1.26.21

Last March, almost from the beginning of the COVID-19 pandemic, the United States put into place restrictions on admission of international travelers. The restrictions applied to most individuals who were physically present in Brazil, China, Iran, Ireland, the United Kingdom, or traveling from any of the 26 Schengen Area countries, unless the individual qualified for a specific exception.

However, on January 12 of this year, the Centers for Disease Control and Prevention issued an order that requires all international air passengers to present proof of a negative COVID test or recovery from COVID. Because of the CDC order, on January 18 the outgoing Trump Administration issued Presidential Proclamation 10138, which rescinded the “physical presence” restrictions except as applied to individuals entering the United States from Iran or China. Both the CDC order and the Trump Proclamation were to take effect today.

Then, on Thursday, President Biden issued Executive Order on Promoting COVID-19 Safety in Domestic and International Travel. The new EO requires the Secretary of Health and Human Services and the Director of the CDC to coordinate with the Secretary of Transportation and the Secretary of Homeland Security to “assess” the January 12 CDC order. The agencies will have 14 days to provide their assessment to the Administration, which will then develop an action plan consistent with CDC guidelines and applicable law regarding any further travel restrictions. An updated plan regarding international travel restrictions is expected by February 3.

Yesterday President Biden also issued “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.” The proclamation essentially restores the “physical presence” restrictions issued in March 2020 for travelers from Brazil, Ireland, the United Kingdom, and the Schengen Area countries, and adds South Africa to the list of restricted countries. The Secretary of Health and Human Services is directed to provide a recommendation as to whether the proclamation should be continued, modified, or terminated 30 days from issuance, and by the end of each month afterward.

Because no “other” official action has been taken on the CDC testing order, it will take effect today.

The CDC order

The CDC order applies to all international travelers to the United States, including U.S. citizens and permanent residents, age 2 and older. These individuals will not be allowed to board a flight to the United States unless they either (1) provide documentation of a negative COVID-19 test taken within three calendar days of travel, or (2) provide evidence of recovery from a previous COVID-19 infection, including the positive test result and documentation from a health care provider or public health official clearing the individual for international travel. If the required documentation cannot be produced, the individual will not be allowed to board an aircraft bound for the United States.

The CDC notes that pre-departure screening will not eliminate all risks of COVID transmission and recommends that the screening be combined with other measures, such as self-monitoring for symptoms of COVID, wearing masks, social distancing, and hand hygiene.

The pre-departure screening began on December 25 because of a new strain of COVID, and applied to all airline passengers traveling to the United States from the United Kingdom. Since that time, similar strains have been found in four Canadian provinces, and the UK variant has been found in at least 50 countries. Other variants have been detected in about 15 more countries. The CDC explains, “While it is known and expected that viruses constantly change through mutation leading to the emergence of new variants, these new variants have emerged at a time when numbers of new cases in the United States have continued to increase at alarming rates. Additional new virus variants are also likely to emerge as the virus continues to evolve and mutate.”

How the CDC order and the January 25 proclamation will work together

From January 26 to February 3, those traveling from Brazil, Ireland, the United Kingdom, the Schengen Area countries, and South Africa will have to meet the requirements of both the CDC order and the January 25 Proclamation. In other words, they will have to satisfy one of the enumerated exceptions in the Proclamation, or apply for and obtain a National Interest Exception waiver. In addition to that, they will have to comply with the CDC screening requirements. Most other international travelers will be required only to comply with the CDC screening requirements.

For a printer-friendly copy, click here.

Practice Areas

Back to Page