Automatic National Interest Exceptions for Students from the Schengen Area, United Kingdom, and Ireland
According to the Department of State (DOS), students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
Update on Fall 2020 Guidance
On July 24, 2020 U.S. Immigration and Customs Enforcement (ICE) released updated guidance on F and M students and schools certified by Student and Exchange Visitor Program (SEVP) that they should abide by guidance issued in March 2020.
The guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020 and are otherwise complying with the terms of their nonimmigrant status, whether from inside the U.S. or abroad. SEVP will not issue a temporary final rule impacting nonimmigrant students for the fall school term.
o Summary of March 2020 Guidance for Continuing Students
As stated in the March 2020 guidance, Active F and M students will be permitted to temporarily count online classes towards a full course of study in excess of the regulatory limits stated in 8 C.F.R. § 214.2(f)(6)(i)(G) and 8 C.F.R. § 214.2(m)(9)(v). The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country this fall. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning.
o Summary of March 2020 Guidance for Initial Students
In accordance with March 2020 guidance, F and M students in new or initial status after March 9, 2020, will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online. Also consistent with the SEVP Broadcast Message dated March 9, 2020, designated school officials should not issue a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” for a student in new or initial status who is outside of the United States and plans to take classes at an SEVP-certified educational institution that is operating 100 percent online.
Additional Information Stakeholders can refer to SEVP’s current policy guidance and frequently asked questions at ICE.gov/Coronavirus, under the Nonimmigrant Students and SEVP-certified Schools header:
o COVID-19: Scenarios for SEVP-certified Schools for Emergency Procedures (March 13, 2020).
o Frequently Asked Questions from SEVP Stakeholders about COVID-19.
SEVP recently updated its frequently asked questions with information to clarify the application of the March 2020 guidance to the fall 2020 semester and will continue to update these resources with the latest information and guidance for stakeholders. The program will continue to provide updates to the academic community through our communication channels, including Broadcast Messages, SEVP field representatives, Study in the States blog posts and social media. Stakeholders should continue to refer to the Centers for Disease Control and Prevention (CDC), Department of State and U.S. Customs and Border Protection for the latest COVID-19 information, specific port-of-entry screening processes, as well as any travel restrictions.
National Interest Exceptions for Certain Travelers from Europe
Department of State (DOS) announced in July that certain business travelers, investors, treaty traders, academics, and students from the Schengen Area, the United Kingdom, and Ireland may qualify for National Interest Exceptions under Presidential Proclamations 9993 (Schengen Area) and 9996 (United Kingdom and Ireland). As such, qualified business and student travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even as PPs 9993 and 9996 remain in effect following the procedures below.
Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
Business travelers, investors, academics, J-1 students, and treaty traders who have a valid visa or ESTA authorization that was issued prior to PP 9993 or 9996’s effective date or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
The Department of State also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.
Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.
Department of Homeland Security (DHS) Extends Northern, Southern Border Closures
This July, Department of Homeland Security (DHS) announced that the existing restrictions for certain foreign nationals entering the U.S. via land border crossings with Canada and Mexico will be extended until August 20, 2020. The restrictions apply to “non-essential” travel to the U.S. from these countries.
“Essential travel” includes, but is not limited to—
U.S. citizens and lawful permanent residents returning to the United States;
Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
Individuals traveling to attend educational institutions;
Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
Individuals engaged in official government travel or diplomatic travel;
Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of “essential travel” for purposes of this Notification—
Individuals traveling for tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events)
USCIS Final Rule Fee Increases
On July 31, 2020, the Department of Homeland Security (DHS) announced fee adjustments for certain immigration and naturalization benefit requests to ensure U.S. Citizenship and Immigration Services (USCIS) recovers its costs of services.
The rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners and beneficiaries. The rule also supports payroll, technology and operations to accomplish the USCIS mission. The rule removes certain fee exemptions, includes new nominal fees for asylum applicants, and reduces fee waivers to help recover the costs of adjudication. USCIS last updated its fee structure in December 2016 by a weighted average increase of 21%.
