U.S. Immigration & Travel Updates - May 2021

Last updated: 05/26/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

It is not yet known for how long the Biden Administration intends to keep the many COVID-19 geographic travel restrictions in place or how soon U.S. Embassies/Consulates will resume normal visa processing given COVID-19 safety restrictions.

Following is a list of recent updates:

• U.S. Citizens with expired passports: The Department of State issued guidance on return travel on recently expired U.S. passports.

• COVID Travel Ban for India: On April 30, 2021, President Biden issued a Proclamation banning the entry of nonimmigrants who have been present in India for 14 days preceding entry. The Proclamation took effect at 12:01AM eastern time on May 4, 2021. The usual exceptions / exemptions apply, including lawful permanent residents, spouse/parent of minor U.S. citizens, and National Interest Exceptions for support of critical infrastructure. Most U.S. Embassy/Consulate locations in India are currently closed or are operating with only limited services due to the current COVID surge.

• CDC Testing Requirement for Air Arrivals: In a CDC order dated January 26, 2021, airlines are required to deny boarding to the U.S. to anyone who cannot produce negative test results within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents or persons who are vaccinated.

• Ongoing Worldwide Consular Closures: It is not yet known when normal visa processing will resume at U.S. Embassies/Consulates worldwide; the State Department has stated that it will be on a post-by-post basis and many are still only offering “emergency” appointment availability. The State Department announced tiers of prioritization for immigrant visas (consular processed permanent residency applications, K-1 fiancé(e)s, diversity visa lottery, etc.) on April 30, 2021.

• COVID Travel Bans for Europe, China, Iran, Brazil, South Africa, India: The geographic COVID bans for Europe, China, Iran, Brazil, South Africa, and now India are to be reviewed at the end of each month. On March 2, April 27, and April 30, 2021, the Department of State announced changes to the “National Interest Exception” standard, which allows for a waiver of the COVID ban if the applicant is “seeking to provide vital support for critical infrastructure.” Additional NIE criteria for certain Immigrant, K-1 Fiancé(e), exchange visitor, pilots and air crew visa applicants were added on April 8, 2021. Lawful Permanent Residents, certain relatives of U.S. citizens, and F-1/M-1 students continue to remain excepted from the ban, and NIEs also remain available for humanitarian travel, public health response, and national security.

• Canada/Mexico Land Border: The U.S. and Canadian/Mexican land borders remain closed except for essential travel until at least June 21, 2021.

• USCIS Updates:

  • Entrepreneur Parole: On May 10, 2021, USCIS announced the continuation of the International Entrepreneur Parole Program. For background on the program including process and requirements, please refer to our 2018 post.

  • Biometrics for I-539s: On May 5, 2021, it was reported that USCIS will waive biometrics for some existing and new I-539 applications for H-4 and L-2 dependents. On May 13, USCIS confirmed that biometrics will be suspended, and no biometrics fee will be required, for filings received on / after May 17 for H-4, L-2, E-1, E-2, and E-3 I-539 dependent filings.

  • “Deference Memo”: On April 27, USCIS announced that it was restoring the previously rescinded guidance requiring deference to prior adjudications.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Updates - April 2021

Last updated: 04/30/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

The H/L visa issuance ban expired on March 31, 2021. However, it is not yet known for how long the Biden Administration intends to keep COVID-19 geographic travel restrictions, or, how soon U.S. Embassies/Consulates will resume normal visa processing given COVID-19 safety restrictions.

Following is a list of recent updates:

• COVID Travel Ban for India: On April 30, 2021, President Biden issued a Proclamation banning the entry of nonimmigrants who have been present in India for 14 days preceding entry. Most U.S. Embassy/Consulate locations in India are currently closed due to COVID. The Proclamation takes effect at 12:01AM eastern time on May 4, 2021.

• CDC Testing Requirement for Air Arrivals: In a CDC order dated January 26, 2021, airlines are required to deny boarding to the U.S. to anyone who cannot produce negative test results within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents or persons who are vaccinated.

• Nonimmigrant (H/L/J) and Immigrant Visa Ban; Ongoing Consular Closures: On February 24, 2021, President Biden rescinded the Immigrant Visa Ban. On March 31, 2021, the nonimmigrant (H/L/J) visa ban expired. It is not yet known when normal visa processing will resume at U.S. Embassies/Consulates; the State Department has stated that it will be on a post-by-post basis and many are still only offering “emergency” appointment availability.

