Plan Now for H-1B Cap Registration FY 2023

USCIS is expected to continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run in March 2022 for a minimum of 14 calendar days.

H-1B CAP FY ‘23 Registration Overview

  • Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
  • There is a $10 fee for each registrant.
  • If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2023 H-1B cap.
  • The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes in March.
  • After the first round of selection, Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start no later than April 1, 2022.
  • Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
  • If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.

Registration Highlights

  • In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
  • Employers may register multiple individuals at once, using a single online “batch” submission.
  • An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
  • The registration may be prepared and submitted by the employer’s authorized representative.

What Should Employers Do Now?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

  • New hires from overseas.
  • F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training.
  • Some L-1 visa holders.
  • TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year.
  • H-4 dependent EAD holders.

Background

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
  • Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B CAP FY ’22 – Numbers

  • USCIS received 308,613 H-1B CAP registrations.
  • Approximately 48% of registrations were submitted under the advanced degree cap.
  • Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
  • USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.

H-1B Petitions Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS will publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available. For questions, please reach out to your Gibney representative or email info@gibney.com.

Supreme Court Strikes Down OSHA’s Covid-19 Vaccination and Testing ETS: What This Means for Employers

On January 13th, the Supreme Court in National Federation of Independent Business v. Department of Labor, invalidated the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test Emergency Temporary Standard (ETS) for large private employers (employers with 100 or more employees). The January 13 decision throws out the ETS issued by OSHA in November to require large employers to develop, implement, and enforce a COVID-19 vaccination-or-testing policy.

The Decision

In a 6-3 decision, the Supreme Court held that the Occupational Safety and Health Administration overstepped its authority by seeking to impose the vaccine-or-test rule on all U.S. businesses with at least 100 employees. “OSHA has never before imposed such a mandate,” the Court noted. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

The Court ruled that OSHA lacked the authority to impose a vaccine mandate on private employers because the law that created OSHA “empowers the Secretary (of Labor) to set workplace safety standards, not broad public health measures.” The Court refused to uphold the mandate which effectively ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. The Supreme Court held that upholding the OSHA ETS “would significantly expand” OSHA’s authority beyond the limits Congress set.

What this Means for Private Employers

  • While the Supreme Court’s decision invalidated the ETS and narrowed OSHA’s authority, the decision does not limit the right of employers, states, or municipalities, if they so choose, to require employees to be vaccinated against COVID-19 (while giving consideration for proper religious and medical exemptions) or require the unvaccinated to be tested regularly.
  • Employers will now be subject to state and local guidelines and restrictions with respect to COVID-19 protocols in the workplace. Employers with multiple locations may be faced with inconsistent, and potentially contradictory, standards governing worksites in different states and localities.
  • Employers are advised to review their Covid policies in light of the now invalidated OSHA standards to ensure that they are compliant with state and local laws applicable to the locations where they operate.

What this Means for Health Care Employers

  • On the same day that the Supreme Court struck down the OSHA ETS applicable to all large employers, it upheld the vaccine mandate applicable to health care employers who receive federal payments from either Medicare or Medicaid.
  • In a 5-4 decision, the Court in Biden v. Missouri held that the vaccine mandate for health care workers was justified by the spending clause of the Constitution, which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare.
  • Health care provider employers that receive any Medicare or Medicaid payments will need to comply with the federal vaccine mandate for health care workers.
As always, we encourage employers to consult with counsel with their specific questions and concerns related to compliance with federal, state and local statutes and regulations related to Covid-19. For employment-related questions, please contact Robert J. Tracy, contact your Gibney representative or email info@gibn

USCIS Issues EAD Expedite Guidance for Health Care Workers

Effective immediately, USCIS will consider requests to expedite processing of applications to renew Employment Authorization Documents (EADs)  for health care workers.

Who Qualifies?

Qualifying health care workers may request expedited issuance of their EAD if they have:

  • A pending EAD renewal application filed on Form I-765;  and
  • An EAD  that expires within 30 days or less, or has already expired.

A qualifying health care worker is defined very broadly in the DHS advisory memorandum (“Healthcare / Public Health” section, pages 7-9).  In addition to individuals providing direct patient care, it includes, but is not limited to:

  • Workers, including laboratory personnel, that perform critical clinical, biomedical and other research, development, and testing needed for COVID-19 or other diseases;
  • Workers required for effective clinical, infrastructure, support services, and administrative operations, among other functions,  across the direct patient care and full health care and public health spectrum;
  • Workers needed to provide laundry services, food services, reprocessing of medical equipment and waste management;
  • Workers that manage health plans, billing and health information and who cannot work remotely;
  • Workers at manufacturers including biotechnology companies and distributers of medical products and equipment, and pharmaceuticals;
  • Pharmacy staff; and,
  • Home health workers.

