COVID-Related Travel Restrictions on Arriving Vaccinated and Unvaccinated Foreign Nationals with Valid Documents

COVID-Related Travel Restrictions on Arriving Vaccinated and Unvaccinated Foreign Nationals with Valid Documents

February 8, 2023
COVID-Related Travel Restrictions on Arriving Vaccinated and
Unvaccinated Foreign Nationals with Valid Documents
In response to the COVID-19 pandemic, the executive
vaccination requirements against other vaccine-preventable
branch invoked statutory powers to impose restrictions on
diseases on certain aliens seeking immigrant visas or
arriving aliens entering into the United States with visas
seeking adjustment of status to become lawful permanent
and other valid documents. (The Immigration and
residents in the United States. See 8 U.S.C. §1182(a)(1)(A).
Nationality Act [INA] defines alien as “any person not a
citizen or national of the United States.”) Although entry
Others exempted from the proclamation include aliens
restrictions during the COVID-19 pandemic have largely
arriving via air from countries with low vaccine
differed based on an alien’s arrival method into the United
availability, those participating in certain clinical trials for
States, the more recent executive branch efforts have
COVID-19 vaccination, aliens unvaccinated due to medical
generally required vaccination against COVID-19 for all
advice, and those who are unvaccinated for other
inbound foreign nationals with valid documents regardless
humanitarian or emergency reasons. In addition to the
of the country of departure, travel method, and location of
vaccination requirement, nonimmigrant travelers must
arrival.
agree to abide by generally applicable health precautions
established by the CDC, including pre-departure testing.
Entry Restrictions on Foreign Nationals
Arriving by Air
Unvaccinated nonimmigrant travelers allowed to enter
On October 25, 2021, President Biden issued “A
under an exemption must generally agree to become fully
Proclamation on Advancing the Safe Resumption of Global
vaccinated within 60 days. (This requirement does not
Travel During the COVID-19 Pandemic” pursuant to 8
apply, for example, to nonimmigrants present in the United
U.S.C. §§ 1182(f) and 1185(a)(1). 86 Fed. Reg. 59,603
States for a brief duration.) The proclamation also includes
(Oct. 25, 2021). Section 1182(f) authorizes the President to
an exception for nonimmigrant travelers for whom, given
suspend the entry of, or place restrictions on the entry of,
their age, requiring vaccination would be inappropriate as
any alien or class of aliens, regardless of immigration
determined by the CDC. In the amended order, the CDC
status. Section 1185(a)(1) grants the President authority to
determined that children under the age of 18 meet the
adopt “reasonable rules, regulations, and orders” governing
criteria for an exception under the proclamation.
entry or removal of aliens, “subject to such limitations and
exceptions as [he] may prescribe.” The Supreme Court has
Entry Restrictions on Arriving Foreign
interpreted this delegation of authority broadly. See Trump
Nationals over Land Borders
v. Hawaii, 138 S. Ct. 2392, 2408 (2018). The Centers for
Early in the COVID-19 pandemic, U.S., Canadian, and
Disease Control and Prevention (CDC) issued an
Mexican officials mutually determined that nonessential
implementing order and has since issued an amended order
travel between the United States and its respective
in April 2022. See Amended Order Implementing
contiguous countries posed additional risk of the
Presidential Proclamation on Advancing the Safe
transmission and spread of COVID-19. U.S. Customs and
Resumption of Global Travel During the COVID-19
Border Protection, a component of the Department of
Pandemic, 87 Fed. Reg. 20,405 (Apr. 7, 2022).
Homeland Security (DHS), issued two identical orders
restricting nonessential inbound traffic at land points of
The presidential proclamation and the amended order
entry (POEs) from Canada and Mexico into the United
implementing it generally suspend the entry of
States.
unvaccinated aliens traveling as nonimmigrants to the
United States by air, with certain exemptions. (A
In October 2021, DHS announced a change in policy on
nonimmigrant is admitted to the United States for a specific
travel at land POEs and ferry terminals. DHS replaced these
temporary period and for authorized purposes stated in the
earlier COVID-related entry restrictions on nonessential
INA.) To be considered “vaccinated” for purposes of the
travel over land borders into the United States with a
presidential proclamation and amended order,
general vaccination requirement for aliens with valid
nonimmigrants must be fully vaccinated against COVID-19
documents who seek to enter by land at a POE or ferry
with a vaccine approved or authorized by U.S. regulators or
terminal. See Notification of Temporary Travel Restrictions
listed for emergency use by the World Health Organization.
Applicable to Land Ports of Entry and Ferries Service
Between the United States and Mexico, 87 Fed. Reg. 24,041
The amended order does not apply to lawful permanent
(Apr. 22, 2022); Notification of Temporary Travel
residents or immigrants. Instead, these groups are subject to
Restrictions Applicable to Land Ports of Entry and Ferries
any COVID-related entry requirements applicable to U.S.
Service Between the United States and Canada, 87 Fed.
citizens. Of note, other statutory provisions already impose
Reg. 24,048 (Apr. 22, 2022). The change announced by
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COVID-Related Travel Restrictions on Arriving Vaccinated and Unvaccinated Foreign Nationals with Valid Documents
DHS appears to synchronize entry restrictions at land POEs
to Mexico or their countries of origin. For a discussion on
and ferry terminals with requirements for air travel
entry restrictions under 42 U.S.C. § 265 and accompanying
discussed above. Most alien travelers seeking to enter the
litigation over its invocation during the COVID-19
United States via land POEs or ferry terminals with valid
pandemic, see CRS Legal Sidebar LSB10874, COVID-
