Category: Alerts

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.

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 vaccinated: Proof 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.

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.

The Biden Administration  announced today that it will lift COVID-related regional travel restrictions for fully vaccinated  international travelers effective November 8, 2021.

International Air Travel

As previously reported,  the restrictions currently in place for travelers from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India, will be replaced 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 of boarding a flight to the U.S.

American citizens and U.S. permanent residents who are not vaccinated will be required to have a COVID-19 test taken within 1 day of boarding a flight to the U.S.

Canada and Mexico – Ferry and Land Border Crossings

Earlier this week, the Department of Homeland Security (DHS) also announced that it  will lift restrictions on non-essential travel at ferry and land border crossings between the U.S. and Canada and Mexico in early November 2021.  The restrictions at ferry and land border crossings  will be lifted in two phases:

• In November, DHS will allow fully vaccinated  travelers to enter the U.S.  at ferry and land border crossings for non-essential reasons.  Unvaccinated individuals may enter for essential reasons only.
• Starting in  January 2022, DHS will require all foreign travelers – essential or not – to be fully vaccinated, with very limited exceptions.

Vaccinated travelers entering at ferry and land crossings are not required to provide proof of a negative COVID-19 test.

Authorized Vaccines and Other Requirements

For purpose of entry, according to the Centers for Disease Control and Prevention (CDC),  acceptable vaccinations will include FDA approved vaccines or authorized and World Health Organization Emergency Use Listing vaccines.

Additional details regarding the new global requirements are expected in the coming weeks, including information on testing requirements, mandatory contact tracing orders, and  limited exemptions for those not eligible for vaccines (e.g.,  children) and individuals lacking access to a vaccine.

Looking Ahead: The Good News and the Not-So-Good

The lifting of travel restrictions is welcome news and, upon implementation, will immediately benefit vaccinated foreign national  travelers who do not require a visa to enter the U.S. or those who are already in possession of a valid visa for entry.

Vaccinated foreign national travelers who do require a visa to enter the U.S., though eligible to travel with the lifting of restrictions, are likely to face significant delays in securing a visa, due to the lack of available visa appointments at the U.S. consulates abroad.  Many U.S. consulates are significantly backlogged in processing visa applications, offering appointments well into 2022, and some showing no appointment availability at all.  The existing backlogs are expected to be compounded by a surge in demand with the lifting of the travel restrictions, holiday travel, and consular closures and resourcing issues.   Foreign nationals requiring a valid visa for entry into the U.S. are strongly encouraged to review visa appointment wait times before making any travel plans.

Gibney continues to monitor this matter closely and will provide updates as additional guidance is released. For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

WHAT IS THE DIVERSITY VISA LOTTERY?

The Diversity Immigrant Visa Program (DV Program) provides up to 55,000 immigrant visas (aka permanent residence or green cards) for issuance in Fiscal Year 2023 to persons from countries with low immigration rates to the U.S. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2023 Program began on Wednesday, October 6, 2021 at 12:00 p.m. noon, Eastern Daylight Time (EDT) (GMT-4), and concludes on Tuesday, November 9, 2021 at 12:00 p.m. noon, Eastern Standard Time (EST) (GMT-5). Individuals who submit more than one entry during the registration period will be disqualified. Applicants are encouraged to apply as soon as possible.

WHO IS ELIGIBLE?

• An individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Great Britain (United Kingdom, except Northern Ireland) and its dependent territories, Venezuela, and Vietnam. Natives of Macau SAR and Taiwan are eligible.
• Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.
• A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

HOW DO I APPLY?

DV Lottery applicants may submit the Electronic Diversity Visa Entry Form online at dvprogram.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

The principal applicant must also enter valid international travel passport information unless they meet the requirements for an exemption. An exemption may apply if they are stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

HOW DOES THE SELECTION PROCESS WORK?

• DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application.
• All DV-2023 entrants must go to the Entrant Status Check website using the unique confirmation number from the online registration to find out whether their entry has been selected in the DV P
• Entrant Status Check will be available at dvprogram.state.gov from 12 p.m. noon Eastern Daylight Time (EDT) on Saturday, May 7, 2022, through at least September 30, 2023. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR or green card) status – only the opportunity to apply for LPR

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM ELIGIBLE?

Applications for permanent resident status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2023; if an application is not approved by that date, the application is invalidated.  Note: more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. legal permanent residents if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the FY2023 Diversity Visa Lottery may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2023 Program Instructions.

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

The American Immigration Lawyers Association and a litigation partner have brought a class action lawsuit on behalf of H-4 and L-2 spouses who have applied for work authorization as the dependents of H-1B and L-1 principal visa holders.

The lawsuit seeks to overturn USCIS policies that:

• require an L-2 spouse to apply for an Employment Authorization Document (EAD) for employment, and,
• prohibit an H-4 or L-2 spouse from receiving  an automatic extension of their EAD while  a renewal application is pending.

The complaint alleges that USCIS policies and processing delays have forced tens of thousands of nonimmigrant H-4 and L-2 spouses out of employment by creating gaps in their work authorization. The lawsuit also alleges that, per regulation,  L-2 spouses are authorized to work incident to status and should not be required  to apply for a separate EAD for employment.  Under current policy, an H-4 or L-2 EAD holder must apply for an EAD to work, and must cease working when their EAD expires even if an EAD renewal application is timely filed. Official USCIS posted processing times for these applications currently range from 10 to 15 months.

The lawsuit asks the court to declare the USCIS policies unlawful and to compel USCIS to

• provide L-2  spouses with evidence of employment incident to status, or, in the alternative, provide L-2 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application; and
• provide H-4 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application.

The case is Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21  in the U.S. District Court for the Western District of Washington.

The U.S. Department of Homeland Security (DHS) has designated Croatia for inclusion in the Visa Waiver Program (VWP).  Eligible Croatian nationals who have an electronically readable passport (e-Passport) and who have obtained pre-authorization for travel through the Electronic Screening System for Travel Authorization (ESTA) system will be eligible to enter the U.S. for business or tourism without a visa for a  period of up to 90 days.  DHS is expected to update the ESTA system to include Croatia by December 1, 2021.   Croatia joins a list of 39 countries designated for participation in the VWP.

Croatia is not subject to the COVID-related regional travel plans, and no National Interest Waiver is required to enter the U.S. after a period of stay in Croatia.  Notably, however, the Biden administration intends to lift the regional travel bans in November, and replace the bans with a global COVID-19 vaccination requirement for all international travelers.  Travelers from Croatia will be subject to the global vaccination requirement once implemented.

For additional information concerning travel under the VWP, please contact your designated Gibney representative or email info@gibney.com.

 

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.