Department of Homeland Security Announces Plan to Lift Restrictions for Vaccinated Individuals to Enter the U.S. at Land and Ferry Ports of Entry from Canada and Mexico
On October 29, 2021, the Department of Homeland Security (DHS) announced that foreign nationals who are fully vaccinated for COVID-19 may enter the United States from Canada or Mexico for non-essential travel via land ports of entry and ferry terminals beginning November 8, 2021. This replaces the restriction on non-essential travel, which has been suspended at land and ferry ports of entry since March 2020. Beginning November 8, 2021, all foreign nationals entering the U.S. via land or ferry ports of entry for “non-essential” travel must provide proof of COVID-19 vaccination consistent with the Centers for Disease Control’s travel guidance.
Beginning in January 2022, DHS will require all foreign nationals entering the U.S. from Canada and Mexico via land or ferry ports of entry – whether for essential or non-essential reasons – to be fully vaccinated for COVID-19 and provide proof of vaccination. This policy diverges from the Presidential Proclamation on air travel released by the White House in October.
Please contact Iandoli, Desai & Cronin (info@iandoli.com) if you have questions about travel to the U.S. from Canada and Mexico.
Biden Administration Rescinds Travel Bans and Releases Additional Details on New COVID-19 Vaccination and Testing Requirements for International Air Travel
On October 25, 2021, the Biden Administration published a fact sheet on the White House website detailing the implementation of its new international air travel policy requiring foreign national travelers to the United States to be fully vaccinated. This new policy will replace current Presidential Proclamations restricting travel from certain countries/areas. Beginning on November 8th, all nonimmigrant foreign national travelers, with few exceptions, must be fully vaccinated against COVID-19 and provide proof of vaccination to fly to the United States. U.S. Citizens, lawful permanent residents, and certain nonimmigrant foreign nationals are exempt from the vaccination requirement but must take a COVID-19 test within one day of departure.
Children under the age of 18 are exempt from the COVID-19 vaccination requirement, but unvaccinated children between the ages of 2 and 17 are required to take a COVID-19 test prior to departure. Unvaccinated children travelling with a fully vaccinated adult can take a test within 3 days of departure, but unvaccinated children traveling alone or with an unvaccinated adult will have to take a COVID test within one day of departure. Only a very limited number of adult foreign nationals will be exempt from the vaccination requirement.
Please see our news blast on November 1, 2021, for additional information on this new policy.
BREAKING NEWS!
On October 25, 2021, the Biden Administration published a fact sheet on the White House website detailing the implementation of its new international air travel policy requiring foreign national travelers to the United States to be fully vaccinated. This new policy will replace current Presidential Proclamations restricting travel from certain countries/areas. Beginning on November 8th, all nonimmigrant foreign national travelers, with few exceptions, must be fully vaccinated against COVID-19 and provide proof of vaccination to fly to the United States. U.S. Citizens, lawful permanent residents, and certain nonimmigrant foreign nationals are exempt from the vaccination requirement but must take a COVID-19 test within one day of departure.
The Centers for Disease Control and Prevention (CDC) considers a person to be fully vaccinated 2 weeks after their second dose in a 2-dose series, such as the Pfizer-BioNTech or Moderna vaccines; or 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. The CDC states that “This guidance applies to COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen COVID-19 vaccines) and can be applied to COVID-19 vaccines that have been listed for emergency use by the World Health Organization (such as AstraZeneca/Oxford).” The U.S. will not accept all COVID-19 vaccines. Please refer to the WHO for a list of approved COVID-19 vaccines prior to traveling to the United States.
Children under the age of 18 are exempt from the COVID-19 vaccination requirement, but unvaccinated children between the ages of 2 and 17 are required to take a COVID-19 test prior to departure. Unvaccinated children travelling with a fully vaccinated adult can take a test within 3 days of departure, but unvaccinated children traveling alone or with an unvaccinated adult will have to take a COVID test within one day of departure.
Only a limited number of foreign nationals will be exempt from the vaccination requirement, including children under 18, certain COVID-19 vaccine clinical trial participants, people with certain medical conditions, emergency or humanitarian travel, and other very narrow categories. Foreign nationals who receive a vaccine exemption to fly to the U.S. may be required to get vaccinated in the U.S. if they stay for more than 60 days or to make other public health attestations.
In addition, the CDC will be issuing a Contact Tracing Order requiring all airlines flying to the United States to provide passenger contact information to the CDC in the event that passengers need to be notified about potential COVID-19 exposure on a flight to the U.S.
Although travel from certain countries/regions will no longer be restricted, appointment backlogs at U.S. embassies and consulates continue to be an issue for foreign nationals who need visas. Any international travel that will require a visa to return to the U.S. should be carefully considered.
Please contact Iandoli, Desai & Cronin P.C. if you have questions about international travel or the new U.S. air travel policy.
