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

President Biden Issues Proclamation Revoking Immigrant Visa Ban

Last updated: 02/25/2021

On February 24, 2021, President Biden issued a President Proclamation revoking Proclamation 10014, known as the Immigrant Visa Ban or “IV Ban”. The IV Ban prevented the issuance of U.S. permanent residence (green card) visas by U.S. Embassies and Consulates for foreign nationals outside the U.S. Today’s Proclamation states in part that the IV Ban:

“does not advance the interests of the United States. To the contrary, it harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here. It also harms industries in the United States that utilize talent from around the world. And it harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received, immigrant visas through the Fiscal Year 2020 Diversity Visa Lottery.”

The Proclamation is posted here. The Department of State also issued guidance for IV applicants and visa holders (including Diversity Visa applicants/holders), available here.

Nonimmigrant visa bans (preventing temporary visa issuance by U.S. Embassies and Consulates until March 31, 2020 or revocation) and COVID travel bans remain in effect as of this writing. Permanent residence applications and visa petitions filed for foreign nationals inside the U.S. continue to be unaffected.

© Jewell Stewart & Pratt PC 2021

H-1B "cap" for 2021 (FY 2022) will be a Random Lottery, as in Prior Years

Last updated: 02/05/2021

On February 4, 2021, USCIS announced that the upcoming H-1B cap registration selection process will be via random lottery, as in prior years. USCIS had previously announced a wage-based selection process. Today’s announcement stated that “to give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

Again, for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021. On February 5, 2021, USCIS announced that the first registration period for Fiscal Year 2022 will open at 9AM PT / 12 PM ET on March 9 and close at 9AM PT / 12 PM ET on March 25. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2021.

© 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

Wendy Stewart Transitions to Of Counsel

Jewell Stewart & Pratt (JSP) is pleased to announce that firm Principal Wendy Stewart, following sixteen years of practice with the firm, will transition from Principal to Of Counsel effective January 1, 2021. 

Following her admission as a barrister and solicitor in Ontario, Canada, Wendy joined JSP (then Jewell & Associates) in 2004.  In her sixteen years with JSP, including five years as a Principal, Wendy has been recognized as a leader internally and externally in the complex and highly regulated area of PERM labor certifications and I-140 immigrant petitions for employment-based immigrants.  She has trained and developed the firm’s PERM/I-140 team in the intricacies of those matters, and we take pride in the level of expertise and service the group provides to our clients. 

Wendy is a member of the California State Bar and is a Certified Specialist in Immigration  & Nationality Law by the California State Bar Board of Legal Specialization, is recognized by Who’s Who Legal for Corporate Immigration, has been an invited speaker in her field at immigration law conferences, and has handled  diverse array of pro bono matters including volunteer asylum work at the border in South Texas, and work on behalf of immigrant minors applying for Special Immigrant Juvenile Status. 

In Wendy’s new Of Counsel role, she will continue to be a part of the firm’s management team and will continue to support clients in PERM, I-140, and related matters.  JSP’s PERM/I-140 team, which has been led by JSP Principal Jennifer Carr since 2019, will continue under Jennifer’s leadership. 

Congratulations to Wendy! 

© Jewell Stewart & Pratt PC 2021