SEVP Guidance on Use of Electronic Signatures and Transmissions for Form I-20
On November 1, 2021, the Student and Exchange Visitor Program (SEVP) published policy guidance outlining the new procedure for the use of electronic signatures and transmission of the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.”
This guidance permits designated school officials to electronically sign and transmit the Form I-20 to initial and continuing international students and their dependents, using software programs or applications or by using electronically reproduced copies of a signature. Additionally, school officials may scan and email or electronically transmit the Form I-20 via a secure platform, such as a school portal or other secure site, to F and M students and their dependents. Designated School Officials may also choose to still sign and mail a physical Form I-20 to students.
This new SEVP policy only applies to Form I-20. Other SEVP-issued forms are not included.
DHS Issues New "Protected Area" Immigration Enforcement Guidelines that includes Colleges, Universities, and Healthcare Facilities
Secretary of Homeland Security Alejandro N. Mayorkas today issued a new, comprehensive policy to guide Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions in or near protected areas, replacing previous sensitive locations guidance. The first-ever policy for both ICE and CBP provides an expanded and non-exhaustive list of protected areas, including new designations such as places where children gather, disaster or emergency relief sites, and social services establishments.
The new policy, which is effective immediately, supersedes and rescinds all previous sensitive locations guidance and establishes that enforcement actions should not be taken in or near a location that would restrain people’s access to essential services or engagement in essential activities. DHS officers and agents will use their judgment to determine whether a location is a “protected area” taking into consideration the activities that take place there, the importance of those activities to the well-being of people and the communities of which they are a part, and the impact an enforcement action would have on people’s willingness to be in the protected area and receive or engage in the essential services or activities that are offered there.
Some examples of protected areas include, but are not limited to:
Schools, such as known and licensed daycares, pre-schools, and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events
Medical treatment and healthcare facilities, including COVID-19 vaccination locations
Places of worship or religious study, such as churches, synagogues, mosques, and temples
Places where children gather such as a playground, recreation center, childcare center, before- or after-school care center, foster care facility, group home for children, or school bus stop
Social services establishments such as a crisis center, domestic violence shelter, victims services center, child advocacy center, supervised visitation center, family justice center, community-based organization, facility that serves disabled persons, homeless shelter, drug or alcohol counseling and treatment facility, or food bank or pantry or other establishment distributing food or other essentials of life to people in need
Disaster or emergency response and relief centers
Religious or civil ceremonies or observances, such as funerals and weddings
Public demonstrations, such as parades, demonstrations, or rallies
DHS Seeking Public Input on Remote Document Examination Practices Associated with the Form I-9, Employment Eligibility Verification, during the COVID-19 Pandemic
The Department of Homeland Security (DHS) is exploring alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes. In order to gather public input, DHS published a 60-day Request for Public Input in the Federal Register regarding document examination practices when completing Form I-9, Employment Eligibility Verification.
DHS is requesting input to better understand the experiences of employers and employees with this process and to examine the impacts of remote document examination during the COVID-19 pandemic. DHS is evaluating the potential costs and benefits of allowing remote document examination flexibilities to continue in the future.
Public comments can be submitted at Regulations.gov until December 27, 2021.
U.S. Employers Settle Lawsuit Challenging USCIS’ Unlawful Denial of H-1B Petitions
The parties in the class action lawsuit MadKudu Inc., et al. v. USCIS, et al., reached a settlement agreement that corrects the agency’s misinterpretation of the Occupational Outlook Handbook—a Department of Labor’s Bureau of Labor Statistics publication profiling hundreds of occupations in the U.S. job market. Based on its prior interpretation of the OOH, USCIS erroneously determined that market research analysts did not qualify as a “specialty occupation.” The settlement agreement changes this agency error and provides U.S. employers who qualify the opportunity to request that USCIS reopen and re-adjudicate their denied H-1B petitions.
To be a class member, a U.S. employer must have filed a market research analyst H-1B petition during the time from January 1, 2019, through October 19, 2021. USCIS must have then denied the petition based on a finding that the OOH entry—as it existed on October 19— failed to establish that market research analyst is a “specialty occupation,” and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved.
A copy of the settlement agreement is on the American Immigration Council website.
AILA Submits Comments to USCIS on New Proposed Form I-129H-1
On October 18, 2021, the American Immigration Lawyers Association (AILA) submitted comments to U.S. Citizenship and Immigration Services on the new proposed Form I-129H1. This new form is a part of USCIS’ effort to create separate forms for each visa classification incorporated in the current Form I-129, Petition for a Nonimmigrant Worker. AILA’s comments address the following concerns generated by the new Form I-129, namely that the information USCIS intends to collect is immaterial and lacking in practical utility and creates an undue burden for employers.
The changes imposed in the new Form I-129H1 includes requesting E-Verify information for all petitioners, requesting USCIS online account numbers for both the petitioner and beneficiary, and requesting information about the level of education, experience, special skills, and supervision required for the position. The proposed changes to Form I-129 and a draft of the new form can be found on the Federal Register website.
DOS Final Rule Replacing Reference to NAFTA with USMCA
The Department of State announced on November 5, 2021 a final rule which replaces the North American Free Trade Agreement (NAFTA) with the United States Mexico-Canada Agreement (USMCA), which will go into effect on December 6, 2021. The visa classification of “TN” and “TD” will remain the same but will now read as “TN USMCA Professional” and “TD Spouse or Child of a USMCA Professional.” This new rule does not change the visa status of foreign nationals in TN or TD status.
Practice Pointer for the Lawful Presence Requirement to Obtain a Massachusetts Driver’s License
The Massachusetts Registry of Motor Vehicles (RMV) has revised its normal operating procedures for issuing driver’s licenses and identification documents as a result of the COVID-19 pandemic. This includes limiting the number of in-person interviews and automatically extending licenses/ID in a limited number of circumstances.
The Commonwealth of Massachusetts requires that all foreign nationals be lawfully present in the United States to receive a state-issued driver’s license. The definition of “lawfully present” for this purpose can be found in the RMV Motor Vehicle Regulations. The RMV must verify a person’s lawful status through SAVE (Systematic Alien Verification for Entitlements). Not every foreign national who is lawfully present in the United States for immigration purposes is eligible for a driver’s license. For example, foreign nationals who have an extension of status petition in process or a visa status validity of less than 12 months may not be able to apply for/renew their driver’s license. Additionally, certain foreign nationals may be issued a driver’s license that is valid until the expiration of their current status as opposed to the standard five years.
Prior to applying for or renewing a driver’s license, foreign nationals should confirm that they are considered lawfully present in the United States based on the Massachusetts RMV regulations. Information about the SAVE system are on the USCIS website. Foreign nationals who are already in SAVE but have not been fully verified by the system can check the status of their case here. Please note that the RMV cannot correct errors in SAVE.
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.