Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a "Class A inadmissible condition," the CDC announced.
DOJ reached a settlement related to immigration discrimination claims with Ascension Health Alliance, a Missouri-based health care organization with more than 2,600 sites—including 146 hospitals and more than 40 senior living facilities—in 19 states and the District of Columbia.
DHS released new guidance for the immigration processing of Afghan citizens during Operation Allies Refuge, under which many thousands are being evacuated from Afghanistan.
USCIS has received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.
USCIS Extends Flexibilities Through October for Certain OPT Applicants Filing Work Authorization Applications
USCIS extended flexibilities through October 31, 2021, for certain applicants filing Form I-765, Application for Employment Authorization, for OPT and STEM OPT.
USCIS reached a settlement agreement that allows certain individuals to receive updated receipt dates for resubmitted immigration benefit applications or petitions originally rejected under the former "No Blank Space" rejection policy.
The Department of Labor's Office of Foreign Labor Certification announced several enhancements to the Foreign Labor Application Gateway (FLAG) system.
According to reports, the judge's action upends the hope that many employees and others around the country have had to reopen their removal orders under the Biden prosecutorial discretion policy, and OPLA offices nationwide are not considering prosecutorial discretion requests.
OFLC released Round 3 of frequently asked questions from the National Prevailing Wage Center on implementing the revised Application for Prevailing Wage Determination.
Applicants filing for lawful permanent resident status can now apply for a Social Security number or replacement card as part of the adjustment of status application process.
The agency temporarily extended the validity period for medical exams from two years to four years due to COVID-19 pandemic-related delays in processing.
The agency rescinded policy guidance in the USCIS Policy Manual on discretionary work authorization for noncitizens paroled into the United States.
The latest news at the firm including recent and upcoming events and publications.
1. COVID Vaccinations To Be Required for Many Green Card Applicants
Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is a requirement for applicants eligible for the vaccine regardless of evidence of immunity, a negative COVID-19 test, or prior COVID-19 infection. The new vaccine requirements apply to a foreign national filing an I-485 application for adjustment of status and completing the I-693 medical examination with a designated U.S. Citizenship and Immigration Services (USCIS) civil surgeon or to a foreign national applying for an immigrant visa or refugee status at a U.S. consulate and undergoing a medical examination with a panel physician.
With respect to I-485 adjustment applicants, the CDC has stated that the applicant “must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination.” The COVID-19 vaccination requirement differs from previous requirements in that “the entire vaccine series (1 or 2 doses depending on formulation) must be completed in addition to the other routinely required vaccines. COVID-19 vaccinations can now be given at any time, without regard to the timing of other vaccinations.” Acceptable vaccines include Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson).
Panel physicians in countries outside the United States may accept vaccines authorized for emergency use or approved by the U.S. Food and Drug Administration or vaccines listed for emergency use by the World Health Organization (WHO). In addition to the three vaccines used in the United States, WHO lists many other vaccines used outside the United States, such as AstraZeneca, Covishield and Covaxin, Sputnik, Sinopharm and Sinovac, among others.
Waivers are available for applicants under both circumstances if the vaccine is not age-appropriate, the vaccine is medically contraindicated, or the applicant does not have access to one of the approved vaccines in their home country. Applicants may also apply for an individual waiver on religious or moral grounds.
According to reports, the Biden administration also is developing plans for a COVID-19 vaccine mandate for almost all foreign visitors to the United States, with some exceptions. As there is a great disparity in COVID-19 vaccination programs across the world, the mandating of vaccines for green card applicants and visitors may hinder the ability of people to easily come to the United States. According to the New York Times vaccine tracker, the United Arab Emirates has the highest percentage of fully vaccinated people within its population (76%), while the percentage of fully vaccinated people in countries such as India (10%), Senegal (3.5%), and Haiti (<0.1%) is abysmally low.
- “CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Civil Surgeons,” Aug. 17, 2021, https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/covid-19-technical-instructions.html
- “CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians,” Aug. 17, 2021, https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/covid-19-technical-instructions.html
- “COVID-19 Vaccinations Required for Most Green Card Applicants,” Roll Call, Aug. 26, 2021, https://www.rollcall.com/2021/08/26/covid-19-vaccinations-required-for-most-green-card-applicants/
- “Biden Administration Developing Plan to Require Almost All Foreign Visitors to be Vaccinated,” Aug. 4, 2021, https://www.cnn.com/2021/08/04/politics/vaccines-foreign-visitors-to-us/index.html
New COVID-19 Vaccination Requirement for Green Card Applicants,” JDSupra, Aug. 26, 2021, https://www.jdsupra.com/legalnews/new-covid-19-vaccination-requirement-7487840/[Back to Top]
2. Justice Dept. Settles Immigration-Related Discrimination Claims With Large Health Care Organization
The Department of Justice (DOJ) announced on August 25, 2021, that it reached a settlement related to immigration discrimination claims with Ascension Health Alliance, a Missouri-based health care organization with more than 2,600 sites—including 146 hospitals and more than 40 senior living facilities—in 19 states and the District of Columbia.
