General 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.

On December 9, 2021, USCIS announced that it will temporarily waive the requirement that the civil surgeon’s signature on USCIS medical exams (Form I-693) be dated no more than 60 days prior to filing the I-485 Adjustment of Status application.  

Currently, USCIS considers a completed Medical Exam (Form I-693) to retain its evidentiary value for 2 years after the date the civil surgeon signed, as long as the date of the civil surgeon’s signature is no more than 60 days before the applicant filed the application for the underlying immigration benefit. This is commonly referred to as the “60-day rule.” Due to the COVID-19 pandemic and related processing delays, USCIS has experienced delays in all aspects of operations. Applicants have also experienced difficulties beyond their control, including delays with completing the immigration medical examination. To address these issues, USCIS is temporarily waiving the requirement that the civil surgeon’s signature be dated no more than 60 days before the applicant files the application for the underlying immigration benefit.

This temporary waiver is effective from December 9, 2021 until September 30, 2022, and applies to all USCIS Medical Exams (Form I-693) associated with applications for underlying immigration benefits that have not been adjudicated, regardless of when the application was submitted or when the Form I-693 was signed.

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.

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.

On October 25, 2021, the White House released additional details regarding the COVID-19 vaccine requirements for international travelers.  

U.S. Citizen & Lawful Permanent Resident Travelers

Vaccinated	Must provide evidence of vaccination status & a negative COVID test within 3 days of travel
Unvaccinated	Must provide a negative COIVD test within 24 hours of travel

Non-immigrant Travelers

Vaccinated	Must provide evidence of vaccination status & a negative COVID test within 3 days of travel
Unvaccinated	Must provide a negative COIVD test within 24 hours of travel  & qualify for a vaccine exception listed below

Children

Under 18	Exempt from vaccine requirement but must provide negative COVID test (ages 2-17)
If traveling with a vaccinated adult	Must provide a negative COVID test within 3 days of travel
If traveling with unvaccinated adult	Must provide a negative COVID test within 24 hours of travel

Vaccine Exceptions:

• Children under 18
• COVID-19 clinical trial participants
• Those travel for emergency or humanitarian reasons (with a US government-issued letter affirming the urgent need to travel)
• Those traveling on non-tourist visas from countries with low-vaccine availability (as determined by the CDC)

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.

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.

vaccine-advisory-Sept-2021

On September 30, 2021, USCIS issued a memo outlining the Biden administration’s new immigration enforcement policies. The memo makes it clear that ICE agents are to prioritize the detention or deportation of those suspected of terrorism or pose a national threat to the U.S. Undocumented immigrants who have committed serious crimes or are recent arrivals (entered the U.S. after November 1, 2020) are also among the priority list for ICE.

After the policy goes into effect on November 29, 2021, ICE agents will not detain undocumented immigrations merely because of their immigration status. Instead, ICE agents will use their limited resources and discretion to pursue undocumented immigrants who may be a threat to border security, public safety, and national security. Undocumented immigrants who have been in the U.S. for an extended period of time and can show they satisfy any of the enumerated mitigating factors are not a priority for deportation. While this policy may be a sigh of relief for millions of undocumented immigrants living in the U.S., they are still living in limbo while they wait for a path to work authorization, legal status, and citizenship.