NEWS ALERT – WHITE HOUSE TO REPLACE REGIONAL TRAVEL BANS FOR VACCINATED INDIVIDUALS

On September 20, 2021, the White House announced that U.S. replace the existing regional COVID-19 travel bans with a COVID-19 vaccination requirement for foreign nationals for entry to the U.S. by air travel. The implementation is expected to start in November 2021, but the exact date or details are currently unknown.

• The COVID-19 vaccination requirement for foreign nationals will be in addition to the current COVID testing requirement for all travelers entering the U.S. regardless of immigration status. All travelers must provide proof of the negative result from the COVID-19 test taken within 72 hours of travel
• The White House is expected to replace the existing COVID-19 related travel bans affecting travelers who have been in Brazil, China, India, Iran, Ireland, the European Schengen Area, South Africa, or the United Kingdom with the vaccination requirement as early as November 2021
• Limited exceptions are expected for children and travelers who have an extremely compelling reason to travel but lack access to vaccination.
• This change is for air travel only and will not affect land border travel restrictions.
• Until fully implemented, the current travel restrictions will remain in effect.

MT is closely monitoring the development of the new vaccine requirement for entry to the U.S. and will provide an update when the government agencies provide additional information. As the pandemic related travel conditions may change abruptly, travelers should continue to remain flexible and anticipate delays. MT continues to recommend against all non-essential travels and encourages clients to consult with us before planning any international travel.

MT IMMIGRATION NEWS – September 2021

List of topics:

1. Covid-19 Vaccination Requirement for Lawful Permanent Residence 
2. Other Medical Exam News (subsection)
3. The Latest on COVID-Related Travel & Visa Restrictions
4. H-1B CAP FY 2022: Update on this year’s H-1B Lottery
5. Nonimmigrant Visa Interview Waiver Process & Expanded Waiver Eligibility
6. I-9 Flexibilities in Connection with COVID-19 Pandemic

In other news (in case you missed it this summer):

1. USCIS Issues Three Policy Changes to Improve Immigration Services
2. Biometrics Requirement Suspended for Certain I-539 (H-4, L-2, and E-1/2/3D)

NEW COVID-19 VACCINATION REQUIREMENT
FOR LAWFUL PERMANENT RESIDENCE 

The Centers for Disease Control and Prevention (CDC) has added COVID-19 vaccination to the list of required vaccinations for individuals seeking U.S. lawful permanent residence (“green card”), effective October 1^st. The American Immigration Lawyers Association (AILA) reported on this new requirement on August 25^th.

• Starting on October 1, 2021, U.S. Citizenship and Immigration Services (USCIS) and the U.S. State Department will require proof of COVID-19 vaccination for all green card applicants, including Adjustment of Status applicants applying from within the U.S. and Immigrant Visa applicants applying through a U.S. consular post abroad.
• The new requirement will apply to all green card applicants who are medically and age-eligible for the vaccine, with some exceptions.
• If an applicant’s Form I-693 (Report of Medical Examination and Vaccination Record) is fully executed on or after October 1^st, completion of the COVID-19 vaccine series and corresponding documentation is required.
• If Form I-693 is fully executed before October 1^st, and if it remains valid, the COVID vaccine is NOT required.
• USCIS is expected to issue an updated version of Form I-693 and corresponding instructions.
• Information and background from the CDC on this development can be found on the CDC Requirements for Immigrant Medical Exams web page.

MT is closely monitoring the situation and will guide clients as more information becomes available.

IN OTHER MEDICAL EXAM NEWS:

• USCIS has issued guidance stating that adjustment of state applicants should submit Form I-693 alongside Form I-485. They advised that filing Form I-693 and Form I-485 at the same time may eliminate certain potential processing delays after submission.
• USCIS announced that the validity period of Form I-693 will be temporarily extended from two to four years, effective August 12, 2021 through September 30, 2021, for cases adjudicated by then. In a policy alert, USCIS cited COVID-related processing and operating delays in 2020 as the main impetus behind this exception. Although narrow in scope, this targeted measure is indicative of USCIS efforts to address COVID-related backlogs, and process as many applications as possible in the final weeks of fiscal year 2021 in order to reduce the number of unused immigrant visa numbers.