• COVID Travel Bans for Europe, China, Iran, Brazil, and South Africa: On January 25, 2021, President Biden issued an Proclamation keeping the geographic COVID bans in place, and adding South Africa to the list of banned areas (because of the COVID variant there). These bans are to be reviewed at the end of each month. On March 2, 2021 and April 27, 2021, the Department of State announced changes to the “National Interest Exception” standard, which allows for a waiver of the COVID ban if the applicant is “seeking to provide vital support for critical infrastructure.” Additional NIE criteria for certain Immigrant, K-1 Fiancé(e), exchange visitor, pilots and air crew visa applicants were added on April 8, 2021. Lawful Permanent Residents, certain relatives of U.S. citizens, and F-1/M-1 students continue to remain excepted from the ban, and NIEs also remain available for humanitarian travel, public health response, and national security.

• Canada/Mexico Land Border: The U.S. and Canadian/Mexican land borders remain closed except for essential travel until at least May 21, 2021.

• USCIS “Deference Memo”: On April 27, USCIS announced that it was restoring the previously rescinded guidance requiring deference to prior adjudications.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

H-1B "cap" reached for FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2022. 

The USCIS announcement states:

We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

…

H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.

In the 2020 (FY 2021) season, a second selection process took place in August to make unused H-1B visas available. USCIS has not yet announced when such a second selection might take place in 2021 (FY 2022).

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Updates - March 2021

Last updated: 03/12/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

It is not yet known for how long the Biden Administration intends to keep COVID-19 geographic travel restrictions or the nonimmigrant (H/L/J) visa issuance bans (currently expiring March 31, 2021) in place, or, if the bans are lifted, how the Embassies will process visas given COVID-19 safety restrictions.

Following is a list of recent updates:

• Public Charge or “Wealth Test”: On March 9, 2021, DHS issued a statement saying that “continuing to defend the final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (2019 Rule), is neither in the public interest nor an efficient use of limited government resources. Consistent with that decision, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Rule.” On March 10, USCIS updated its website to note that the Form I-944, Declaration of Self-Sufficiency, is no longer required for Adjustment of Status filings, and that any information included or required on forms related to the 2019 rule will be disregarded. USCIS is reverting to its 1999 guidance when making inadmissibility determinations regarding public charge.

• Temporary Protected Status (“TPS”) for Venezuela and Burma: DHS designated Venezuela and Burma for TPS, which means that eligible Venezuelans and Burmese may apply for TPS and an employment authorization document (“EAD” or “work permit”) until September 2022.

• F-1 OPT EADs: USCIS announced certain flexibilities for F-1 students experiencing receipt delays or rejections on their OPT EAD applications, allowing for a full 12-month OPT EAD period and allowing re-filing of certain cases that were previously rejected, or re-issuance/correction of certain EADs that were shorted. USCIS also announced that it will not reject applications with missing or deficient signatures and will instead issue a “Request for Evidence” so that applicants may correct the errors.

• E-3 Visas: USCIS’s Premium Processing Service is now available for E-3 (Australian) change of employer and extension of status petitions.

• Civics Test: USCIS has reverted to using the 2008 version of the Civics Test for citizenship (naturalization) applications.

• H-1B Cap: The H-1B Cap for FY 2022 will be a random lottery; the registration period will run from March 9-25, 2021.

• CDC Testing Requirement for Air Arrivals: In a CDC order dated January 26, 2021, airlines are required to deny boarding to the U.S. to anyone who cannot produce negative test results within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents or persons who are vaccinated.

• Immigrant Visa Ban: On February 24, 2021, President Biden rescinded the Immigrant Visa Ban. The Nonimmigrant (H/L/J) visa ban remains in place until March 31, 2021 (or until rescinded or extended).

• COVID Travel Bans for Europe, China, Iran, Brazil, and South Africa: On January 25, 2021, President Biden issued an Proclamation keeping the geographic COVID bans in place, and adding South Africa to the list of banned areas (because of the COVID variant there). These bans are to be reviewed at the end of each month. On March 2, 2021, the Department of State announced a change to the “National Interest Exception” standard, which allows for a waiver of the COVID ban for persons in Europe if the applicant is “seeking to provide vital support for critical infrastructure.” F-1/M-1 students also remain excepted, and NIEs remain available for humanitarian travel, public health response, and national security.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

Biden Administration's U.S. Immigration & Travel Updates - January/February 2021

Updated 02/02/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

It is not yet known whether the Biden Administration intends to keep COVID-19 geographic travel restrictions or the visa issuance bans in place long-term, or, if the bans are lifted, how the Embassies will process visas given COVID-19 safety restrictions. More executive actions are expected in the coming days.

Executive Actions:

On February 2, 2021, President Biden signed three Executive Orders establishing a taskforce for reuniting families separated at the border, reviewing asylum and related polices at the border, and ordering agency reviews of Trump immigration policies.

