International Entrepreneur Parole
For many years, entrepreneurs have had to try to piece together pathways within the US immigration system to support them and the companies they have been trying to build. However, it has been difficult because there hasn’t been an obvious solution for these individuals.
In an effort to begin to rectify this situation, the Obama administration issued a regulation establishing the International Entrepreneur Rule towards the end of the former President’s time in office. Unfortunately, under the Trump administration this rule came under attack. The rule’s implementation was delayed, there were lawsuits challenging this delay that ultimately overcame it, but then the Trump administration issued a proposed regulation to eliminate the program.
After these many twists and turns, there is finally good news for startup founders. On May 10, 2021, the Biden administration announced that it is reviving the rule. They have withdrawn the Trump administration’s proposed rescission of the International Entrepreneur Rule and are welcoming applications for the program. This is good news for innovators, makers and founders, and very good news for the US economy, as well.
For more information, please visit the USCIS website about the program: https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole. If you are an entrepreneur and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.
USCIS Issues Policy Guidance Extending EAD Validity for Certain Adjustment of Status Applicants from 1 Year to 2 Years
On June 9, 2021, USCIS issued a policy alert increasing the validity period of initial and renewal Employment Authorization Documents (“EADs”) for certain adjustment of status applicants from one year to two years. As the average processing time for adjustment of status applications is close to or greater than one year at the moment, this will be helpful to many individuals with pending adjustment applications.
Please note that this change does not affect replacement EADs. Replacement EADs will be issued with same validity dates as appeared on the originally issued document.
This policy guidance is effective immediately.
(Link to USCIS policy memo: https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210609-EmploymentAuthorization.pdf)
SCOTUS Holds Grant of Temporary Protected Status Does Not Constitute an Admission for the Purposes of Adjustment of Status
On June 7, 2021, the Supreme Court of the United States (SCOTUS) issued a unanimous ruling in Sanchez v. Mayorkas deciding a circuit split regarding whether or not a grant of Temporary Protected Status (TPS) constitutes a lawful admission into the US for the purposes of adjustment of status. They have held that it does not. This decision is a disappointment to thousands of individuals who have been beneficiaries of TPS - people who fled natural disasters or armed conflict in their home countries and have since lived in, worked in, and contributed to this country for years. Had the court ruled in the opposite manner, this would have provided a smoother pathway to obtaining a green card as it would have removed one large barrier in the process. Though there are still other ways to become a permanent resident if a person has TPS, many of these individuals will not be able to do so because they “entered without inspection” and were not “inspected and admitted” by an immigration officer when they first entered the US.
If you are a TPS holder and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.
ICE Extends I-9 Compliance Flexibility
On May 26, 2021, US Immigration and Customs Enforcement (“ICE”) announced that due to continued precautions related to the pandemic, the US Department of Homeland Security (“DHS”) would extend the policy of flexibility related to Form I-9 compliance that began in March 2020. The policy has been further extended from June 1, 2021, until August 31, 2021.
This extension has guidance for employees hired on or after June 1, 2021, and work 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.
(Link to USCIS announcement: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-policies-related-to-covid-19)
(Link to ICE announcement: https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0)
USCIS Suspends Biometrics Requirement for Certain I-539 Applicants
In a declaration that was submitted by Acting Associate Director of Service Center Operations Connie Nolan in the Edakunni v. Mayorkas litigation (a class-action lawsuit filed by AILA and Wasden Banias to challenging H-4 and L-2 adjudication delays), USCIS stated that beginning on May 17, 2021, it would be implementing a new policy suspending the biometrics requirements for H-4, L-2, and E-1, E-2, and E-3 nonimmigrants.
This new policy applies to the previously mentioned nonimmigrant categories if their Form I-539 was pending on May 17, 2021, and they haven’t received a biometrics notice yet, and 2) to any new I-539 applications received by USCIS between May 17, 2021 and May 23, 2022. This policy will be in place for 2 years and should automatically expire after May 17, 2023, but may be extended or revoked by the USCIS Director. Applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. However, USCIS will not refund any biometrics payments already made.
(Credit to: Practice Alert: USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021)
US Citizens Able to Return to US on Expired Passports
US Customs and Border Protection and the US Department of State have announced that as of May 21, 2021, US citizens with expired passports may use those expired passports to return to the US through December 31, 2021.
To do this, they have to meet certain requirements: 1) the person must be a US citizen who is currently abroad and trying to return to the US; 2) their flight back to the US must be direct or with only a connecting flight through a foreign country; 3) the expired passport must have expired on or after January 1, 2020, and must have originally been valid for 10 years (unless the person was 15 years old or younger when it was issued); and finally 4) the person must have the expired and undamaged passport in their possession.
(CBP announcement link: https://www.cbp.gov/document/bulletins/travel-us-citizens-expired-passports)
(Department of State announcement link: https://www.state.gov/return-travel-on-recently-expired-u-s-passports/)
National Interest Exemption Updates
The Secretary of State has determined that the entry of the following travelers is in the national interest for purposes of exceptions to all four proclamations. The Secretary may revise these national interest determinations as circumstances warrant.
immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
fiancé(e)s of U.S. citizens and their dependents (K visas);
certain exchange visitors as detailed within this article;
students (F, M, and certain J visas) as described here. New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT);
academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
journalists (I visas);
travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains, as outlined at https://www.cisa.gov/critical-infrastructure-sectors;
travelers providing vital support or executive direction for significant economic activity in the United States
pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance;
those whose purpose of travel falls within one of these categories:
lifesaving medical treatment for the principal applicant and accompanying close family members;
public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research);
humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member;
medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States;
national security; and
derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.
The Department of State recommends that any individuals who are present in the 33 affected countries who do not fall under any of the categories currently listed check the website of the closest US embassy or consulate to find instructions on how to apply for an individual NIE.
Please consult your embassy for specific information and procedures if you need to apply for an NIE.
If you are in need of travel to the U.S. from one of the countries listed above and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.
Travel Bans Updates
There are now four presidential proclamations suspending entry into the US of noncitizens who were physically present in any of the 33 countries listed in the proclamations during the 14-day period immediately preceding their entry into the US.
They are:
Presidential Proclamation 9984 (China);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/
Presidential Proclamation 9992 (Iran);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus/
Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa);
and, most recently added;
Presidential Proclamation 10199 (India);
The exceptions to these proclamations, notably include (but are not limited to):
US citizens;
Lawful permanent residents;
Spouses and children of US citizens or lawful permanent residents;
Parents or legal guardians of a US citizen or lawful permanent resident unmarried minor child;
Siblings of a US citizen or lawful permanent resident child (as long as both are unmarried and under the age of 21);
Travelers for the purpose of the containment or mitigation of COVID-19; and
Those whose entry would be in the national interest.
IDC News
Iandoli, Desai and Cronin, P.C. is pleased to announce the addition of three new associate attorneys at our firm: Erin C. Murphy, Meghan Parker-Johnson, and Marissa A. Rosenberg. Attorneys Murphy, Parker-Johnson and Rosenberg join us with significant experience in the field. We welcome them to our firm.
Visa Bulletin Updates
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether 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 May 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 may file an application for permanent resident status [Form I-485].
In May, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in April.
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 on both the Final Action and Dates for Filing Charts.
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 remain backlogged on both the Final Action and Dates for Filing Charts.
The Visa Bulletin for June 2021 has not yet been released.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).