Check out our announcement in Law Week Colorado welcoming Breanne Johnson back to Curray York & Associates, and welcoming attorneys Adrianna Romero Quezada and Sarah Collins to the firm!
Traveling to Canada? For Canadians Residing in the U.S., Returning Home to Canada is Becoming Increasingly Challenging
Canada has been vigilant in their response to the COVID-19 pandemic. This is particularly exemplified by Canada’s most recent travel restrictions for those trying to cross the border into Canada via land or air. Canadian citizens, Canadian permanent residents and persons registered as Indians under the Indian Act are subject to Canada’s preventative COVID-19 protocols. As such, planning a trip back to Canada from the United States will result in a series of regulated quarantine and testing measures.
Canada’s policies regarding what is required for entry into Canada is changing and evolving almost daily. Therefore, international travelers should check the Canada Border Services Agency (CBSA) website regularly when planning to travel. As of today, Canadians returning home via air travel will be required to adhere to the following protocols:
- All travelers must wear a non-medical mask or face covering when they arrive in Canada.
- Before boarding the flight to Canada, travelers must submit a detailed quarantine plan to the Canadian government.
- All air travelers must provide proof of a negative COVID-19 test to the airline before boarding international flights to Canada. The test must be taken within 72 hours of the scheduled flight departure.
- Upon arrival in Canada and before leaving the airport, travelers will be required to take another COVID-19 test.
- Following the arrival test, travelers will need to stay in a pre-authorized hotel for 3 nights while they await the results of the COVID-19 test they received on arrival.
- Note that travelers must pay for their hotel, as well as all associated costs for food, cleaning and security (and potentially COVID testing)
All hotels will be located near one of the 4 Canadian airports currently accepting international flights:
- Vancouver International Airport
- Calgary International Airport
- Toronto Pearson International Airport
- Montreal-Trudeau International Airport
- Once released from the hotel through a negative COVID-19 test, travelers must then still quarantine for 14 days and must take another COVID-19 test at the end of their 14-day quarantine period.
- Travelers who have COVID-19 symptoms or who develop symptoms of COVID-19 during the hotel stay or quarantine period will be required to comply with mandatory isolation instructions.
- Limited groups of people are exempt from these policies. See the CBSA website for more information on who is exempt.
- There are very harsh monetary penalties for failure to comply with these preventative measures.
Similarly, Canadians seeking to enter Canada via land will be required to provide proof of a negative COVID-19 test taken within 72 hours of arrival at the border. Beginning on February 22, 2021, Canadians returning home will also be required to take a COVID-19 test upon arrival in Canada as well as at the conclusion of their mandatory 14-day quarantine period. Travelers entering by land also must submit a detailed quarantine plan in advance of their arrival into Canada.
Given the increase of new COVID-19 variants and the limited number of available vaccines doses, Canada is putting into place some of the strictest travel and border restrictions in the world and is sending a strong message to their citizens and residents that now is not the time for international travel.
For more and updated information, see: https://www.cbsa-asfc.gc.ca/services/covid/canadians-canadiens-eng.html; https://www.cbsa-asfc.gc.ca/services/covid/menu-eng.html
All Your Questions Answered about the 2021 H-1B Cap
The 2021 H-1B Cap season is just around the corner! Join us on Thursday, February 18, 2021 at 2pm MT for a Zoom presentation on how the H-1B Cap process will work this year.
Topics to be covered include:
- Overview of H-1B basic requirements
- Updates & changes to the 2021 H-1B Registration process
- Timelines & filing Deadlines
- LCAs, COVID & working remotely
- Updates on proposed regulatory changes to the H-1B program
If you are able to join us, please RSVP to [email protected] by 5pm on Wednesday, February 17, 2021. Please share this invite with any HR professionals that you think might be interested in this presentation!
President Biden’s Executive Orders – February 2, 2021
On February 2, 2021, President Joe Biden signed three executive orders that aim to rectify the consequences of some of the hardline regulations, policies, and guidance on immigration that were set in place by the Trump Administration.
1) Establishment of Interagency Task Force on the Reunification of Families
The first executive order revokes the Trump Administration executive order that sought to justify separating immigrant children from their parents at the U.S.-Mexico border. President Biden condemned the Trump Administration’s use of the “Zero- Tolerance” policy, stating that the Biden Administration will “protect family unity and ensure that children entering the United States are not separated from their families, except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law.” The order created an interagency family reunification task force to work to reconnect the hundreds of parents and children who were separated at the border under the “Zero-Tolerance” policy. The task force will work with U.S. government agencies, key stakeholders, and representatives of impacted families to recommend steps to reunify the families and to prevent family separation from occurring in the future.
