Monday, November 8, marks a reopening of international air travel for vaccinated foreign nationals as well as entry to the United States (U.S.) via the land border for non-essential vaccinated foreign visitors due to a recent announcement by the U.S. Department of Homeland Security (DHS). This change marks the first time since March of 2020 when non-citizen visitors will be allowed entry to the U.S. through the land border or a ferry terminal for non-essential travel subject to vaccination requirements and evidence.
On October 21, U.S. Customs and Border Protection (CBP) posted regulations in the Federal Register extending the temporary restrictions on land border non-essential travel by foreign nationals to 11:59 p.m. Eastern Standard Time on January 21, 2022.[1] In these regulations, the CBP Commissioner was given the flexibility to determine other forms of travel that could be considered essential. The examples provided were travel in furtherance of economic stability or social order. In addition, the posting included the ability to modify the restrictions to allow non-essential travel through land ports of entry and ferry terminals for individuals who are fully vaccinated and have appropriate proof of vaccination.
CBP has warned that travelers under the new policy should prepare for admission delays.
What documentation must be presented for non-essential travel at the land border or ferry terminal by vaccinated foreign visitors?
- Proof of an approved COVID-19 vaccination as outlined on the CDC website.
- During border inspection, verbally attest to their travel intent and COVID-19 vaccination status.
On November 2, Matthew Davies, CBP Executive Director for Admissibility and Passenger Programs, Office of Field Operations (OFO), confirmed that paper and digital records of vaccination, even those stored on a phone, would be acceptable. The vaccination proof does not have to be in the English language.
Are children under 18 exempt from the vaccination requirement for non-essential land border and ferry terminal admission to the U.S.?
Children under 18 are exempt from the vaccination requirement if traveling with a fully-vaccinated adult, according to Executive Director Davies. However, the FAQ posting by CBP does not include this reference to traveling with a fully-vaccinated family member.
What vaccinations are acceptable for admission?
The Centers for Disease Control and Prevention (CDC) indicates that acceptable vaccines include current Food and Drug Administration (FDA) approved or authorized vaccines and designated World Health Organization (WHO) emergency use listed (EUL) vaccines.
- FDA Authorized/Approved: Moderna, Johnson & Johnson/Janssen, and Pfizer-BioNTech/Comirnraty.
- WHO Approved: Moderna, Johnson & Johnson, Pfizer-BioNTech/ Comirnraty, Oxford-AstraZeneca/Covishield, Sinopharm, and Sinovac.
When are travelers considered fully vaccinated against COVID-19?
In general, people are considered fully vaccinated (Annex) against COVID-19:
- Two weeks (14 days) after your dose of an accepted single-dose COVID-19 vaccine (such as Johnson & Johnson);
- Two weeks (14 days) after your second dose of an accepted two-dose series COVID-19 vaccine (such as Pfizer-BioNTech or Moderna);
- Two weeks (14 days) after you received the full series of an “active” (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials; or
- Two weeks (14 days) after you received two doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.
How can Vaccinated Travelers Reduce Their Crossing Time?
It is important to remember that land border travelers requiring an I-94 for admission can pay the $6.00 fee in advance via the following link: https://i94.cbp.dhs.gov/I94/#/apply-document .
In addition, CBP does have an app called CBP OneTM which can be downloaded without cost from the Apple App Store or Google Play. This app can be used to pay the $6.00 admission record fee for the I-94 arrival/departure record within seven days of applying for admission at the land border. It can also be used to report a departure from the U.S., review travel history, obtain the I-94 admission record, confirm compliance with admission period, and check border wait times.
If traveling to the U.S. for non-essential reasons, CBP recommends applying for admission at off-peak times. At local ports of entry along the California/Mexico border, for example, peak times with the highest traffic volumes are Sundays, beginning at about 2 p.m. and continuing until about midnight. Each weekday, peak volume times are in the mornings from about 4 a.m. until about 9 a.m.
It is important to remember to use the correct type of lane for admission. Traffic at land border ports of entry is often divided among SENTRI, Ready, and General Traffic lanes. SENTRI lanes may only be used typically by those traveling in a vehicle with all of the occupants registered in the low-risk Trusted Traveler program. The vehicle itself must also be registered with SENTRI. Ready lanes are only available for those who have a document equipped to use the Radio Frequency Identification (RFID) technology applied to improve processing of entry into the U.S.
When is an I-94 Admission Record Required for Mexican national border crossers?
Mexican nationals may present a border crossing card (BCC) by itself for admission to the U.S., which is issued at U.S. consular posts in Mexico for travel to the U.S. via the land border, pleasure vessel, or ferry. For travel by air or sea, a valid passport and visa or BCC is required.
Certain Mexican national nonimmigrants presenting a BCC or other proper immigration documentation are not required to obtain a Form I-94 Arrival/Departure Record at their time of admission. A BCC holder is allowed to visit border areas of the U.S. when entering by land or sea for up to 30 days. The region is referred to as the “border zone” and includes:
- California within 25 miles of the border;
- Arizona within 75 miles of the border;
- New Mexico within 55 miles of the border or up to interstate10, whichever is further north; and
- Texas within 25 miles of the border.
