Visa Restrictions

DHS Issues Temporary Exception to COVID Requirements for Nonimmigrants Traveling from Ukraine

Effective February 15, 2022 through 11:59 pm ET March 1, 2022, the Department of Homeland Security has authorized the grant of National Interest Exceptions (NIEs) to Presidential Proclamation 10294, barring U.S. entry by nonimmigrants who are not fully vaccinated, for nonimmigrants traveling from Ukraine to accompany U.S. citizens or lawful permanent residents.

The grant comes in light of the Department of State’s February 12, 2022 Level 4 Travel Advisory recommending that individuals in Ukraine depart immediately due to the escalating geopolitical tensions: “Given the rapidly deteriorating security situation in Ukraine, and the need to ensure that individuals traveling with U.S. citizens and lawful permanent residents can safely depart the country,” Secretary Mayorkas “determined that a temporary exception” for certain nonimmigrants is warranted by the national interest.

To qualify, the noncitizen nonimmigrant must:

  • be traveling with a U.S. citizen or lawful permanent resident;

  • have been physically present in Ukraine as of February 10, 2022; and

  • possess valid travel documents allowing them to travel to the U.S.

Nonimmigrants granted entry under these provisions must:

  • attest to having made arrangements to receive a COVID-19 test within three to five days of arrival in the U.S.;

  • self-quarantine for seven days;

  • self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms; and

  • become fully vaccinated for COVID-19 within 60 days of arrival in the U.S., if intending to stay more than 60 days.

New Proclamation Suspends Travel for Immigrants and Nonimmigrants from Seven African Countries

On November 26, 2021, just 18 days after prior COVID-related travel bans were lifted, the White House issued a Proclamation barring travel from the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe, in response to a new variant of COVID-19 referred to as B.1.1.529 or the Omicron variant.

The Proclamation suspends entry into the United States, as immigrants or nonimmigrants, of noncitizens who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States. This proclamation is effective at 12:01 a.m. ET on Monday, November 29, 2021. This proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. ET on November 29, 2021. The proclamation applies even to travelers that are fully vaccinated against COVID-19.

The proclamation contains numerous exceptions, and does not apply to:

  • Lawful Permanent Residents (green card holders);

  • Nationals of the United States;

  • Noncitizens who are the spouse of a U.S. citizen or LPR;

  • Noncitizens who are the the parent or legal guardian or sibling of a U.S. citizen or LPR child;

  • Noncitizens who are the child, foster child, or ward of a U.S. citizen or LPR, or a prospective adoptee seeking entry under the IR-4 or IH-4 classifications;

  • Noncitizens traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;

  • Noncitizens seeking entry pursuant to a C-1, D, or C-1/D nonimmigrant visa, or A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6;

  • Noncitizen members of the U.S. Armed Forces or who is a spouse or child of a member of the U.S. Armed Forces;

  • Noncitizens whose entry is authorized by he Secretary of State, the Secretary of Homeland Security, or their respective designees.

Further Details on President Biden's Proclamation Requiring Proof of Vaccination for Entry to the U.S.

On October 25, 2021, President Biden issued Presidential Proclamation 10294 rescinding the geographic COVID-19 travel bans and adopting COVID-19 vaccination requirements for all international air travelers to the United States. It will be effective at 12:01 AM on November 8, 2021, which means that it applies to air passengers on planes that depart from their foreign destination at or after 12:01 AM Eastern Time on November 8.

The Proclamation governs the entry into the United States of nonimmigrants (those seeking temporary admission to the U.S.) traveling to the United States by air. With limited exceptions, it suspends entry of noncitizen nonimmigrants who are not vaccinated and requires those individuals seeking an exception to follow health and safety requirements determined by the Director of the Center for Disease Control (CDC).

The White House and agencies such as the Department of State and the CDC have issued additional guidance concerning the implementation of the new travel requirements.