documents must be fully vaccinated against COVID-19 and
Related Restrictions on Entry into the United States Under
provide proof of vaccination. Aliens exempted from this
Title 42: Litigation and Legal Considerations, by Kelsey Y.
requirement include certain individuals on diplomatic or
Santamaria.
official foreign government travel, persons under the age of
18, certain participants in clinical trials for COVID-19
Considerations for Congress
vaccination, those unvaccinated due to medical advice, and
The invocation of 8 U.S.C. § 1182(f) and 19 U.S.C. § 1318
those permitted entry for humanitarian or emergency
to restrict or condition the entry of aliens based on
reasons. Others exempted include persons with valid
vaccination requirements in response to COVID-19 raises
nonimmigrant visas who are citizens of a country with
potential considerations for Congress about the scope and
limited COVID-19 vaccine availability, certain members of
application of these statutory provisions.
the U.S. Armed Forces, and individuals whose entry would
be in the U.S. national interest.
Section 1182(f), as interpreted by the Supreme Court, gives
the President seemingly broad authority to restrict “the
These orders were issued under a provision of the Tariff
entry of all aliens or any class of aliens” whose entry he or
Act of 1930, codified at 19 U.S.C. § 1318. In order “to
she finds “would be detrimental to the interests of the
respond to a national emergency declared under the
United States.” See Trump v. Hawaii, 138 S. Ct. at 2408. To
National Emergencies Act [NEA] (50 U.S.C. 1601 et seq.)
the extent that lawmakers decide it appropriate to limit this
or to a specific threat to human life or national interests,”
authority, Congress may seek to amend Section 1182(f) to
this statutory provision authorizes federal officials to
impose certain guidelines or restraints on the President’s
“[e]liminate, consolidate, or relocate any office or port of
authority to exclude specified classes of aliens. For
entry,” “[m]odify hours of service, alter services rendered at
instance, Congress may consider clarifying the standard for
any location, or reduce the number of employees at any
determining when the President might invoke this authority.
location,” and “[t]ake any other action that may be
Another possibility would be to impose a time frame on this
necessary to respond directly to the national emergency or
authority and a special procedure for either continuing or
specific threat.”
terminating its invocation. Alternatively, Congress may
determine that it is desirable for the executive branch to
There has been interest in whether terminating the NEA
maintain the discretion to exclude categories of aliens from
declaration issued on March 13, 2020, would impact these
entering the United States. Congress may determine, for
temporary travel restrictions at land POEs and ferry
instance, that such discretion is necessary in order to
terminals. The Tariff Act requires either an NEA
respond to rapidly developing situations, such as emergency
declaration or a determination of “a specific threat to
health situations like the COVID-19 pandemic or threats to
human life or national interests.” In the notification of
national security.
temporary travel restrictions between the United States and
Canada listed above, the DHS Secretary “determined that
With respect to the relevant Tariff Act provision, courts
the risk of continued transmission and spread of the virus
have not considered the scope of authority granted by the
associated with COVID-19 between the United States and
provision. Should Congress determine that it is appropriate
Canada poses an ongoing ‘specific threat to human life or
to modify the relevant scope of discretion, it may do so
national interests.’” 87 Fed. Reg. at 24,054. The notification
through statutory amendments. Congress may also view the
of temporary travel restrictions between the United States
broad discretion afforded to federal officials under the
and Mexico has an identical provision. See 87 Fed. Reg. at
Tariff Act to modify services provided at POEs and ferry
24,047 (Apr. 22, 2022). Although these travel restrictions
terminals as necessary in order to respond to certain
do not appear to be expressly predicated on an ongoing
emergencies or threats, such as the spread of COVID-19.
NEA declaration, the notifications provide that they may be
Alternatively, Congress may opt to use its legislative
amended or rescinded at any time, including to conform
authority to provide further guidelines on when federal
with any intervening changes with the October 2021
officials may invoke this authority, for how long this
presidential proclamation and implementing orders.
provision may be invoked, or what qualifies as a “specific
threat to human life or national interests.”
A Note on “Title 42” Entry Restrictions
These COVID-related restrictions on the entry of aliens
On January 9, 2023, H.R. 185 was introduced, which, if
with visas and other valid documents are distinct from
enacted, would mandate that “the air travel vaccination
COVID-related entry restrictions on aliens without visas or
requirement for foreign travelers shall have no force or
other valid documents. Often referred to as “Title 42”
effect,” and that no federal funds may be used to
throughout the COVID-19 pandemic, 42 U.S.C. § 265 gives
“administer, implement, or enforce the air travel
the executive branch the authority to prohibit the entry into
vaccination requirement for foreign travelers.”
the United States of individuals who might pose a danger to
public health. The CDC has directed immigration officials
Kelsey Y. Santamaria, Legislative Attorney
to expel certain individuals—that is, aliens who either do
IF12321
not have visas or other “proper travel documents” or who
seek to enter the United States unlawfully between POEs—
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COVID-Related Travel Restrictions on Arriving Vaccinated and Unvaccinated Foreign Nationals with Valid Documents

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https://crsreports.congress.gov | IF12321 · VERSION 1 · NEW