The settlement resolves DOJ’s claims that Ascension violated the Immigration and Nationality Act (INA) when it discriminated against work-authorized non-U.S. citizens because of their citizenship status. Based on its investigation, DOJ determined that Ascension told its non-U.S. citizen employees to present new documents to prove their continued work authorization even when it was not required. The investigation found that Ascension improperly programmed customized software to send automated emails requesting proof of continued work authorization to all non-U.S. citizen employees, including U.S. nationals, lawful permanent residents, asylees and refugees, close to the expiration date of the documents they provided when completing the Form I-9. These non-U.S. citizen employees often presented documents that did not require reverification of employment eligibility. In some instances after sending the emails, Ascension further required non-U.S. citizen employees to present new documents to continue working. In contrast, Ascension did not program the software to send emails to U.S. citizens and therefore did not notify U.S. citizens near the expiration of their documents.
Under the terms of the settlement agreement, Ascension will pay the United States a civil penalty of $84,832.00. Additionally, Ascension will train its employees on the requirements and be subject to monitoring for a three-year period.
- Press release, Dept. of Justice, https://www.justice.gov/opa/pr/justice-department-settles-large-health-care-organization-resolve-software-based-immigration
- Settlement agreement, https://www.justice.gov/opa/press-release/file/1427891/download
3. DHS Releases Guidance for Immigration Processing of Afghan Citizens Fleeing Afghanistan
The Department of Homeland Security (DHS) released new guidance for the immigration processing of Afghan citizens during Operation Allies Refuge, under which many thousands are being evacuated from Afghanistan.
The memo states that some of these individuals were in various stages of processing for immigration status in the United States, and through various paths based on family relationships, Special Immigrant Visas, or refugee programs, for example. Many were not able to complete these processes because of the current situation in Afghanistan. The memo notes that others, despite likely eligibility, never applied because they had not previously sought to leave Afghanistan and relocate to the United States. DHS Secretary Alejandro Mayorkas is therefore authorizing U.S. Customs and Border Protection [CBP] officers to parole certain Afghan nationals into the United States, “on a case-by-case basis, for a period of two years and subsequent to appropriate vetting, provided their movement to the United States is being carried out pursuant to Operation Allies Refuge.” Once paroled into the United States by CBP, Afghan nationals may be eligible to apply for status through U.S. Citizenship and Immigration Services. “Afghan nationals paroled by CBP may also have conditions placed on their parole, to include medical screening and reporting requirements. Failure to follow these conditions may be cause for termination of the parole and initiation of detention and removal,” the memo notes.
- “Guidance for the Immigration Processing of Afghan Citizens During Operation Allies Refuge,” DHS memorandum, Aug. 23, 2021.
4. Cap Reached for Remaining H-2B Visas for Returning Workers for FY 2021
As of August 13, 2021, U.S. Citizenship and Immigration Services (USCIS) has received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the fiscal year (FY) 2021 H-2B supplemental visa temporary final rule. USCIS said it will reject and return any cap-subject petitions for H-2B returning workers received after August 13, along with any accompanying fees.
USCIS said it will continue to accept H-2B petitions for workers who are exempt from the congressionally mandated cap, including petitions for:
- Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
- Fish roe processors, fish roe technicians, or supervisors of fish roe processing; and
- Workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from November 28, 2009, until Dec. 31, 2029.
USCIS is also currently accepting cap-subject petitions for the first half of FY 2022 for employment start dates on or after October 1, 2021, and before April 1, 2022.
- USCIS alert, Aug. 19, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2021
5. USCIS Extends Flexibilities Through October for Certain OPT Applicants Filing Work Authorization Applications
Pursuant to a court order, U.S. Citizenship and Immigration Services (USCIS) extended flexibilities through October 31, 2021, for certain applicants filing Form I-765, Application for Employment Authorization, for optional practical training (OPT) and science, technology, engineering, and mathematics (STEM) OPT.
For applicants who timely filed Form I-765 for OPT and STEM OPT and whose applications were later rejected, USCIS will accept a refiled Form I-765 as filed on the original filing date if:
- The original, timely filed application was received on or after October 1, 2020, through October 31, 2021, inclusive; and
- USCIS subsequently rejected it.
USCIS said refiled applications must be received by November 30, 3021, for USCIS to treat the application as though filed on the original received date. Additionally, for applications received through October 31, 2021, applicants can file Form I-765 up to 120 days before the program end date.
