Author: Lisa York

On November 10, 2021, USCIS entered into a Settlement Agreement pursuant to a lawsuit (Shergill, et al. v. Mayorkas) that had been filed seeking relief for L-2 spouses and EAD eligible H-4 spouses suffering from long EAD adjudication delays. Below is a brief summary of the settlement:

L-2 Nonimmigrants (Spouses of L Nonimmigrants)

By March 10, 2022, USCIS will issue policy guidance stating that L-2 spouses are employment authorized incident to status.  Thus, L-2 spouses will no longer need to apply and be approved for work authorization to legally work in the U.S.  In the interim, USCIS will automatically extend work authorization for up to 180 days for L-2 spouses who have timely filed L-2/EAD  extension applications.

H-4 Nonimmigrants with Employment Authorization Documents (EADs)

Qualifying H-4 dependent spouses who a) properly file an application to renew their H-4 based EAD before it expires; b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant; and c) will continue to have H-4 status beyond the expiration date of their EAD will now benefit from the EAD Automatic Renewal provisions.  USCIS will interpret 8 CFR § 274a.13(d) such that these H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the 180 day automatic extension of their (c)(26)-based employment authorization and EADs.

On November 10, 2021, forty-nine  individual and organizational plaintiffs represented by the American Immigration Lawyers Association (AILA), Farshad Owji of Wolfsdorf Rosenthal LLP, Aaron Hall of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, filed a class action lawsuit against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS), in the U.S. District Court in Washington, DC. The litigation seeks to hold the Biden administration to account for the extreme processing delays on applications for employment authorization documents for noncitizens who are seeking Adjustment of Status (AOS) and E-2 nonimmigrant spouses.

The Biden administration has announced that starting in November 2021 (although no exact date has been announced), the border restrictions at the U.S./Canadian & U.S./Mexican borders will be lifted for fully vaccinated travelers.  Unvaccinated travelers will continue to be banned from crossing the borders with Mexico or Canada. Those who were never banned from traveling across the land borders, including essential workers, commercial drivers and students, will also need to show proof of vaccination starting in January 2022.

Those entering at the Mexico or Canada borders will be questioned by Customs and Border Protection officers about their vaccination status before being allowed to cross. The officers will have the discretion to send travelers to secondary screenings to have their documents checked.  The decision on the land borders was made in part to coincide with the reopening to fully vaccinated foreign air travelers (although no formal announcement of this change has been made yet). While those traveling by air will need to show both proof of vaccination and a negative coronavirus test to enter the United States, there will be no testing requirement for those crossing the land border.

The Centers for Disease Control and Prevention considers people fully vaccinated two weeks after they receive a second dose of the Pfizer-BioNTech or Moderna vaccines, or a single dose of Johnson & Johnson’s.  Those who have received vaccines listed for emergency use by the World Health Organization, such as AstraZeneca’s, would also be considered fully vaccinated (a standard one senior official said would probably be applied to those crossing the land border). Officials added that the C.D.C. was still discussing whether foreigners crossing from Canada or Mexico with two doses from different vaccines could enter.

The decision to lift the restrictions on air travel has been celebrated by business leaders overseas and in the United States. Travel spending dropped nearly in half to about $600 billion in 2020 from a year earlier, according to the U.S. Travel Association, a trade group.

Recently, USCIS has started sending courtesy notices regarding the I-693 medical exam.   The USCIS notice advises that as of September 30, 2021 the USCIS medical exam will be valid for 2 years from the date the civil surgeon signs the medical exam as long as the medical is either (1) filed with USCIS within 60 days of obtaining the medical, or (2) the medical exam is signed after the I-485 application is filed with USCIS.  USCIS had temporarily extended the validity of the I-693 medical exam from 2 years to 4 years, but the temporary extension is expiring as of September 30, 2021.  Additionally, starting October 1, 2021, USCIS will require proof of COVID vaccination as part of the I-693 medical examination process. We are advising clients who have not already submitted their medical exams to USCIS, to wait until USCIS issues the Request for Evidence (RFE) specifically asking for the medical exam before obtaining a medical exam from a designated Civil Surgeon.

