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 30th 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.
USCIS Settlement Agreement Re: Work Authorization for L-2 Spouses and H-4 Spouses who are Eligible for Work Authorization
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.
Class Action Lawsuit Filed Against USCIS Over Unprecedented Processing Delays
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.
Updated Vaccine Requirements for International Travelers
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)
Travel Restrictions to be Lifted on November 8th for Fully Vaccinated International Travelers
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 8th 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.
U.S. To Reopen Canadian/Mexican Land Borders to Vaccinated Travelers
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.
Biden’s Civil Immigration Enforcement Priorities
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.
USCIS Sending I-693 Medical Exam Courtesy Notices
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.
U.S. Department of State to Waive In-Person Interviews for F, M and Academic J Visas
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.