Newsletter – November 2021

News RoomFebruary 23, 2022

Newsletter – November 2021

Administration Moves to Restrict Travel From Eight Countries in Response to Omicron Threat

Since the announcement in September followed by the dropping of geographical travel bans effective on November 8th we were hopeful we had moved past the blanket approach to restricting travel from certain countries of the world. The new stated policy of the U.S. government was to require a vaccination and negative covid result for all travelers seeking to enter or return to the U.S. and we were still wondering if the NIEs we fought hard for might still be useful going forward depending on someone’s vaccination status. But with all things Covid, we have to remain flexible in our plans – as the initial announcement and identification of Omicron (COVID-19 latest variant of concern) the administration has temporarily reintroduced travel bans through Presidential Proclamation for the following countries Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe effective as of 12:01 am on Monday November 29, 2021 (see full Proclamation HERE). Effectively this means if a traveler leaving one of those countries wishes to enter the U.S. they must either fit an exemption in the proclamation – such as being a U.S. Citizen or Permanent Resident – or spend 14 days outside of the country before entering the U.S. At this point we are unsure as to whether the government will implement National Interest Exemptions for this Travel Ban, and if so will prior NIE grants be honored, and will visas be held back until an NIE is given. We will need to wait for further clarification from the administration and Department of State. However, out of an abundance of caution, anyone currently seeking a U.S. non-immigrant visa for entry from one of those countries should revisit the most recent NIE clarifications to determine whether an NIE eligibility exists. We will separately reach out to individuals who we know are impacted by this most recent change.

It is obviously hoped that this is a short-lived travel ban that doesn’t expand in its scope as we hear of Omicron popping up elsewhere around the globe.

And we take this moment to remind clients of the current travel requirements:

Prior to boarding a U.S. bound flight, all travelers – including U.S. citizens and U.S. permanent residents – are required to show one of the following:
• If vaccinated (completed required course more than 2 weeks prior to travel): Proof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.
• If NOT vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Reminder – children under 2 years old are not required to test.

We will continue to update clients on any additional changes to travel restrictions but as a general reminder know that consular availability and travel restrictions continue to create some element of risk so we caution individuals to remain flexible in planning travel.

An Early Thanksgiving Bit of Good News for Some EAD Applicants

An exciting win for both H-4, L-2 and E dependent spouses came out of the Western District of Washington on November 10, 2021. Followed nearly immediately (on November 12th) by initial guidance on how USCIS interprets the settlement, and in this guidance USCIS added the E visa for spouses into the mix.

As many of you know, USCIS processing times for both employment authorization documents and status extensions for many categories have been at an unprecedented high – we’ve seen some cases take over 12 months, despite the underlying rule being you can’t file for an extension any earlier than six months prior to an EAD expiry. Insofar as it relates to H-4, L-2, and E dependent spouses, this settlement agreement signals a new policy change helpful to employment authorization for many seeking an extension.

What the settlement provides:
 1) In those cases where the dependent status holder has a valid I-94 and seeks extension of an EAD, and the I-94 is valid during the period requested for the EAD, USCIS will accept the EAD has continuing work authorization past its expiration date and for a period of up to 180 days. In other words it treats the EAD as “auto-extended” provided a timely extension is filed;
 2) The government has also confirmed it will work to issue a new I-94 document in the coming months that will differentiate between a dependent spouse or dependent child when the traveler is in L-2 or a dependent E status. Once that new I-94 is introduced, such work authorized spouses will be eligible to work solely on the basis of their I-94 document and foreign passport;

What the settlement doesn’t solve/provide:
1) Notably, the current change only applies to those H-4, L-2, and E dependent spouses whose I-94 records are still valid (not expired). Given that typically we file the I-539 to extend the I-94, and the I-765 to extend the EAD, such cases will not qualify for an “auto-extend” and such individuals are still required to wait for months for both EAD and I-539 extension approval. So the impact of this change may be limited depending on your specific facts.
2) It also only applies to extension filings, fist time filiers are stuck waiting months for the EAD to be issued.
3) It also does not confirm any additional staffing or support for this product line – based on the settlement and work around its clear that USCIS did not want to commit to certain processing standards to be held accountable to in the future.

If you have questions, please contact your attorney at Brown Immigration Law for an assessment of your current situation. In limited situations we may suggest separating the applications to ensure a longer I-94 approval for the dependent so they can get an auto extend on their EAD if required. Thankfully with the coming work authorization incident to status (in the coming months) the fix for those still pending on an I-539 and I-765 may simply be to travel out and get a new work authorized I-94 document from CBP. We’ll be sure to update as we hear more about the timing of the new I-94 issuance.

Please also note that as part of the settlement, USCIS has been given 120 days to issue new I-9 verification guidance in compliance with this new policy change.

Build Back Better Passes the House Before Thanksgiving

This is a very large multi-faceted piece of legislation. It’s now in a position to be reviewed and voted on by the Senate and there remains uncertainty as to its passage. The concern from our perspective remains the immigration provisions that may impact the system as we know it. In addition to Senate passage there is a remaining technical issue of earning the Senate parliamentarian’s approval. So we will pay close attention to what happens in the coming month.

Key among the immigration provisions includes an opportunity for approximately 7 million currently undocumented individuals to qualify for parole status and receive eligibility for a work permit. This is not a path to a green card or citizenship, so it is not a formal “fix” to this continuing problem, but it would create more support for a future path as individuals would initially get a five-year parole that is eligible for an extension for five years, and it would permit work authorization and allow individuals to register and pay taxes. The legislation would also recycle all unused immigrant visas from recent years and ensure that the additional immigrant visas earmarked for employment based immigrants be used even if USCIS can’t issue all Green Cards within the current fiscal year. Ensuring we don’t lose immigrant visas because of end of year fiscal cutoffs, given the significant backlogs in many categories, is something that advocates have been pushing for for years, so this would finally show some progress. And perhaps the most compelling element for individuals subject to the long immigrant backlogs is an allowance to file early for adjustment of status. It proposes that individuals with an approved I-140 who have been subject to a backlog wait for at least two years can pay an additional fee to file early. This opens up the scenario of an individual with a priority date that suggests they would otherwise wait another 10 years to be current being in a position to file their Adjustment of Status for both themselves and their family members. This may open up employment opportunities for their spouse and kids, and create protections and flexibility in employment. Such changes do not alter our current visa quotas, which would be the obvious better solution to these extended waiting periods people are facing. But these changes would create more flexibility and alleviate some of the stress individuals feel while waiting years to become eligible to file their adjustment of status.

It is being reported that a meeting is scheduled to discuss these updated proposals with the Senate parliamentarian later this week, and it is also being reported that the Senate will start trying to move this bill forward starting this week. We are mindful of the challenges still ahead in getting this passed and look forward to reporting that at least some of these positive reforms remain in legislation that is ultimately passed and signed into law. We will continue to monitor this legislation as it moves through Congress.

Visa Bulletin

As we enter December, the visa bulletin for December shows that EB-1 Worldwide remains current, as well as EB-1 in China, India and Philippines. EB-2 Worldwide is still current, and India and China are progressing slowly in EB-2 and EB-3 and we have also seen an inversion with India EB-2 and EB-3.

With 290,000 Employment-based Immigrant visas available for this fiscal year, we do still anticipate significant forward movement for both EB-2 and EB-3 India, although it remains clear that DOS is taking a slower approach at present, likely because of staffing limitations at both consulates and USCIS.

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **