Category: Alerts

The American Immigration Lawyers Association and various news outlets are reporting that, effective early November 2021, the Biden administration intends to:

• Rescind the regional COVID-19 travel bans restricting travel to the U.S. from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, and India.
• Replace the regional travel bans with a global requirement that all foreign national travelers provide proof of full vaccination against COVID-19 and proof of a negative COVID-19 test taken within 3 days prior to boarding a flight to the U.S. Limited exceptions may be made for children ineligible for a vaccine and for humanitarian considerations if an individual lacks access to a vaccination but has a critical reason to travel.

Additional Information

The official policy has not been released as of the publication of the this alert. However, the administration has shared the following information with the American Immigration Lawyers Association (AILA):

• Starting in early November, foreign nationals traveling to the U.S. will be required to be fully vaccinated against COVID-19 and to show proof of vaccination prior to boarding an airplane.
• The current requirement for everyone to show proof of a negative test taken within 3 days of boarding a flight to the U.S. will remain in place for all fully vaccinated travelers.
• American citizens and permanent residents who are not vaccinated will be required to have a COVID-19 test taken within 1 day of  a flight to the U.S. rather than 3 days.
• The new requirements will apply globally as the U.S. moves toward a consistent, stringent requirement for all international air travelers coming to the U.S.
• The Centers for Disease Control (CDC) will publish guidance concerning testing requirements and  which vaccines will be accepted. The CDC will also issue a Contact Tracing Order that will require airlines to collect comprehensive contact information for every passenger coming to the United States and to provide that information promptly to CDC upon request, to follow up with travelers who have been exposed to COVID-19 variants or other pathogens.
• The policy will apply globally to all international air travel to the U.S.  Restrictions on non-essential travel at the land borders to the U.S. will remain in place at least through October 21, 2021. The administration is not updating its land border policies at this time.
• Exceptions to the international air travel requirements will be very narrow and may include children not eligible for a vaccine and individuals lacking access to a vaccine in a timely manner. Such individuals must agree to be vaccinated upon arrival in the U.S.
• Requirements for National Interest Exemptions for travelers from the current travel restricted regions will remain in place until the regional travel bans are rescinded and the new travel requirements are implemented in early  November.

Although not effective until early November, the administration has announced its intended policy now to give the various impacted government agencies such as the Department of Homeland  Security, the Federal Aviation Administration, and the CDC time to develop the directives and processes to implement the required changes and to provide airlines and businesses an opportunity to plan ahead for international travel contemplating the new requirements.

Gibney is monitoring this matter closely and will provide updates and more detailed information and guidance when the implementing policy guidelines are released.   In the interim, for additional information concerning travel restrictions to the U.S., please contact your designated Gibney representative or email info@gibney.com.

Effective October 1, 2021, by order of the Centers for Disease Control (CDC),  USCIS and the U.S. Department of State will require individuals applying for permanent resident status to be vaccinated for COVID-19, with limited exceptions.  Refugees are also covered by the order.  Proof of full COVID-19 vaccination will be required along with the other vaccination requirements already in place in connection with green card applications.

Who is Impacted?

• A foreign national filing an Application to Adjust Status (I-485)  and completing the required I-693, Medical Examination with a designated USCIS Civil Surgeon or after October 1, 2021 must be vaccinated.
• A  foreign national applying for an immigrant visa at a U.S. consulate abroad and undergoing a physical examination with a designated Panel Physician on or after October 1, 2021  must be vaccinated.

If the medical exam is completed before October 1, 2021, and the exam results are within the validity period (typically 2 years from completion with some exceptions), COVID-19 vaccination is not required.

Exemptions

Blanket waivers of the vaccination requirement are available if

• The vaccination is not age appropriate.  This includes applicants younger than the lowest age limit for the approved COVID-19 vaccine formulations in use.
• The vaccination is medically contraindicated.
• The applicant does not have access to one of the approved COVID-19 vaccines in their country.

In all instances, the request for exemption must be documented.

Applicants may also apply for an individual waiver of the vaccine requirement on religious or moral grounds. USCIS will make the determination as to whether an individual waiver will be granted. If the wavier is denied and the individual is not vaccinated, the individual will be deemed inadmissible, and ineligible for lawful permanent resident status.

Proof of Vaccination and Associated Requirements

Approved COVID-19 vaccines  are those authorized for emergency use by the U.S. Food and Drug Administration  or those  listed for emergency use by the World Health Organization.

Written documentation proving vaccination is required. This may include:

• An official vaccination record.
• A medical chart with physician entries pertaining to the vaccination.
• Appropriate medical personnel attestation.

An individual’s personal attestation that they have been vaccinated is not sufficient.  Additionally, an individual may not be exempted from the vaccination requirement on the basis of testing that establishes immunity  or recovery from prior COVID-19 infection.

