Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant
In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. He said this was in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), which appears to be rapidly spreading in South Africa and present in other countries.
The Biden administration indicated that more countries could be added to the restricted list if warranted. Several other countries also issued similar travel bans and restrictions, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. The variant, which is being studied to determine its contagiousness, severity, and ability to circumvent immunity, has been detected in several countries in addition to Africa, including Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany.
Meanwhile, as of November 27, 2021, the Department of State issued a Level 4 Travel Health Notice for South Africa: “Do not travel to South Africa due to COVID-19.”
- “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” White House, Nov. 26, 2021, https://bit.ly/312b35x
- “U.S. Imposes Travel Ban From Eight African Countries Over Omicron Variant,” Nov. 27, 2021, https://www.reuters.com/world/us/us-impose-travel-curbs-eight-southern-african-countries-over-new-covid-19-2021-11-26/
- “U.S. Announces Travel Restrictions Over New Covid-19 Variant,” CNN, Nov. 27, 2021, https://www.cnn.com/world/live-news/new-covid-variant-south-africa-11-27-21/index.html
- “Travel Doors Slam Shut as New Covid Variant Triggers Alarm, Stranding Hundreds of Passengers,” CNN, Nov. 27, 2021, https://www.cnn.com/travel/article/new-covid-variant-travel/index.html
- “Omicron Variant Detected From Britain to Hong Kong as Countries Race to Impose Controls,” Washington Post, Nov. 27, 2021, https://www.washingtonpost.com/world/covid-variant-fallout-omnicron/2021/11/27/8c6e0548-4f02-11ec-a7b8-9ed28bf23929_story.html
- South Africa Travel Advisory, Dept. of State, Nov. 27, 2021, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/south-africa-travel-advisory.html
USCIS Incorporates General Adjudications Guidance Into Policy Manual
U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2021, that it mistakenly rejected certain Forms I-765, Application for Employment Authorization, from petitioners for U nonimmigrant status that were filed without a fee (or request a fee waiver) from June 14, 2021, through September 29, 2021. USCIS said it also mistakenly accepted fees where certain petitioners for U nonimmigrant status unnecessarily submitted fees with their I-765 applications.
USCIS expects to issue refunds by March 22, 2022. Individuals who filed an initial bona-fide-determination-related Form I-765 under the (c)(14) eligibility category from June 14 through September 29, 2021, whose Form I-765 was rejected for lack of fee, and who have not refiled, may resubmit Form I-765 without a fee, USCIS said.
- USCIS alert, Nov. 22, 2021, https://www.uscis.gov/newsroom/alerts/certain-petitioners-for-u-nonimmigrant-status-may-receive-a-refund-for-applications-for-employment
Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next
The House of Representatives passed the $1.75 trillion “Build Back Better Act” budget reconciliation bill, 220-213, on November 19, 2021. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and increases in some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, and $2.8 billion for the Department of Homeland Security to reduce processing backlogs. The House bill would also recapture more than 200,000 unused green cards that would otherwise expire each year.
In addition, it would provide for diversity visas for those refused a visa, prevented from seeking admission, or denied admission to the United States solely because of certain executive orders and limitations on visa processing, visa issuance, travel, and other effects associated with the COVID-19 pandemic.
The Senate will take up the bill next, likely in December. It remains to be seen whether the bill will become law in its current version or will be revised or defeated. Among various factors, Senate Parliamentarian Elizabeth MacDonough earlier rejected several previous immigration-related provisions in the draft bill, such as a path to citizenship for undocumented immigrants, but observers believe some provisions may survive her scrutiny, such as one that would recover roughly 400,000 currently unused green cards.
Below are selected highlights of the House-passed version of the “Build Back Better Act”:
Green Card Provisions for Immigrants Waiting in Backlogs
The House bill’s provisions would allow an employee waiting for more than two years in the backlog of approved legal immigration applications to pay a supplemental fee of $5,000 and file for adjustment of status without waiting for a priority date to become available. Those with approved green card applications awaiting visa availability could pay $1,500 to essentially jump the queue and file for adjustment.
As noted above, the House bill would allow about seven million undocumented immigrants living in the United States since before 2011 to stay in the United States through parole, and to be eligible for work permits valid for five years (renewable once), authorization to travel, and driver’s licenses if they file an application and pay a fee. They could also apply for health insurance under the Affordable Care Act. They would need to pass background checks.
