Biden Admin Announces New Policy: Vaccines, Testing Required for International Travelers to United States
According to reports, the Biden administration announced on September 20, 2021, a major easing of pandemic travel restrictions that will allow fully vaccinated travelers to enter the United States beginning in November 2021. Under the new policy, all foreign travelers flying to the United States must present proof of vaccination before boarding a U.S.-bound airline, as well as proof of a negative COVID-19 test taken within 72 hours before flying.
There will be no quarantine requirement. The Biden administration will implement enhanced contact tracing and continue to require masks on flights. Additionally, unvaccinated Americans returning to the United States will need to provide a negative test within one day of leaving and again after arriving.
The administration said that it will task the Centers for Disease Control and Prevention (CDC) with determining which vaccines qualify under the new policy. The Associated Press reported that CDC has announced that the United States will accept any of the vaccines approved for emergency use by the World Health Organization.
Biden administration officials shared with the American Immigration Lawyers Association that limited exceptions will be available, such as for children; COVID-19 vaccine clinical trial participants; and humanitarian exceptions for people traveling for an important reason and who lack access to vaccination in a timely manner. Individuals who are exempted from the vaccine requirement may be required to be vaccinated upon arrival.
The administration will also be making additional recommendations to stop the spread of COVID-19, including (1) continuing the mask mandate through January 18, 2022; (2) expanding pre-departure and post-arrival testing requirements; and (3) implementing a contact tracing order for airlines.
Administration officials also indicated that they are lifting restrictions under INA § 212(f) for the countries to which it applies now, concurrent with the early November start of the new policy.
Separately, President Biden signed an executive order adding measles to the list of quarantinable communicable diseases.
- “Starting in November: Travel Bans Are Out; Covid Vaccine and Testing Requirements Are In,” Klasko Immigration Law Partners, LLP, https://bit.ly/3AVRYPb
- “U.S. to Ease Covid Travel Entry Rules, Require Vaccinations for Foreign Visitors,” NBC News, Sept. 20, 2021, https://www.nbcnews.com/politics/white-house/u-s-require-covid-vaccinations-international-travelers-n1279635
- “U.S. Easing Virus Restrictions for Foreign Flights to America,” WTOP, Sept. 20, 2021, https://wtop.com/white-house/2021/09/biden-easing-foreign-travel-restrictions-requiring-vaccines/
- Executive Order, “Adding Measles to the List of Quarantinable Communicable Diseases,” Sept. 17, 2021, https://www.govinfo.gov/content/pkg/FR-2021-09-22/pdf/2021-20629.pdf
USCIS Extends Flexibility for Responding to Agency Requests
In response to the ongoing COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) is extending certain flexibilities it originally announced in March 2020 to assist applicants, petitioners, and requestors. This flexibility applies to the documents listed below if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 15, 2022, inclusive:
- Requests for Evidence
- Continuations to Request Evidence (N-14)
- Notices of Intent to Deny, Revoke, or Rescind
- Notices of Intent to Terminate regional centers
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
- The form was filed up to 60 calendar days from the issuance of a decision USCIS made; and
- USCIS made that decision from March 1, 2020, through January 15, 2022.
USCIS said it will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, the agency will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.
- USCIS alert, Sept. 24, 2021, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests
EB-5 Regional Center Program Lapse Strands Investors
The lapse in the EB-5 regional center program has had a major impact on certain investors. According to a report from IIUSA: Invest in the USA, the lapse is hurting more than 32,000 stranded EB-5 investors, putting at least $15 billion in capital investment and more than 486,900 U.S. jobs in jeopardy.
The report notes that under the current lapse in authorization, U.S. Citizenship and Immigration Services (USCIS) has halted adjudication of all I-526 petitions filed by EB-5 investors affiliated with regional centers. According to USCIS, nearly 12,800 EB-5 investors had a pending I-526 petition as of June 30, 2021, when the program expired. The report says that historically, according to the Department of State, 93.4% of the EB-5 visa numbers have been used by applicants who invested through a regional center. This means that nearly 12,000 EB-5 investors with an I-526 petition on file will not receive an adjudication on their EB-5 cases during the lapse of the program and will experience delays in their legal immigration process. Also, visa applicants with a currently approved I-526 petition are not able to receive a EB-5 visa number as of the program’s expiration on June 30.
A draft bill, the Foreign Investor Fairness Protection Act (FIFPA), which has not been introduced yet, would help stranded investors if Congress fails to reauthorize the EB-5 regional center program. The bill would protect “job-creating foreign investors from loss of immigration benefits under the EB-5 Program due to expiration of temporary legislation or from future amendments to statute.”
A new organization, the American Immigrant Investor Alliance (AIIA), has formed to help stranded EB-5 investors.
