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All Persons Planning to Travel to the United States in 2021 Must be Prepared to Comply with New and Expanded COVID-19 Related Travel Restrictions

In response to the continued proliferation and spread of COVID-19 variants, which has raised the stakes even further for controlling the epidemic, the Center for Disease Control (CDC) issued an order effective January 26, 2021, requiring all passengers, including U.S. citizens and lawful permanent residents, bound for the United States, to demonstrate a negative COVID-19 test result or recovery from COVID-19 and a medical professional’s clearance letter, before boarding an aircraft headed to the United States from abroad, unless the traveler qualifies for an exemption.

Evidence of compliance with the CDC order includes “documentation of a positive test result [within 90 days prior to the planned departure] and a signed letter on official letterhead . . . of a licensed healthcare provider or public health official stating that the passenger has been cleared for travel” or “documentation of a negative COVID-19 test taken within the 3 days preceding a flight’s departure.”

The CDC order applies to all travelers aged 2 years or older, and requires airlines to (1) verify the passenger’s attestation of compliance with the order, (2) to confirm the passenger has documentation of compliance, and (3) to retain a copy of the passenger’s attestation for a period of 2 years. Passengers will not only be required to provide the attestation to CDC (through the airline), but must also retain proof of their compliance with the CDC order and present it to the airline for inspection and to the authorities upon their request.

Notably, the CDC order contains a “humanitarian exemption,” allowing individuals or organizations to bypass the attestation and documentation requirements if they can demonstrate the necessity of an exemption based on both “exigent circumstances” (e.g., emergency medical evacuations) and the unavailability or infeasibility of pre-departure testing.

The CDC order will remain in effect until the earlier of (a) the termination of the Secretary of Health and Human Services’ declaration of the public health emergency posed by COVID-19, (b) the modification or rescission of the order by the Secretary of Health and Human Services according to “specific public health or other considerations,” or (c) December 31, 2021.

Relatedly, President Joe Biden, citing the current national emergency and the widespread outbreak of new variant strains of the COVID-19 virus in South Africa, the United Kingdom, and Brazil, issued Proclamation 10143 on January 25, 2021, “suspending the entry as immigrants and nonimmigrants of certain additional persons who pose a risk of transmitting Coronavirus Disease 2019.”

President Biden’s executive order restricts entry into the United States of any noncitizen, as either a nonimmigrant or immigrant, who was physically present, within the 14-day period before their proposed arrival, in the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, or South Africa, unless the individual is within one of the enumerated categories to whom the executive order does not apply. Proclamation 10143 makes available, and permits individuals to apply for, a national interest exception, which can be issued by Department of State or Department of Homeland Security.

The suspension and limitation on the arrival into the United States of noncitizens as immigrants or nonimmigrants from the countries designated by Proclamation 10143 will remain in effect until terminated by President Biden, acting on the recommendation of the Secretary of Health and Human Services, who must review and report to the President on the justification for continuing the travel restriction every 30 days.

The upshot of the CDC order is that most persons traveling to the United States in 2021 must be prepared to make an attestation and carry written documentation, in the form of a negative COVID-19 test result and/or a positive test result followed by recovery within 90 days and letter from a medical professional clearing the passenger for travel, in advance of their planned departure to and arrival in the United States. In rare circumstances, including ones involving a medical emergency, a passenger might qualify for a “humanitarian exemption” from the CDC order.

Now here comes the double whammy. Travelers must also be cognizant of Proclamation 10143’s suspension of entry that applies to certain nonimmigrants and immigrants who have visited any of the restricted countries within the 14-day period preceding their arrival or attempted arrival to the United States. Unless those persons have first obtained a national interest exception, having a negative pre-departure test result or proof of infection and recovery from COVID-19 will not excuse such travelers from the requirement of quarantining outside the United States for at least 14 days.

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