- USCIS alert, July 29, 2021, https://www.uscis.gov/news/alerts/uscis-extends-flexibilities-to-certain-applicants-filing-form-i-765-for-opt
6. Settlement Agreement Reached in 'No Blank Space Rejection Policy' Case
U.S. Citizenship and Immigration Services (USCIS) announced on August 19, 2021, that it reached a settlement agreement in Vangala v. USCIS. The agreement allows certain individuals to receive updated receipt dates for resubmitted immigration benefit applications or petitions originally rejected under the former “No Blank Space” rejection policy. Under the former policy, USCIS rejected filings with any blank fields or spaces.
The agreement applies to three forms: Form I-589, Application for Asylum and for Withholding of Removal; Form I-918, Petition for U Nonimmigrant Status; and Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient. Individuals whose forms were rejected under the former policy may resubmit their requests by July 20, 2022, to obtain an updated receipt reflecting the date their rejected request was originally filed. Individuals who had resubmitted these forms before the effective date of this settlement agreement (July 20, 2021) may also submit documentation by July 20, 2022, to obtain an updated receipt date.
- USCIS news release, Aug. 19, 2021, https://www.uscis.gov/news/news-releases/uscis-reaches-settlement-agreement-in-no-blank-space-rejection-policy-case
- Settlement agreement, Vangala v. USCIS, https://www.uscis.gov/sites/default/files/document/legal-docs/Vangala_Order_Adopting_Settlement_7-20-2021.pdf
7. OFLC Announces Enhancements to Foreign Labor Application Gateway
On August 17, 2021, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced several enhancements to the Foreign Labor Application Gateway (FLAG) system:
- A new “Notification Center” within user accounts that provides access to OFLC decisions and allows users to upload responses and view documents associated with labor certification applications
- The ability to “reuse” a previously filed Form ETA-9141, Application for Prevailing Wage Determination, to pre-populate key sections in a new request
- New options for reassigning cases among other authorized users within their account networks
- OFLC announcement, Aug. 17, 2021, https://www.dol.gov/agencies/eta/foreign-labor
8. Federal Judge Blocks Biden Administration's Immigration Enforcement Priorities; ICE Suspends Memo
Due to an August 19, 2021, preliminary injunction issued by U.S. District Judge Drew Tipton in Texas v. United States that blocked, nationwide, the Biden administration’s prioritization of enforcement action against those who are threats to national security or public safety, U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) suspended reliance on a May 27, 2021, OPLA memorandum, “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities.”
According to reports, the judge’s action upends the hope that many employees and others around the country have had to reopen their removal orders under the Biden prosecutorial discretion policy, and OPLA offices nationwide are not considering prosecutorial discretion requests. ICE said that questions from noncitizens and their legal representatives about OPLA’s exercise of prosecutorial discretion in individual cases should be referred to local OPLA offices.
- Preliminary injunction, Aug. 19, 2021, http://myflorcom/webfiles.nsf/WF/GPEY-C62QED/$file/Texas+case.pdf
- ICE announcement, https://www.ice.gov/about-ice/opla/prosecutorial-discretion
- OPLA office locations, https://www.ice.gov/contact/field-offices?office=12
- Interim guidance memo, May 27, 2021, https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf
9. OFLC Releases FAQ on Implementation of Revised ETA-9141
On July 16, 2021, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released Round 3 of frequently asked questions (FAQs) from the National Prevailing Wage Center (NPWC) to respond to inquiries from a webinar on implementing the revised Form ETA-9141, Application for Prevailing Wage Determination. The revised form provides a separate section to be completed by employers who accept alternative job requirements in addition to the minimum job requirements.
OFLC said the new alternative job requirements section (1) improves NPWC’s ability to ensure that prevailing wages provided to employers and listed on the Form ETA-9089 do not adversely affect U.S. workers and support a valid labor market test in instances where the alternative requirements would result in a higher wage; and (2) reduces employers’’ burden of completing a separate Form ETA-9141 for each set of requirements.
- OFLC notice, https://www.dol.gov/agencies/eta/foreign-labor
10. USCIS Expands Partnership With Social Security Administration
Applicants filing for lawful permanent resident status can now apply for a Social Security number (SSN) or replacement card as part of the adjustment of status application process, U.S. Citizenship and Immigration Services (USCIS) announced. Previously, such an individual had to apply for the SSN at a Social Security office.
USCIS revised Form I-485, Application to Register Permanent Residence or Adjust Status, to include the additional questions needed to apply for an SSN or a replacement card.
- USCIS news release, Aug. 9, 2021, https://www.uscis.gov/news/news-releases/uscis-expands-partnership-with-social-security-administration
- Form I-485 (see Social Security questions #14-17 on page 2), https://www.uscis.gov/sites/default/files/document/forms/i-485.pdf
11. USCIS Temporarily Extends Validity Period of Medical Exam and Vaccination Record Form
U.S. Citizenship and Immigration Services (USCIS) temporarily extended the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years to four years due to COVID-19 pandemic-related delays in processing.