The Alliance of Business Immigration Lawyers encourages stranded investors to write their members of Congress, their ambassadors, and AIIA to urge reauthorization of the EB-5 program and passage of the FIFPA.
- IIUSA Data Analysis: Impact of the Lapse of the EB-5 Regional Center Program on Investors, Investments and Job Creation,” IIUSA: Invest in the USA, Aug. 20, 2021 (updated Aug. 27, 2021), https://iiusa.org/blog/iiusa-data-analysis-impact-of-the-lapse-of-the-eb-5-regional-center-program-on-investors-investments-and-job-creation/
- Foreign Investor Fairness Protection Act, draft summary, https://drive.google.com/file/d/1-wELBUwVtOsewe1hDhdCndFAPMTmyhgT/view
- American Immigrant Investor Alliance website, https://goaiia.org/
- AIIA statement on Foreign Investor Fairness Protection Act, https://goaiia.org/blog/f/aiia-will-push-for-the-foreign-investor-fairness-protection-act
- Contact your member of Congress, https://www.usa.gov/elected-officials
- Contact your ambassador, https://travel.state.gov/content/travel/en/consularnotification/ConsularNotificationandAccess.html
Non-U.S. Citizens Can Now Apply for SSNs on I-765 or I-485, SSA Says
The Social Security Administration (SSA) announced that non-U.S. citizens can apply for a Social Security number (SSN) or replacement SSN card on the same forms used to apply for permission to work in the United States (Form I-765) or for lawful permanent resident status (Form I-485). They no longer need to apply directly via the SSA.
The SSA said that such applicants should receive their SSN cards within seven business days after receiving their employment authorization documents from U.S. Citizenship and Immigration Services.
- SSA announcement, https://www.ssa.gov/ssnvisa/ebe.html
- USCIS flyer, https://www.uscis.gov/sites/default/files/document/flyers/EBE_Flyer_Apply_for_your_Social_Security_Number_While_Applying_for_Your.pdf
CBP Announces Extension of Temporary Restrictions on Travelers Crossing U.S. Land Borders
U.S. Customs and Border Protection (CBP) announced on September 22, 2021, that non-essential travel will continue to be restricted across the U.S.-Canada and Mexico land borders through October 21, 2021. Cross-border activities with Canada and Mexico “that support health security, trade, commerce, supply security, and other essential activities” will continue. The order does not apply to those “who should be excepted based on considerations of law enforcement, officer and public safety, humanitarian, or public health interests.”
The CBP announcement states that the agency “will no longer detain migrants in our holding facilities and will immediately return migrants to the country they entered from – Canada or Mexico. Where such a return is not possible, CBP will return migrants to their country of origin.”
- CBP announcement, Sept. 22, 2021, https://help.cbp.gov/s/article/Article-1596?language=en_US
GAO Faults USCIS for Insufficient Efforts to Address Backlogs
The U.S. Government Accountability Office (GAO) issued a new report examining U.S. Citizenship and Immigration Services’ (USCIS) efforts to reduce its pending caseload, which has increased by 85% in recent years. The GAO noted that policy changes, longer forms, staffing issues, and delays from COVID-19 have all contributed to longer processing times. The GAO found that although USCIS has several plans to address the backlog, it has not implemented them and has not identified necessary resources to address its pending caseload.
The GAO concluded, among other things, that developing a strategic workforce plan “would better position USCIS to address long-term workforce challenges and reduce its growing pending caseload.” USCIS has not implemented or updated its plans to reduce its caseload to reflect the funding and other resources needed to address the pending caseload, the GAO said: “Identifying the resources necessary to address its pending caseload and providing the estimates to the Office of Management and Budget and Congress would better inform them about USCIS’s resource needs.”
- GAO report, https://www.gao.gov/products/gao-21-529
Senate Parliamentarian Rejects Inclusion of Immigration Language in $3.5 Trillion Bill
In a blow to Democrats, President Biden, and immigration advocates, Senate parliamentarian Elizabeth MacDonough ruled on September 19, 2021, that immigration language cannot be included in the $3.5 trillion filibuster-proof budget reconciliation bill. She said, “The policy changes of this proposal far outweigh the budgetary impact.”
The rejected language would have allowed eligible persons to pay a fee to be exempted from numerical limits when adjusting status to permanent residence, among other provisions. The immigration provisions are expected to have a dim chance of passing separately in the Senate.
- Senate Parliamentarian Says $3.5 Trillion Bill Can’t Include Citizenship Path for Immigrants,” Associated Press, Sept. 19, 2021, https://on.mktw.net/3hOsawG
- “Senate Parliamentarian Rejects Democrats’ Immigration Bid,” Roll Call, Sept. 19, 2021, https://www.rollcall.com/2021/09/19/senate-parliamentarian-rejects-democrats-immigration-bid/
- MacDonough decision, Politico, Sept. 19, 2021, https://www.politico.com/f/?id=0000017c-009c-d47e-ab7e-9cbc658a0000
District Court Vacates H-1B Lottery Wage-Based Final Rule
A U.S. district court judge vacated a final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” because Chad Wolf was not lawfully appointed as Acting Secretary of the Department of Homeland Security when the final rule was approved. The rule would have prioritized H-1B visa selection based on wages.
