President Biden Lifts Country-Specific Travel Bans on Nov. 8, 2021, and Implements COVID-19 Vaccination and Testing Requirements for International Visitors

Kramer Levin Naftalis & Frankel LLP

President Biden issued a Presidential Proclamation that lifted the country-specific travel bans on international visitors to the United States from Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa and the United Kingdom. As of Nov. 8, 2021, in place of these travel bans, the Presidential Proclamation now requires all nonimmigrant, non-U.S. citizen visitors traveling by air to show proof that they have been fully vaccinated against COVID-19, as well as proof of a negative result of a COVID-19 test taken within three days of boarding a flight to the United States.

Children under 18 years of age are exempt from the vaccination requirement, and children under 2 years old are exempt from the testing requirement. There are also accommodations for people who provide proof of their recovery from COVID-19 within the past 90 days. In addition, there are exceptions to the vaccine requirement for persons with documented medical contraindications to receiving a COVID-19 vaccine, for persons issued a humanitarian or emergency exception, and in a few other limited circumstances detailed on the CDC’s website.

The CDC has indicated that only vaccines that are approved or authorized by the FDA or listed for emergency use by the World Health Organization will be accepted for international travelers seeking to travel to the United States. As of today, these accepted COVID-19 vaccines include Janssen/J&J (the only single-dose vaccine), Pfizer-BioNTech, Moderna, AstraZeneca, Covaxin, Covishield, BIBP/Sinopharm and Sinovac. For more information on the CDC’s current vaccination and testing requirements for international travelers, please see https://www.cdc.gov/coronavirus/2019-ncov/travelers/noncitizens-US-air-travel.html and https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html#covid-vaccines.

As a result of this latest Presidential Proclamation, National Interest Exceptions (NIEs) are no longer required in order to travel to the United States from one of the countries formerly subject to the U.S. travel bans, and U.S. consulates in these countries can resume processing visas without having to adjudicate NIE requests. According to an announcement on the State Department’s website, “[a]pplicants whose cases were refused solely due to their presence in a country covered by a regional COVID proclamation, should contact the embassy or consulate where they made the application to request reconsideration.” However, the State Department also cautions on its website that rescission of the country-specific travel bans “does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews” (emphasis added). Most consulates are still limiting appointment availability to applicants who are citizens or normally residents within their territory and/or to those who can demonstrate an emergency need to travel to the United States. Therefore, visa applicants may still face long wait times for visa interviews and/or cancellations of their visa appointments by U.S. consulates abroad.

Land border restrictions for travel to the United States from Canada and Mexico remain in effect through Jan. 21, 2022, and may be extended. However, effective Nov. 8, 2021, fully vaccinated foreign travelers are permitted to travel to the United States from Mexico or Canada via land and ferry ports of entry for nonessential reasons (previously, only essential travelers were permitted at these land borders and ferry crossings). Travelers who enter the United States at land or ferry ports of entry do not require proof of a negative COVID-19 test. Moreover, U.S. citizens and green card holders who enter the United States at land or ferry ports of entry do not need to provide proof of their vaccination status. Beginning in early January 2022, DHS will require both essential and nonessential foreign national travelers crossing U.S. land or ferry ports of entry to be fully vaccinated for COVID-19 and provide proof of such vaccination.

Settlement Agreement With DHS Brings Major Changes to Work Authorization for H-4 and L-2 Spouses

On Nov. 10, 2021, the Department of Homeland Security settled a lawsuit that will dramatically change the landscape for H-4 and L-2 spouses seeking work authorization. The class action lawsuit (Shergill, et al. v. Mayorkas) was brought by 15 H-4 and L-2 spouses who were negatively impacted by long wait times for USCIS to adjudicate their I-765 applications for renewal of EAD cards. As a result of the settlement, most H-4 and L-2 spouses with expiring employment authorization will not be at the mercy of USCIS’s adjudication delays.

According to this settlement, H-4 spouses who file timely I-765 applications to extend their H-4 EAD cards will receive an automatic extension of work authorization through the earliest date of the following: 180 days after the current EAD expires, their I-94 expiration date or the date their I-765 is adjudicated. Although this change in interpretation is effective immediately, USCIS will amend the language on the I-765 receipt notice within the next 120 days to reflect this automatic extension for certain H-4 spouses. Note that this new policy will not help H-4 spouses whose I-94s expire when their current EADs expire and who are still awaiting approval of their I-539 applications to extend their H-4 status in the United States. It is only available to those H-4 spouses whose I-94s have more time remaining beyond the expiration of their current EADs. Also, as a reminder, only a narrow class of H-4 holders are eligible to apply for EADs to work in the United States: those whose H-1B spouses either are the principal beneficiary of an approved I-140 immigrant petition or have been granted H-1B status beyond the normal six-year maximum under the “AC21” law.

This settlement will create an even more dramatic change for L-2 spouses, who will become authorized to work in the United States “incident to” their L-2 status. This means that L-2 spouses will become authorized to work in the United States simply because they hold L-2 spouse status, without having to file an I-765 application and wait for issuance of an L-2 EAD card. It is important to note that this critical change will not become effective until Customs and Border Protection updates the Form I-94 to reflect that the individual is an L-2 spouse (at that point L-2 spouses may present their I-94 as a List C document when completing an I-9).

Similar to the changes mentioned above for H-4 spouses, the settlement also provides for an automatic extension of work authorization for certain L-2 spouses. Specifically, L-2 spouses who file timely I-765 applications to extend their L-2 EADs will receive an automatic extension of work authorization through the earliest date of the following: 180 days after the current EAD expires, their I-94 expiration date or the date their I-765 is adjudicated. This automatic extension for certain L-2s is effective immediately. Until the Form I-94 is updated, L-2 spouses who currently have pending I-765 renewal applications, and whose I-94s remain valid, may receive automatic extensions of work authorization for up to 180 days, until their I-94s expire or until their I-765 application is adjudicated. 

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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