2) Southern Border and the Asylum System
The White House also issued an executive order that aims to implement a comprehensive three-part plan for safe, lawful, and orderly migration across the southern border. The Administration will first address the underlying causes of migration by confronting instability, violence, and economic insecurity, then collaborate with regional partners to provide protection and opportunities to asylum seekers. The final goal is to ensure that refugees and asylum seekers have a legal pathway to the United States and to strengthen the United States’ asylum system and resettlement capacity. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols (“Remain in Mexico”) program.
3) “Restore Faith in our Immigration System and Promote Integration of New Americans”
President Biden also signed an executive order that requires the Secretary of State, Attorney General, and Secretary of the Department of Homeland Security to conduct a “top-to-bottom” review of recent regulations, policies, and guidance that have been enacted as barriers to our legal immigration system. The executive order aims to ultimately reverse or rescind actions that are inconsistent with the current administration’s policy objectives to “encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them.” In addition to announcing goals to streamline the naturalization process, the policy directs an interagency review of the public charge grounds of inadmissibility and revoke’s the prior administration’s policy to enforce the “legal responsibilities of sponsors of aliens.” The order also re-establishes the Obama Administration’s “Task Force on New Americans” that is focused on better integrating immigrants and refugees into American life.
The attorneys at Curray York & Associates are closely following the changes to immigration law and policy under the Biden Administration and will provide updates as we become aware of them.
Negative COVID Test Required for all International Travelers to the United States
Starting on January 26, 2021, all airline passengers traveling to the U.S. from a foreign country will be required to provide a negative COVID test (taken within 72 hours of departure).
White House Extends COVID Travel Bans on Europe, Brazil & Adds South Africa
On January 25, 2021, President Biden issued a proclamation extending COVID-related travel restrictions on individuals traveling to the U.S. from the Schengen Area, the U.K., Ireland & Brazil. Additionally, the order adds travel restrictions on individuals traveling to the U.S. from South Africa. The proclamation goes in effect on January 26, 2021 (January 30, 2021 for individuals traveling to the U.S. from South Africa) and is in effect indefinitely until the President lifts the travel ban(s). The proclamation will be reviewed on a month by month basis. Additionally, the previous restrictions on individuals from Iran and China are still in effect.
President Biden’s Immediate Immigration Plan
On January 21, 2020, President Biden signed six presidential executive actions that will affect immigration and visas in the U.S. immediately.
DACA: President Biden has instructed the Department of Homeland Security to preserve and fortify the DACA program and calls for legislation to provide a path to citizenship for DACA recipients.
Deportation of Liberians: Due to foreign policy reasons, President Biden reinstated and extended Deferred Enforced Departure (DED) for Liberians that are currently present in the U.S. Granting qualifying applicants protection from deportation, work authorization, and the opportunity to apply for adjustment of status (green card).
The Border Wall: Former President Donald Trump declared a national emergency at the southern border to allocate funds to construct a wall along the border. President Biden terminated the declaration of a national emergency, halted construction of the wall, and plans to reallocate funds to other methods of securing the border.
Census: To ensure that all inhabitants and those living in the U.S. are equally represented, President Biden revoked the previous administration’s order to include immigration status in the national census.
Immigration Enforcement: A previous executive action signed by former President Trump broadly increased interior immigration enforcement by encouraging local authorities to enforce federal immigration laws, and stripped funding from “sanctuary cities”. President Biden revoked this order and will adhere to previous policies regarding the enforcement of civil immigration violations.
Discriminatory Bans on Entry: The so-called “Muslim Ban” was several presidential proclamations and executive orders that prohibited people from primarily Muslim countries from seeking admission into the U.S. People from these countries will once again have the ability to apply for visas/admission and the current administration plans to assess the harms caused by the discriminatory bans.
A memo regarding pending regulatory actions issued by White House Chief of Staff, Ron Klain, states that pending rules at the Federal Register that have not been published yet must be withdrawn. Also, the effective dates the the rules that have been published but have not taken effect may be postponed.
As a result, the “Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule” will be immediately withdrawn. The rule meant to “clarify” how USCIS determines whether there is an “employer-employee relationship” to qualify as a “U.S. Employer.”
The effective date of the “H-1B Wage Selection Final Rule.” will be postponed until March 21, 21. The rule replaced the annual H-1B visa lottery that randomly selects foreign professionals with a process that prioritizes those offered the highest salaries for their occupation and geographic area.