- Chamber of Commerce v. DHS, Sept. 15, 2021, https://www.courthousenews.com/wp-content/uploads/2021/09/H1B-visa-ruling.pdf
State Dept. Announces Tiered Triage of Immigrant Visa Applications at U.S. Embassies and Consulates
The Department of State (DOS) announced that U.S. embassies and consulates are using a tiered approach to triage immigrant visa applications based on the category of immigrant visa as they resume and expand processing. Consular sections, where possible, are scheduling some appointments within all four priority tiers every month. The following are the main categories in priority order:
Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to age), certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government), and emergency cases as determined on a case-by-case basis
Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
Tier Four: All other immigrant visas, including employment preference and diversity visas [DOS noted that a U.S. District Court “has enjoined the Department of State from applying this prioritization guidance to DV-2021 selectees and their derivative beneficiaries”]
- DOS notice, Sept. 13, 2021, https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-prioritization.html
State Dept. Expands Categories of International Students That Can Be Adjudicated Without In-Person Interviews
The Department of State (DOS) announced on September 14, 2021, that it has authorized consular officers through the end of 2021 to expand the categories of F, M, and “academic J visa applicants” (students, professors, research scholars, short-term scholars, and specialists) whose applications can be adjudicated without an in-person interview in their consular district of residence, with certain exceptions. DOS said:
Consular officers may, if they so choose, and pursuant to local conditions, now waive the visa interview requirement for F, M, and academic J visa applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility.
This applies only to non-U.S. citizens who are nationals of eligible countries, the agency said, noting that details about country eligibility and necessary procedures will be available on the website of the relevant embassy or consulate. Applicants from non-VWP countries “whose prior visa was issued when they were less than 14 years of age may need to submit biometric fingerprints, but can still be approved for an interview waiver.”
Students seeking to apply for a new F-1 or M-1 visa should check the status of visa services at the nearest embassy or consulate; those who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel, DOS said. Students and academics traveling on J-1 visas must contact the nearest embassy or consulate prior to travel to receive an NIE. DOS encourages applicants to check the website of the relevant U.S. embassy or consulate to confirm the services currently offered and to find guidelines for applying for a visa without an interview.
- DOS announcement, Sept. 14, 2021, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-F-M-and-academic-J-Visas.html
USCIS Extends Evidence of Status for Conditional Permanent Residents to 24 Months With Pending Form I-751 or I-829
As of September 4, 2021, U.S. Citizenship and Immigration Services (USCIS) is extending the time during which receipt notices can be used to show evidence of status from 18 months to 24 months for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. USCIS said it made the change to accommodate current processing times for the two forms, “which have increased over the past year.”
A conditional permanent resident who properly files either of the two forms will receive a receipt notice that can be presented with the Form I-551, Permanent Resident Card (green card), as evidence of continued status for up to 24 months past the expiration date on the green card, while the case remains pending with USCIS.
Additionally, USCIS said it will issue new receipt notices to eligible conditional permanent residents who properly filed their forms before September 4, 2021, and whose cases are still pending. Those receipt notices will also serve as evidence of continued status for 24 months past the expiration date on their green card, the agency said.
- USCIS alert, Sept. 3, 2021, https://www.uscis.gov/news/alerts/uscis-extends-evidence-of-status-for-conditional-permanent-residents-to-24-months-with-pending-form
DHS Increases Investment and Revenue Amount Requirements for International Entrepreneur Program
Effective October 1, 2021, the Department of Homeland Security (DHS) is increasing investment and revenue amount requirements for the international entrepreneur program.
DHS explained that on January 17, 2017, the agency published a final rule guiding the use of parole on a case-by-case basis with respect to “entrepreneurs of start-up entities who can demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.” The 2017 regulation provided that the investment and revenue amount requirements would automatically adjust every three years by the Consumer Price Index for All Urban Consumers (CPI–U). DHS issued the new final rule to inform the public of the increased amounts that will take effect at the start of fiscal year 2022 and to revise the regulations to accurately reflect the updated investment amounts.
The final rule states:
- An applicant may be considered for initial parole if he or she demonstrates that his or her entity has received, within 18 months immediately preceding the filing of an application for initial parole, either a qualified investment amount of at least $264,147 from one or more qualified investors or an amount of at least $105,659 through one or more qualified government awards or grants.