Please refer to the DHS advisory memo referenced above for a comprehensive list.

How to Request Expedite

According to the USCIS guidance for requesting an expedite , requestors may contact USCIS by phone to request the expedite and should be prepared to provide evidence of their profession or current employment as a health care worker.  USCIS does not indicate how quickly it will process the expedite request; only that it will process the application faster than its standard posted processing times, which are typically numerous months

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

U.S. to Lift Southern Africa Travel Ban

The White House indicates that it intends to lift the regional travel ban restricting travel from eight southern African countries effective December 31, 2021 at 12:01 am ET.

The regional travel ban restricting travel from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe was short-lived. It was initially imposed on November 29, 2021 in response to the emergence of the COVID-19 Omicron variant, and was met with widespread criticism as the variant spread in non-restricted countries. According to the White House, lifting of the ban comes at the recommendation of the Centers for Disease Control and Prevention (CDC) and is based on a greater understanding of how vaccines work against the Omicron variant.

Individuals traveling into the U.S. by air remain subject to the COVID-19 vaccination requirements under Proclamation 10294, as well as related CDC travel requirements, including updated COVID-19 testing requirements.

A Caution Regarding Testing

Travelers who are in the U.S. and who require a negative COVID-19 test to return to their country of origin are cautioned that the demand for testing in some areas of the U.S. has surged with the Omicron variant.  Once a test is secured, it may take 5-7 days to obtain test results, particularly in connection with PCR testing, making compliance with travel testing requirements difficult.  Individuals in the U.S. requiring a negative COVID-19 test to return abroad should plan accordingly.

For additional information about travel restrictions, please contact your designated Gibney representative, or email info@gibney.com.

CDC Tightens COVID Testing Requirements for Travelers

Effective December 6, 2021, all international travelers must take a COVID-19 viral test, regardless of vaccination status or citizenship, no more than 1 day before travel by air into the United States. Travelers must show a negative result to the airline before boarding their flight.  For those who have recently recovered from COVID-19, they may instead travel with documentation of recovery from COVID-19.

Required documentation of recovery includes a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that individual is cleared to travel.  Further details regarding CDC travel guidance and testing requirements are available here.

Due to frequently changing country conditions and global entry requirements, all travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and  immediately prior to departure.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

Biden Administration Imposes Regional Travel Restriction for Southern African Countries

The Biden Administration issued a Presidential Proclamation restricting  travel to the U.S. for noncitizens who have been present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and  Zimbabwe at any point during the 14 day period prior to arrival in the U.S.

The ban took effect 12:01 AM EST on November 29, 2021 and will remain in effect until lifted by the President. This new regional travel restriction for countries in southern Africa stems from the emergence of the Omicron variant of COVID-19.

Who is Exempted from the New Regional Travel Restriction

Similar to prior regional travel restrictions, the new travel ban does not apply to:

  • U.S. citizens
  • U.S. lawful permanent residents;
  • any noncitizen national of the U.S.
  • any noncitizen who is the spouse of a U.S. citizen or lawful permanent resident
  • any noncitizen who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • any noncitizen who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • any noncitizen who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the U.S. pursuant to the IR-4 or IH-4 visa classifications;
  • any noncitizen traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • any noncitizen traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any noncitizen otherwise traveling to the U.S. as air or sea crew;
  • any noncitizen seeking entry into or transiting the U.S.  pursuant to one of the following visas:  A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  • any noncitizen who is a member of the U.S. Armed Forces or who is a spouse or child of a member of the U.S. Armed Forces;
  • any noncitizen whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or,
  • any noncitizen or group of noncitizens whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Visas and National Interest Exemptions

Imposition of the new regional travel ban raises questions regarding visa issuance in the impacted countries. With prior regional bans, U.S. consulates stopped processing visas for applicants in the travel restricted countries.  This prevented numerous individuals from securing a visa and then quarantining in a non-restricted country prior to traveling to the U.S.   Also, with prior travel bans, National Interest Exemptions (NIEs) were granted under evolving standards.  We await further guidance from the U.S. Department of State as to whether it will continue to process visa applications in the impacted countries, the standards for NIEs under the new ban, and the validity of NIEs that were previously issued for travelers from South Africa.  Individuals traveling from the restricted region who were previously issued an NIE should not assume that the NIE remains valid for travel to the U.S.