THE LATEST ON COVID-RELATED TRAVEL & VISA RESTRICTIONS

Overview of Current Conditions:

While the last few months have seen an easing of many COVID-related travel and visa restrictions around the world, numerous restrictions remain in place globally and conditions are in flux, changing rapidly and with little or no notice. In mid-July, the State Department announced that some U.S. consular posts were beginning to phase in routine visa services. The resumption of visa services has been nonlinear and operations remain fluid in light of changing and unpredictable local conditions, limited staffing, and other factors. The availability, practices, and priorities regarding routine visa services vary greatly from post to post and lengthy backlogs persist in most locations. 

U.S. COVID-related travel restrictions still in effect include:

• COVID Test Results:
  • The CDC’s COVID test requirement remains in effect and, as of September 1^st, all air passengers arriving in the U.S., regardless of immigration or vaccination status, are required to test negative for the coronavirus within 72 hours of travel departure, or provide documentation of having recovered from COVID-19 within the prior 3 months. The order has been in effect since January 2021.
  • This applies to U.S. citizens and legal permanent residents as well as fully vaccinated individuals.
  • A blanket humanitarian waiver for certain travelers from Afghanistan has been in place since August 15^th.

• US-Canada & US-Mexico Border Closures – EXTENDED:

On August 23^rd, the U.S. Customs and Border Protection (CBP) issued notice that the Department of Homeland Security restrictions on non-essential travel into the U.S. via land border from Mexico and Canada have been extended through September 21, 2021:

• These particular restrictions do NOT apply to air travel and some sea travel.
• Increased CBP scrutiny, additional and detailed questioning at the border, and increased risk of rejection/non-admittance is expected to continue during this time.
• Essential travel includes individuals traveling to the U.S. for work, school, medical treatment, or business*, and any travel by US citizens and US lawful permanent residents.

*Foreign nationals traveling for one of these purposes should be prepared at the border to document, and answer detailed questions about, their intended purpose (for example, if traveling for work, proof of planned business or employment activities in the U.S.)

• By contrast, travel for recreation or tourism is considered “non-essential” and is not permitted at land borders.
• Timing: restrictions are now scheduled to remain in effect until at least September 21, 2021 unless otherwise rescinded by the Department of Homeland Security. 

• COVID Geographic Travel Bans – travel from certain countries within 14 days:

See above for the anticipated changes to these travel restrictions in November 2021. As of today, these remain in place.

• Several COVID-related Presidential Proclamations barring U.S. entry of noncitizens who have been to any of the following countries within 14 days of seeking admission to the U.S.: China, Iran, the 26 European countries comprising the Schengen Area, the UK, Ireland, Brazil, South Africa, and India (unless travelers meet certain exemptions or National Interest Exceptions) remain in effect. See updates on National Interest Exceptions below.
• The Proclamations do not apply to US citizens, lawful permanent residents, and other specified individuals.
• Timing: geographic travel bans will be reviewed at least every 30 days and will remain in place until terminated by the President.    

National Interest Exceptions:

• National Interest Exceptions – UPDATED VALIDITY:

On August 12^th, the U.S. State Department updated its FAQs regarding National Interest Exceptions (NIEs) and its expansion of NIE validity, previously announced in early July.

Background:
Some individuals subject to the COVID-related Geographic Travel Bans (due to their presence in China, Iran, Brazil, South Africa, the Schengen Area, the UK, Ireland, or India) are eligible to apply for National Interest Exceptions (NIEs). NIEs are granted by either the U.S. State Department (at a U.S. embassy/consular post) or the Department of Homeland Security/CBP (at the border, ports of entry or pre-flight inspection sites).

• What changed?

The validity period of NIEs granted at a U.S. embassy or consulate/consular post. These NIEs are now valid for 1 year (as opposed to 30 days) from the approval date, and for multiple entries (as opposed to single entry), provided the purpose of travel remains the same.

• Who is impacted?

Travelers with NIEs granted by a U.S. consulate or embassy who are traveling for the same purpose as was the basis for the NIE.

• Who is NOT impacted?

Travelers with NIEs issued by CBP, at ports of entry or pre-flight inspection sites. Clarification has been requested from the CBP but, in the meantime, CBP-issued NIEs remain valid for only a single entry and have a validity period of 30 days.

• When did this go into effect?

The change was effective immediately as announced in early July and reiterated in the State Department’s FAQs updated on August 12^th. NIE rules and COVID travel restrictions can change at any time, without notice.