- In the alternative, an applicant who partially meets one or both of those criteria may still qualify for further consideration by providing other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- Similarly, an applicant may be considered for re-parole if he or she establishes that during the initial parole period, his or her entity:
- Received at least $528,293 in qualifying investments, qualified government grants or awards, or a combination of such funding, during the initial parole period;
- Created at least 5 qualified jobs with the start-up entity during the initial parole period; or
- Reached at least $528,293 in annual revenue in the United States and averaged 20 percent in annual revenue growth during the initial parole period.
- An applicant who partially meets one or more of the criteria may still qualify for consideration by providing other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
- A qualified investor is defined as “an individual or investor who, among other requirements, has made investments in start-up entities comprising a total of no less than $633,952 in a 5-year period and at least two of those entities created at least 5 jobs or generated at least $528,293 in revenue with an average annualized revenue growth of at least 20 percent,” the rule states.
- DHS final rule; technical amendment, 86 Fed. Reg. 50839 (Sept. 13, 2021), https://bit.ly/3C5oZbw
We are proud to announce that Klasko Immigration Law Partners has once again been selected in U.S. News — Best Lawyers® “Best Law Firms” in the 2021 edition. Additionally, Elise A. Fialkowski has been named the Best Lawyers© 2022 Immigration Law “Lawyer of the Year” in Philadelphia. It is the first time she has received this distinguished honor. She has been included in Best Lawyers in America© annually since 2018. Congratulations, Elise!
IN THE NEWS
Andrew J. Zeltner
My Chesco summarizes the discussion between Andrew Zelter and the Philadelphia International Airport, Aviation Industry Representatives about the easing of international travel restrictions.
RECENT SPEAKING ENGAGEMENTS
William A. Stock | Nigel D. James
On September 14th, Bill and Nigel presented to University of Pennsylvania on Name, Image, and Likeness for international student athletes.
Allie K. Dempsey | Nigel D. James
On September 21st, Allie Dempsey and Nigel James virtually presented to Temple University on visa options for postdoc and graduate students.
Andrew J. Zeltner
On September 22, Drew Zeltner spoke in this BABC event alongside a panel of distinguished experts on current travel regulations and what to expect for the future of international business travel.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron will be the discussion leader in the AILA Fall Conference event on a panel entitled Overcoming Government Motions to Dismiss and Change Venue on October 11th. He will also be giving the opening remarks of the Business Litigaation Track as the Committee and Conference Chair.
William A. Stock | Nigel D. James
Partner Bill Stock and Associate Nigel James will be presenting to Penn State University on Name, Image, and Likeness updates for international student athletes on October 14th.
H. Ronald Klasko
On October 4th, Ron will be presenting to Wharton University on Visa and Permanent Residence Options for MBA Students.
Michele G. Madera
On October 26th, Michele Madera will be speaking to Harvard College on Visa Options After Graduation.
H. Ronald Klasko
Ron will be presenting to Harvard Business School on Immigration Options for Entrepreneurial MBA Students on October 25th.
Klasko Immigration Law Partners, LLP Received Tier 1 Ranking in the 2021 Edition of U.S. News “Best Law Firms”
We are proud to announce that Klasko Immigration Law Partners has once again been selected in U.S. News — Best Lawyers® “Best Law Firms” in the 2021 edition.
Elise A. Fialkowski Named “Lawyer of the Year” in The Best Lawyers in America© 2022
Klasko Immigration Law Partners is pleased to announce that Elise A. Fialkowski has been named the Best Lawyers© 2022 Immigration Law “Lawyer of the Year” in Philadelphia. It is the first time she has received this distinguished honor. She has been included in Best Lawyers in America© annually since 2018.
ICYMI: RECENT BLOG POSTS AND ALERTS
Client Alert: Starting in November: Travel Bans Are Out; Covid Vaccine and Testing Requirements Are In
In this client alert, F. Oliver Yang covers the ease of pandemic travel restrictions starting in November.
Immigrant Workforce Management: A Cautionary Tale in I-9 Compliance
Allie Dempsey covers a recent settlement from an investigation that highlights discrimination claims against work-authorized non-United States citizens in this article.
EB-5 Program: Unprecedented Times, Uncertain Choices Part I
In this blog, Ron Klasko shares his thoughts on what EB-5 program investors and regional centers/projects developers should do in this interim period.
EB-5 Program: Unprecedented Times, Uncertain Choices Part II
In this second and final part blog, Ron suggests actions to be taken by prospective investors, regional centers, and project developers.
Partner Michele Madera Helps Deliver Food to Afghan Families at Philadelphia International
In this blog, Michele G. Madera volunteered to help deliver food to refugee Afghan families stranded at the Philadelphia International Airport.
This month were celebrating Hispanic Heritage Month on our Instagram by highlighting employees and sharing their beloved recipes.
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.