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Sep 21, 2021

By Mid-November, Those Who Have Been Fully Vaccinated Will Likely Be Free to Travel to the U.S. Without A COVID-19 Waiver

David Spaulding

Takeaways:

  • The Biden Administration is preparing to set aside the COVID-19 Travel Restrictions for fully vaccinated foreign nationals.
  • By mid-November, many noncitizens may be able to travel to the U.S. with vaccination proof and a negative COVID-19 test.
  • Foreign travelers who are not fully vaccinated will likely remain subject to Travel Restrictions and may find it more difficult to get COVID-19 waivers.

Background:

Noncitizens seeking to travel to the U.S. from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa are generally barred from doing so because of travel restrictions which rise from presidential proclamations (“Travel Restrictions”).  The Trump Administration put in place the first of these travel restrictions and the Biden Administration adopted and adapted them to the changing COVID-19 pandemic (“Pandemic”) requirements.

Common to the Travel Restrictions has been a sort of “general waiver” for “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.”  In practice, the specific requirements and criteria have been difficult for travelers to navigate.  Subject to frequent policy changes within the U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS), obtaining the “general waivers” has been challenging; frequently requiring expertise and the assistance of professionals who have created a specialized practice, focused on facilitating travel to the U.S. during the Pandemic.

These “general waivers” are called “National Interest Exceptions” or “NIEs” and subject to a categorical eligibility classification.  This is to say that eligibility rests on the reasons why the foreign national is coming to the U.S. and the ways the travel is in the U.S. national interest rather than on a specific COVID-19 risk analysis of the traveler.  This is the core policy shift for the September 20, 2021 announcement that the Travel Restrictions will be lifted for those Noncitizens who have been fully vaccinated.

White House COVID-19 Coordinator Jeff Zients Has Announced the End of the General Travel Restrictions in “Early November”:

Jeff Zients is the Biden Administration’s COVID-19 Coordinator and he announced significant changes to the U.S. COVID-19 travel restrictions on a reporter’s call September 20, 2021:

International travel is critical to connecting families and friends, to fueling small and large businesses, to promoting the open exchange of ideas and culture… That’s why, with science and public health as our guide, we have developed a new international air travel system that both enhances the safety of Americans here at home and enhances the safety of international air travel.

While the details of the new policy are not yet known, it is clear that foreign nationals traveling to the U.S. will have to show proof of vaccination and a negative coronavirus test prior to boarding.

However, the White House Is Indicating that there Will Be a Much Stricter Travel Restriction in Place for Those Who Are Not Vaccinated:

Foreign travelers who are fully vaccinated against COVID-19 and in possession of a negative COVID-19 test will likely be able to travel to the U.S. without restrictions come mid-November.  However, those who have not been vaccinated will be subject to the Travel Restrictions and it appears that their NIE requests will be subject a more stringent eligibility test.  No details have been released but the heavier restrictions published by Secretary of State Blinken in March seem a likely candidate for the skeleton of that policy.

Practical Advice:

  • If medically possible for the traveler to schedule the vaccinations, it is advisable to do so as soon as possible. In some locations, a “run” on vaccinations may occur as those who have put off vaccination learn that they are required for travel. We expect business and tourism travelers who had not moved forward on travel plans due to the Travel Restrictions, will get things together for December and January travel.
  • If travel can be postponed until late November, it seems advisable to do so. U.S. embassies and consulates have significant visa and NIE backlogs and seem to be making slow progress. Delays of six to eight weeks are common, and this reduces the benefit of filing for an NIE, rather than postponing travel until November.
  • For those who cannot postpone travel, we recommend more lead time for NIE requests. As noted above, there is a significant delay in NIE adjudication abroad. Perhaps, removing pressure from that system will allow DOS to move more quickly through NIEs but it may be that DOS will devote more of its scarce resources to the overburdened visa work. Either way, more lead time is better in such an uncertain environment.
  • For those who cannot get the vaccinations, we expect the burden for obtaining a waiver of the Travel Restrictions (an NIE) to become heavier. There is already a trend towards requiring more proof that the travel is essential and that traveling at this particular moment is indispensable. DOS is more inclined to look for specific numbers, documenting the number of jobs and the amount of money involved and such, in making the NIE request. It seems likely that DOS will make NIEs difficult to obtain and will insist on specific documentation to show that vaccinations aren’t available for the particular traveler.

Conclusion:

The long-awaited policy change is excellent news for noncitizens who have been in China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa within fourteen days of seeking to enter the U.S.  For those who have been vaccinated, travel, from mid-November on, may be somewhat closer to pre-Pandemic normal but, for those who have not been vaccinated, travel may become significantly more difficult. 

Green and Spiegel, An Immigration Law Firm with Six Decades of Experience:

Green and Spiegel has been successful in obtaining NIE Waivers for Noncitizens.  We are monitoring this situation closely and will continue to update our blog and provide E-Alerts to advise on the latest developments. As always, we strongly encourage you to reach out to our office if you have any questions regarding if or how these changes impact you, your business, and your family. Our office number is (215)395-8959, we can be reached via web.

DISCLAIMER: Please note, nothing posted here is legal advice, nor does reading anything here or communicating with the writer on or through social media form an attorney/client relationship. Choosing an attorney is a serious matter and should not be based solely or primarily on advertising or any other public communication of an attorney or law firm.

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