Rescission of COVID-19 Geographic Travel Restrictions

The first section of the Proclamation rescinds the geographic COVID-19 travel bans that restricted travel for those from China (PP 9984), Iran (PP 9992), the Schengen Area, UK and Ireland, Brazil, South Africa (PP 10143), and India (PP 10199) at 12:01 AM ET on November 8, 2021.

Section 4(d) orders the Secretaries of State, Transportation, and Homeland Security to review regulations, orders, guidance, policies, and agency actions developed pursuant to these proclamations and to consider revising or revoking them, in line with the new proclamation and requirements.

Coverage and Requirements

The Proclamation suspends the entry into the United States via air travel of noncitizen, nonimmigrants who are not fully vaccinated against COVID-19, with certain exceptions. It notably does not suspend visa issuance for those whose travel is suspended. Travelers will be required to be fully vaccinated and provide proof of that vaccination before boarding a plane to the United States.

Per a White House Fact Sheet issued on October 25, 2021, passengers will need to provide proof of vaccination to airlines who will:

  • Match the name and date of birth to the information on the vaccination documentation.

  • Determine that the record was, in fact, issued by an official source (public health agency, government agency, or authorized vaccine provider) within the country it was given.

  • Review the information to determine if the vaccination meets the CDC's definition of full vaccination, including being approved or authorized by the FDA or included on the WHO list of emergency use vaccines.

  • The received dosage, relevant dates of administration, and the location of the vaccination will also be reviewed.

In its Technical Instructions, the CDC has identified three documentation categories considered acceptable proof of COVID-19 vaccination, which require varying review processes by the airlines:

  • Verifiable digital or paper records: This includes, but is not limited to, examples such as vaccination certificates or digital passes accessible via QR code (such as the UK NHS COVID Pass and the European Union Digital COVID Certificate)

  • Non-verifiable paper records: A paper vaccination record or a COVID-19 vaccination certificate issued by a national or subnational level or by an authorized vaccine provide (such as the CDC vaccination card).

  • Non-verifiable digital records: Digital photos of vaccination card or record, or a downloaded record or vaccination certificate from an official source (e.g., public health agency, government agency, or other authorized vaccine provider), or a record shown on a mobile phone app without a QR code.

Per the CDC Technical Instructions, airlines and other aircraft operators must be able to confirm proof of vaccination and review other required information. If documents are in a language other than English, check with the airline or aircraft provider before travel to determine whether a translation will be needed.

The CDC has confirmed that for purposes of travel to the United States, vaccines approved or authorized by the Food and Drug Administration or on the World Health Organization emergency use listed (EUL) vaccines will be accepted. The list of vaccines is available here and below.

  • Janssen/Johnson & Johnson (Single Dose)

  • Pfizer-BioNTech

  • Moderna

  • AstraZeneca

  • Covishield

  • BIBP/Sinopharm

  • Sinovac

Individuals will be considered fully vaccinated after two weeks of receipt of the last dose of a vaccine, the first dose of an approved single-dose vaccine, or any combination of two doses of an approved vaccine (mix and match). For more information on the "mix-and-match" combination see CDC guidance.

Exceptions to Vaccine Requirement

The Proclamation does not apply to United States citizens, lawful permanent residents, or those traveling on immigrant visas. Those applying for an immigrant visa abroad or who seek to adjust status from within the United States are required to receive, among other vaccinations, an authorized COVID-19 vaccination as of October 1, 2021.

In addition, Sections 2 and 3 of the Proclamation provide several exceptions to the vaccine requirement. Procedures to request these exceptions have been expanded upon by the CDC here.

  • Children: Children under the age of 18.

  • Clinical Trials: Those who have participated or are participating in clinical trials for COVID-19 vaccination, as determined by the CDC Director. The CDC has provided a list of qualifying vaccine candidates that meet this exception. See Table 3 here. Documentation of clinical trial participation is required.

