U.S. Immigration & Travel Updates - June 2021

Last updated: 06/24/2021

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:

• COVID Travel Bans for Europe, China, Iran, Brazil, South Africa, India:

  • The geographic COVID bans for Europe, China, Iran, Brazil, South Africa, and India are still in place and will 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.” On May 27, the NIE criteria was again updated to now include executive direction for critical infrastructure, or vital support or executive direction for significant economic activity.

  • 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.

• 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.

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

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

• 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.

• USCIS Updates:

  • AOS EAD Policy: On June 9, 2021, USCIS announced that initial and renewal EAD (work permit) applications for Adjustment of Status applicants would be valid for two years instead of one.

  • Request for Evidence Policy or “RFE” Memo: On June 9, 2021, USCIS updated its policy for issuing Requests for Evidence (“RFEs”) to revert back to 2013 guidance.

  • Expedite Criteria: On June 9, 2021, USCIS updated its expedite criteria.

  • 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 - 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

Jewell Stewart & Pratt PC welcomes the lawyers, staff, and clients of Rose Carson LLP!

We take great pleasure in announcing that the partners and staff of Rose Carson LLP have joined Jewell Stewart & Pratt (JSP), effective April 2021, and we look forward to welcoming their clients into JSP’s practice. JSP and Rose Carson both have a long and distinguished history of immigration law practice based in the San Francisco Bay Area, with lawyers and staff who are highly regarded by colleagues and peers for deep expertise, quality of work product, and outstanding personalized service. We are honored and proud to have Rose Carson’s team and clients join JSP and hope you will join us in celebrating this milestone!

© Jewell Stewart & Pratt PC 2021

JSP Anti-Racism Statement

In light of continued violence against Asian and Black communities in the United States, JSP once again re-commits itself to the work of anti-racism. The tragic murders in Atlanta and targeted attacks of Asian women and elders in San Francisco and elsewhere have made it clear that we must redouble our efforts to dismantle racism, systemic injustice, and bias in the United States, and to ensure that Asian and Black Americans are treated with respect, dignity, and equality.

In solidarity,

JSP

© 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

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