This new rule (and the new fees) will go into effect on 10/2 and impact many of the common filings including:
I-129s now have different fees depending on what kind of status is requested (H-1B, TNs, E-3, O-1, L-1, etc.)
o H-1Bs increase from $460 as a base filing fee to $555
o TNs filed via I-129 increase from $460 to $695
o E-3s filed via I-129 increase from $460 to $695
o O-1s increase from $460 to $705
o L-1s increase from $460 to $805
I-539 applications are currently $370 and increase to $400 but the $85 per person biometrics fee no longer applies.
I-765 applications increase from $410 to $550
I-140s decrease from $700 to $555
Adjustment of Status (AOS), I-485 applications decreases from $1,225 (which included biometrics) to $1140 per application for adults
NOTE: EAD/AP COMBO CARD REQUESTS ARE NO LONGER FREE FOR AOS APPLICANTS. AOS applicants who want EADs or Advance Parole documents now must separately pay a filing fee of $590 for Advance Parole and $550 for an EAD, meaning the single applicant for an I-485 seeking an EAD/AP combo card sees an overall fee increase from $1,225 to $2,280!
Adjustment of Status, I-485 applications increases from $750 to $1,140 per application for children
Naturalization, N-400 applications increase from $640 to $1,170.
For a full list of changes and a complete table of final fees, see the final rule.
Any application, petition, or request postmarked on or after October 2, 2020 must include payment of the new, correct fees established by this final rule.
For more information about your eligibility for filing for an immigrant petition before the fee increases, contact the attorneys at Iandoli Desai & Cronin PC.
Employment Authorization Document (EAD) & Green Card production delays at USCIS
On July 21, 2020 following news coverage of Employment Authorization Document (EAD) and Lawful Permanent Resident (LPR)/Greencard production delays, Department of Homeland Security (DHS) published an Ombudsman’s Alert regarding card production delays. According to the alert, in June 2020, USCIS reduced the capacity to print secure documents after it ended a contract with a third-party card production facility. While USCIS intended to hire federal employees to replace the contractors, the current hiring freeze at USCIS has delayed production of the cards. As such, USCIS has not been producing the permanent resident cards and EAD cards in a timely manner, so some foreign nationals have experienced delays in receiving these secure documents. Such delays are expected to continue for the foreseeable future. Should there be a furlough of USCIS employees at the end of August, card production backlogs will likely increase.
The DHS Ombudsman’s Office is assisting individuals whose applications have been approved but whose cards have not yet been produced by sending weekly spreadsheets to USCIS to verify card requests are in line to be processed. Individuals experiencing a delay in receiving their documents can submit a request for case assistance with the Ombudsman. LPRs may obtain proof of their status by requesting an I-551 stamp of temporary evidence in a valid passport at a local USCIS field office.
NY Federal Court Enjoins Public Charge Rule
On July 29, 2020, the U.S. District Court for the Southern District of New York issued an order stating that the motion for preliminary injunction and temporary stay of the USCIS Final Rule on Inadmissibility on Public Charge Grounds application is granted. The government is enjoined from enforcing, applying, implementing, or treating as effective the Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The order notes, “a nationwide injunction is both necessary to redress the harms caused by the Rule and appropriate given the strong federal interest in uniformity of the national health and immigration policies at issue here.”
The U.S. District Court for the Southern District of New York issued a separate order stating that the motion for preliminary injunction enjoining the application or implementation of the 2018 FAM Revisions, DOS Rule, and Proclamation is also granted. The order notes, “a geographically limited injunction would be especially unworkable in a case such as this, where consular officers on foreign soil would have to determine how to apply different rules to different applicants.”
USCIS announced that it will implement the injunction immediately, although it will likely also challenge the order. Iandoli Desai & Cronin PC will continue to monitor the situation and provide updates when available.
USCIS furloughs delayed
The anticipated August 3 furloughs have been postponed to August 31. The announcement on July 24, 2020 came after Senate Appropriations Committee Vice Chairman Patrick Leahy (D-Vt.) pressed USCIS to reverse course on its intended furloughs after he made public the fact that new revenue estimates showed the agency due to end the fiscal year in a surplus, and not the previously projected $571 million deficit.