MT Perspective & Considerations:

• MT urges clients to contact their immigration legal team and consult with an attorney prior to planning any international travel for the foreseeable future and throughout the pandemic.
• While situations remain fluid, authorities around the world are still broadly recommending against non-essential travel.

Related Resources:

• For the most up-to-date travel warnings and information on travel risks, refer to the Dept. of States’ travel advisories 
• For updated country-specific travel restrictions and information, refer to the Dept. of States’ COVID-19 specific information page
• USCIS’s COVID-19 Resource Center page contains information about the agency’s response to the pandemic within the U.S.
• And for updates on coronavirus-related travel restrictions, immigration developments, and MT’s perspective, please visit our COVID-19 info page.

H-1B CAP FY 2022: UPDATE ON THIS YEAR’S H-1B LOTTERY
On July 28^th, USCIS conducted a second round of H-1B lottery selections in connection with this year’s H-1BFY cap registration process. 

This second round of selections was conducted because USCIS did not receive enough H-1B petitions from its first round of selections to meet the annual cap.

Background: the annual numerical limit or “cap” on new cap-subject H-1B visa numbers is 85,000 per year, with 20,000 reserved for those with qualifying advanced degrees. When demand for new H-1B cap petitions exceeds the 85,000 annual allotment, USCIS conducts a lottery selection process.

More on the numbers:

During the first round of selections this year, conducted in March, USCIS selected 87,500 H-1B registrations. An additional 27,717 H-1B registrations were selected during the second round of selections in July, for a total of 115,217 selected so far this fiscal year.

In June, USCIS reported that a total of over 308,600 H-1B registrations were received during this year’s registration period, a 12% increase compared with last year’s H-1B cap.

USCIS uses a formula based on historical data to calculate the number of registrations needed to reach the H-1B cap each year. This year, they projected needing fewer registrations to meet the cap than was projected last year, which further contributed to a comparatively lower selection rate.

Next steps and timeline:

• For H-1B registrants selected in the second round of selection:
  • The next step is filing of the H-1B petition with USCIS.
  • The corresponding H-1B petition filing window for those selected on July 28^th is August 2^nd to November 3^rd.

• For H-1B registrations NOT selected:
  • H-1B registrations NOT selected are still being held “in reserve” in case any additional numbers become available. If USCIS does not receive enough petitions to meet the annual cap, it may select additional cases from the reserve.
  • USCIS will provide final confirmation of non-selection after September 30^th.
  • We do not know if there will be any additional rounds of selection in the coming months.  Last year, USCIS conducted only one additional round of selection in August without prior notice. 

Our office is working with clients on appropriate action including the filing of petitions for those selected in the second round of the lottery.

Companies that filed H-1B registrations this year can also view the status of each case in the myUSCIS portal.

NONIMMIGRANT VISA INTERVIEW WAIVER PROCESS & EXPANDED WAIVER ELIGIBILITY 
Earlier this year, the Department of State announced that its policy to expand interview waiver eligibility for individuals applying for a nonimmigrant visa in the same classification has been extended until December 31, 2021. Under this temporary policy, applicants whose nonimmigrant visa expired within 48 months are eligible for an interview waiver; whereas, previously, only those applicants whose nonimmigrant visa expired within 24 months were eligible.
In light of this expansion, the American Immigration Lawyer Association (AILA) issued information and guidance regarding the nonimmigrant visa interview waiver process. We are sharing highlights from this guidance here.

Background:

Individuals who are required to obtain a visa to enter the United States must apply at a U.S. consulate abroad. A critical part of the application process involves an in-person interview at the consulate. If the visa application is approved, the consulate issues the visa stamp in the applicant’s passport and arranges for return of the passport and visa to the applicant.

In recent years, many consular posts implemented interview waiver procedures that permitted certain nonimmigrant visa applicants to obtain visas without an in-person interview. Due to the COVID-19 pandemic, this interview waiver process has been implemented more broadly at consular posts around the world and the requirements to qualify have been expanded. Using this process is a convenient option for those renewing visas in the same nonimmigrant category and can reduce the hassle and anxiety of an in-person interview with a consular officer.

Am I Eligible for an Interview Waiver?