Examples of supplemental immigration-related fees that would be imposed by the House bill, if passed, include:
- $100 for certain family-sponsored immigrant visa petitions (Forms I-130)
- $800 for each employment-based immigrant visa petition (Forms I-140)
- $15,000 for each employment-based fifth preference petition (Forms I-526)
- “Build Back Better Act” (most of the immigration-related provisions are on pp. 899–914), H.R. 5376, https://bit.ly/3HJ06Gs
- “President Biden Announces the Build Back Better Framework,” White House, Oct. 28, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/28/president-biden-announces-the-build-back-better-framework/
- House Democrats Just Passed Build Back Better—Here’s What’s Included,” CNBC, Nov. 19, 2021, https://www.cnbc.com/2021/11/19/house-dems-just-passed-build-back-betterheres-whats-included.html
- “How the House Spending Bill Sets a Path to Legalization for Undocumented Immigrants,” Washington Post, Nov. 19, 2021, https://www.washingtonpost.com/us-policy/2021/11/19/immigration-biden-spending-bill/ (subscription)
- “What Will the Senate Do With the Build Back Better Bill?,” Time, Nov. 19, 2021, https://time.com/6121614/build-back-better-spending-bill-senate/
USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations
U.S. Citizenship and Immigration Services (USCIS) announced that on November 19, 2021, it selected additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.
USCIS said the petition filing period will begin November 22, 2021, and close on February 23, 2022. Those with selected registrations will receive a selection notice in their myUSCIS accounts with details about when and where to file.
- USCIS alert, Nov. 19, 2021, https://www.uscis.gov/newsroom/alerts/uscis-conducts-third-random-selection-from-previously-submitted-fy-2022-h-1b-cap-registrations
New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees
Effective November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1, E-2, and E-3 nonimmigrants. USCIS also automatically extended work authorization for certain H-4 nonimmigrants who are dependent spouses of H-1B nonimmigrants.
Such individuals may receive automatic extensions of their employment authorization documents.
- “New Requirements Affecting Form I-9 Completion for Certain Employees,” USCIS, Nov. 17, 2021, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/new-requirements-affecting-form-i-9-completion-for-certain-employees
- “Automatic Extensions Based on a Timely Filed Application to Renew Employment Authorization and/or Employment Authorization Document,” Handbook for Employers, Nov. 16, 2021, USCIS, https://bit.ly/3FwnW6k
China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December
The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories (i.e., “direct” EB-5 investors) are “Current” for December. Both the filing date and final action date are “Current,” meaning that in December, qualified Chinese EB-5 applicants in the visa phase can get green cards regardless of their priority date.
If China-mainland-born number use were to increase at a level that could potentially jeopardize visa availability under the overall FY 2022 employment-based fifth preference annual limit, it would then be necessary to once again impose a final action date, the bulletin says.
The bulletin also notes that:
- Final action dates for the EB-5 (I5 and R5) regional center categories are “Unavailable” for December, but if legislative action extends this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
- The non-minister special immigrant program expires on December 3, 2021. No SR green cards may be issued overseas or final action taken on related adjustment of status cases after that date. Visas issued before this date will have a validity date of December 2, 2021, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight, December 2, 2021. The final action date for this category is “Current” for December for all countries except for El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for the fiscal year 2022, the final action date would immediately become “Unavailable” for December for all countries effective December 3, 2021.
- Visa Bulletin for December 2021, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-december-2021.html
- Adjustment of Status Filing Charts From the Visa Bulletin (includes information on dates for filing and final action dates), https://bit.ly/3HIZY9J
ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment
The Department of Homeland Security issued a 60-day notice and request for comments on revisions to the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program travelers. Specifically, U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications. ESTA applicants will be prompted to take a selfie or “live” photo “to conduct a ‘liveness’ test to determine if the ESTA application is interfacing with a physically present human being and not an inanimate object, or if it is a photo of someone other than the lawful passport holder.” Respondents will be able to scan their passport biographic page to submit biographic information, including passport photos.
CBP will also implement the ESTA mobile application for Visa Waiver Program travelers. The mobile app will collect biometric data.
- “Arrival and Departure Record, Nonimmigrant Visa Waiver Arrival/Departure, Electronic System for Travel Authorization (ESTA),” 60-day notice and request for comments; revision, 86 Fed. Reg. 64508 (Nov. 18, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-18/pdf/2021-25147.pdf
- ESTA application, https://esta.cbp.dhs.gov/
Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses
Following recent litigation, U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes, USCIS said.
In addition, USCIS will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, with a few exceptions.
USCIS is also rescinding the 2002 Immigration and Naturalization Service memorandum, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition.”
USCIS’ actions followed a settlement in Shergill v. Mayorkas. The settlement provided structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for work authorization applications. Also as a result of this settlement, as noted above, USCIS will now recognize that L-2 spouses are employment authorized incident to L-2 status. This means that spouses of transferred executives and managers no longer need to apply for work permits before working or starting a business in the United States.