USCIS said it may consider a completed Form I-693 as valid if:
- The civil surgeon’s signature is dated no more than 60 days before the applicant filed Form I-485, Application to Register Permanent Residence or Adjust Status;
- No more than four years have passed since the date of the civil surgeon’s signature; and
- A decision on the applicant’s Form I-485 is issued on or before September 30, 2021.
- USCIS also stated that it is on track to approve more employment-based adjustment of status applications than it has since FY 2005. “We have prioritized employment-based adjustment of status applications during every step of its processing and adjudication during this fiscal year. We continue to make processing and resource allocation decisions to increase the pace of adjudications and limit the potential for employment-based visa numbers to go unused.”
- USCIS alert, Aug. 12, 2021, https://www.uscis.gov/news/alerts/uscis-temporarily-extending-validity-period-of-form-i-693
12. USCIS Rescinds Guidance on Discretionary Work Authorization for Parolees
U.S. Citizenship and Immigration Services (USCIS) rescinded policy guidance in the USCIS Policy Manual on discretionary employment authorization for noncitizens paroled into the United States. The guidance was issued in 2019 in response to a presidential proclamation and related national emergency that were revoked and terminated, respectively, in 2021.
- USCIS policy alert, Aug. 12, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210812-EmploymentAuthorizationForParolees.pdf
13. KLASKO NEWS
Three Klasko Immigration Law Partners Recognized as “Thought Leaders” in 2022’s Who’s Who Legal Corporate Immigration Attorneys List
Klasko Immigration Law Partners, LLP is pleased to announce, three firm partners, H. Ronald Klasko, William Stock, and Elise Fialkowski, have been included in the esteemed list of Who’s Who Legal Corporate Immigration Attorneys nominated by peers, corporate counsel, and other market sources this year.
IN THE NEWS
Michele G. Madera
Michele was credited in The Philadelphia Inquirer for volunteering to transport food to Afghan refugees at the International Philadelphia Airport.
Daniel B. Lundy
Dan was quoted in EB-5 Investors on if the regional center projects could transition into direct investment projects.
H. Ronald Klasko
Ron was quoted in EB-5 Investors discussing the USCIS new method of calculating EB-5 processing times.
RECENT SPEAKING ENGAGEMENTS
F. Oliver Yang
On August 4th, Oliver joined this webinar hosted by Visa Franchise’s Bo Zhang to discuss the current opportunity of a direct EB-5 investment at $500,000.
William A. Stock
On August 18th, Bill spoke in this AILA event on a panel entitled Employment-based Green Cards: PERM, EB-2, EB-3.
Daniel B. Lundy
On August 25th, Dan spoke alongside a panel of experts in this EB5 Affiliate Network webinar to discuss the meaning and impacts of the USCIS Notice of Appeal to increase the investment minimum from $500,000 to $900,000 again.
UPCOMING SPEAKING ENGAGEMENTS
Andrew J. Zeltner
Drew will be a featured speaker at this event, On the Fly Travel Update on Wednesday, September 22, hosted by the British American Business Council in which panelists will review current regulations, as well as provide a preview of what we may be able to expect through the end of this year as our economies navigate the recovery process.
H. Ronald Klasko
Ron will be a discussion leader in the AILA Fall Conference event on a panel entitled Overcoming Government Motions to Dismiss and Change Venue on October 11th.
Three Klasko Partners Are “Thought Leaders” in 2022’s Who’s Who Legal Corporate Immigration Attorneys List
Three firm partners, Ron Klasko, Bill Stock, and Elise Fialkowski, have been included in the esteemed list of Who’s Who Legal Corporate Immigration Attorneys nominated by peers, corporate counsel, and other market sources this year.
ICYMI: RECENT BLOG POSTS AND ALERTS
Client Alert: Green Card Applicants Must Be Fully Vaccinated Against COVID
In this client alert, Nigel D. James addresses the new CDC policy announcement that will go into effect on October 1, 2021, requiring green card applicants to be vaccinated against COVID-19.
New Developments for Green Card Holders Still Abroad during COVID-19
In this article, F. Oliver Yang covers new developments for Green Card holders that are stuck abroad due to the pandemic.
September 2021 Visa Bulletin
In this blog, read a summary of USCIS’s update on quota movement and which chart to use for employment and family-based categories.
Direct EB-5 Green Card – What You Must Know
This blog is a recap of the webinar hosted by Visa Franchise’s Managing Partner, Patrick Findaro and joined by Ron Klasko, Oliver Yang, and Jessica DeNisi about the recent EB-5 visa program changes.
Have you ever wondered what it would be like to live a day in a life of a Klasko staff member? Well, look no further. Head over to the firm’s Instagram for an inside look at a day in life of Alex Magalli, a technical writer on the EB-1 team!
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]