Practice Alert: Biden Administration Executive Order Promoting COVID-19 Safety in Domestic and International Travel

On January 21, 2021, President Biden issued the Executive Order on Promoting COVID-19 Safety in Domestic and International Travel, with Section 5(b)(i) of the EO requiring:

The Secretary of HHS, including through the Director of CDC, and in coordination with the Secretary of Transportation (including through the Administrator of the FAA) and the Secretary of Homeland Security (including through the Administrator of the TSA), shall, within 14 days of the date of this order, assess the CDC order of January 12, 2021, regarding the requirement of a negative COVID-19 test result for airline passengers traveling into the United States, in light of subsection (a) of this section. Based on such assessment, the Secretary of HHS and the Secretary of Homeland Security shall take any further appropriate regulatory action, to the extent feasible and consistent with CDC guidelines and applicable law.

HHS is to assess the January 12, 2020, CDC order by February 3, 2021; however, this may or may not result in an immediate change to current travel restrictions. Future “appropriate regulatory action” may include additional or other types of negative COVID-19 tests and a quarantine requirement upon arrival, amongst others.

In the meantime, the PP 10014 and 10052 (IV and NIV bans), as well as the country specific COVID-19 related travel bans remain in place. It is unclear if the Biden administration will lift the restrictions, despite a January 18, 2021, proclamation (PP 10138) issued by President Trump terminating COVID/health-related travel restrictions on entry of certain travelers from the Schengen area, U.K., Ireland, and Brazil and leaving the restrictions active for China and Iran. As of January 22, 2021, CBP has confirmed it had not received guidance on the travel bans being lifted for intending travelers from the Schengen area, U.K., Ireland and Brazil. If no further action is taken by the Biden administration, PP 10138 will be effective on January 26, 2021. However, in a January 18, 2021 tweet, Press Secretary Jen Psaki indicated that the Biden Administration does not intend to lift the restrictions on January 26, 2021 and plans to strengthen public health measures around international travel.

While it is still unclear what actions the Biden administration will take on these travel restrictions, for now if your client is subject to one of those travel restrictions, they will continue to require a National Interest Exception (NIE). AILA will continue to monitor this issue and provide updates. For more information on actions taken or planned by the Biden Administration during the first 100 days, please see AILA’s Featured Issue page.

Cite as AILA Doc. No. 21012390.