Restrictions on Travel by Land to Canada and Mexico
On February 22, 2021, the Secretary of Homeland Security announced continuation of land travel restrictions from Mexico and Canada into the United States at land ports of entry along the United States-Mexico border. Such travel will be limited to “essential travel”. These restrictions remain in effect until 11:59 p.m. Eastern Daylight Time (EDT) on March 21, 2021.
The guidelines for what qualifies as essential travel issued by the Dept. of Homeland Security can be found in the Federal Register Notice issued on February 23, 2021. Any travel for tourism purposes is not considered essential.
H-1B visa ban in place until 3/31
Although President Biden rescinded Presidential Proclamation 10014 (suspending the entry to the United States of certain immigrant visa applicants) on February 24, 2021, Presidential Proclamation 10052, which suspends the entry of certain nonimmigrant visa applications, remains in effect until at least March 31, 2021. The suspensions in Presidential Proclamation 10052 applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas. DOS updated its guidance related to National Interest Exemptions for individuals subject to PP 10052, although the eligibility requirements do not appear to have changed.
Immigrant visa ban lifted
On February 24, 2021, President Biden rescinded Presidential Proclamation 10014 which prohibited the entry of certain immigrants into the United States due to possible harm to economic interests due to the COVID-19 Pandemic. Although the immigrant visa ban has been revoked, Presidential Proclamation 10052 suspending the entry of nonimmigrant workers for the same reasons remains in effect.
The Department of State provided instructions to visa applicants who were previously subject to a ban on entry pursuant to PP 10014.
Travel Ban for foreign nationals present in the Schengen Area, China, Iran, Brazil, UK still in place
The geographic COVID-19 travel bans outlined Presidential Proclamations 9984, 9992, and 10143, which suspend entry into the United States of foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa, in the 14-day period before seeking entry into the United States, remain in effect. Immigrant visa applicants who are spouses or children of U.S. citizens (IR/CR-1, IR/CR-2, IR/IH-3, and IR/IH-4), as well as spouses and minor children of Lawful Permanent Residents (F2A), are excepted from the geographic COVID-19 travel bans. All other immigrant visa applicants and K fiancé nonimmigrant visa applicants remain subject to these geographic COVID-19 travel bans unless another exception applies.
Federal District Court of Massachusetts Finds Plaintiff Paroled into United States Based on TPS Was an “Arriving Alien”
The U.S. District Court for Massachusetts issued a ruling in Michel v. Mayorkas on March 2, 2021 that an applicant for Adjustment of Status from Haiti with TPS status was considered an “arriving alien”, and her adjustment of status fell under USCIS jurisdiction.
USCIS argued that the plaintiff’s adjustment fell under the jurisdiction of an Immigration Judge and not USCIS because she was an “alien placed in deportation proceedings or in removal proceedings". While the plaintiff was placed in removal proceedings after she entered the U.S. without inspection, her removal is prohibited while TPS is in effect. The court found that this statutory provision suggests that any ongoing removal proceeding against someone in TPS status that has not yet been heard by an immigration judge is temporarily suspended. Additionally, although the plaintiff initially entered the U.S. without inspection, she subsequently left and was inspected when she returned on advance parole. Since the was “inspected and paroled” into the United States, she is considered an “arriving alien” and USCIS has jurisdiction over her adjustment application. Based on this, the court ordered USCIS to re-open the plaintiff’s application for adjudication.
1st Circuit Upholds Border Searches of Phones and Laptops
In February a panel of the First Circuit Court of Appeals ruled that border agents can search and confiscate a U.S. citizen’s electronic devices such as laptops or cell phones without a reason to suspect that the owner is guilty of a crime. This ruling supports current government policy, allowing agents to turn on and search phones and laptops without reasonable suspicion of a crime. However, the agents cannot use the device to access the internet during these searches. An agent would need to have reasonable suspicion of a crime before the agent could use an external device to extract data from or view deleted or encrypted files on the phone or laptop. Border agents can hold a device for a “reasonable” period but would require a supervisor’s approval to keep a device after the owner has crossed the border and would need additional approval to keep the device for longer than 15 days. The ruling does not state whether border agents can force people to share their passwords for their devices.
