The Biden Administration has announced that it will appoint new DHS leadership including: (1) Ur Jaddou, USCIS Director; (2) Jon Meyer, DHS General Counsel; (3) Chris Magnus, CBP Commissioner; (4) Rob Silvers, DHS Under Secretary for Policy; (4) John Tien, DHS Deputy Secretary; and (5) Jen Easterly, Cybersecurity and Infrastructure Security Agency (CISA) Director. Click here for more information.
Since June 22, 2020, many categories of nonimmigrants have been prevented from seeking entry to the United States due to Presidential Proclamation 10052. Enacted by former President Trump, the proclamation drastically reduced visa issuance and entry for nonimmigrants around the world. The ban was set to end on December 31, 2020, but was subsequently extended through March 31, 2021, citing the false premise that these nonimmigrants threatened our country’s economic recovery from the COVID-19 pandemic.
As of today, April 1, 2021, the ban has officially expired, and the Department of State (DOS) has confirmed that the ban is no longer in effect. The DOS has issued guidance regarding the phased resumption of visa services, but ultimately concludes that consular services will operate on a “post-by-post” basis. Accordingly, visa applicants should not assume that the expiration of the visa ban will result in immediate resumption of routine nonimmigrant visa processing.
COVID-related travel restrictions and travel bans are still in effect and are changing daily. We are still advising all of our clients to pay careful attention to these changes and know the risks associated with international travel at this time.
U.S. Immigration and Customs Enforcement (ICE) will extend the flexibilities pertaining to Employment Eligibility Verification (Form I-9) compliance that were announced in 2020, due to the COVID-19 pandemic. This extension includes guidance for employees hired on or after April 1, 2021 and who are working exclusively in a remote setting as a result of COVID-19 policies and precautions. Such employees are temporarily exempt from the physical inspection requirements associated with Form I-9 until the earlier of the following: the employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated. The I-9 compliance flexibility policy is being extended until May 31, 2021.
DHS had previously announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with Form I-9 under section 274A of the Immigration and Nationality Act, as a result of precautions implemented by employers and employees associated with COVID-19. This policy, however, only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, there are no exceptions at this time for in-person verification of identity and employment eligibility documentation for Form I-9.
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:
- Travelers coming to the US to provide “vital support for critical infrastructure”
- F-1 and M-1 students
- 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.
The Public Charge Rule is finally dead, as the Department of Homeland Security (DHS) has announced that it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Final Rule. Consistent with Executive Order 14012 directing a comprehensive review of the rule, DHS determined that continuing to defend the rule is, “neither in the public interest nor an efficient use of limited government resources.”
DHS has announced that once the public charge rule is permanently vacated, it will be following the 1999 interim field guidance on the public charge inadmissibility provision, at which time the Form I-944 will no longer be required.
We will be updating our blog with the latest developments as we learn of them.
The FY 2022 H-1B registration period begins tomorrow, Tuesday, March 9, 2021 at 10am MT, and runs until Thursday, March 25, 2021 at 10am MT. USCIS will notify the “winners” by March 31, 2021. If your employee is “selected” to proceed with an H-1B (i.e. if you employee “wins the H-1B lottery”), then you must file your H-1B petition with USCIS between April 1, 2021 and June 30, 2021.
On March 5, 2021, USCIS provided tips on how to avoid the most common errors (creating the wrong type of USCIS online account and registering an employee more than once) in completing a registration for the H-1B cap. USCIS reminds employers to select “I am an H-1B Registrant” as the account type when setting up a registration account and provided guidance on how to avoid duplicate registrations for the same employee. Click here for more information.
On February 18, 2021, the U.S. Citizenship Act was formally introduced to Congress. The proposed bill calls for comprehensive reform to all areas of immigration law. President Biden declared on this first day in office that he intended to “restore humanity and American values to our immigration system”. The massive, 353-page bill, proposes innovative solutions to the current and outdated immigration framework that has failed to keep up with the country’s needs.
The bill provides for a pathway to permanent residency and eventually citizenship for those with DACA, TPS or H-2A status.
With the goal of stimulating economic and scientific development, the bill proposes many changes to employment-based immigration including:
- Clearing visa backlogs by increasing per-country caps and exempting Ph.D. graduates working in STEM fields from the green card quota.
- Prioritizing the distribution of H-1B visas by wage offered by employers.
- Work authorization for H-4 dependants.
- Increasing penalties for employers who violate labor laws.
- Extensions of F-1, H-1B, L-1, and O-1 status if the foreign national has a labor certification or I-140 immigrant visa petition pending for over a year.
While the bill is only in the early stages of the legislative process, it will certainly be subject to debate and revisions in an effort to garner bipartisan support.
On April 22, 2020, former President Trump signed Proclamation 10014 temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. On June 22, 2020, former President Trump signed Proclamation 10052 continuing Proclamation 10014 issued on April 22, 2020, and suspending the entry of certain nonimmigrants. On December 31, 2020, former President Trump issued a proclamation continuing Proclamations 10014 and 10052 until March 31, 2021.
On February 24, 2021, President Biden rescinded Presidential Proclamation 10014 which prohibited the entry of certain immigrants into the United States due to possible harm to economic interests due to the COVID-19 pandemic. With President Biden’s February 24, 2021 order, the immigrant visa ban has now been revoked. However, at this time Presidential Proclamation 10052 suspending the entry of nonimmigrant workers for the same reasons remains in place. With the rescission of Presidential Proclamation 10014, the Department of State provided instructions to visa applicants who were previously subject to the ban on entry due to PP 10014. The Department of State has also updated its guidance related to National Interest Exemptions (NIEs) for individuals subject to Presidential Proclamation 10052; eligibility requirements for NIEs appear to be unchanged, however.
The geographic COVID-19 related Presidential Proclamations 9984, 9992, and 10143, which suspend entry into the United States of foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa, in the 14-day period before seeking entry into the United States, remain in effect, with limited exceptions.
The attorneys at Curray York & Associates will continue to closely monitor potential changes to the COVID-19 related travel bans, and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.