Canadian citizens are visa-exempt but still must obtain I-94 admission records, which govern their authorized period of stay in the U.S.
Must U.S. citizens or legal permanent residents present a valid passport to enter the U.S. at the land border?
- S. citizens(USC) must present a valid Western Hemisphere Travel Initiative document, such as a valid U.S. passport, Trusted Traveler Program card, Enhanced Driver’s License or Enhanced Tribal Card when reentering the U.S. U.S. citizens must be prepared to present the WHTI-compliant document and any other documents requested by a CBP officer.
- S. legal permanent residents (LPR) generally must present a Permanent Resident Card (“Green Card”, Form I-551), a Reentry Permit(if gone for more than one year), or a Returning Resident Visa (if gone for two years or more) to reenter the U.S. They are not required to present a passport to enter the U.S., but of course, they will typically require one to enter other countries. The LPR card only needs to be valid on the day that of entry to the U.S.[2]
How will the vaccination requirements for land border entry change in January of 2022?
Starting in January 2022, all inbound foreign national travelers seeking to enter the U.S. via land ports of entry or ferry terminals, whether for essential or non-essential reasons, must be fully vaccinated for COVID-19 and provide related proof of vaccination. U.S. citizens and legal permanent residents of the U.S. will not be required to provide proof of vaccination when crossing into the U.S. This requirement includes individuals who have previously been crossing the border for essential travel, such as work or medical appointments.
What waivers are available from the land border vaccination requirements for non-essential travel?
Since the land border, essential worker restrictions have been continued through January 21, 2022. Those unvaccinated travelers trying to enter the U.S from Canada or Mexico for non-essential purposes on or after November 8 may attempt to request a humanitarian parole admission or perhaps an inadmissibility waiver under section 212(d)(3) of the Immigration and Nationality Act, as amended.
The initial announcement from the Biden administration indicated that exceptions from COVID-19 vaccination will be “very narrow.” The examples given were for children, COVID-19 clinical trial participants, and humanitarian grounds for those traveling for an important reason who lack access to vaccination timely.
The U.S. government may adopt exceptions from COVID-19 vaccination requirements similar to those applied to U.S. immigrant visa applicants as of October 1. For those individuals, blanket waivers of COVID-19 vaccinations are provided for the following circumstances:
- Not age-appropriate. Applicants who are younger than the lowest age limit (less than 12 years of age at present) for the specific formulations in use in their jurisdiction;
- Applicants with a documented contraindication or precaution to the administration of the COVID-19 vaccine formulation available; and
- Not routinely available. If no COVID-19 vaccine is routinely available in the state where the civil surgeon practices, or if the vaccine is available, but due to limited supply, it would cause significant delay to receive the vaccination.
The CDC instructions also addressed examples of consequences when an immigrant visa applicant does not complete a COVID-19 vaccine requirement:
- Religious or moral convictions. Applicants may request a vaccination waiver based on religious or moral convictions by submitting a waiver request to U.S. Citizenship and Immigration Services (USCIS). USCIS will determine if this type of waiver is granted, not the civil surgeon or CDC.
- If an applicant refuses to receive the COVID-19 vaccination, the examining physician will document that the vaccine requirements are not complete and that the applicant refuses vaccination. Such applicants are inadmissible to the U.S., and therefore will not be eligible for a green card/immigrant visa.
We do not have guidance yet if a similar approach for exceptions will be applied for land border admission.
Canadian Comparison
Canada has allowed fully vaccinated U.S. citizens and legal permanent residents to enter Canada via land if fully vaccinated at least 14 days before entering Canada. Fully vaccinated travelers also do not require a negative COVID-19 test within three days of entry to Canada after August 9, 2021. For additional information, refer to: https://ca.usembassy.gov/covid-19-information-canada-3/.
The Canadian government typically requires proof of a negative PCR or molecular test within 72 hours of admission. Please refer to the exemptions listed, including those for persons in the trade or transportation sector as well as technicians and specialists, among others at https://travel.gc.ca/travel-covid/travel-restrictions/exemptions. Canada, like the U.S., also has a free mobile app available for download from the Apple App Store or on Google Play called Arrive CAN. The app can be used to determine travel requirements and submit admission information to the Canada Border Services Agency (CBSA).
Mexican Comparison
A negative COVID-19 test is not required for entry to Mexico via the land border. Non-essential travelers trying to enter Mexico by land from Belize, Guatemala, or the U.S. were subject to denial of entry before November 8, but this has been rare. Please refer to the COVID-19 Country Specific Information page provided by the U.S. Department of State (DOS) for updates.
[1] See 86 Fed. Reg. 58216 and 58218.
[2] See 8 CFR §211.1(a).
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ABOUT THE AUTHOR
Kathleen Campbell Walker is the co-chair of Dickinson Wright’s immigration practice. She is a former national president and general counsel of the American Immigration Lawyers Association. Her email address is kwalker@dickinson-wright.com and her bio is here.