Author: Breanne Johnson

The U.S. Department of State confirmed that consular officers will continue to have the ability to waive the in-person interview requirement for certain nonimmigrant visa applicants. This policy applies to individuals who are applying for H-1, H-3, H-4, L, O, P, and Q visas who are applying for a visa in their country of nationality or residence. For this class of visa applicants, consular officers have the discretion to waive the interview requirement for individuals who were previously issued any type of visa. Consular officers also have the discretion to waive the interview requirement for those applying for H-1, H-2, H-4, L, O, P, and Q visas for the first time who are citizens of a Visa Waiver Program participating country if the individual has previously traveled to the United States under ESTA.  The U.S. Department of State has also extended the policies to waive visa interviews for H-2 visa applicants as well as certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through December 31, 2022.  Additionally, consular officers have the authority to waive the in-person interview requirement for visa applicants renewing a visa in the same visa category within 48 months of the prior visa’s expiration. The categories of visas eligible for an interview waiver as well as the eligibility requirements for each visa type vary. Please contact a CYA attorney for more information.

Today U.S. Immigration and Customs Enforcement (ICE) approved the continuation of an exception to its rules related to Form I-9 that was initially granted last year as a result of COVID-19. Specifically, if an employee hired on or after April 1, 2021 works exclusively in a remote setting due to COVID-19 related precautions, he/she is temporarily exempt from the physical inspection requirements associated with the Form I-9. This temporary exemption is in place until the employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Due to continued precautions related to COVID-19, this policy has been officially extended until April 30, 2022.

The U.S. Department of Homeland Security announced on Monday that the Biden Administration will waive application fees for Afghan evacuees who are filing requests for U.S. work permits and permanent residency. Afghans brought to the U.S. after July 30^th under a humanitarian immigration process will qualify for this fee exemption. The Department of Homeland Security will also waive permanent residency application fees for Afghans who are applying for Special Immigrant Visas as a result of their service with the U.S. military. Since August approximately 70,000 Afghans have been relocated to the U.S. following the Taliban takeover of Afghanistan. For many Afghans who have been recently evacuated, these filing fee requirements are a significant and even prohibitive cost. The Biden Administration’s waiver of these filing fees will enable a greater number of deserving and eligible applicants to apply for authorization to work and become permanent residents of the United States.

The Biden Administration has officially announced that Trump-era travel bans will be withdrawn as of Monday November 8, 2021 for fully vaccinated international travelers seeking to enter the United States. As a result of COVID-19 related restrictions, international travelers from Canada, Mexico, South Africa, Iran, Brazil, China, India and the Schengen area of Europe have been prohibited from entering the United States for nearly two years. Finally, on Monday November 8^th citizens of these countries will be allowed to enter the United States so long as they are fully vaccinated and have a negative COVID-19 test taken within 72 hours of their flight. All FDA approved vaccines will be accepted and the Administration is expected to provide more information regarding what limited exceptions to the vaccination requirement will be allowed, for example, for children unable to receive a vaccination.  Ending these travel restrictions is a welcome change that will allow for tourism, family reunification and employment-related global travel that has been significantly hindered for the past two years.

Consular officers at the U.S. Department of State have recently been authorized to adjudicate visa applications for F, M and academic J visas applicants (students, professors, research scholars, short-term scholars or specialists) without conducting an in-person interview for these applicants. Specifically, Consular officers may waive the visa interview requirement for F, M and academic J visa applicants who have: 1) previously been issued any type of visa to the U.S. and; 2) who have never been refused a visa unless that refusal has been overcome. Consular officers may additionally waive the interview requirement for first time F, M and academic J visa applicants of Visa Waiver Program participating countries who are otherwise admissible and approvable. This new student interview waiver policy is scheduled to remain in effect through the end of the 2021 calendar year.

F and M visa applicants from countries who are subject to a travel ban due to COVID-19 will automatically be considered for a National Interest Exception (NIE) waiver as part of their student visa application process. Alternatively, J visa applicants should contact their local consulate or embassy for instructions regarding how to apply for an NIE. Please note that consular processing procedures and availability varies significantly from post to post. Visa applicants are encouraged to consult the website of the relevant U.S. consulate or embassy in advance of applying for a visa.

On August 12, 2021, U.S. Citizenship and Immigration Services made the announcement that it is temporarily increasing the validity of the medical examination that is submitted in conjunction with an application for permanent residence. Specifically, the Form I-693, Report of Medical Examination and Vaccination Record is a document required as part of the process to apply for permanent residency in the United States. Previously, this form was valid for two years after the date of the U.S. civil surgeon’s signature so long as the medical form was submitted not more than 60 days before the applicant submitted their application for permanent residence. Now, this new rule extends this two-year validity to four years. Driven by COVID-related processing delays, this extension will prevent applicants from having to request a costly new medical examination before their application can be approved. Although temporary and only applicable to applications that are approved on or before September 30, 2021, this change will enable more streamlined processing of applications and will hopefully help in clearing out the processing backlog caused by COVID-19.

