K1 Air Travel Entry when approved COVID Vaccine Not Available

[Merica-n 65]

Since the COVID air travel restrictions start today, can someone with K1 visa and an I-693 medical exam that waived them getting the visa because they got non-approved vaccines  (Russia, China, etc.) answer whether they were able to fly into the United States successfully with their K1 visa and I-693?

 

It's not clear whether the K-1 visa holders will be treated as "immigrants" and be allowed to use an I-693 that waives the requirements to travel to the USA or whether K-1 visas will be subject to the vaccine requirement, because it is not an immigrant visa.

Edited November 8, 2021 by Merica-n

[HRQX 4,145]

33 minutes ago, Merica-n said:

an I-693 medical exam

I assume you meant DS-3025 as that is what Panel Physicians use.

34 minutes ago, Merica-n said:

because they got non-approved vaccines  (Russia, China, etc.)

Which country's passport does the K-1 traveler have?

https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html

What documentation do I need to show that I am from a country with limited COVID-19 vaccine availability?

You will need to show

• A passport or other proof of citizenship from a country on the list provided by CDC; AND
• A valid nonimmigrant visa that is not a B-1 (business) or B-2 (tourism) visa.

What if I live in a country with low vaccination availability but my passport is from a country with high vaccination availability? Do I still qualify for an exception?

No, to qualify for this exception, you must show a passport or other proof of citizenship of a country determined to have limited COVID-19 vaccine availability.

https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html

Table 4. List of Foreign Countries with Limited COVID-19 Vaccine Availability (current through October 25, 2021)

Table 4. List of Foreign Countries with Limited COVID-19 Vaccine Availability (current through October 25, 2021)

Afghanistan	Djibouti	Libya	Sierra Leone
Algeria	Egypt	Madagascar	Solomon Islands
Angola	Ethiopia	Malawi	Somalia
Armenia	Gabon	Mali	South Sudan
Benin	Gambia	Mozambique	Sudan
Burkina Faso	Ghana	Myanmar	Syrian Arab Republic
Burundi	Guinea	Namibia	Togo
Cameroon	Guinea-Bissau	Nicaragua	Uganda
Central African Republic	Haiti	Niger	United Republic of Tanzania
Chad	Iraq	Nigeria	Vanuatu
Congo	Kenya	Papua New Guinea	Yemen
Cote d’Ivoire	Kiribati	Senegal	Zambia
Democratic Republic of the Congo	Liberia

[Merica-n 65]

China.  This is not the low vaccination rate country exception.   It's the no who "approved" vaccine available problem that I think is faced in Russia and by some Chinese citizens that the government has already given non approved vaccines too and some other countries where non who approved vaccines are used, I'm sure.

 

Yeah DS-3025 I guess.  Some people have suggested that the medical exam will allow air travel like it would if you were an immigrant, or if that exception doesn't apply, because they are K1 and K1 is not immigrant.

 

I'm hoping since the air travel restrictions start today, we could get an answer

 

Edited November 8, 2021 by Merica-n

[HRQX 4,145]

3 minutes ago, Merica-n said:

It's the no who "approved" vaccine available problem that I think is faced in Russia and by some Chinese citizens

Unfortunately, that is not one of the listed exceptions: https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html

Categories of noncitizen, nonimmigrants that meet the criteria for an exception under the proclamation and CDC’s order include:

• Persons on diplomatic or official foreign government travel
• Children under 18 years of age
• Persons with documented medical contraindications to receiving a COVID-19 vaccine
• Participants in certain COVID-19 vaccine trials
• Persons issued a humanitarian or emergency exception
• Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
• Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
• Sea crew members traveling pursuant to a C-1 and D nonimmigrant visa
• Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

1 hour ago, Merica-n said:

or whether K-1 visas will be subject to the vaccine requirement, because it is not an immigrant visa.

That is probably how they'll treat it unless DOS or DHS issues a blanket NIE for the K category in regards to this most recent Proclamation. For example, Proclamation 10199 didn't exempt fiance(e)s so it had to be done via NIE: https://web.archive.org/web/20211006121001/https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-on-the-suspension-of-entry-as-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019.html Another similar example is how K-1 applicants were treated before the May 27, 2021 NIE announcement:

• https://travel.state.gov/content/travel/en/News/visas-news/k-visa-processing-update.html
• https://web.archive.org/web/20211101230316/https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-for-certain-travelers-from-china-Iran-india-brazil-south-africa-schengen-area-united-kingdom-and-ireland.html

[Merica-n 65]

32 minutes ago, HRQX said:

That is probably how they'll treat it unless DOS or DHS issues a blanket NIE for the K category in regards to this most recent Proclamation. For example, Proclamation 10199 didn't exempt fiance(e)s so it had to be done via NIE

Some lawyers have suggested that K1 applicants like immigrants go through the same medical exam.  The medical exam for these people will include language that says no covid vaccine is available, they must be vaccinated within 60 days of arrival to the United States, they are granted an exception from covid vaccine, and their medical is approved.  This form may work as an exception issued by DHS (USCIS)?

