Temporary Travel Restrictions Extended with Canada and Mexico

Customs and Border Protection (CBP) has issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Canada and Mexico into the United States at land ports of entry along the United States-Canada and United States-Mexico border through January 21, 2021 due to COVID-19. 

Travel through the land ports of entry and ferry terminals along the border shall be limited to “essential travel,” which 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).

Department of State Expands Interview Waiver Eligibility

The Department of State (DOS) announced on December 29, 2020 that it has extended its policy to expand interview waiver eligibility for individuals applying for a nonimmigrant visa in the same classification. This policy is in effect until March 31, 2021. 

Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver.  DOS has temporarily extended the expiration period to 24 months.   This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.  Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview. 

Continued Delays in I-140 and I-485 Receipt Notices for October and November filings

Due to the substantial amount of I-485, Applications to Register Permanent Residence or Adjust Status and I-140, Immigrant Petitions for Alien Worker, filed with USCIS in October and November, there currently are longer than normal delays in the issuance of receipt notices.

Immigration attorneys nationwide report USCIS is taking upwards of 8+ weeks to issue and mail receipt notices to applicants and their attorneys for adjustment of status cases.

January Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.  In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

For January 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485]. 

In January, the EB-1 preference category on the Final Action Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140.  China and India remain backlogged to September 1, 2019.

The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to June 1, 2016 and October 8, 2009, respectively. 

The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India stand at December 15, 2017 and March 22, 2010, respectively.   

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com). 

H-1B Planning Season is Upon Us with a New Process and New Deadlines

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

USCIS has not announced any changes to the new e-registration tool this upcoming H-1B cap season.  As such, employers seeking to file H-1B cap-subject petitions for the fiscal year 2022 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2021. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions between April 2, and June 30, 2021. Given the timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions. 

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.

I-9 Flexibility Extended

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. Because of ongoing precautions related to COVID-19, DHS has extended this policy until January 31, 2021.

This provision only applies to employers and workplaces that are operating remotely.

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, Employment Eligibility Verification.

Health Alert for Air Travelers from United Kingdom

Effective on December 28, 2020, air passengers arriving from the United Kingdom (U.K.) must present a negative COVID test, via PCR or Antigen test, no more than 72 hours before departure from the U.K. to the United States.

Passengers are required to get a viral test (i.e., a test for current infection) within the 3 days before their flight from the U.K. to the U.S. departs, and provide written documentation of their laboratory test result (in hard copy or electronic) to the airline. Airlines must confirm the negative test result for all passengers before they board. If a passenger chooses not to take a test, the airline must deny boarding to the passenger.

USCIS Provides Updates on Application Support Centers

In a December 29, 2020 Stakeholder Message, U.S. Citizenship and Immigration Services (USCIS) updated stakeholders on the status of appointments at Application Support Centers (ASCs) that collect biometrics for certain kinds of applications, including Form I-539 applications for change of status, extension of stay.

The notice states that "By late October, we increased ASC operations to approximately 65 percent of pre-COVID levels," but that delays in appointment scheduling and rescheduling remain and that "The wait time for appointments will vary geographically, based on capacity and varying demand at individual ASC locations."

Visa Restrictions Extended Through March

President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021.

The suspension applies to the entry of immigrants who were outside the US at the time of the April 2020 proclamation as well as to the issuance of nonimmigrant visas including, H-1B visas, H-2B visas, H-4 visas, L-1 visas and certain J-1 visas. If you have questions about a specific visa, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com). 

Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays

USCIS previously issued a notice indicating that certain Forms I-797, Notice of Action, are acceptable for Form I-9, Employment Eligibility Verification, through Dec. 1, 2020. DHS is now extending the validity of these Forms I-797. To complete Form I-9, new employees and current employees requiring reverification who are waiting for their EAD may continue to present a Form I-797 described below through Feb. 1, 2021 as a List C #7 document issued by the Department of Homeland Security that establishes employment authorization, even though the notice states it is not evidence of employment authorization. 

For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. The last day that both new and current employees may present this notice to complete Form I-9 is Feb. 1, 2021. New employees will also need to present an acceptable List B identity document.

Employers who entered a Dec. 1, 2020 expiration date on Form I-9 for employees who presented this Form I-797 as a new hire or for reverification as directed in the original notification must update their employees’ forms to document continued employment authorization. To do so, write Employment Authorization Ext Until 02/01/2021 in the Additional Information box in Section 2 of Form I-9.

By Feb. 1, 2021, employers must reverify employees who presented this Form I-797 as a List C document. These employees must present new evidence of employment authorization -- either their new EAD or any other acceptable documentation they choose -- from either List A or List C.