Update November 30, 2021According to U.S. Customs and Border Protection, NIEs issued under previous proclamations are void with respect to the new regional travel ban for southern African countries. For example, a visa holder from South Africa who was previously issued an NIE in connection with the January 25, 2021 Proclamation restricting travel from South Africa may not use that NIE to secure admission pursuant to the November 26, 2021 Proclamation.  We await an official announcement from the Department of State confirming that the previously issued NIE is void and/or issuing instructions on how to secure a new NIE.

Vaccination and Testing Requirements for All International Travelers

Noncitizen nonimmigrants traveling to the U.S. who are not subject to the new regional travel restrictions nonetheless remain subject to the global vaccination requirement imposed by Presidential Proclamation 10294  and effective November 8, 2021.

Additionally, prior to boarding a flight to the U.S., all travelers – noncitizen nonimmigrants, U.S. citizens, U.S. LPRs and U.S. nationals – are required to show one of the following:

  • If fully vaccinatedProof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.
  • If NOT fully vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Update: Effective December 6, 2021, all travelers, regardless of vaccination status or citizenship, must present a negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old are not required to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days. Additional information about the testing requirement is available here.

Additional Information

As the world reacts to the Omicron variant, other countries, including, but not limited to, the European Union member countries, the United Kingdom, Japan, Israel and Morocco, announced travel  restrictions, and some countries may impose additional quarantine and testing requirements for other travelers.  All travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and  immediately prior to departure.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

USCIS Quickly Implements New Employment Authorization Policy for H-4, L and E Spouses

On November 12, 2021, USCIS updated its Policy Manual to permit H-4, E and L nonimmigrant dependent spouses to receive automatic extension of employment authorization in certain circumstances. Earlier in the week, USCIS announced that it would implement new policies for H-4 and L spouses within 120 days. In updating its Policy Manual, USCIS moved quickly to implement the new polices and to expand the benefits to E spouses.

AUTOMATIC EXTENSION OF EADS – H-4, E and L Spouses

Effective immediately, nonimmigrant H-4, E and L spouses qualify for an automatic extension of their Employment Authorization Document (EAD) when they file to renew their EAD provided:

  • The I-765 application to renew the EAD is filed prior to the EAD expiration date and
  • The H-4, E or L spouse has an unexpired I-94 showing valid underlying nonimmigrant status.

For purposes of Form I-9 employment verification purposes, the nonimmigrant spouse  may present the following as evidence of work authorization:

  1. Unexpired  Form I-94 showing valid H-4, E or L-2  nonimmigrant status;
  2. Facially Expired EAD; and
  3. Form I-797C (Notice of Action/Receipt) showing a timely filed  I-765 EAD renewal application

The automatic extension of the EAD is valid until:

  • Expiration of the underlying  Form I-94;
  • 180 days from the prior EAD expiration; or
  • Adjudication of the I-765 extension application, whichever comes first.

L AND E SPOUSES – EMPLOYMENT AUTHORIZED INCIDENTAL TO STATUS

USCIS also clarified that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status,  E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This applies only to E and L spouses. It does not apply to H-4 spouses or H-4, E or L dependent children.

The Department of Homeland Security (DHS) will immediately take steps to modify Forms I-94 to distinguish E and L dependent spouses from dependent children. Once changes to the Form I-94 are made, the new Form I-94 with the spousal annotation will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes.   Only a Form I-94 annotated as an L-2 or E “spouse” may serve as evidence of employment authorization. An L or E spouse with an I-94 that does not bear the new spousal annotation must also present an EAD for employment authorization purposes.

Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

Plan Ahead for Holiday Travel: 2021 Checklist for Foreign Nationals and Employers

International travelers  should expect busy consulates and U.S. Ports of Entry with the lifting of travel bans coinciding with the holiday season.  Additionally, some consulates are not fully operational and many are experiencing limited appointment availability and delays in visa processing. Consular appointments are subject to cancellation with little notice. We encourage all travelers to plan ahead to minimize delays when traveling abroad and entering the U.S. Our holiday travel checklist is designed to help foreign national employees and employers schedule appointments and gather required documentation in advance.

NEW REQUIRMENTS FOR INTERNATIONAL TRAVELERS

New requirements for international travelers to the U.S. took effect November 8, 2021.  Foreign nationals traveling to the U.S. are required to provide proof of full vaccination against COVID-19 and proof of a negative COVID-19 test taken within 3 days of boarding a flight to the U.S. The accepted types of vaccines include FDA approved or authorized vaccines and WHO Emergency Use Listing vaccines. More information regarding vaccines is available from the Centers for Disease Control (CDC).