On January 25, 2021, President Biden issued an Executive Order titled “Ensuring the Future is Made in All of America with All of America’s Workers,” which, among other provisions, revokes the previous administration’s “Buy American and Hire American” policy which caused nonimmigrant visa petitions and applications to be heavily scrutinized, resulting in denials and “Requests for Evidence” (RFEs) as well as additional impediments added to existing applications, such as the “public charge” rule changes.

On January 20, 2021, the Biden Administration issued several Executive Actions related to immigration, including but not limited to:

• Protecting DREAMers and creating a pathway to citizenship (memorandum is here);

• Reversing the Muslim ban and ordering U.S. Embassies and Consulates to issue visas to applicants who were otherwise eligible for issuance but for the Muslim ban (text of order available here);

• Revocation of certain interior enforcement policies, including USCIS’s NTA issuance policy and ordering a 100-day pause on certain removals/deportations (Executive Order is here; DHS memorandum is here); and

• Stopping border wall construction (text of Presidential Proclamation is here).

Additional Executive Actions related to immigration are expected in the coming days.

Regulatory Freeze: On January 20, 2021, the White House Chief of Staff issued a regulatory freeze memo pausing any “midnight” regulations from taking effect until the incoming Administration is able to review them. In addition, many regulations proposed by the prior administration were never finalized and will not go forward, including H-4 EAD rescissions, biometrics requirements for U.S. citizen sponsors, elimination of duration of status for students, exchange visitors, and media, and additional affidavit of support requirements.

CDC to Require Negative COVID Test for ALL U.S. Air Arrivals Starting 1/26/2021: In a CDC order issued January 12, 2021 and taking effect January 26, 2021, airlines will be required to deny boarding to the U.S. to anyone who refuses a test or cannot produce negative test results (or a certificate of recovery from COVID-19) within 3 days of the planned flight. The testing requirement applies to all entries, including U.S. citizens and Lawful Permanent Residents, even if testing is not readily available in the location where the traveler is departing from. U.S. Embassies will not be available to provide/arrange testing. On January 21, 2021, the Biden Administration ordered a 14-day review of travel policies as they relate to COVID.

COVID Travel Ban for Europe, China, Iran, Brazil, and South Africa: On January 25, 2021, President Biden issued an Proclamation keeping the geographic COVID bans in place, and adding South Africa to the list of banned areas (because of the new COVID variant there), at least through the 14-day review period mentioned above.

U.S. Citizenship Act of 2021: On January 20, 2021, the Biden Administration posted a Fact Sheet for a bill that President Biden sent to Congress. The bill calls for, among other things:

• A pathway to citizenship for undocumented individuals physically present in the U.S. on or before January 1, 2021 (including certain previously removed/deported persons) including a temporary status with ability to apply for a green card (permanent residency) in five years, and three years thereafter, to file an application for citizenship;

• Reforming the family-based immigration system, including clearing backlogs, using unused visa numbers, increasing per-country caps, eliminating the three- and ten-year bars, among other provisions; and

• Reforming the employment-based immigration system, including clearing backlogs, reducing processing times, eliminating per-country caps, make it easier for STEM graduates to remain in the U.S., provide work authorization for H-4 spouses, etc.

At this time, this is merely a bill and must be passed into law by Congress to have any effect.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Restrictions - January 2021 Updates

Updated 01/19/2021 - see our latest post for updates as of 1/20/2021

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

CDC to Require Negative COVID Test for ALL U.S. Air Arrivals Starting 1/26: In a CDC order issued January 12, 2021 and taking effect January 26, 2021, airlines will be required to deny boarding to anyone who refuses a test or cannot produce negative test results within 3 days of the planned flight. Geographic COVID travel bans also remain in place.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. On December 25, 2020, the CDC issued a requirement for a negative COVID test for all arrivals from the United Kingdom.

On January 18, 2021, the Trump administration issued a Proclamation ending the Schengen/U.K./Ireland/Brazil COVID-based entry restrictions on January 26, presumably to coincide with the CDC testing requirement going into effect that day. It is not yet known whether the Biden Administration intends to keep geographic travel restrictions in place.

Visa Ban: On December 31, 2020, the Trump administration extended the visa issuance bans to March 31, 2021. The Biden transition team has not yet specified which bans will be lifted and when. As detailed in our earlier blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. Relatedly, the Trump administration’s health insurance ban may be back in play - we are updating our 2019 post on this here.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least February 21, 2021.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services which has been updated a few times; however, there continues to be no worldwide standard policy/procedure for visa appointment scheduling at this time.

