A new travel policy requiring foreign nationals traveling to the United States to demonstrate proof of full vaccination against COVID-19 will take effect November 8, as announced by the White House on October 15. The accepted vaccines will include FDA-approved or authorized vaccines and WHO emergency use vaccines. In light of this announcement, many US consular posts are no longer processing National Interest Exceptions except in emergency situations.
These vaccine requirements are expected to replace the admission restrictions in place since 2020, which restrict entry to the United States for individuals who have been present in the following countries during the 14-day period preceding their admission: Brazil, China, India, Iran, Ireland, South Africa, the United Kingdom, and the Schengen Area countries (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland). Once the current restrictions are replaced by the new policy, there will no longer be a need for National Interest Exceptions to the current restrictions.
Based on preliminary information from the White House and the State Department, under the new policy, individuals must be fully vaccinated with vaccines approved or authorized for emergency use by the Food and Drug Administration (FDA), or those that have been listed for emergency use by the World Health Organization (WHO), which currently include Moderna, Pfizer/BioNTech, Janssen (Johnson & Johnson), AstraZeneca (Vaxzevria), Covishield, Sinopharm, and Sinovac. Sputnik V, developed by the Gamaleya National Center, has not yet been authorized. Certain AstraZeneca and Novavax COVID-19 vaccine clinical trial participants also qualify for entry under the new guidance. Under current guidelines, individuals are considered “fully vaccinated” after completion of a two-week period following the second dose of a two-dose series (such as Pfizer/BioNTech or Moderna vaccines), or 2 weeks after a single-dose vaccine (such as the Johnson & Johnson vaccine). The CDC has not issued formal recommendation or approval for the administration of mixed vaccines from different manufacturers, such as receiving the first dose of a Pfizer/BioNTech vaccine and the second dose of a Moderna vaccine, but upcoming guidance is expected to provide clarification.
A government interagency taskforce is working to develop the orders and guidance documents to implement this new travel policy, and those details—for the airlines, airline passengers, passengers using other means of conveyance, and people coming to land borders—are expected to be made public well in advance of November 8 so that all stakeholders can understand what is required to be in compliance.
The White House announcement specifically identifies “foreign nationals traveling to the United States” as the subjects of this new travel policy. Accordingly, Morgan Lewis’s interpretation is that US citizens and lawful permanent residents will not be required to produce evidence of COVID-19 vaccination.
The new vaccine requirements, while apparently replacing the country-based restrictions on admissibility, are not expected to change current CDC international travel requirements requiring COVID-19 testing. As of January 26, 2021, international air passengers, regardless of citizenship status, need to get a viral test no more than three days before travel by air into the United States and show a negative result to the airline before boarding a flight or be prepared to show documentation of recovery—proof of a recent positive viral test and a letter from a healthcare provider or a public health official indicating clearance for travel.
As the Biden-Harris administration provides further guidance on the formal admission requirements, we will publish additional updates.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Laura C. Garvin
Eric S. Bord
Shannon A. Donnelly