Updates on New Biden Administration Rules for Entry Into the United States

November 11, 2021 | Podcasts

As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.

As of Monday, November 8, the Centers for Disease Control and Prevention (CDC) updated its requirements for air travelers to the United States. CDC’s new travel policy follows President Biden’s proclamation intended to promote safer global travel during the COVID-19 pandemic. Jackson Walker immigration attorney Sang Shin discusses some of the changes in policy and what U.S. citizens, as well as immigrants and non-immigrant travelers, need to know before traveling to the United States through air travel or by land or ferry crossing.

For additional information, see the Jackson Walker article “CDC Lifts Certain Region-Based Restrictions for Flights to the US.” Also, for questions related to restrictions on international travel as a result of the COVID-19 pandemic, please contact Sang Shin or any member of Jackson Walker’s Immigration team.

Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. On Monday, November 8, the U.S. Customs and Border Protection (USCBP) began allowing fully vaccinated travelers to enter the United States after banning travel from various countries since March 2020. To do so, the Biden Administration implemented a new vaccine policy. So, I asked Jackson Walker immigration attorney Sang Shin to come back onto the show to talk about what changes the Biden Administration has made on ending the COVID-19 travel ban and how these changes in policy affect travel and immigration.

Sang, welcome back to the show.

Sang Shin: Greg, it’s been a while. Good to see you.

Greg Lambert: Can you quickly remind us what some of those previous bans were?

Sang Shin: Yes, absolutely. The previous administration did a lot to ensure that there were no travelers from certain countries. As COVID spiked in certain countries, they would shut down travel. So, early on in the Trump administration and back in March 2020 – maybe even before – he banned travel from China, where COVID was first discovered. Then over time, as different countries spiked, you started to see country-specific bans. So, you had been in China, India, almost all of Europe, UK, Ireland, the Schengen areas, South Africa, Brazil. And so those are country-specific. The rule was: If you were physically present there, within the last 14 days – physically present – that you would not be able to travel to the United States unless there was a certain national interest exception. Now, a lot of the Asian countries – other Asian countries were fine, but those specific countries where there were high levels, low vaccination rates, they weren’t allowed to come in. Also, travel from Mexico and Canada through the land borders was actually closed for nonessential travel. That was very country-specific, kind of all over the place, you needed to know exactly where you stood on that ban.

Greg Lambert: Can you fill us in now on the recent changes put into effect by the current administration, the Biden Administration?

Sang Shin: Absolutely. I think what the intention is, is to make a very consistent global international travel plan. I think the Biden Administration has been liaising with their counterparts in different countries to ensure that there is a way of ensuring that people can safely come to the United States. Instead of making it country-specific, he’s removed those travel bans and he’s made it consistent across the board. So, if you’re coming from anywhere around the world now – and, specifically, if you are a noncitizen, nonimmigrant, or temporary visa holder – then you are now required to have a COVID vaccination and a negative COVID test within a certain period of time.

Let me delve into that a little bit more. When I talk about fully vaccinated, obviously there are certain vaccinations that are acceptable and are not acceptable, right? Fully vaccinated is also defined as two weeks after your second dose if you have something like Pfizer or Moderna, or two weeks after your one dose, which is like a Johnson & Johnson. So, that’s the baseline. So they’ll ask for a card, they’ll look at that, and make sure that the two-week time period has lapsed. The FDA has approved Moderna, Pfizer, and Johnson & Johnson in the United States, but other countries have different vaccinations. They’re looking towards the World Health Organization to also provide guidance on which other vaccinations are acceptable. There’s AstraZeneca, Sinopharm, Sinovac, Covaxin—these are very important vaccinations because they come from some of the countries that had the highest level of travel into the United States. So, there are certain vaccinations that are blessed and certain ones that are not, which is going to I think create some confusion over time, and hopefully, more vaccinations are going to be authorized and blessed in the future.

In addition to that fully vaccinated status, you would have to have a negative COVID test still three days prior to entry into the United States. So, any individual, even if you’re a U.S. citizen or a lawful permanent resident, if you traveled internationally, you had to have a negative COVID test within three days of traveling to the United States. The Biden Administration has kind of heightened that a little bit. So, the rule is you have to have a vaccination and you have to have at least a negative COVID test within three days of travel into the United States.

Obviously, there are going to be some exemptions, but they’re very limited in scope. So, there are some exemptions, for example, for children that are under the age of 18, where across the world there are certain vaccinations that are not authorized for children, right? That’s an exception. So, any individual that’s a clinical trial participant or have medical contraindications. For example, I had a client who was going through fertility treatments and their doctor specifically said not to get vaccinated. Also, any emergency humanitarian reasons for not getting the vaccinations, they provide an exemption there. And then finally, if the country you’re coming from doesn’t have readily accessible vaccinations or they don’t have access to vaccinations – or access to vaccinations that are pre-authorized or blessed – there will be exceptions there that are granted as well, case by case, to enter the United States. But when you enter, you will still have to sign some sort of affidavit to show if you’re going to stay over 60 days, that you’ll get vaccinated. So that’s kind of the new requirement.

So far, in the last two days, we haven’t heard any major hiccups. But over time, I do see some things changing.

Greg Lambert: Any difference between entering via land borders and air travel?

Sang Shin: Great question. So, the land border really applies to Mexico and Canada. What was happening before for Mexico and Canada was they were differentiating between essential and nonessential travel. Essential means travel for work or urgent medical reasons – some of the reasons that I listed earlier. So, you’re able to come into the United States for those reasons by air from Canada or Mexico—they were allowing for essential and nonessential travel for the most part. But only by border or land border crossing were they really enforcing that, if you’re coming for nonessential travel, that you would not be able to enter the United States. So, now they’ve removed that. If you’re coming for tourism purposes or certain business purposes, you are able to enter as long as you meet those requirements. I saw that there’s a caveat for land borders: You’re not going to need a negative COVID test. But I’ve been advising clients belt and suspenders, just go ahead and get your test.

Greg Lambert: Better safe than sorry?

Sang Shin: Yeah, I absolutely always better safe than sorry.

Greg Lambert: Well, Sang Shin, thank you very much for taking the time to come back in and talk to us about this. I’m sure we’ll have you back again.

Sang Shin: Yeah, I’m sure this is going to evolve over time, and I’m hoping that people start to get the rules. But underlying baseline—I just want to add one more thing, a couple of things. Number one, regardless—remember, if you are a U.S. citizen, lawful permanent resident, or the subject of our topic today, which are some of the temporary visa holders—the administration is going towards vaccinations and negative COVID test prior to entering the United States. For U.S. citizens and lawful permanent residents, if you choose not to be vaccinated, then you must receive a negative COVID test one day prior to entering the United States. So, it is heightened if you decide not to be vaccinated. And just another point is that green cards: to get a green card now, the administration is requiring you to have a vaccination with certain exceptions to get a green card now.

Greg Lambert: Well, there’s definitely a lot going on this topic. In addition to this podcast, Sang, you’ve also written an article laying out more details on the new rules for entry into the United States. And you can find that at JW.com/News. Hey, Sang, thanks again for taking the time to talk with me.

Sang Shin: Thanks, Greg.

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The music is by Eve Searls.

This podcast is made available by Jackson Walker for informational purposes only, does not constitute legal advice, and is not a substitute for legal advice from qualified counsel. Your use of this podcast does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.

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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.

In This Story

Sang M. Shin
Partner, Houston