  • Contraindications: Those for whom approved COVID-19 vaccination is medically contraindicated. A letter must be provided to the airline from a licensed physician documenting the contraindication before boarding. The letter should be signed and dated with official contact from the provider, clearly state the contraindication, and have identifiable personal information. Letters not in English may require translation.

  • Humanitarian and Emergency Exceptions: Those granted humanitarian or emergency exceptions by the Director of the CDC in limited circumstances for individuals who need to travel to the U.S. for their health and safety and are unable to complete the vaccine requirement before doing so. These individuals should contact the U.S. embassy or consular post nearest to their country providing relevant information about the request. The post will then transmit the information to CDC.

  • Limited Vaccine Availability: Citizens of a country with less than 10% of the population vaccinated with any available COVID-19 vaccine, who seek to enter the United States pursuant to a nonimmigrant visa, except for a B-1/B-2 visa. See below for additional information on this exception. A passport/proof of citizenship AND a valid nonimmigrant visa that is not a B-1/B-2 visa will need to be shown.

  • Members of the U.S. Armed Forces and their Spouses and Children: These individuals will need to show a U.S. military identification document, such as a military ID, Common Access Card, DEERS ID card, or other proof that the individual is a member or spouse/child of a member of the U.S. Armed Forces.

  • National Interest Exceptions: Those whose entry would be in the national interest, as determined by the Secretaries of State, Transportation, Homeland Security or their designees. These individuals will need to show an official U.S. government letter documenting approval of the exception. It is unclear if the current process for obtaining an NIE will continue.

    • While the Department of State has not issued information about the validity of existing NIEs in its FAQ, the U.S. Embassy in London noted in FAQ 7.6 that once Proclamation 10294 takes effect, "all travelers will need to meet new travel requirements regardless of any previous National Interest Exception they obtained." As such, it appears that previously issued NIEs will no longer be valid for purposes of the vaccination requirements.

  • Diplomats or Persons on Official Government Travel: Individuals seeking entry pursuant to the following visa classifications: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee's immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO classifications). These individuals will need to travel with an official letter, such as a letter from the U.S. government or foreign government.

  • United Nations Travel: Individuals whose travel falls within the scope of section 11 of the UN Headquarters Agreement or who is traveling pursuant to United States legal obligation. If they have been invited to the United Nations, they will need a letter documenting the purpose for their travel.

  • Sea Crew Members: Individuals seeking entry as sea crew members traveling pursuant to C-1 and D visas, provided the crew member adheres to industry standards for the prevention of COVID-19. They must provide an official letter (paper or digital) from their employer indicating that their entry to the United States is required for the purpose of operating a vessel that will depart from a U.S. seaport.

  • Airline Crew Members: Individuals seeking entry to the United States as a crew member on official duty assigned by the airline or aircraft operator that involves operation of aircraft, or the positioning of crew not operating the aircraft, or are maintenance personnel or contractors whose travel purpose is for flight operation or the safety of the aircraft, are also exempt if they are operating under an air carrier’s or operator’s occupational health and safety program. To be exempt, they must provide an official letter (paper or digital) from their employer confirming the purpose of travel and that specifies that the crew member meets all other criteria to be considered not subject to the Presidential Proclamation and CDC’s Order as set forth above.

An individual may be required to attest to the exceptions before traveling to the United States, via an Excepted Covered Individual Attestation. Providing false or misleading information, including false test results or vaccination cards, may lead to criminal fines or imprisonment.

Please note:

  • There are no exceptions to the vaccine requirement for religious reasons or other moral convictions under the Presidential Proclamation and CDC's Order.

  • There are also no specific exceptions for individuals who have received a vaccine authorized by their country, that has not yet been approved or authorized by the FDA and WHO, except for diplomats.

Vaccination Requirements After Arrival

While the categories of persons above are excepted from the vaccination requirement, these individuals will be subject to more rigorous testing requirements, as well as a requirement that they be vaccinated against COVID-19 within 60 days of arriving in the United States. The Proclamation provides limited exceptions for the 60-day vaccination requirement:

  • Those whose intended stay is sufficiently brief.