USCIS and DOL Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8, 2020 and was put on hold by a District Court on December 1, 2020. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, 2020, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants. USCIS is checking CBP records and automatically rescheduling interviews if the applicant has traveled outside the U.S. in the last 14 days. USCIS Application Support Centers are still working to reschedule cancelled biometrics appointments; as of December 2020 the total biometrics backlog is approximately 1.3 million applications.

• Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 31, 2021, inclusive. See full announcement here.

• Service center operations remain mostly unchanged.

• Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, 2020, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to January 31, 2021.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

U.S. Immigration & Travel Restrictions - December 2020 Updates

Updated 12/07/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.

Visa Bulletin: The Department of State’s December Visa Bulletin is now available, and USCIS is accepting Dates for Filing for employment-based cases.

Visa Ban: As detailed in our earlier blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. At this time, Department of State guidance requires that visa applicants have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. The ban is set to expire on 12/31 but may be extended.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least December 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS and DOL Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8 and was put on hold by a District Court on December 1. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive. See full announcement here.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

DHS publishes proposed change to cap-subject H-1B visa petition processing: a wage-based selection system

On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.

Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.

USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)

Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.

This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.

We will post further updates as they become available.

© Jewell Stewart & Pratt PC 2020 

U.S. Immigration & Travel Restrictions - November 2020 updates

Updated 11/24/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Visa Bulletin: The Department of State’s November 2020 Visa Bulletin has been released. See our separate post here. The December Visa Bulletin is also now available, and USCIS is accepting Dates for Filing for employment-based cases.

Visa Ban: As detailed in our blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. Since then, the Dept. of State made updates to its website about how it will apply the lifting of the ban. The most recent update is that visa applicants must have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. We are monitoring this development closely.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least December 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.

• Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with a new rule on H-1Bs. The changes to prevailing wages went into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to December 31, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

DOL announces changes to prevailing wage system effective October 8, 2020

December 7, 2020 update:

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the wage change rule, requiring USCIS and the Department of Labor to revert back to the previous prevailing wage system.

Original Post:

U.S. immigration law requires employers to pay certain workers, including those working pursuant to H-1B, E-3, and H-1B1 visas, the greater of (1) the actual wage paid by the employer to all other individuals with similar qualifications for the employment in question, or (2) the prevailing wage level for the occupation in the area of employment. On October 6, 2020, the U.S. Department of Labor (DOL) announced changes to prevailing wage system, effective October 8, 2020, that will result in higher prevailing wages for all occupations.

As background, prevailing wages are usually calculated using data collected by DOL’s Office of Foreign Labor Certification (OFLC). In H-1B, H-1B1, and E-3 visa cases, the prevailing wage is then included in the Labor Condition Application (LCA) that the employer must have certified by DOL before the actual visa petition or application can be filed with the appropriate agency. DOL also uses OFLC data to set prevailing wages in its PERM program, which is often the first part of the employment-based permanent residence process.

DOL’s interim final rule (IFR), effective October 8, 2020, will change the method of computation of prevailing wages and will directly result in higher prevailing wages for all occupations. The rule will mostly apply only to prevailing wages calculated on or after October 8. It will not be applied to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs. However, going forward, employers beginning new petitions or applications for H-1B, E-3, H-1B1, or PERM labor certification will notice an immediate increase in the OFLC prevailing wage data.

Taken with the U.S. Department of Homeland Security’s overhaul of the H-1B visa system, regulations for which are expected shortly, this change to the prevailing wage system may make it harder for U.S. employers to obtain visas for workers to fill a temporary need, adding to the stresses already imposed by the COVID-19 pandemic and an ailing U.S. economy. Existing prevailing wage data tends to skew higher than real-life salaries—for example, the prevailing wage for a software development manager with a bachelor’s degree and over four years of experience, in the San Francisco Bay Area, is $252,117 today (October 7, 2020)—so the new data may put visas out of reach for some employers.

These changes have been made at extremely short notice, and may be challenged in litigation; further updates will be posted here as they occur.

© Jewell Stewart & Pratt PC 2020

U.S. Immigration & Travel Restrictions - October 2020 Updates

Updated 10/23/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.

Visa Ban: As detailed in our blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions had only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. Since then, the Dept. of State made updates to its website about how it will apply the lifting of the ban. The most recent update is that visa applicants must have a relationship to one of the plaintiff organizations. We are monitoring this development closely.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least November 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS Updates:

• Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on future changes to PPS, see our post here.

• Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes are enjoined by a District Court as of September 29, 2020.

