The United States extended its vaccination requirement to “essential travelers” at land and sea ports of entry, effective January 22, 2022.
Travel at the land borders has been greatly restricted since the beginning of the pandemic, nearly two years ago now. For nearly 20 months, the borders were basically closed to everyone except “essential travelers”. Essential travelers included commercial traffic (truckers, railroad workers), commuter students, nonimmigrant workers, emergency responders, medical visitors, military, and the like. On November 8th, 2021, a new vaccine standard was implemented for non-essential travelers (e.g. tourists, some business travelers). The posted notice gave some indication that in January the same requirement might be extended to essential workers in January 2022. Little more was said by the government, but now we have definitive guidance. Vaccines are now required for most travelers.
The majority of the population is vaccinated on both sides of the northern border. However, vaccines and their mandates haven’t been accepted by all, and so the new rule will be unwelcome news to some. I think the parameters of this dispute are well known.
The official notice of the new restrictions is entitled “Notification of Temporary Travel Restrictions Applicable to Land Ports and Ferries Services Between the United States and Canada” and is published in the Federal Register (Fed Reg Vol. 87, No. 15 (Jan. 24, 2022)).
The five-page notice signed by DHS Secretary Mayorkas has a detailed discussion of CDC’s statement of need for the requirement, in light of current COVID conditions. The notice is well annotated and provides some history of the closure, vaccine statistics, and the public health crisis. The notice also discusses the impact the requirement may have on supply chain, trucking and rail industry, anticipating that controversy. I thought it was interesting that the notice expressly contemplates that the mandate may have an “incentive effect” for “whole industries”. Courts are supposed to give federal agencies deference, generally. This notice is prepared with clear forethought for litigation.
The notice says the measure is temporary and will remain in effect until April 21, 2022. There is really no telling how temporary the requirement is, although I will expect a new notice posted no later than that date. Secretary Mayorkas writes, “In conjunction with interagency partners, I will closely monitor the effect of the requirements discussed herein, especially as they relate to any potential impacts on the supply chain, and will as needed and warranted, exercise my authority in support of the U.S. national interest.”
The requirements do not apply to U.S. citizens, U.S. nationals, lawful permanent residents, or American Indians “who have right by statute to pass the border of or enter into the United States. The other notable exception is persons under 18 years of age. National interest exceptions are permitted, at the discretion of DHS.
Canada also recently implemented a vaccine requirement for essential travelers heading north. Canada also has testing requirements, which are not required by the U.S. land port of entries. Canada also requires travelers to use their entry application, and upload documents to it. On this side, CBP has developed an application, but for now is operating on an attestation basis and travelers need to be prepared to present evidence of vaccine, if requested.
The requirement is certainly not an outright surprise, as it was suggested this rule would come in January, but I think the federal government could have done more to publish its intention in the weeks before. There are supply chain issues right now, as the notice acknowledges. Also, it seems like the rule should allow for religious or moral conviction waivers, just like as is permitted for immigrant applications.
Wishing all well and the best of health. For reference, below I’ve pasted the DHS press release:
DHS to Require Non-U.S. Individual Travelers Entering the United States at Land Ports of Entry and Ferry Terminals to be Fully Vaccinated Against COVID-19
New Requirements at Land Ports of Entry and Ferry Terminals Will Protect Public Health While Facilitating Cross-Border Trade and TravelWASHINGTON – Beginning on January 22, 2022, DHS will require non-U.S. individuals seeking to enter the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated for COVID-19 and provide related proof of vaccination, as COVID-19 cases continue to rise nationwide. These new restrictions will apply to non-U.S. individuals who are traveling for both essential and non-essential reasons. They will not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.
“Starting on January 22, 2022, the Department of Homeland Security will require that non-U.S. individuals entering the United States via land ports of entry or ferry terminals along our Northern and Southern borders be fully vaccinated against COVID-19 and be prepared to show related proof of vaccination,” said Secretary Alejandro N. Mayorkas. “These updated travel requirements reflect the Biden-Harris Administration’s commitment to protecting public health while safely facilitating the cross-border trade and travel that is critical to our economy.”
These changes – which were first announced in October 2021 and made in consultation with the White House and several federal agencies, including the Centers for Disease Control and Prevention (CDC) – will align public health measures that govern land travel with those that govern incoming international air travel.
Non-U.S. individuals traveling to the United States via land ports of entry or ferry terminals, whether for essential or non-essential reasons, must:
- verbally attest to their COVID-19 vaccination status;
- provide proof of a CDC-approved COVID-19 vaccination, as outlined on the CDC website;
- present a valid Western Hemisphere Travel Initiative (WHTI)-compliant document, such as a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and,
- be prepared to present any other relevant documents requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection.
COVID-19 testing is not required for entry via a land port of entry or ferry terminal.
Although these new vaccination requirements do not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals, all travelers are reminded to bring a WHTI-compliant document when re-entering the United States. Non-U.S. individuals attempting to enter the United States irregularly, through any illegal means or without proper documentation, will continue to be expelled pursuant to CDC’s Title 42 public health order.
To learn more about the updated requirements for travelers, review the DHS fact sheet.