Newsletter – October 2021

News RoomFebruary 23, 2022

Newsletter – October 2021

Biden Administration Eases Travel Restrictions with European Union, China, India, and Others for Fully Vaccinated International Travelers

For more than 18 months everyone has had to contend with geographic travel bans. On September 20, the White House announced that the United States planned to lift travel restrictions on international travelers who are fully vaccinated against COVID-19 starting in November, and just this past Monday a new Executive Order was signed by President Biden.

This EO does several things. First, it removes the 18-month travel bans on 33 countries, including members of the European Union, China, India, the United Kingdom, Brazil, and others.

Second, it prioritizes admission of non-immigrants (U.S. citizens and permanent residents are exempt) based on vaccination status. If someone is vaccinated with the mandated doses and it has been at least two weeks from the final dose, that traveler is travel eligible.

Third, it prevents the Consulates from being gatekeepers. For many months, if someone was subject to a geographical travel ban, they either stayed put, went somewhere not subject to a ban for 14 days before seeking entry, or asked for an NIE (National Interest Exemption) to exempt them from the ban. However, Consulates stopped issuing visas to individuals from travel banned countries unless the individual was eligible for an NIE, so there were thousands of foreign nationals ineligible for a visa because they were deemed ineligible for an NIE. Now Consulates can issue visas without regard to vaccine status or timing of travel. This will allow individuals to get visas while awaiting vaccination protocols to finish.

While this new EO will allow more orderly entry of foreign travelers we still need more information from the Administration and the CDC to fill in the blanks. There is a separate land border agreement that is forthcoming between the U.S. and Mexico and the U.S. and Canada, and it may not be based on vaccination status. And there are understandable exceptions to the new rules, but we’ll have to wait and see how they are administered. And although consulates will no longer have their hands tied in issuing visas, we are hearing that they lack any guidance at this time and our requests for visas starting November 8th or afterward are being ignored for the time-being until they get direction. We also do not know if the NIE will remain a useful tool, possibly for someone who isn’t vaccinated and seeks entry to the U.S. So there still remain some unknowns that will become clearer as we move closer to and through November 8, 2021.

As with all things Covid related that we’ve seen, this again will take patience and understanding, but it is a positive step forward for many of the clients we represent. And as the EO suggests, the U.S. government is clearly encouraging that all visitors to the U.S. be fully vaccinated. We will continue to monitor and provide relevant updates.

Hey – We Get It – Things Are Still Difficult Out There

For months our clients have dealt with travel restrictions and consular delays and visa denials and additional scrutiny that has made it not fun to travel. Just a week ago Managing Partner, David Zaritzky Brown, traveled back to Canada to visit family and friends and after getting a negative Covid result and installing the ArriveCan app he was able to navigate the app to receive a clearance to travel (it requires you to upload your passport, vaccination history, and negative Covid test result). Unfortunately the United app was not nearly as helpful as it refused his passport, vaccine card, and negative test result so he had to check in in person at the airport. After going through the document check to board his first flight everyone boarding the flight to Canada was subject to another document check before being given a travel ready sticker. After landing in Canada the lines were long as ½ the time spent related to Covid testing and possible quarantine plans. David was cleared but randomly selected to take another Covid test before he could leave the airport. This required him to download another app to register for and receive his results. This added another 25 minutes to his screening before he could leave the airport. In the run up to the trip he had to accept another healthcare app to allow for his pre-travel testing. Thankfully all tests were negative and quarantine was never required.

And in order to return to the U.S. he needed to test within 3 days of his departure and unfortunately the random test at immigration was 5 hours too early to fit in the 3 day window requiring yet another private test and another healthcare app. By the end of the trip he’d spent over $200 in private testing, loaded 4 new apps each for an individual need, and spent significant time arranging and attending tests and uploading documents. We’re obviously immigration attorneys and not app developers – but it feels like there is a possible market here… In any event, just that brief trip made it crystal clear that international travel is now significantly more involved and expensive than before, and requires patience. David can’t imagine having traveled with his entire family on such a short trip given the complexity. So know that we get it, and we’re here to help in any way we can, but as with everything right now, patience is an absolutely important virtue as we contend with and embrace change.