 

What the lawyer says makes sense, how can you be given a piece of paper that says no vaccine available so get vaccinated in the USA, and then be denied into the USA to get vaccinated.

 

Just looking for a definitive answer on whether this is true or not in practice.

Edited November 8, 2021 by Merica-n

[HRQX 4,145]

2 minutes ago, Merica-n said:

The medical exam will include language that says no covid vaccine is available, they must be vaccinated within 60 days of arrival to the United States, they are granted an exception from covid vaccine, and their medical is approved.

Do you have a picture of that page (with any personal or identifying info blacked out) that you can upload here?

[Merica-n 65]

21 minutes ago, HRQX said:

Do you have a picture of that page (with any personal or identifying info blacked out) that you can upload here?

No, but in the medical instructions from the CDC on Covid Vaccines it says:

 

Quote

4. Vaccines Not Routinely Available

Civil surgeons should annotate “not routinely available” on Form I-693 if the COVID-19 vaccine is not routinely available in the state where the civil surgeon practices. In addition, if the vaccine is available to the applicant but due to limited supply, it would cause significant delay for the applicant to receive the vaccination, then the civil surgeon should also annotate “not routinely available” on Form I-693.^[13] USCIS may grant a blanket waiver in these cases.

During the medical exam effective 10/1/2021, USCIS will grant a blanket waiver in the event the covid vaccine is not available to the applicant.  So to even get a K1 visa, you have to pass a medical exam where passing requires you to either have been vaccinated for COVID or receive a waiver from USCIS where you have to get it when you arrive.

[HRQX 4,145]

59 minutes ago, Merica-n said:

No, but in the medical instructions from the CDC on Covid Vaccines it says:

 

Quote

4. Vaccines Not Routinely Available

Civil surgeons should annotate “not routinely available” on Form I-693 if the COVID-19 vaccine is not routinely available in the state where the civil surgeon practices. In addition, if the vaccine is available to the applicant but due to limited supply, it would cause significant delay for the applicant to receive the vaccination, then the civil surgeon should also annotate “not routinely available” on Form I-693.^[13] USCIS may grant a blanket waiver in these cases.

Ok, you are incorrectly conflating multiple Technical Instructions. First of all, most K-1s don't see a Civil Surgeon. They do see a Panel Physician, though. Here is the Technical Instructions for Panel Physicians: https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/covid-19-technical-instructions.html "*Refugees and NIVs, including K-visa applicants are not required to receive the COVID-19 vaccine as part of the immigration medical examination"

 

The air travel proclamation for NIV is something different: https://www.federalregister.gov/documents/2021/10/28/2021-23645/advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic "This suspension and limitation on entry applies only to air travelers to the United States and does not affect visa issuance." Thus focus on these links for that:

• https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html
• https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html

Edited November 8, 2021 by HRQX

[Merica-n 65]

12 minutes ago, HRQX said:

"*Refugees and NIVs, including K-visa applicants are not required to receive the COVID-19 vaccine as part of the immigration medical examination"

Thanks for pointing this out.  Our primary concern was satisfying the medical exam as this requires her to leave China and then return, as this would require her to quit her job and quarantine in and out.  Hoping they would let her back in as getting back into China is tricky!

 

If we don't have to worry about this at the medical stage, she could at least complete the vaccine in a third country on her way in, which is much more doable.

 

I suspect they will have to incorporate K1 through a NIE like you said?  Although, I think it makes way more sense for them to adapt the rules so that covid-19 vaccination is required in the existing medical and waivers are granted by the doctors, because if they just grant NIE's for K1's, then K1's that could have gotten vaccines in places like Israel or London, would be granted an exception.  The existing medical exam seems like it makes way more sense.

[HRQX 4,145]

38 minutes ago, Merica-n said:

If we don't have to worry about this at the medical stage,

Just a note that there have been some reports of incompetent Panel Physicians that sometimes don't follow the explicitly clear Technical Instructions for Panel Physicians.

 

But DOS clearly states: https://fam.state.gov/fam/09fam/09fam030202.html "As nonimmigrant applicants, K applicants are not subject to the INA 212(a)(1)(A)(ii) vaccination requirement. However, we and DHS have agreed that medical exams for fiancé(e) visa applicants should include the vaccination assessment as a matter of expediency. Therefore, you should make every effort to encourage fiancé(e) visa applicants to meet the vaccination requirements before admission to the United States. Nevertheless, you may not refuse K-visa applicants for refusing to meet the vaccination requirements."