• H-1B Rule: The administration is pushing forward with a new rule on H-1Bs. The changes to prevailing wages are going into effect on October 8, and the restriction of the definition of “specialty occupation” goes into effect in 60 days. We will post a more detailed summary ASAP.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Service center operations remain mostly unchanged.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

Future changes to USCIS's Premium Processing Service

On September 30, 2020, Congress passed a continuing resolution to fund the government through December 11, 2020, and the president is expected to sign it into law. The continuing resolution contains certain changes to USCIS’s Premium Processing Service or “PPS,” including raising the filing fee, and making PPS available to new categories such as EB-1Cs, NIWs, I-539s, and EADs. Although the law goes into effect immediately, the changes to PPS do not. USCIS must now implement the law by proposing regulations, which can take several months. We are tracking this closely and when there are regulations promulgated, we will be reaching out to clients who may benefit from using PPS in new and existing/already pending cases. Note that this change is unrelated to USCIS’s Fee Rule which is on hold as of September 29, 2020, due a District Court injunction.

© Jewell Stewart & Pratt PC 2020

U.S. Immigration & Travel Restrictions - September 2020 Updates

Updated 9/29/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.

Visa Ban: As detailed in our frequently updated blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of September 7, 2020, court decisions have only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants.

COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that based on how the Department of State is implementing the guidance, which remains Embassy-by-Embassy, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, UK, Ireland, China and Brazil remain in place.

Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least October 21, 2020.

Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.

NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.

USCIS Updates:

• Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”

• Fee Changes: USCIS filing fee and form changes will take effect on October 2, 2020.

• H-1B Rule: The administration is pushing forward with a new rule on H-1Bs.

• H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.

• Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

• Service center operations remain mostly unchanged.

• USCIS’s planned furlough has been delayed/cancelled at this time.

U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19: See our August post for further information.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

U.S. Immigration & Travel Restrictions - August 2020 Updates

Updated 8/19/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

H-1B Cap:

On August 14, 2020, USCIS ran a second lottery on existing H-1B cap registrations. The filing period for the newly selected registrations will be from August 17 to November 16, 2020.

Visa Ban:

As detailed in our frequently updated blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new H, L, and certain J visas. Anyone who is in the United States in valid status is not affected assuming they do not depart the U.S. Note that a “visa” is the travel document/sticker affixed in a passport, and is different from “status” or an I-797 petition.

The June 22 expansion of the original visa ban also extended the initial ban of consular processing immigrant visa cases, with certain exceptions.

PERM, I-140, Adjustment of Status (I-485) and related in-country “green card” filings are unaffected. Most employment-based green card interviews are now being waived.

F-1 & M-1 Students:

On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating solely online for the fall semester. On July 14, 2020, the administration agreed to withdraw the proposed rule entirely; however, first-time (initial) student visa applicants may still be affected. For a more detailed update please see our blog post here.

Closure of Land Ports of Entry (Canada & Mexico):

U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least September 21, 2020.

COVID Travel Ban for Europe, China, Iran, Brazil:

Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the Europe ban, including for business travelers and students. Students currently in Europe who already hold valid F-1 or M-1 visas and current I-20s do not need to apply for permission to travel. Otherwise, interested travelers must initiate an exception request with their nearest Embassy or Consulate or CBP.

Proclamation / COVID Travel Ban: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

Guidance on exceptions: https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html

New York Residents Now Eligible for CBP Trusted Traveler Programs:

On July 23, 2020, DHS announced that New York state residents would again be eligible to use CBP’s Trusted Traveler Programs such as Global Entry. These programs had been unavailable to New York residents since February 2020.

Phased Embassy Re-Opening:

Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID bans.

USCIS Re-Opening & Potential Furloughs:

On June 4, 2020, USCIS Field Offices started a phased re-opening process. As mentioned, most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. Naturalization oath ceremonies are being scheduled as small socially-distanced events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The San Francisco USCIS office has also indicated that the oath may be administered at the conclusion of a naturalization interview and/or same-day, where possible. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

Application Support Centers (for biometrics) are slowly re-reopening and appointments are (also slowly) being rescheduled via mailed notices.

USCIS Service Center operations continue as usual, which means that regular filings are still being accepted. Premium Processing Service or “PPS” has been restored for most previously-accepted application types, and scanned signatures continue to be accepted for filings.

That said, USCIS has issued furlough notices to thousands of its employees to take effect at the end of August 2020 unless/until it secures additional government funding. Note that USCIS is meant to be fee-funded. It is not clear how benefits adjudications and processing times will be affected or if PPS will be suspended again.

USCIS is also reportedly scaling back its printing operations / contracts because of the agency’s financial crisis. This is causing a delay of printing secure cards such as permanent resident cards (“green cards”) and employment authorization documents (“work permits”).