  • Children whose vaccination would be inappropriate given their age.

  • Those who have participated or are participating in clinical trials for COVID-19 vaccination, as determined by the CDC Director.

  • Those for whom approved COVID-19 vaccination is medically contraindicated.

  • Those entering via the nonimmigrant visa categories for diplomats listed above, provided they have previously received a COVID-19 vaccine authorized or approved by their country of nationality.

  • It is determined that the COVID-19 vaccine is not warranted for the individual in question.

Other Required Protective Measures

Depending on the category of exception, the CDC has issued guidance indicating that excepted individuals may also be required to attest that they will:

  • Be tested with a COVID-19 viral test 3–5 days after arrival in the United States, unless they have documentation of having recovered from COVID-19 in the past 90 days;

  • Self-quarantine for a full 7 days, even if the post-arrival COVID-19 test result is negative unless they have documentation of having recovered from COVID-19 in the past 90 days; and

  • Self-isolate if the result of the post-arrival test is positive or if they develop COVID-19 symptoms.

The CDC recommends that all travelers follow the above steps, whether or not they are subject to the vaccine requirements or have been fully vaccinated.

In addition, a new contact tracing order issued by the CDC requires airlines to collect information for all inbound international travelers, including full name, phone number, email, and address where they can be reached in the United States. This information will be kept on hand and turned over to the CDC when requested for contact tracing purposes.

Countries with Low Vaccination Rates

As discussed in the Proclamation and confirmed via CDC guidance, individuals seeking entry with a nonimmigrant visa, other than B-1/B-2, who have a passport or proof of citizenship from a country where less than 10% of the population are vaccinated are eligible for an exception to vaccination requirements under the Proclamation. Please note that per CDC guidelines, this exception does not apply to an individual residing in a covered country but who is not a citizen of that country. A passport or other proof of citizenship for a covered country will be required to qualify.

The list of countries considered to have limited COVID-19 vaccine availability can be found here. It will be updated every three months.

Testing Requirements for Vaccinated and Unvaccinated Adults and Children

Per guidance issued after the issuance of the Proclamation, the United States is also amending testing requirements for all persons entering the country, whether the Proclamation covers them or not.

All vaccinated individuals, including American citizens, lawful permanent residents, and foreign nationals traveling to the United States on immigrant or nonimmigrant visas, will be required to produce a negative viral test (NAAT or PCR) result within three calendar days of travel to the United States, or before boarding the first flight in a series of connection to the United States. The example provided by the Department of State is as follows:

  • If a traveler is departing for the United States at 10 PM on January 19, they would have to present a negative test result for a test taken any time after 12:01 AM on January 16.

Unvaccinated travelers, whether U.S. citizens, lawful permanent residents, or those who qualify for an exception under the Proclamation, will be required to show documentation of a negative test taken within one day of travel to the United States.

Children between the ages of 2 and 17 will be required to take a pre-departure test. If the child is not fully vaccinated but traveling with a fully vaccinated adult, they can show proof of a negative viral test taken within three calendar days before departure, much like vaccinated adults. If they are traveling alone, they will be subject to the same testing requirements as unvaccinated adults.

Requirements for Land and Ferry Border Crossing

On October 29, 2021 the Department of Homeland Security announced a modification to Title 19 restrictions for travel via land POEs and ferry terminals. Effective November 8, 2021, non-citizen travelers who are fully vaccinated for COVID-19 and can provide documentary proof will be allowed to enter the United States for both essential and non-essential (tourism) travel via POEs and ferry terminals. Information is not yet available concerning the time of day this change will be in effect. Per a fact sheet released by DHS, non-citizen travelers should be prepared to provide:

  • Proof of COVID-19 vaccination (see CDC website); and

  • Verbally attest to their reason for travel and COVID-19 vaccination status during a border inspection.