Another Court Win Against Prior Erroneous Adjudicative Standards

During the prior administration we raised significant concerns about shifting adjudicative standards across many case types and there was significant abuse related to the H-1B category. In short, in several position types employers seek an H-1B USCIS simply stopped recognizing those occupations as degreed despite government publications written by the Department of Labor confirming they required degrees. It was clearly an abuse of discretion and after many attempts at reconsiderations and appeals and individual lawsuits to seek accountability a major class action was filed related to the position of Market Research Analyst.

Earlier this week a settlement was announced in the case of MadKudu Inc., et al, v. USCIS where on October 19, 2021 the court accepted the terms of the parties settlement agreement. It immediately allows employers to appeal cases that were denied for specific erroneous reasons to be reopened and properly adjudicated. This opens the door to thousands of improperly denied cases to be approved. It also shows the government that it has an obligation to fairly and legally review and adjudicate cases. As a firm we contributed to the legal fund that supported this case and others like it and we expect additional good news in the coming months with other pending cases to ensure USCIS and DHS remain accountable.

Senate Parliamentarian Rules Against Immigration Provision in Proposed Budget Reconciliation Bill

On September 19, Senate Parliamentarian Elizabeth McDonough advised against including immigration proposal that provided a path to obtaining a green card for nearly 10 million undocumented immigrants currently in the United States in the House Democrats proposed $3.5 million budget reconciliation bill. In her decision, McDonough found the that the policy changes of the proposal far outweigh the budgetary impact involved and it is not appropriate for inclusion in reconciliation.

The provisions in the proposed bill aimed at reducing years-long visa backlogs. One major change the bill proposed would allow beneficiaries of approved immigrant visa petitions to pay a $1,500 fee and file an application for adjustment to permanent status early. This would allow many people who are present on nonimmigrant visas that do not provide employment authorization to legally work while they wait for their green card. The bill would also allow beneficiaries of employment-based visa petitions who have an approved immigration visa petition to pay $5,000 to skip ahead and be exempted from annual numerical limits on visas.

As we’ve seen in the weeks following, this decision has had a large negative impact on the Biden Administration’s immigration policy goals. With the decision, there is no longer public talk of including immigration in the reconciliation bill.

NIE Application Process Improves

In light of the changes announced related to geographical travel bans, this may now be a moot point as we are uncertain as to whether NIEs will still be used. However, recently, or office has noticed that US Consulates have become more streamlined in processing National Interest Exceptions (“NIE”) applications, which has made the application process the fastest and easiest it has been since the Trump Administration put travel restrictions in place due to the COVID-19 pandemic. We have in most situations seen faster responses for NIE applications, which we speculate is due to the US Consulates becoming more familiar with the process and having time to develop system.

Originally, all NIEs were processed by U.S. Customs and Border Protection. The process was very slow and painful. In May of this year, President Biden came out with Presidential Proclamations 9984, 9992, and 10143, which made it a requirement that all NIE requests other than those involving national security and law enforcement matters were to be filed to and adjudicated by the U.S. Department of State consulates abroad. Though the consulate processing was slow at first, we have seen this process get faster and faster. Hopefully, with the recent news of the White House lifting travel restrictions for countries such as European Union nations, the United Kingdom, China, India, and others, this process can continue to improve, if it is still required, as we move through the pandemic.

Extension of I-9 Allowances

Effective September 1, the Department of Homeland Security (DHS and U.S. Immigration and Customs Enforcement (ICE) announced an extension on the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.  The flexibility policy was set to expire on August 31, 2021, but due to ongoing precautions related to the pandemic, the DHS extended this policy until December 31, 2021.

For additional guidance on the I-9 allowance, please see the original news release from March 23, 2020 as well as the DHS and ICE’s Workforce Enforcement announcements about when the extensions end and normal operations resume.

Visa Bulletin

As we enter the 2022 fiscal year (“FY 2022”), we have seen reasonable progress in a number of categories both in October and now November visa bulletin. 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’re finally starting to see an inversion again with India EB-2 and EB-3.

With 290,000 Employment-based Immigrant visas available for this fiscal year, we do anticipate significant forward movement for both EB-2 and EB-3 India, although it is 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 **