U.S. Passport Agency:

On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. At this time, passport issuances for “life and death” emergencies are being prioritized.

https://travel.state.gov/content/travel/en/passports.html

Form I-9 Completion During COVID-19:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19.

On August 19, 2020, DHS issued a temporary policy allowing for I-797s for EADs which were issued between December 31, 2019 and August 20, 2020, to be considered List C documents until December 1, 2020. This is helpful for persons who have approved EADs but have not received them because of card production delays mentioned above. The I-797 does not work as a List A document (as an EAD would) but instead would need to be presented along with a List B document of the employee’s choosing.

EAD I-797s announcement: https://www.uscis.gov/i-9-central/form-i-9-verification-during-ead-production-delays-due-to-covid-19

I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19

DHS’s I-9 manual, M-274, Handbook for Employers: Guidance for Completing Form I-9, was updated on April 28, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

Updates on the Administration’s Public Charge Rule

November 5, 2020 update:

On Wednesday, November 4, 2020, the Seventh Circuit Court of Appeal stayed the lower court’s order. Therefore Public Charge is back in effect for now.

November 3, 2020 update:

On Monday, November 2, 2020, the U.S. District Court for the Eastern District of Illinois vacated the administration’s Public Charge rule and denied the government’s request to stay the judgment pending appeal. The USCIS may not require Forms I-944 going forward on a nation-wide basis. As of this writing, USCIS’s website has not been updated to reflect compliance with the order.

September 22, 2020 update:

On September 22, 2020, USCIS posted implementation instructions for its Public Charge rule. Any Adjustment of Status cases that were filed after February 24, 2020, will receive a Request for Evidence for the Form I-944 and relevant supporting documents. Any Adjustment of Status cases filed after October 13, 2020, without the Form I-944 and supporting documents, will be rejected.

September 14, 2020 update:

On Friday, September 11, 2020, the Second Circuit Court of Appeals lifted the injunction; it is not clear how or when USCIS will re-implement rule.

August 14, 2020 update:

The injunction is now limited to cover only certain states (namely New York, Connecticut, and Vermont); however, USCIS and the Department of State have not announced if and how they will implement the rule.

August 10, 2020 update:

Despite news articles to the contrary regarding several Circuit Court rulings, the national-wide injunction as described below remains in place.

August 7, 2020 update:

The Department of State (DOS) has now posted on its website that it will comply with the injunction and is in the process of updating its guidance to consular officers. While guidance is being updated, visa applications that appear to be ineligible based on the public charge grounds of inadmissibility will be “refused” for administrative processing to allow for consultation with DOS. Applicants are not required to complete nor present the DS-5540 Public Charge Questionnaire.  

Original post:

On July 29, 2020, the U.S. District Court for the Southern District of New York issued two nationwide injunctions preventing the Department of Homeland Security (DHS) and Department of State (DOS) from implementing and enforcing the administration’s USCIS and DOS public charge rules and policies.

The injunction issued against DHS prevents DHS from enforcing, applying, implementing, or treating as effective its public charge rule that was implemented on February 24, 2020 (and outlined in our blog post here) as long as there is a declared national health emergency in response to the COVID-19 pandemic. (The Secretary of Health and Human Services declared a public health emergency on January 31, 2020.) The ruling came after the plaintiffs successfully argued that the DHS public charge rule has had a chilling effect on foreign nationals seeking health care and other benefits during the COVID-19 pandemic.

USCIS announced that as long as the injunction is in effect, it will not apply the Public Charge Rule implemented on February 24, 2020 for any applications and petitions USCIS adjudicates on or after July 29, 2020. Instead, USCIS will apply prior public charge guidance. Any information and documentation previously provided on Form I-944 Declaration of Self Sufficiency (for the green card process) or the receipt of public benefits (for nonimmigrant status) will not be considered. In addition, the detailed information and evidence is need not be provided for applications or petitions going forward, again while this injunction is in place. USCIS has indicated that additional guidance will be forthcoming.

The injunction issued against DOS in a separate case prevents DOS from implementing, enforcing, or applying its public charge rule as well as the administration’s Health Care Proclamation that required visa applicants to show proof of private health insurance. This was the first decision fully addressing these policies, and the court’s decision enjoined those policies indefinitely. As of this writing, DOS has not made an announcement on its website regarding the injunction. Many U.S. Embassies and consulates remain closed or on very limited operations due to the ongoing pandemic.

