As per our
previous alert, the U.S. is set to modify the requirements for entry into the United States via air, land, and sea in November for fully vaccinated individuals; the White House has now confirmed to multiple news outlets that the new policy requiring foreign national travelers to demonstrate that they are fully vaccinated will begin November 8, 2021. Foreign national travelers will need to demonstrate their vaccination status whether traveling by air, land, or sea. In addition:
the CDC has already informed airlines that all FDA approved and authorized vaccines, as well as all vaccines that have an Emergency Use Listing (EUL) from the WHO will be accepted for air travel, with the expectation that the same will apply to land-border crossings,
there will be very limited exceptions to these rules, which will be released prior to November 8 (i.e., within 3 weeks). We expect some of those limited exceptions to the vaccine policy to be available for children, COVID-19 vaccine clinical trial participants, and those traveling for an important reason who lack access to vaccination in a timely manner.
It should be noted that existing COVID-19 testing requirements are expected to remain the same for vaccinated travelers. Unvaccinated U.S. citizens and certain foreign nationals eligible for exceptions from the vaccine requirement are expected to be required to provide proof of a negative COVID-19 test taken within one day of their flight, and also provide proof that they have purchased a viral test to be taken after their arrival in the United States. However, testing details have not yet been officially confirmed.
Once the new policy takes effect, foreign nationals currently subject to any of the regional COVID-19 travel bans should see some easing of restrictions, such as
Foreign nationals who require a visa to travel: Those who require a new visa and would normally be subject to a travel ban will not need to seek an NIE in connection with their visa application. However, consular backlogs, delays and reduced operations persist worldwide and could worsen as more individuals seek visas after the new policy is implemented. These foreign nationals may still face difficulty obtaining a visa appointment if consular operations are limited in their area due to local COVID-19 conditions.
Until the new policy takes effect, those traveling from a country subject to a COVID-19 travel ban remain subject to the NIE requirement, unless otherwise exempt.
The fact that the travel bans are going to be lifted does not mean that visa issuance is suddenly going to return to pre-travel-ban processing rates. The consulates will continue to be backlogged. This means there will continue to be substantial delays in visa appointment scheduling. U.S. consulates around the world are currently operating at reduced staffing levels, under stringent COVID-19 restrictions, and facing mounting case backlogs, while complying with Department of State directives to prioritize immigrant visa petitions over non-immigrant visa petitions (which include temporary works visas).
We are continuing to monitor the rollout and implementation of this policy and will issue additional alerts as developments occur.
Also in November, and as an Extension of Above, DHS will Replace the Current Canada/Mexico Border Restrictions with COVID Vaccination Requirements
Starting in November 2021, the Department of Homeland Security (DHS) will implement a two-phase plan to allow foreign nationals to enter the United States through the Canada and Mexico land border and ferry travel
if they have been fully vaccinated with an approved COVID-19 vaccine. The first phase of the plan will replace the current ban on “non-essential travel,” which has been in effect since March 2020. The second phase will impose vaccine requirements on all foreign nationals seeking to enter the United States, including those entering for “essential” purposes like business and work travel. The phases of the new policy will be:
November 2021: In alignment with implementation of the upcoming international air travel vaccination requirements, fully vaccinated foreign nationals from Canada and Mexico will be able to enter the United States for “non-essential” purposes such as tourism or personal visits with family and friends.
January 2022: All inbound foreign national travelers entering the United States from Canadian or Mexican land (or ferry) borders – whether entering for “essential” or “non-essential” purposes – must be fully vaccinated in order to enter the United States. This includes those traveling for work and business who are currently permitted to travel under the existing border restrictions.
As in the preceding section, official details of the new land-border-based international travel vaccination policies – including specific start dates, potential exceptions, and information on what vaccines and documentation will be accepted – have not yet been released.
We await further detail and confirmation of the requirements for the land border/ferry travel vaccination policy, and will provide additional alerts as developments occur.
November 2021 Visa Bulletin: EB-3 India and China Retrogression
According to the State Department’s November Visa Bulletin, final action cutoff dates for issuance of an immigrant visa will be as follows:
EB-1: All countries, including China and India, will remain current.
EB-2: China will advance by four and a half months to November 15, 2018, and India will advance by three months to December 1, 2011. All other countries will remain current.
EB-3 Professionals and Skilled Workers: EB-3 India will retrogress almost two full years to January 15, 2012. EB-3 China will retrogress by about nine and a half months to March 22, 2018. All other countries will remain current.
EB-5: The Non-Regional Center program (i.e., applications based on direct investments) will be current for all countries except China. China will remain at November 22, 2015. The Regional Center program has expired and is listed as unavailable in the November Visa Bulletin. If reauthorized, the Regional Center program will mirror the Non-Regional Center final action dates.
In the Dates for Filing chart, EB-3 India and China retrogress by the same amounts as the Final Action Dates chart, with cutoffs reverting to January 22, 2012, and April 1, 2018, respectively. For EB-2 India and China, the Dates for Filing chart shows advancement in both categories – by moving six months ahead to January 8, 2013 for India, and five months ahead to February 1, 2019 for China.
Croatia Accepted into the Visa Waiver Program
Starting on December 1, 2021, Croatian citizens will qualify to apply for visa-free business or tourist visitor travel to the U.S. On or before December 1, 2021, Croatia will be added to the countries participating in the visa waiver program (VWP), thereby allowing Croatian nationals to apply for visa-free business or tourist visitor travel through the Electronic System for Travel Authorization (ESTA).
The VWP allows individuals of certain participating countries to travel to the United States for business or tourism for no more than 90 days without first obtaining a B-1 and/or B-2 visa (for business and/or tourism purposes). To travel under the VWP, applicants must apply through the U.S. Customs and Border Protection (CBP) online application, ESTA, up to 72 hours in advance of travel.
Croatia’s addition to the visa waiver program will allow Croatian nationals and their employers to benefit from the relaxed requirements on business visitor travel for those individuals who do not currently hold valid B-1/B-2 visas. For individuals who do hold valid B-1/B-2 visas, DHS recommends that those travelers continue using those visas for entry into the United States.
Government Shutdown Averted through December 3, 2021
A temporary spending measure was passed by the U.S. Congress on September 30, funding government operations, such as the Department of Labor, through December 3, 2021. President Biden signed the bill on the same day, avoiding a government shutdown, while Congress continues FY 2022 budget negotiations.
By ensuring funding to the Department of Labor, the agency maintains its ability to review and evaluate labor condition applications, such as those for H-based visa petitions and PERM Labor Certifications. Additionally, the bill extends two expiring immigration programs through December 3 – the E-Verify program and the Conrad 30 program for foreign medical graduates working in underserved areas, both of which were set to expire at 11:59 pm EST on September 30, 2021.
Though it has become common for Congress to pass short-term spending bills, such as this one, should it fail to pass FY 2022 appropriations legislation or another short-term measure by December 3, 2021, a government shutdown would occur at that time.
We will continue to monitor Congress’s negotiations and provide updates as new information is available.
Please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any questions or concerns. Click here to stay updated on our weekly alerts.