The COVID pandemic has shaken up the traditional workforce. Delays in the issuance of USCIS receipt notices and other pandemic-related modifications to immigration law and policy have had an impact Form I-9 completion and have made this two-page form even more challenging to complete.

Form I-9 is used to verify the employment authorization and identity of individuals offered employment in the United States and is one of the shortest yet most complicated forms required by the U.S. government from U.S. employers. U.S. employers must properly complete the Form I-9 for each individual hired.

In response to more and more newly hired noncitizen employees presenting receipt notices as part of the I-9 verification process USCIS has provided updated guidance for employers completing Form I-9 when an employee presents a receipt notice. This updated guidance can be found here in the I-9 Central portal.

In another update, as previously reported in the Curray York and Associates blog, on May 25, 2021, the Department of Homeland Security and the Department of Labor jointly authorized the release of 22,000 additional H-2B visas to help businesses affected by COVID that will suffer irreparable harm if they cannot hire H-2B workers.  As part of this increased allotment the Department of Homeland Security and the Department of Labor also enabled portability for H-2B workers already located in the United States. The principle of portability allows H-2B workers who are already located in the United States to begin work immediately with a new employer after their H-2B petition is received by U.S. Citizenship and Immigration Services but before the petition is adjudicated.  Under this flexible policy H-2B workers may immediately begin work for employers hardest hit by the COVID pandemic. Under the portability guidance the new employer may employ the H-2B worker for a period not to exceed 60 days beginning on May 25, 2021 or the employment start date, whichever is later. Or, the H-2B noncitizen worker is able to begin employment with a new employer for a period not to exceed 60 days beginning on the received date of their USCIS receipt notice. The employee’s employment authorization must be reverified in Section 3 by the end of the 60-day period.

These complex rules of portability create challenges for employers trying to complete Form I-9 upon hiring new workers.  In this portability scenario, the H-2B employee’s unexpired Form I-94 along with his or her foreign passport qualify as a Form I-9 List A Document for Form I-9 verification purposes.

Each immigration status and class of employment authorization carries unique implications for Form I-9 completion. For advice regarding how to complete the Form I-9 in various and ever-changing hiring scenarios a Curray York and Associates attorney for a consultation.

The U.S. Department of State announced late last week that consular officers have an expanded ability to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same visa classification as they currently hold. The prior policy allowed for an interview waiver for individuals whose nonimmigrant visa expires within 24 months. The current, revised policy allows for an interview waiver for individuals whose nonimmigrant visa expires within 48 months. This expanded policy is in effect now through December 31, 2021.

This is a positive change to nonimmigrant consular processing that will allow for more streamlined visa processing as well as will reduce the risk of COVID transmission as fewer visa applicants will need to physically visit U.S. consulates and embassies for in-person interviews. Visa applicants who believe they may be eligible for an interview waiver should consult the website of the U.S. consulate or embassy they will be renewing through for further instructions and eligibility information.

The COVID-19 pandemic has resulted in the issuance of several regional travel bans that apply to foreign nationals who have been physically present in a particular country within 14 days of seeking to enter the United States. Individuals who have been physically present in counties such as the Schengen area, the UK and Ireland are thus not allowed to enter the United States unless they qualify for an exception to the ban.

As of March 2, 2021, the U.S. Department of State revised its policy regarding eligibility for a National Interest Exception for travelers from the Schengen area, the UK and Ireland. Unfortunately, this updated National Interest Exception policy is more restrictive than the previous standard. Prior to March 2, 2021 European travelers such as technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents subject to the travel ban needed to show that their travel would contribute substantially to the U.S. economy in order to qualify for an exception. The new post-March 2, 2021 standard enables travelers to qualify for a National Interest Exception if their travel will provide “vital support for critical infrastructure.” (Presidential Proclamation 10143). This heightened standard will make it more challenging for travelers to secure a National Interest Exception from U.S. Consulates and Embassies.

Therefore, as of March 2, 2021 the National Interest Exception policy for the Schengen area, the UK and Ireland encompasses the following classes of travelers seeking admission into the United States:

1. Travelers coming to the US to provide “vital support for critical infrastructure”
2. F-1 and M-1 students
3. J-1 students, journalists and academics

Individuals who fall into these categories may be considered for a National Interest Exception and admission into the United States. Until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions related to COVID-19 will not be processed for a visa interview appointment unless the applicant also appears to be eligible for a National Interest Exception under the revised standard.