 

The DS-3025 has a "K Visa applicant electing not to be vaccinated at this examination" box:

 

https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/vaccinations.html "Although refugees and K visa applicants are not required to receive vaccines before traveling to the United States, they must meet the vaccination requirements when applying for adjustment of status or permanent resident status in the United States."

See page 8: https://www.uscis.gov/sites/default/files/document/forms/i-693instr.pdf "If the vaccination record (DS 3025) was not properly completed and included as part of the original overseas medical examination report, you will need to have the Part 10. Vaccination Record completed by a designated civil surgeon. In this case, you must submit Parts 1. - 5., 7., and 10. of Form I-693."

Edited November 8, 2021 by HRQX

[Merica-n 65]

8 minutes ago, HRQX said:

Nevertheless, you may not refuse K-visa applicants for refusing to meet the vaccination requirements."

 

The DS-3025 has a "K Visa applicant electing not to be vaccinated at this examination" box:

 

"Electing not to be vaccinated" is not the same as unable to be vaccinated.  Could this mean that K-Visa applicants could still receive a "blanket waiver" if the vaccine was not readily available to them and they did not "elect not to be vaccinated"?

Edited November 8, 2021 by Merica-n

[HRQX 4,145]

44 minutes ago, Merica-n said:

"Electing not to be vaccinated" is not the same as unable to be vaccinated.

Either way it's moot because "K applicants are not subject to the INA 212(a)(1)(A)(ii) vaccination requirement"

 

The air travel thing is through INA 212(f) and INA 215(a); so that is different. https://www.federalregister.gov/documents/2021/10/28/2021-23645/advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic

1 hour ago, HRQX said:

focus on these links for that:

• https://www.cdc.gov/quarantine/order-safe-travel/technical-instructions.html
• https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html

[Merica-n 65]

8 hours ago, HRQX said:

Either way it's moot because "K applicants are not subject to the INA 212(a)(1)(A)(ii) vaccination requirement"

 

The air travel thing is through INA 212(f) and INA 215(a); so that is different. https://www.federalregister.gov/documents/2021/10/28/2021-23645/advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic

I understand the authority for the two rules come from different code sections.

 

What I'm saying is that the presidential proclamation requires vaccination unless granted an exception by DHS or DOS.  So consider if USCIS grants a "blanket waiver" specifically for COVID-19 vaccination on a medical examination form, even though the person isn't required to be vaccinated.  This seems logical, because during the medical examination, the person won't refuse to be vaccinated, but simply will say they are unable, because they don't have access to the vaccine.  The proclamation allows an exception if DHS or DOS grant an exception.  USCIS is a division of DHS.  Therefore, could USCIS blanket waiver of COVID-19 vaccination be construed as USCIS granting an exception even though the person was not required to get vaccinated for the medical exam.  The authority for this exception working would come from the proclamation itself?

 

If you look at box 2 on the DS-3025, you could show up for the medical exam, and voluntarily comply with all other vaccine requirements, request a waiver from the covid vaccine, because it's unavailable, and it seems it would not be appropriate to check the box "K Visa applicant electing not to be vaccinated at this examination." and more appropriate to check the box "K visa applicant voluntarily completed vaccination requirements."

 

Disclaimer:  I'm not an attorney and this is not legal advice.  I could be completely wrong don't rely on it.  I'm just curious if this is possible.

Edited November 8, 2021 by Merica-n

[HRQX 4,145]

3 hours ago, Merica-n said:

What I'm saying is that the presidential proclamation requires vaccination unless granted an exception by DHS or DOS.  So consider if USCIS grants a "blanket waiver" specifically for COVID-19 vaccination on a medical examination form

A "blanket waiver" for INA 212(a)(1)(A)(ii) from the Panel Physician is not the same as a NIE for PP 10294 from DOS or DHS.

 

If it's an individualized NIE it'll be from something DOS or DHS issues. For example:

• https://ghkattorneys.com/wp-content/uploads/2020/10/National_Interest_Exception_Waiver-1024x694.jpg
• https://redbus2us.com/wp-content/uploads/2021/05/Email-from-Consulate-with-NIE-Approval-.png

If it's a blanket NIE, it's usually posted on an official website: https://www.dhs.gov/sites/default/files/publications/20_0522_national-interest-exemption.pdf

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The US is using the 7 approved WHO vaccines.  Sinopharm and Sinovac are on this list.