© Jewell Stewart & Pratt PC 2020

Executive Order regarding Hong Kong has Significant Impact to U.S. Immigration

On July 14, 2020, President Trump issued Executive Order (EO 13936) that ends the special treatment of Hong Kong as a separate foreign state from China. The immigration impact to Hong Kong nationals is significant. For the permanent residence (i.e. green card) process, Hong Kong-born nationals will now be “charged” to China, rather than the “Worldwide” quota, meaning they will now be subject to the same multi-year wait times and immigrant visa backlogs as nationals born in mainland China for many employment-based preference categories. In addition, Hong Kong SAR passport holders with H, L, and O visas will now be subject to shorter visa validity periods, in accordance with the Department of State’s visa reciprocity tables. The EO also orders the termination of the Fulbright Exchange Program with Hong Kong and China, and J-1 exchanges for Hong Kong residents would likely now be subject to the two-year home country requirement that most programs for residents of China fall under. The exact effective date of the EO is not yet clear and we will update this blog post once we know more.

© Jewell Stewart & Pratt PC 2020

COVID-19-Related U.S. Travel Restrictions & Government Closures - July 2020 Updates

Updated 7/29/2020

Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.

Presidential Proclamations:

As detailed in our continually updated blog post, Presidential Proclamations 10014 and 10052 affects the issuance of new H, L, and certain J visas. Anyone who is in the United States in valid status is not affected assuming they do not depart the U.S.

The June 22 expansion of the original ban also extended the initial ban of consular processing immigrant visa cases, with certain exceptions. PERM, I-140, Adjustment of Status (I-485) and related filings are unaffected.

F-1 & M-1 Students

On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating solely online for the fall semester. On July 14, 2020, the administration agreed to withdraw the proposed rule entirely; however, questions remain in several areas. For a more detailed update please see our blog post here.

On May 29, 2020, the administration issued an additional Proclamation banning the entry of certain Chinese undergraduate students and researchers on F or J visas.

Closure of Land Ports of Entry (Canada & Mexico):

On June 16, 2020, U.S. Customs & Border Protection extended the land border closure to 11:59 PM ET on July 21, 2020. Essential travel is excepted. Although not officially announced, the closure is expected to be extended until August 2020.

https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus

Arrival Restrictions for Europe, China, Iran, Brazil:

Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the Europe ban, including for business travelers and students. Students currently in Europe who already hold valid F-1 or M-1 visas and current I-20s do not need to apply for permission to travel. Otherwise, interested travelers must initiate an exception request with their nearest Embassy or Consulate.

Proclamation / COVID Travel Ban: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

Guidance on exceptions: https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html

New York Residents Now Eligible for CBP Trusted Traveler Programs

On July 23, 2020, DHS announced that New York state residents would again be eligible to use CBP’s Trusted Traveler Programs such as Global Entry. These programs had been unavailable to New York residents since February 2020.

Phased Embassy Re-Opening:

Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be suspended although on July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are starting to show appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies.

USCIS Re-Opening & Potential Furloughs:

As of June 4, 2020, USCIS Field Offices are starting a phased re-opening process. In San Francisco, most employment-based adjustment of status interviews are being waived. Naturalization oath ceremonies are being scheduled as small socially-distanced events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The San Francisco office has also indicated that the oath may be administered at the conclusion of a naturalization interview going forward, where possible. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

USCIS Service Center operations continue, which means that regular filings are still being accepted. Premium Processing Service or “PPS” has been restored for most previously-accepted application types, and scanned signatures continue to be accepted for filings.

That said, USCIS has issued furlough notices to thousands of its employees to take effect in August unless/until it secures additional government funding. Note that USCIS is meant to be fee-funded. It is not clear how benefits adjudications and processing times will be affected. USCIS is also reportedly scaling back its printing operations / contracts because of the agency’s financial crisis. This is causing the delay of printing secure cards such as permanent resident cards (“green cards”) and employment authorization documents (“work permits”).

Form I-9 Completion During COVID-19:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19.

I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19

Finally, DHS issued a new M-274 manual M-274, Handbook for Employers: Guidance for Completing Form I-9,  with expanded information on properly completing Form I-9, Employment Eligibility Verification, on April 28, 2020.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

COVID-19-Related U.S. Travel Restrictions & Government Closures - June 2020 Updates

Presidential Proclamation:

As noted in our blog post, the April 22, 2020 Presidential Proclamation regarding immigration affects only consular processing immigrant visa cases, with certain exceptions. Nonimmigrant visas and statuses are unaffected; PERM, I-140, Adjustment of Status (I-485) and related filings are unaffected.

See this post for a potential future limitations for nonimmigrant visa issuance or travel which are rumored to be announced in June 2020.