October 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 October 2021, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” 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]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.
In October, 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 October.
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 Department of State’s Visa Bulletin for October 2021 includes information on potential movement in visa availability through January 2022:
Employment First (EB-1):
Worldwide: Current
China: Current
India: Current
Employment Second (EB-2):
Worldwide: Current
China: Up to several months
India: Up to several months
Employment Third (EB-3):
Worldwide: A final action date could be imposed as early as November
China: A retrogression of this date could occur as early as November
India: A retrogression of this date could occur as early as November
Mexico: A final action date could be imposed as early as November
Philippines: A final action date could be imposed as early as November
Employment Fourth (EB-4): Current for most countries
El Salvador, Guatemala, and Honduras: Limited, if any, movement expected
Mexico: Limited, if any, movement expected
Employment Fifth (EB-5): Current for most countries
China: No forward movement
The bulletin also includes a reminder absent any legislative action, two employment categories will expire on September 30, 2021. These two visa categories are the non-minister special immigrant and I5 and the R5 regional center.
For more information, please visit: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-october-2021.html
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).
U.S. District Court of Northern California Vacates Final Rule Regarding Wage-Based H-1B Selection
On September 15, 2021, the U.S. District Court of Northern California vacated the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” which would have prioritized H-1B visa selection based on wages.The ruling indicated this was because Chad Wolf had not been lawfully appointed as Acting Secretary of the Department of Homeland Security when the final rule was approved.
To read the decision, please visit: https://www.courthousenews.com/wp-content/uploads/2021/09/H1B-visa-ruling.pdf
USCIS Announces Extension of the TimeReceipt Notices for Forms I-751 and I-829 can be Used to Show Evidence of Lawful Permanent Resident Status from 18 Months to 24 Months
Effective September 4, 2021, USCIS has extended the length of time that receipt notices for Forms I-751 and I-829 can be used to show evidence of lawful permanent resident status from 18 months to 24 months. This change is due to the fact that processing times for these applications have exceeded one to two years at certain service centers. Those cases filed on September 4, 2021, or later will receive a receipt notice showing the new 24-month extension of status. Those cases filed prior to September 4, 2021, that remain pending, will receive a new receipt notice reflecting the 24-month extension of status.
This change has implications for the documents that new hires and existing employees are allowed to present to employers as evidence of their work authorization. As laid out in the American Immigration Lawyer’s Association Verification and Documentation Liaison Committee’s practice advisory about this change, new hires who present an expired permanent resident green card, with a receipt notice showing only an 18-month extension of status that has since expired, can still be hired by showing a List B identity document and a List C document, like an unrestricted social security card. Employees would not need to wait for a new receipt notice showing a 24-month extension of status. In addition, existing employees with pending applications to remove conditions should not be terminated for failing to present a new green card once the 18-month extension period expires. The unrestricted social security card can also be used for Section 3 reverification. Permanent residents who have not yet applied to the Social Security Administration to remove the restrictions on their social security card can be advised to take that action as an option.
For more information please visit: https://www.uscis.gov/newsroom/alerts/uscis-extends-evidence-of-status-for-conditional-permanent-residents-to-24-months-with-pending-form#:~:text=Starting%20Sept.,Conditions%20on%20Permanent%20Resident%20Status.
Department of State Opens FY2023 Diversity Visa Program Enrollment on October 6, 2021
The Department of State has announced that online registration for the Diversity Visa (DV)-2023 program will begin on 10/6/21 at 12:00 pm (ET) and end on 11/9/21 at 12:00 pm (ET).
For more information and instructions on how to apply, please visit: https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html
US Designates Croatia as new Participant in the Visa Waiver Program
On September 28, 2021, Secretary of Homeland Security Alejandro Mayorkas, along with Secretary of State Antony Blinken, designated Croatia as a new participant in the Visa Waiver Program. Starting at the latest by December 1, 2021, the Electronic System for Travel Authorization (ESTA)will be updated to allow citizens and nationals of Croatia to apply to travel to the U.S. for tourism or business for up to 90 days without obtaining a U.S. visa.
For more information, please visit:https://www.dhs.gov/news/2021/09/28/secretary-mayorkas-announces-designation-croatia-new-participant-visa-waiver-program
Department of State Announcement Regarding F, M, and Academic J Visas
The State Department authorized consular officers to expand the categories of F, M, and “academic J visa applicants” (students, professors, research scholars, short-term scholars, or specialists) whose applications can be adjudicated without an in-person interview in their consular district of residence, with certain exceptions, through the end of the year.
Consular officers may now waive the visa interview requirement for F, M, and academic J visa applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility. (Please note this applies only to non-U.S. citizens who are nationals of eligible countries. Details about country eligibility and necessary procedures will be available on the website of the relevant embassy or consulate. Applicants from non VWP countries whose prior visa was issued when they were less than 14 years of age, may need to submit biometric fingerprints, but can still be approved for an interview waiver.)