Under the recently expanded interview waiver eligibility requirements (valid through December 31, 2021), visa applicants who meet the following criteria may qualify for the interview waiver program:

• Applicant has a previously issued U.S. visa in the same classification as the visa for which they are applying;
• Applicant is applying at the consular post of the applicant’s usual residence;
• The prior visa is not annotated “Clearance Received” or “Department Authorization”;
• The most recent visa in the same classification for which the applicant is applying, was issued on or after their 14th birthday (For children under 14 years of age, interviews are rarely required);
• The most recent visa in the same class for which the applicant is applying was not lost/stolen or cancelled;
• The applicant was not previously refused a visa in any classification, unless the refusal was overcome or ground for inadmissibility was waived; and
• The applicant’s prior visa in the same classification is still valid or has expired within the last 48 months.

Note: because local procedures may vary, applicants should review their local consulate’s website to determine whether it has implemented an interview waiver procedure. In some cases, applicants may also need to reference the appointment scheduling website. The consulate has the discretion to require an interview of any applicant from whom they have received a visa application.

MT urges clients to contact their immigration legal team and consult with an attorney prior to planning any international travel. Please contact your MT legal team if you have specific questions.

I-9 FLEXIBILITIES IN CONNECTION WITH COVID-19 PANDEMIC

The Department of Homeland Security (DHS) flexibility rules regarding Form I-9 compliance during the COVID-19 pandemic was last extended to December 31, 2021. These precautions  were initially put in place on March 20, 2020, extended, and were previously set to expire on August 31, 2021. 

The extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Such 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.

IN CASE YOU MISSED IT
(other news from this summer):

USCIS ISSUES THREE POLICY CHANGES TO IMPROVE IMMIGRATION SERVICES
In June, USCIS announced three significant policy updates which include changes to expedited processing criteria, elimination of the “denial without RFE” policy and other Request for Evidence (RFE) and Notice of Intent to Deny (NOID) guidance, and extension of validity period for certain Employment Authorization Document (EAD) based on a pending adjustment of status application.
Snapshot of main policy changes:

1. Expedited Processing:  USCIS considers all requests for expedited processing on a case-by-case basis. With this policy change, USCIS clarifies and amends the criteria it uses to determine whether an expedite request may be granted. Highlights from the updated expedite criteria policy:

• Emergencies: USCIS restored emergencies as one of the criteria for which expedited processing may be granted and it clarified what USCIS considers to be an emergency, such as travel connected to time-sensitive medical treatment.
• Severe financial loss: USCIS expanded the definition of severe financial loss, which was previously limited to situations in which failure to expedite would result in a company being at risk of failing altogether. The new definition takes into consideration the loss of a critical contract or being required to lay off employees.
• Nonprofits: certain nonprofit organizations may now request expedited processing even if premium processing is available for that benefit, a provision previously eliminated by the Trump administration.

1. Requests for Evidence (RFE) and Notices of Intent to Deny (NOID): USCIS is rescinding guidance from a 2018 memo which permitted officers to deny applications without first issuing an RFE or NOID.  The new policy is a return to previous guidance that instructs officers to issue an RFE or NOID if additional evidence could potentially establish eligibility for a given immigration benefit.

1. Employment Authorization Document (EAD): EAD cards for certain Adjustment of Status applicants will now be issued with a validity period of two years instead of one year. This move, effective immediately, should free up USCIS resources and provide eligible EAD-holders with more stability in connection with their work authorization. This applies to initial and renewed EADs and does NOT apply to replacement EADs.

MT Perspective:
Our office welcomes these improvements and continues to monitor ongoing developments in immigration policy and the new administration.

BIOMETRICS REQUIREMENT SUSPENDED
FOR CERTAIN I-539 (H-4, L-2, AND E-1/2/3D)

USCIS announced in May that it would suspend the biometrics requirements for certain I-539 applicants for a two-year period, beginning on May 17, 2021. This biometrics suspension applies to the H-4, L-2, and E-1, E-2, and E-3 categories and Form I-539 applications that are either: 1) pending and had not yet received a biometric service appointment notice as of May 17, 2021, or 2) are new applications received by USCIS from May 17, 2021 through May 23, 2022.
MT Perspective:

This suspension is welcome news and is intended to help reduce the extraordinary backlogs for Employment Authorization Document applications by derivative spouses in H-4, L-2, and E-1/2/3D status (spouses of H-1B, L-1, and E-1/2/3 status).

MT will continue to monitor the situation and provide additional updates if needed.