On May 29, 2020, the administration issued a Proclamation banning the entry of certain Chinese undergraduate students and researchers on F or J visas. As there is currently already a travel ban on arrivals from China, it is unclear what additional effect this Proclamation will have.

USCIS Re-Opening:

As of June 4, 2020, USCIS Field Offices are starting a phased re-opening process. In San Francisco, most employment-based adjustment of status interviews are being waived. Naturalization oath ceremonies are being scheduled as small socially-distanced events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The San Francisco office has also indicated that the oath may be administered at the conclusion of a naturalization interview going forward, where possible. As other interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.

USCIS Service Center operations continue, which means that regular filings are still being accepted. Premium Processing Service or “PPS” is being phased back in for most previously-accepted application types, and scanned signatures continue to be accepted for filings.

https://www.uscis.gov/news/alerts/uscis-preparing-resume-public-services-june-4

Closure of Land Ports of Entry (Canada & Mexico):

On June 16, 2020, U.S. Customs & Border Protection extended the land border closure to 11:59 PM ET on July 21, 2020. Essential travel is excepted.

https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus

Arrival Restrictions for Europe, China, Brazil:

Arrival restrictions for persons present in Europe (Schengen, U.K. Ireland) or China are continuing until cancelled or modified. Brazil was most recently added to the list, taking effect Tuesday, May 26, 2020 at 11:59PM ET.

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

Continued Embassy Closures:

Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be suspended although some Embassies are showing appointment availability later in the year. Emergency appointments are available on a case-by-case basis at some Embassies.

Form I-9 Completion During COVID-19:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19.

I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19

Finally, DHS issued a new M-274 manual M-274, Handbook for Employers: Guidance for Completing Form I-9,  with expanded information on properly completing Form I-9, Employment Eligibility Verification, on April 28, 2020.

Disclaimer: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

COVID-19-Related U.S. Travel Restrictions & Government Closures

Updated May 29, 2020

Presidential Proclamation:

As noted in our blog post on April 22, the new Presidential Proclamation regarding immigration affects only consular processing immigrant visa cases, with certain exceptions. Nonimmigrant visas and statuses are unaffected; PERM, I-140, Adjustment of Status (I-485) and related filings are unaffected. See this post for a potential future issues for nonimmigrant visas.

USCIS Field Office Closures:

USCIS Field Offices remain closed through June 4, which means that in-person interviews like adjustment of status and naturalization interviews will be rescheduled for a later date. Some adjustment of status interviews may be waived. Naturalization oath ceremonies will be rescheduled or postponed. In the San Francisco Bay Area, future oath ceremonies will likely be smaller events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The local San Francisco office has also indicated that the oath may be administered at the conclusion of a naturalization interview going forward, where possible. Application Support Center appointments for biometrics will also be rescheduled or waived in some cases. USCIS Service Center operations continue, which means that regular filings are still being accepted. PPS continues to be suspended for all categories, and scanned signatures continue to be accepted.

https://www.uscis.gov/news/alerts/uscis-offices-preparing-reopen-june-4

Closure of Land Ports of Entry (Canada & Mexico):

On May 20, 2020, U.S. Customs & Border Protection extended the land border closure to 11:59 PM ET on June 22, 2020. Essential travel is excepted.

Canada: https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_us-canada-border.pdf

Mexico: https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_us-mexico-border.pdf

Arrival Restrictions for Europe, China, Brazil:

Arrival restrictions for persons present in Europe (Schengen, U.K. Ireland) or China are continuing until cancelled or modified. Brazil was most recently added to the list, taking effect Tuesday, May 26, 2020 at 11:59PM ET. Brazil has been added to the list of various travel bans - the ban goes into effect at 11:59 PM eastern time today, Tuesday, May 26, 2020.

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

On May 29, 2020, the administration issued a Proclamation banning the entry of certain Chinese students and researchers on F or J visas. As there is currently already a travel ban on arrivals from China, it is unclear what additional effect this Proclamation will have.

Continued Embassy Closures:

Routine visa issuing operations at U.S. Embassies and Consulates worldwide continue to be suspended.

Satisfactory Departure for Visa Waiver Program (“VWP”) Visitors:

Satisfactory Departure is available for VWP visitors unable to depart within 90 days of admission because of COVID-19. Additional information is available in our blog post here.

Form I-9 Completion During COVID-19:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19. These changes are expected to last through at least mid-July, 2020.

I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19

Finally, DHS issued a new M-274 manual M-274, Handbook for Employers: Guidance for Completing Form I-9,  with expanded information on properly completing Form I-9, Employment Eligibility Verification, on April 28, 2020.

Disclaimer: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020