The Secretary of State previously found F, M, and academic J visa applicants eligible for National Interest Exceptions (NIEs) under Presidential Proclamations that suspend entry of individuals present in one of the 33 countries subject to COVID-19 travel restrictions (see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html).Students seeking to apply for a new F-1 or M-1 visa 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 an NIE to travel. Students and academics traveling on J-1 visas must contact the nearest embassy or consulate prior to travel to receive an NIE.
For more information, please visit: https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-F-M-and-academic-J-Visas.html
Resources to Provide Assistance to Afghan Nationals
For individuals seeking further information about assisting Afghan nationals, the American Immigration Lawyers Association has created several short documents to provide overviews on some potential options such as, fee waivers; the Special Immigrant Visa Program; P-1, P-2, and P-3 refugee status; and humanitarian parole. Please find some of the information about each topic below.
For Fee Waivers:
If an applicant is unable to pay the filing fees or biometric services fees for a U.S. Citizenship and Immigration Services (USCIS) application or petition, the applicant may be able to request a fee waiver. This is typically available to applicants who receive need-based benefits, who are low income, or who have qualifying financial hardship. Certain Afghan Nationals may be eligible for fee waivers depending on the types of applications that they are filing. This includes applications for travel documents if the individual is applying for humanitarian parole, applications for lawful permanent residence based on Special Immigrant Status as an Afghan Interpreter, or Afghan nationals employed by or on behalf of the U.S. Government. Fee waivers may also be requested for any biometric services fees.
For information about fee waivers please visit:
AILA Document (for those individuals with access to AILA materials): https://www.aila.org/File/Related/21100404a.pdf
For the Special Immigrant Visa Program:
To be eligible for the SIV program, Afghan nationals must show the following:
They were previously employed directly by the U.S. government in Afghanistan or employed with company that had a contract or subcontract with the U.S. government in Afghanistan
They worked for the qualifying employer for at least one year between October 7, 2001 and December 31, 2023
They face threats to safety because of their employment with the U.S. government
Or they are the surviving spouse or child of a former U.S. government employee who had submitted an application for Chief of Mission approval (see Afghan Allies Protection Act § 601(1)(C))
If approved, they are eligible for the same resettlement assistance and other benefits as refugees admitted under USRAP, as well as the Department of State’s Reception and Placement Program.
For information about the Special Immigrant Visa Program and the steps involved in applying, please visit:
AILA Document (for those individuals with access to AILA materials): https://www.aila.org/File/Related/21100404b.pdf
For P-1, P-2, and P-3 Refugee Status:
On August 2, 2021, The Department of State announced a Priority 2 designation (P-2) for some Afghan refugees and their families, allowing them access to P-2 resettlement options. Eligibility for priority status will not guarantee a person for approval and entry into the United States. However, eligibility generally qualifies a person to have an interview with a DHS officer to determine whether the person meets the refugee definition, is not already firmly resettled, and is not excluded on other grounds. If individuals meet the criteria, they will undergo the same processing steps as other refugees, including extensive security vetting. Those who qualify for an SIV should not apply for P-1, P-2, or P-3 refugee status.
For more information about P-1, P-2, and P-3 Refugee Status, eligibility criteria, and how to pursue this pathway please visit:
https://2017-2021.state.gov/refugee-admissions/u-s-refugee-admissions-program-access-categories/index.html
AILA Document (for those individuals with access to AILA materials): https://www.aila.org/File/Related/21100404c.pdf
For Humanitarian Parole:
In general, humanitarian parole authorizes an individual to temporarily enter the United States when there is an urgent humanitarian reason or significant public benefit. Parole requests are discretionary and reviewed on a case-by-case basis, and anyone can request parole for himself or herself, or on behalf of another individual. Some potential reasons to request paroleare: emergency medical reasons, family reunification, participation in legal proceedings, or protection from targeted harm, for example. A grant of humanitarian parole allows for lawful presence in the United States for a specific period of time. Humanitarian parole does not confer immigration status and does not provide a path to permanent residency. Generally, USCIS will specify the duration of parole, if granted. Under the Operation Allies Welcome program, Afghans granted paroled will be permitted to stay for two years and will generally be eligible to apply for work authorization. The CDC issued a humanitarian parole exemption to the requirement for a Negative Pre-Departure COVID-19 Test Result for individuals relocating to the U.S. from Afghanistan. However, once in the United States, Afghans may be subject to medical screening and vaccination requirements.
For more information about Humanitarian Parole and how to apply, please visit:
https://www.uscis.gov/humanitarian/humanitarian-parole/guidance-on-evidence-for-certain-types-of-humanitarian-or-significant-public-benefit-parole-requests
AILA Document (for those individuals with access to AILA materials):https://www.aila.org/File/Related/21100404d.pdf