In addition to the signing several executive orders on his first day in office, President Biden has also sent the “U.S. Citizenship Act of 2021” to Congress. U.S. Senator Bob Menendez (D-NJ) has announced that he will lead the legislative effort in the Senate to introduce the bill. Representative Linda Sanchez (D-CA) announced that she will lead the introduction of the bill House of Representatives. The Biden-Harris bill calls for immigration reform that will modernize the current immigration policies to treat noncitizens more humanly and will stimulate the economy.
DACA IS BACK!
In response to a court order issued on 12/4/2020, USCIS has announced that the DACA program will be fully restored, they will resume the previous DACA policies. Meaning USCIS will once again:
- Accept first-time requests for DACA
- Accept DACA renewal requests
- Accept applications for advance parole, and
- Extend current one-year deferred action and employment authorization to two years
Judge Nicolas George Garaufis of the U.S. District Court of the Eastern District of New York issued an order requiring the Department of Homeland Security to resume adjudicating DACA applications according to the DACA policy terms in place before September 4, 2017. The order required USCIS to comply with the ruling by 12/7/2020.
The eligibility requirements for first-time applicants are the following:
- The applicant arrived in the U.S. before their 16th birthday
- The applicant was under the age of 31 as of June 15, 2012
- The applicant has continuously resided in the U.S. since June 15, 2007
- The applicant has graduated from high school or is currently enrolled or is an honorably discharged veteran
- The applicant is over 15 years old (with some exceptions)
- The applicant has not been convicted of disqualifying crimes and does not pose a threat to national security or public safety
Newly eligible applicants:
- The applicant turned 15 years old after the program was rescinded in 2017 and they had previously met the eligibility requirements.
Advanced Parole allows applicants to travel temporarily outside of the U.S. for humanitarian, employment of educational reasons and re-enter the U.S. lawfully.
If DACA recipients received deferred action and work authorization for only one year (according to the July 2020 DHS memo), their current status has been extended to two years.
For assistance with renewing your DACA deferred action and work authorization or with applying for the first time, please send an email to [email protected] for more information.
U.S. District Court Sets Aside DHS Specialty Occupation and DOL Wage Rules for H-1Bs
In October 2020, the Department of Homeland Security (DHS) issued the Strengthening the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of “specialty occupation” for purposes of the H-1B visa program. Concurrently, the Department of Labor (DOL) issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. Together, these rules would have set aside decades-old requirements for the H-1B program, both in terms of the definition of specialty occupation and in the computation of prevailing wage levels.
On December 1, 2020, the U.S. District Court for the Northern District of California set aside the DHS interim final rule and the DOL interim final rule in Chamber of Commerce, et al., v. DHS, et al. The court found that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” which defines the Administrative Procedures Act’s notice and comment requirements for agency rulemaking. USCIS announced on December 4, 2020 that it will fully comply with the court’s decision. In response to the court’s order setting aside the DOL Interim Final Rule, the DOL’s Office of Foreign Labor Certification (OFLC) announced its timeline for updating the FLAG system to incorporate the pre-IFR wage data. DOL must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under its interim rule, with the OES prevailing wage data that was in effect on October 7, 2020. DOL has also provided details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the DOL Interim Final Rule wage system.
The attorneys at Curray York & Associates will continue to closely monitor potential changes to the H-1B program and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.
Public Charge Updates
Earlier this year, the Department of Homeland Security’s (DHS) rule on public charge inadmissibility went into effect, requiring the use of Form I-944 Declaration of Self-Sufficiency for adjustment of status applicants in deciding whether the applicant is inadmissible based on public charge grounds. Since then, the legal status of the public charge rule has been in limbo, as nationwide injunctions have halted implementation of the public charge rule only to have the injunction’s scope limited in the same week and completely reversed the week after. The amount of uncertainty surrounding the public charge rule has made it difficult to know how to advise clients.
Most recently, on December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions issued against the rule that were issued by the Northern District of California and the Eastern District of Washington. At this time, it remains unclear whether the preliminary injunction applies nationwide in scope or if it only applies to the plaintiff states (CA, DC, ME, OR, PA, WA, CO, DE, IL, MD, MA, MN, NV, NJ, NM, RI, HI). As of December 8, 2020, USCIS has not yet decided how to implement the state-specific injunction and has not updated its guidance since November 4, 2020. For now, we believe that the safest approach is to prepare and file the I-944 with adjustment of status applications.
The attorneys at Curray York & Associates will continue to closely monitor the situation and provide updates when possible.