DHS Designates Burma and Venezuela for TPS for 18 months
On March 8, 2021, the Department of Homeland Security announced that Venezuela has been designated for Temporary Protected Status (TPS) for 18 months, effective 3/9/21 through 9/9/22. Applicants are required to register during the 180-day registration period from March 9, 2021, to September 5, 2021. More information on how to apply can be found on the Federal Register Notice for this announcement.
On March 12, the Department of Homeland Security also announced the Temporary Protected Status (TPS) designation for Burma for 18 months. A Federal Register notice, which will explain the eligibility criteria and procedures necessary to submit an initial TPS application and apply for work authorization documentation, is forthcoming.
All individuals applying for TPS undergo security and background checks as part of determining eligibility. The Federal Register notice will explain the eligibility criteria applicants must meet and describe procedures necessary to submit an initial TPS application and apply for work authorization documentation.
USCIS Reverts to 2008 Version of Naturalization Civics Test
On February 22, 2021, USCIS announced that the revised naturalization civics test (2020 civics test), implemented by the previous administration in December 2020, has been rescinded and replaced with the previously used 2008 civics test. USCIS has reviewed the 2020 civics test and found that the “…development process, content, testing procedures, and implementation schedule may inadvertently create potential barriers to the naturalization process.” This decision is pursuant to President Biden’s Executive Order on Restoring Faith in Our Legal Immigration Systems, which calls for a “…comprehensive review of the naturalization process to eliminate barriers and make the process more accessible to all eligible individuals.”
Applicants who filed their application for naturalization on or after Dec. 1, 2020, and before March 1, 2021, likely have been studying for the 2020 test; therefore, USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period where both tests are being offered. The 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test.
The test items and study guides can be found on the Citizenship Resource Center on the USCIS website. USCIS has also updated the Policy Manual accordingly; see Volume 12, Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing."
2019 Public Charge Rule Vacated, all appeals dismissed
On March 9th, 2021, USCIS has announced that it will immediately stop applying the Public Charge Final Rule to all pending applications and petitions based on a District Court decision that vacated the rule. USCIS will return to applying the 1999 Interim Field Guidance, which was in place for two decades prior to the implementation of the now defunct Public Charge Final Rule, to the adjudication of any application for adjustment of status that was pending or received on or after March 9, 2021. In addition, USCIS will no longer apply the “public benefits condition” to applications or petitions for extension of nonimmigrant status or requests for change of nonimmigrant status.
Applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).
USCIS will not consider information submitted by applicants or petitioners related solely to the Public Charge Final Rule for cases adjudicated on or after March 9, 2021. Applicants who received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) due on or after March 9, 2021 requesting information that is solely required under the Public Charge Final Rule, including but not limited to Form I-944, do not need to provide that information. Applicants will still need to respond to any sections of the RFE or NOID that are unrelated to the Public Charge Rule, such as sections relating to eligibility for the status requested.
USCIS will issue additional guidance regarding the use of affected forms. In the meantime, submitted forms will not be rejected based on whether the Public Charge rule information is provided or not.
Iandoli, Desai & Cronin, P.C., will continue to monitor these developments and will provide updates as they become available.
Proposed changes to MA Driver’s License restrictions
When applying for a driver’s license in Massachusetts under the current law, noncitizen applicants must be able to show that their presences is authorized for at least 12 months from the date of application. The proposed Work and Family Mobility Act (HD.448/SD.228) would enable all qualified state residents to apply for a standard Massachusetts driver’s license, regardless of immigration status, while keeping the state in full compliance with REAL ID requirements. The proponents of the legislation highlight that the ability to drive is an essential safety measure during the current pandemic and that individuals in the immigrant communities are frequently essential workers, live in multigenerational households, and are often cut off from federal relief funds. A valid driver’s license is essential for employment and accessing many household necessities and medical care. Supporters of expanded access to driver’s licenses consider it a public safety measure.