Per a CBP FAQ document, similar to the vaccines accepted for air travel, CBP will require proof of full COVID-19 vaccination that is approved or authorized by the FDA, as well as vaccines listed as EUL for the WHO. Children under 18 years of age will be excepted from this requirement. U.S. citizens, LPRs and those traveling for essential reasons (see below) will also be exempt from this requirement.

Starting in January 2022, DHS will require all inbound foreign national travelers seeking to enter the United States to be fully vaccinated and provide proof of the vaccination, regardless of the reason for their travel. It is unclear what exceptions will be made available once this new requirement is in place.

While none of the CBP announcements gave a particular date for January 2022, on October 21, 2021 in two Federal Register notices concerning travel from Canada and Mexico, DHS extended Title 19 restrictions for non-essential travel, including exceptions for non-vaccinated foreign nationals on essential travel, through January 21, 2022.

Essential travel continues to be allowed for unvaccinated individuals and includes, but is not limited to:

  • U.S. citizens and lawful permanent residents returning to the United States;

  • Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);

  • Individuals traveling to attend educational institutions;

  • Individuals traveling to conduct essential work in the United States;

  • Individuals traveling for emergency response and public health purposes;

  • Individuals engaged in lawful cross-border trade;

  • Individuals engaged in official government travel or diplomatic travel; and

  • Members of the U.S. Armed Forces and their children and/or spouses returning to the United States and individuals engaged in military-related travel or operations.

Impact on Individuals Seeking Humanitarian Protection

The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture.

Termination

The proclamation will remain in effect until terminated by the president. The Secretary of Health and Human Services will, after no more than 60 days, and the final day of each calendar month after, recommend whether the Proclamation should be continued, modified, or terminated.

BREAKING: Dep't of State Extends Validity of Exceptions for Travelers Subject to COVID-Related Presidential Proclamations

On July 6, 2021, the U.S. Department of State posted guidance on its website confirming that National Interest Exceptions (NIE) to the Geographic COVID-19 Travel Bans issued in the last 12 months are automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted (for example, traveling to provide vital support or executive direction to critical infrastructure projects, entry as an F-1 student, etc.). The extension applies to NIEs for travelers subject to Presidential Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa), and 10199 (India). More information on the Geographic COVID-19 Related Travel Bans can be found here.

U.S. Customs and Border Protection (CBP) maintains independent authority from the Department of State, and CBP has not issued guidance as to whether CBP-issued NIEs will also be extended.

Admission to the U.S. remains at the discretion of CBP and issuance of a visa or approval of an NIE does not guarantee entry into the U.S.

If you have questions about international travel and the Geographic COVID-19 Related Travel Bans, contact one of our attorneys.

U.S. State Department Creates Visitor Visa Bond Pilot Program (Nov. 24, 2020)

Prospective tourists and visitors from more than 20 countries, mostly in Africa, could pay as much as a $15,000 bond to obtain a U.S. visa under a new rule from the Trump administration. On November 24, 2020, the U.S. Department of State published a Temporary Final Rule creating a six-month pilot program under which applicants for B-1/B-2 visas from countries with overstay rates of ten percent or higher and who have been approved by the Department of Homeland Security for an inadmissibility waiver may be required to post a bond as a condition of visa issuance. Under the pilot program, which starts December 24, 2020 and runs through June 24, 2021, U.S. consular officials could require applicants for B-1 and B-2 visas who hail from the selected countries to pay a $5,000, $10,000 or $15,000 bond.

Of the 23 countries subject to the new rules, 15 are African. They are Angola, Burkina Faso, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo, Djibouti, Eritrea, the Gambia, Guinea-Bissau, Liberia, Libya, Mauritania, Sao Tome and Principe and Sudan. Visa-seekers from Afghanistan, Bhutan, Burma, Iran, Laos, Papua New Guinea, Syria and Yemen could also be required to pay the bonds. Visa-holders who post bonds are entitled to a full refund, along with accrued interest, if they fully comply with the terms of their stay in the U.S.