On Friday September, 9, 2021, Democrats provided arguments to Senate Parliamentarian Elizabeth MacDonough urging her to allow the inclusion of immigration reform legislation in the Budget Reconciliation Bill. Democrats are pushing for the inclusion of provisions that would provide a pathway to citizenship to undocumented immigrants brought to the U.S. as children, undocumented farmworkers, temporary protected status holders and essential workers. If the parliamentarian agrees that the immigration provisions can be included in the budget reconciliation bill, it could be the best shot at immigration reform in decades. Meanwhile, on Monday, the House Judiciary Committee is scheduled to mark up its portion of the reconciliation bill text, including immigration provisions.

Starting October 1, 2021, U.S. Citizenship and Immigration Services (“USCIS”) and the U.S. Department of State (“USDOS”) will require COVID-19 vaccinations for all applicants applying for lawful permanent residence.  Specifically, all applicants who complete heir medical examinations on or after October 1, 2021, must complete the COVID-19 vaccine series and provide documentation of vaccination. This change will impact anyone who completes Form I-693, Report of Medical Examination and Vaccination Record, on or after October 1, 2021. If Form I-693 is completed before October 1, 2021, and remains valid, the COVID-19 vaccine will not be required. Waivers are available for applicants who are too young to receive the vaccine, have a medical contraindication to the vaccine, or who do not have access to one of the approved COVID-19 vaccines in their countries. In addition, individuals may apply for an individual waiver based on religious or moral convictions with USCIS.

On July 19, 2021, Canada announced that starting on August 9, 2021, fully vaccinated U.S. citizens and U.S. Lawful Permanent Residents will be allowed to visit Canada, as long as they have been vaccinated for at least 14 days. Canada also announced that it hopes to be able to welcome visitors from other countries starting on September 7, 2021 depending on conditions at that time.

On Friday, July 16, 2021, U.S. Federal Judge Andrew Hanen in Texas ruled that Deferred Action for Childhood Arrivals (DACA) is illegal and barred new DACA requests not approved by July 16, 2021.  The ruling bars future applications.  It does not immediately cancel current permits for hundreds of thousands of DACA recipients.  The Biden administration will appeal the decision and is urging Congress to enact legislation to protect DACA recipients. The Department of Homeland Security (DHS) will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, DHS is now prohibited from granting initial DACA requests and accompanying requests for employment authorization. DHS will continue to adjudicate DACA renewals and accompanying requests for employment authorization.

On July 6, 2021, the U.S. Department of State (DOS) posted updated guidance on its website regarding the validity of approved National Interest Exemptions (NIEs).  Previously, an NIE was valid for only 30 days.  Now, NIEs are granted for 12 months and NIEs issued in the last 12 months are being automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. National Interest Exemptions allow non-immigrants to travel to the U.S. from countries subject to the COVID travel ban in limited circumstances.  The extension applies to NIEs for travelers subject to Presidential Proclamations 9984 (China), 9992 (Iran), 10143 (Schengen Area, U.K., Ireland, Brazil, and South Africa), and 10199 (India).

It’s Canada Day! Today marks Canada’s 154th Anniversary! CYA is excited to announce the Trivia Game raffle winners from the CCA “Almost Canada Day” Golf Tournament that was held on June 21, 2021. Winners please contact [email protected] for information about how to claim your prizes. Drum roll…the winners are:

Grand Prize: THE WINNER IS RAFFLE TICKET # 6970530 (Inniskillin Riesling Icewine 2017; 20^th Anniversary CBC Books “Canada Reads” winner, Jonny Appleseed by Joshua Whitehead; & a Canada Tote Bag)

Wines from Around the World Prize: THE WINNERS ARE RAFFLE TICKET #s 6970636, 6970566, & 6970606 (Portable Wine Picnic Bag; 1 Bottle of “World” Red Wine; 1 Bottle of “World” White Wine)

Canada Book Bag: THE WINNERS ARE RAFFLE TICKET #s: 6970626, 6970664, 6970666 (Canada Theme Tote Bag, 1 Bottle of Maple Whiskey or Canadian Icewine, & 2 Books about Canada or by a Canadian author)

USMCA (Formerly known as “NAFTA”) Prizes: THE WINNERS ARE RAFFLE TICKET #s: 6970592, 6970586, 6970702, 6970594, 6970672, 6970656