined that the individual cannot comply with the requirements noted in the Covered Individual Attestations and the Additional Attestations due to the purposes of their foreign government activities, they will not be required to so comply.

2. Travel on behalf of the UN

The attestation requirements provided in the CDC Order, in the context of diplomatic and official foreign government travel, also apply to this exception.

3. A child under the age of 18

Children under the age of 18 will need to complete the Covered Individual Attestations. With respect to the Additional Attestations, they will be required to attest to completing the Post-Arrival Test, as well as to self-isolating should the result for the Post-Arrival Test be positive or if they develop COVID-19 symptoms. However, they will be exempt from the Additional Attestations related to self-quarantine and post-arrival vaccination.

4. A participant in certain COVID-19 vaccine trials as determined by the CDC

The CDC Order states that persons who qualify under this exception will be required to complete the Covered Individual Attestations. With respect to the Additional Attestations, they will also be required to attest to completing the Post-Arrival Test, as well as to self-isolating should the result for the Post-Arrival Test be positive or if they develop COVID-19 symptoms. However, such travelers will be exempt from the Additional Attestations related to self-quarantine and post-arrival vaccination.

5. Medical contraindication to an accepted COVID-19 vaccine as determined by the CDC

Persons who qualify under this exception will be required to complete the Covered Individual Attestations, as well as the Additional Attestations, with the exception of the Additional Attestation for Post-Arrival Vaccination.

6. A humanitarian or emergency exception as determined by CDC and documented by an official U.S. Government

Individuals who qualify under this exception must present an official U.S. government letter and complete the Covered Individual Attestations and Additional Attestations.

7. A valid nonimmigrant visa holder (excluding B-1 or B-2 visas) and citizen of a foreign country with limited COVID-19 vaccine availability as determined by the CDC

Individuals who qualify under this exception must complete the Covered Individual Attestations and the Additional Attestations.

8. A member of the U.S. Armed Forces or spouse or child (under 18 years of age) of a member of the U.S. Armed Forces

Individuals who qualify under this exception must only attest to their status in the Covered Individual Attestations and Additional Attestations. In other words, they will not be required to attest to agreeing or arranging to complete the requirements noted in the Covered Individual Attestations and the Additional Attestations.

9. A sea crew member traveling pursuant to a C-1 and D nonimmigrant visa

Individuals who qualify under this exception are required to complete the Covered Individual Attestations and the Additional Attestations.

10. A person whose entry is in the U.S. national interest as determined by the Secretary of State, the Secretary of Transportation, the Secretary of Homeland Security, or their designees

Individuals who qualify under this exception must complete the Covered Individual Attestations and the Additional Attestations.

“Accepted” COVID-19 vaccines and the meaning of “fully-vaccinated against COVID-19”

The CDC Order defines “accepted COVID-19 vaccine” as one of the following:

1. A vaccine authorized for emergency use or approved by the U.S. Food and Drug Administration;
2. A vaccine listed for emergency use by the World Health Organization; or
3. A vaccine or combination of vaccines listed in the CDC Instructions.

The CDC Instructions further clarify that the COVID-19 vaccines, which currently fall within the above three categories, include the following:

1. Janssen/Johnson & Johnson (single dose);
2. Pfizer-BioNTech (two-dose series);
3. Moderna (two-dose series);
4. AstraZeneca (two-dose series);
5. Covaxin (two-dose series);
6. Covishield (two-dose series);
7. BIBP/Sinopharm (two-dose series); and
8. Sinovac (two-dose series).

According to the CDC Instructions, a person must meet one of the following criteria in order to qualify as “fully-vaccinated against COVID-19”:

1. 14 days or more must have elapsed since a person received one dose of an accepted single-dose-series COVID-19 vaccine (e.g., Janssen/J&J);
2. 14 days or more must have elapsed since a person received a second dose in a two-dose series of an accepted COVID-19 vaccine;
3. 14 days or more must have elapsed since a person received the full series of an accepted COVID-19 vaccine (not placebo) in a clinical trial;
4. 14 days or more must have elapsed since a person received the full series of a Novavax (or Covavax) COVID-19 vaccine (not placebo) in a Phase 3 clinical trial; or
5. 14 days or more must have elapsed since a person received two doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.

Documenting proof of COVID-19 vaccination

According to the CDC Instructions, airlines or aircraft operators are required to confirm that every Covered Individual, unless excepted, provides proof of being fully vaccinated against COVID-19 before boarding a flight to the U.S. from any country. More specifically, airlines or aircraft operators must review each passenger’s proof of vaccination to confirm:

1. The personal identifiers on the proof of vaccination match the passenger’s passport or other travel identification document;
2. The name of the official source issuing the vaccination record (e.g., public health agency, government agency, or other authorized vaccine provider) is provided; and
3. The passenger meets the CDC’s definition of “fully vaccinated against COVID-19.”

The CDC Instructions indicate that the following types of documentation are acceptable for proof of COVID-19 vaccination:

1. Verifiable vaccination records or credentials (digital or paper), which include a Quick Response (QR) code that links to information confirming the credential was generated from an immunization record in an official database and is protected from tampering; and
2. Non-verifiable vaccination records (digital or paper), which are not digitally linked to any official database, and are therefore not protected from tampering.

Examples of the above documentation, as well as the review process prescribed for each are provided in the CDC Instructions.

The CDC Instructions also note that:

1. All forms of proof of COVID-19 vaccination must have personal identifiers (full name plus at least one other identifier, such as date of birth or passport number) that matches the personal identifiers on the passenger’s passport or other travel documents; and
2. Airlines and aircraft operators are responsible for determining when translation of proof of vaccination is necessary.

The New Land Travel Restrictions

As mentioned above, DHS previously announced that it would allow noncitizens, who are fully vaccinated for COVID-19 and have appropriate documentation, to enter the United States for non-essential purposes at land ports of entry and ferry terminals as of November 8, 2021. The DHS announcement also incorporated by reference the CDC’s guidance on the New Air Travel Restrictions. In other words, the CDC Order and CDC Instructions described above will also apply at land ports of entry and ferry terminals along the United States - Canada Border and the United States - Mexico Border.