DACA Supreme Court Decision
The American Immigration Lawyers Association (AILA) applauds the U.S. Supreme Court’s decision blocking the rescission of the Deferred Action for Childhood Arrivals (DACA) program. The decision means that Dreamers across the country will continue to have temporary protection from deportation.
AILA Executive Director Benjamin Johnson stated, “Dreamers across the country, and those who love and depend on them, are breathing a sigh of relief, having lived in fear and uncertainty since the Trump Administration targeted the DACA program for termination. This decision today is particularly important as our country faces the immense challenge of a pandemic and tens of thousands of Dreamers are on the front lines as paramedics, nurses, and other medical professionals. Like many Americans, Dreamers are also grocery store workers, truck drivers and caretakers. They have stood shoulder to shoulder with Americans in the effort to get healthy and stay healthy. We are a stronger nation when we stand together.
“Despite this great news, and our exhilaration about the decision, the Court has made clear that the President has both the power to continue the program and the power to terminate if he follows the correct legal process. For the sake of not only Dreamers but our nation, this legal limbo must end. AILA urges Congress to act immediately and pass permanent protection for Dreamers once and for all. The great majority of Americans from across the political spectrum want Dreamers protected with permanent residency in America. With such resounding support, Congress can and must pass a bipartisan solution. We stand ready to work with both parties on effective legislation that will quickly address this issue. The time for action is now.”
Iandoli Desai & Cronin P.C. will continue to monitor the situation and provide updates.
Summary of the Presidential Proclamation Suspending Entry of Certain Nonimmigrants
On June 22 and 29, 2020 the Trump administration amended and expanded its April 22, 2020 Immigration Proclamation. This new order became effective 12:01 A.M. on June 24, 2020 ("Effective Date") and extends to December 31, 2020.
To review the Proclamation in its entirety, visit: https://protect-us.mimecast.com/s/ScHHC68VxDT13DZF6CRLU?domain=whitehouse.gov.
Below please find a summary of the key points:
The proclamation restricts the entry into the United States of persons in the following non-immigrant visa categories and also applies to their dependent family members:
H-1B or H-2B visa holders and their H-4 dependents;
J visa holders ONLY in the following categories: intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and their J-2 dependents; and
L visa holders and their L-2 dependents.
The suspension applies to individuals seeking entry into the United States in the visa categories noted above who:
are outside the United States as of the Effective Date;
do not already have a valid H-1B, H-2B, H-4, J-1, J-2, L-1, or L-2 visa pursuant to which they seek entry; and,
do not have a valid official travel document other than a visa (such as transportation letter, boarding foil, or advance parole document) as of the Effective Date or issued thereafter.
The suspension does not apply to:
Lawful permanent residents of the United States (green card holders);
Any foreign national who is the spouse or unmarried child under 21 of a United States citizen;
Foreign nationals seeking entry to the United States to provide temporary labor or services essential to the United States food supply chain;
Foreign nationals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
The proclamation directs the Secretary of State, Secretary of Labor and Secretary of Homeland Security to establish standards to determine which foreign nationals meet the criteria of "national interest" exemption above, and specifically includes:
Foreign nationals critical to the defense, law enforcement, diplomacy, or national security of the United States;
Foreign nationals involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
Foreign nationals involved with the provision of medical research at United States facilities to help the United States combat COVID-19; and,
Foreign nationals who are necessary to facilitate the immediate and continued economic recovery of the United States.
The proclamation also automatically extends the April 22, 2020 order suspending entry by certain new immigrants until December 31, 2020. Please refer to our prior summary at:https://protect-us.mimecast.com/s/TN6kC73JyETQPqnFBq6j2?domain=iandoli.com.
Importantly, the proclamation does not restrict the filing, adjudication, or approval of applications and petitions filed with USCIS. Therefore, the filing with USCIS of petitions by employers wishing to sponsor H-1B, H-2B, L-1, institutions authorized to issue documents under the J-1 exchange program, individuals seeking to change to or extend these nonimmigrant categories, or those seeking to adjust status are not impacted by this proclamation.
Iandoli Desai & Cronin P.C. will continue update you as we learn more on how the proclamation is being implemented by various agencies, including visa processing at U.S. embassies and consulates.