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

  • Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
  • Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or endorsed Form I-20.
  • Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record and issue a passport stamp, annotated with the class and duration of admission. Before leaving the CBP inspection area, verify that the admission classification and expiration date entered in the passport are correct, and immediately alert the CBP officer to any errors.
  • Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa stamp. Send Immigration Counsel a copy of your I-94.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR CURRENT PASSPORT

  • Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
  • Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
  • Complete Form DS-160. This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
  • Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
  • Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
  • Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
  • Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
  • Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
  • Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
  • Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

TRAVEL DOCUMENTS IF YOU DON’T NEED A VISA FROM THE CONSULATE

  • Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
  • Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without Advance Parole may result in denial of the I-485 application.

HELPFUL LINKS

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com.

USCIS to Adopt New Policies for H-4 and L-2 Work Authorization

Pursuant to a lawsuit brought by the American Immigration Lawyer Association and its litigation partners, U.S. Citizenship and Immigration Services (USCIS) will implement new policies to improve issuance of work authorization for nonimmigrant H-4 and L-2 spouses.

The following summarizes the key anticipated policy changes. Early indications are that it will take USCIS up to 120 days to implement the new policies. Please note that specific requirements and practices may change as USCIS develops and releases official guidance.

H-4 Spouses – Automatic Extension of EADs

Nonimmigrant H-4 spouses are currently required to have a valid I-94 document showing H-4 status and a valid Employment Authorization Document (EAD) for employment.

Under the new policy, nonimmigrant H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:

  • The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
  • The H-4 spouse has an unexpired I-94 showing valid H-4 status.
    • If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.
  • The automatic extension of the EAD will be valid until:
    • Expiration of the underlying I-94 showing H-4 status;
    • 180 days from the prior EAD expiration; or
    • Adjudication of the I-765 extension application, whichever comes first.

L-2 Spouse – Employment Authorization Incidental to Status

Nonimmigrant L-2 spouses are currently required to apply for an EAD for employment.

Under the new policy, L-2 spouses will be authorized to work incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 status, the L-2 spouse will automatically be authorized to work without the need to apply for an EAD.

  • USCIS will coordinate with U.S. Customs and Border Protection (CBP) to ensure the L-2 spouse is issued an I-94 that is appropriately annotated as “spouse” so that it may serve as evidence of employment authorization for purposes of Form I-9 employment verification. As noted, this initiative may take up to 120 days to implement.
  • In the interim and until CBP updates its I-94 protocols, L-2 spouses may benefit from an automatic extension of previously issued EADs under the same terms as outlined above for H-4 spouses.

Form I-9 Employment Verification

H-4 Spouses

Upon implementation of the policy, it is expected that H-4 spouses will be required to present the following documents as evidence of work authorization for Form I-9 employment verification purposes when seeking the EAD auto-extension:

  • Expired EAD;
  • I-765 extension application receipt notice showing the renewal application was timely filed; and
  • Unexpired I-94 showing valid underlying H-4 status.

L-2 Spouses

Upon implementation of the policy, including CBP issuance of appropriately annotated I-94s for L-2 spouses, it is expected that nonimmigrant L-2 spouses will be permitted to present evidence of identity (such as a valid passport) together with a valid I-94 document appropriately annotated as an L-2 spouse for purposes of Form I-9 employment verification.

If an L-2 spouse seeks to avail themselves of the 180-day EAD auto-extension as an interim measure, the spouse will be required to present the following:

  • Expired EAD;
  • I-765 extension receipt notice showing the renewal application was timely filed; and
  • Unexpired I-94 showing valid underlying L-2 status.

Additional Information

The EAD auto-extension benefit will only apply to H-4 and L-2 spouses who continue to have an I-94 document showing valid underlying H-4 or L-2 status after their EAD expires. This may limit the immediate benefit, due to very lengthy processing times for I-539 applications to extend H-4 and L-2 nonimmigrant status.  Additionally, H-4 spouses and others applying for an initial EAD still face egregious USCIS processing delays.  Nonetheless, this successful litigation causing USCIS to reverse harmful policies is welcome news for H-4 and L-2 nonimmigrants and their employers.  It is also hoped that the new policies will contribute to greater efficiencies at USCIS with respect to adjudicating I-539 nonimmigrant extension of status applications and EAD applications, generally.