Finally, keep in mind that proof of vaccination does not exempt international travelers from the requirement to present proof of a negative COVID-19 test prior to boarding an international flight to the U.S.

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

USCIS conducted a second lottery for the fiscal year (FY) 2022 H-1B cap on July 28, 2021 and has notified employers that additional registrations have been selected.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2021 to November 3,  2021.

USCIS conducted its initial  H-1B cap lottery  in March 2021, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period (April 1, 2021 to June 30, 2021) were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve. USCIS has not announced how many additional registrations were selected from the reserve.

What This Means for Employers and Foreign Nationals:

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers 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; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period(August 2, 2021 to November 3, 2021)  specified on the relevant registration selection notice.
• Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

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

The U.S. Department of State has extended the validity of National Interest Exceptions (NIEs) for travelers from China, Iran, India, Brazil, South Africa, the Schengen Area, Ireland and the United Kingdom whose admission to the U.S. is restricted by COVID-related regional travel bans.

Under the new policy, NIEs are now valid for multiple entries during the 12 month period following the date of approval. The policy applies retroactively to NIEs that were previously approved or granted in connection with a visa application. Previously NIEs were valid for one entry within 30 days of approval.

What does this mean for travelers?

Travelers who have been  granted an NIE may be admitted to the U.S. pursuant to the NIE for a period of up to 12 months from the date of approval provided that the travel to the U.S. is consistent with the purpose for which the NIE was originally granted.  If required for the class of admission, the traveler must also have a valid visa along with the NIE.   Travelers without a valid visa will be required to apply for a new visa and a new NIE.

NIE qualifying criteria includes:

• Providing vital support or executive direction for significant economic activity in the U.S.;
• Journalism;
• Travel due to extraordinary humanitarian circumstances; or
• Travel to support national security or public health.

NIEs have become increasingly difficult to obtain as the U.S. consulates abroad have struggled to meet the demand for consular services due to COVID-related closures, staffing shortages, restrictive qualifying criteria, and backlogged visa and NIE applications. Extending the validity of NIEs, including that of previously issued NIEs, should help to relieve some of the demand for consular services while facilitating critical travel to the U.S.

Gibney is closely monitoring the impact of the new policy and will provide updates as they become available.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) announced three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits. The updated policies:

• Clarify the criteria for expedited processing of benefit applications;
• Address guidance regarding Request for Evidence (RFE) and Notice of Intent to Deny (NOID) issuance; and,
• Increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

These policy initiatives were taken pursuant to  Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Issued by President Biden on February 2, 2021, the order directs federal agencies to identify strategies to eliminate barriers that impede access to immigration benefits.

What Employers and Foreign Nationals Need to Know

Expedited Processing

Applicants and petitioners may request that USCIS expedite the adjudication of immigration benefit requests even if premium processing is otherwise available for the application. USCIS reviews these requests on a case-by-case basis. The updated expedite policy clarifies the criteria and circumstances under which USCIS will generally consider expedite requests. It restores the ability of nonprofit organizations to request expedited processing if the beneficiary will further U.S. cultural and social interests. It also clarifies that expedited processing for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).

Requests for Evidence and Notices of Intent to Deny

The updated RFE and NOID guidance rescinds a Trump-era policy that permitted officers to deny certain benefit requests outright instead of first issuing an RFE or NOID.  The updated guidance instructs officers to issue a RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit, rather than simply denying the benefit request. This practice helps to ensure that those requesting benefits  have an opportunity to correct simple mistakes or unintentional omissions. This was USCIS policy from 2013 until 2018, when it was rescinded by the Trump Administration. With this action, the 2013 guidance is restored.

Employment Authorization Documents

Updated policy guidance increases the validity period for initial and renewal Employment Authorization Document (EADs) from one year to two years for certain adjustment of status applicants. The goal is to significantly lessen the number of employment authorization applications filed with USCIS, allowing USCIS to shift limited resources to other priority areas.

Gibney welcomes these developments and will closely monitor their impact. We will continue to report on additional initiatives to improve and modernize the U.S. immigration system.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements.  The policy, initially implemented in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. The guidance, which was set to expire May 31, 2021, has now  been extended to August 31, 2021.

Who does the Policy Affect?

Form I-9 in-person inspection rules were relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. The policy states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

The current extension includes guidance for employees hired on or after June 1, 2021 working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who use this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy. DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

Looking Ahead

Employers should anticipate that DHS will terminate the  flexibility to verify Form I-9 documents virtually  as pandemic restrictions are lifted.  Because employers who have availed themselves of the relaxed rules will have only three (3) business days to physically examine documents when normal operations resume,  employers may wish to designate agents to physically inspect documents now for those hired and verified remotely since March 2020.  Keep in mind, though, as noted above, that employers are liable for any violations or errors made by the designated authorized representative during the verification process.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.