- “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses,” USCIS Policy Alert, Nov. 12, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211112-EmploymentAuthorization.pdf
- Settlement agreement, Nov. 10, 2021, https://bit.ly/3qzP7Jl
EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic
The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is discontinuing the issuance of formal documents reporting COVID-19 pandemic-related adjustments and protocols, and that its website will now be “the principal method of communication with the public” regarding such updates.
- EOIR memorandum, Nov. 8, 2021, https://www.justice.gov/eoir/book/file/1447111/download
- EOIR website, https://www.justice.gov/eoir
New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022
U.S. Citizenship and Immigration Services (USCIS) plans to open a new lockbox facility in Elgin, Illinois, next year. The agency also has consolidated filing locations for certain employment-based forms to a single lockbox location. In 2022, USCIS plans more filing location changes, including moving the lockbox facility in Arizona from Phoenix to Tempe.
- USCIS alert, Nov. 12, 2021, https://www.uscis.gov/newsroom/alerts/uscis-opening-a-new-lockbox-facility
Year-end excitement is alive and well at the firm! With another holiday season of social distancing, the firm hosted a Thanksgiving-themed Family Feud on Tuesday, November 23. On December 10, the firm will host an outdoor holiday event at the Blue Cross RiverRink. Wishing you and yours a happy and healthy holiday season.
RECENT SPEAKING ENGAGEMENTS
Anu Nair | Karuna Chandani Simbeck | Andrew J. Zeltner
On November 2nd, Anu, Karuna, and Drew hosted this lively webinar with rapid-style Q&A on the most relevant and latest immigration topics affecting the immigration industry today. Watch here!
Michele G. Madera | Maria M. Mihaylova | Nigel D. James
On November 4th, Michele, Maria, and Nigel covered popular topics and questions about what immigrants can and cannot do when in the U.S. on temporary visas. Watch here!
William A. Stock | Natalia Gouz | Myriam Jaidi
On November 10th, Bill, Natalia, and Myriam covered the latest updates and visa options for hiring immigrant healthcare including doctors, nurses, and other medical professionals like physical therapists and phlebotomists. Watch here!
Daniel B. Lundy
Dan Lundy spoke in this NJICLE webinar on an EB-5 panel on November 10th.
Andrew J. Zeltner | Nigel D. James
On November 10th, Drew Zeltner and Nigel James presented to Princeton University on visa options for postdocs and graduate students.
Daniel B. Lundy
On November 11th, Dan Lundy spoke in this IIUSA Virtual EB-5 Industry Forum on a panel entitled Litigation in EB-5: Updates and Implications for the Industry.
UPCOMING SPEAKING ENGAGEMENTS
Allie K. Dempsey | Nigel D. James
On December 2nd, Allie Dempsey and Nigel James will present to Temple University on visa options for after graduation and permanent residence options for international students and exchange visitors.
H. Ronald Klasko
On December 3rd, Ron Klasko will be a key speaker in this Latin American and Caribbean Chapter of AILA event on December 3rd on a panel entitled Common NIV Myths.
William A. Stock
On December 8th, Bill Stock will be a speaker in this AILA Technology and Innovation Virtual Summit on a panel titled The Future of Government Digitalization.
H. Ronald Klasko
On December 14th, Ron Klasko will be a speaker in this AILA Education Department seminar entitled 2021 Litigation Year in Review: Does Suing Still Work.
ICYMI: RECENT BLOG POSTS AND ALERTS
PERM Recruitment Practices: How the Facebook Settlement Should Affect Your PERM Program
This blog takes a closer look at the Facebook settlement agreement and how it may affect your PERM program moving forward.
Client Alert: Major Settlement Changes How USCIS Adjudicates Work Permits for Nonimmigrant Spouses
In this client alert, Vicki W. Li discusses how the Department of Homeland Security (DHS) has reached a settlement agreement in Shergill, et al. v. Mayorkas, thanks to AILA and its litigation partners.
USCIS Settles Class Action Lawsuit for Market Research Analyst H-1Bs
In this article, Arielle Ratush covers the recent legal win for skilled immigrants and their American employers.
Fall 2021 Zoom Events for Klasko Immigration Law Partners
This blog summarizes the recent three-part webinar series event hosted in early November by Klasko attorneys.
We hope you had a wonderful Thanksgiving weekend! This month Klasko employees received a special package in the mail for the Thanksgiving holiday. Each packaged contained a charcuterie board filled with the finest cheeses, meats, and biscuits.
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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.