USCIS intends to issue official guidance to employers and government agencies. As previously noted, it is expected to take up to 120 days to implement the policies, in whole or in part.  Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

White House Issues Proclamation Reopening U.S. to International Travel

By Presidential Proclamation, the U.S. will reopen international air travel from previously restricted countries on November 8, 2021 at 12:01 am eastern standard time. As previously reported, the country-specific COVID-related travel bans that were implemented in response to the pandemic will be lifted, and will be replaced with a global vaccination requirement. The Proclamation will remain in effect until terminated by the President.

Specifically, the Proclamation:

  • Revokes the country-specific limitations on entry that restricted travel from most European countries, Ireland, the United Kingdom, Brazil, India, Iran, South Africa, and China.
  • Suspends air travel to the U.S. for those noncitizen nonimmigrants who are not fully vaccinated against COVID-19.  “Noncitizens nonimmigrants” are  individuals who are not U.S. citizens or lawful permanent residents (LPRs) and who are traveling to the U.S. for a temporary period.
  • Provides that the suspension on traveling to the U.S. unless fully vaccinated does not affect nonimmigrant visa issuance. This means that the State Department can now process visa applications for individuals present in the formerly restricted countries. However, the State Department cautions that rescission of the regional travel bans does not mean that the local consulate will be able to immediately schedule visa interviews  for applicants. This is largely due to application backlogs, resourcing issues, and demand for appointments.

The Proclamation does not apply to U.S. citizens, U.S. LPRs and U.S. nationals. However, the Centers for Disease Control and Prevention (CDC) guidance for this population cautions against  international travel unless fully vaccinated.

CDC Testing and  Vaccination Guidelines

The Proclamation was issued in conjunction with orders and guidance  from the CDC  that require travelers to

  • Provide proof of a  negative COVID-19 test result or documentation of recovery from COVID-19 prior to boarding a flight to the U.S.
  • Wear a mask in indoor areas of public transportation (including airplanes) traveling into, within, or out of the United States and indoors in U.S. transportation hubs (including airports).

Who is Considered Fully Vaccinated?

According to the CDC, an individual is considered fully vaccinated

  • 2 weeks (14 days) after receiving an accepted single dose COVID-19 vaccine
  • 2 weeks (14 days) after receiving a second dose of an accepted 2-dose series
  • 2 weeks (14 days) after receiving the full series of an active (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials
  • 2 weeks (14 days) after receiving 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.

Fully vaccinated noncitizen nonimmigrants should ensure that their vaccine and proof of vaccination are acceptable to board a flight to the U.S.

What are the Exceptions to the Vaccination Requirement?

Categories of noncitizen nonimmigrants that meet the criteria for an exception under the Proclamation and CDC’s Order may include:

  • Persons on diplomatic or official foreign government travel
  • Children under 18 years of age
  • Persons with documented medical contraindications to receiving a COVID-19 vaccine
  • Participants in certain COVID-19 vaccine trials
  • Persons issued a humanitarian or emergency exception
  • Persons with valid visas (excluding B-1 business or B-2 tourism visas) who are citizens of a foreign country with limited COVID-19 vaccine availability
  • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
  • Sea crew members traveling with to a C-1 and D nonimmigrant visa
  • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

A noncitizen nonimmigrant claiming one of these exceptions may be required to:

  1. Be tested with a COVID-19 viral test 3–5 days after arrival in the U.S., unless providing documentation of having recovered from COVID-19 in the past 90 days;
  2. Self-quarantine for a full 7 days, even if the test result for the post-arrival viral test is negative, unless possessing documentation of having recovered from COVID-19 in the past 90 days; and
  3. Self-isolate if the result of the post-arrival test is positive or if developing COVID-19 symptoms.

Based on the category of the exception, the noncitizen nonimmigrant may additionally be required to:

  • Agree to be vaccinated against COVID-19; and
  • Arrange to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, or as soon thereafter as is medically appropriate, unless too young to be vaccinated.

Testing Requirements – All Travelers

Before boarding a flight to the U.S., all travelers – noncitizen nonimmigrants, U.S. citizens, U.S. LPRs and U.S. nationals – are required to show one of the following:

  • If fully vaccinatedProof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.
  • If NOT fully vaccinatedA negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old are not required to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days. Additional information about the testing requirement is available here.

Additional Resources

Valuable information for all travelers, including information on how vaccination status will be verified by airlines and how exemptions for children will work, is available in the State Department’s Frequently Asked Questions, the  White House Fact Sheet, and the CDC’s Frequently Asked Questions.   For additional information, please contact your designated Gibney representative or email info@gibney.com.