Category: Alerts

The American Immigration Lawyers Association and a litigation partner have brought a class action lawsuit on behalf of H-4 and L-2 spouses who have applied for work authorization as the dependents of H-1B and L-1 principal visa holders.

The lawsuit seeks to overturn USCIS policies that:

• require an L-2 spouse to apply for an Employment Authorization Document (EAD) for employment, and,
• prohibit an H-4 or L-2 spouse from receiving  an automatic extension of their EAD while  a renewal application is pending.

The complaint alleges that USCIS policies and processing delays have forced tens of thousands of nonimmigrant H-4 and L-2 spouses out of employment by creating gaps in their work authorization. The lawsuit also alleges that, per regulation,  L-2 spouses are authorized to work incident to status and should not be required  to apply for a separate EAD for employment.  Under current policy, an H-4 or L-2 EAD holder must apply for an EAD to work, and must cease working when their EAD expires even if an EAD renewal application is timely filed. Official USCIS posted processing times for these applications currently range from 10 to 15 months.

The lawsuit asks the court to declare the USCIS policies unlawful and to compel USCIS to

• provide L-2  spouses with evidence of employment incident to status, or, in the alternative, provide L-2 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application; and
• provide H-4 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application.

The case is Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21  in the U.S. District Court for the Western District of Washington.

The U.S. Department of Homeland Security (DHS) has designated Croatia for inclusion in the Visa Waiver Program (VWP).  Eligible Croatian nationals who have an electronically readable passport (e-Passport) and who have obtained pre-authorization for travel through the Electronic Screening System for Travel Authorization (ESTA) system will be eligible to enter the U.S. for business or tourism without a visa for a  period of up to 90 days.  DHS is expected to update the ESTA system to include Croatia by December 1, 2021.   Croatia joins a list of 39 countries designated for participation in the VWP.

Croatia is not subject to the COVID-related regional travel plans, and no National Interest Waiver is required to enter the U.S. after a period of stay in Croatia.  Notably, however, the Biden administration intends to lift the regional travel bans in November, and replace the bans with a global COVID-19 vaccination requirement for all international travelers.  Travelers from Croatia will be subject to the global vaccination requirement once implemented.

For additional information concerning travel under the VWP, please contact your designated Gibney representative or email info@gibney.com.

The American Immigration Lawyers Association and various news outlets are reporting that, effective early November 2021, the Biden administration intends to:

• Rescind the regional COVID-19 travel bans restricting travel to the U.S. from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, and India.
• Replace the regional travel bans with a global requirement that all foreign national travelers provide proof of full vaccination against COVID-19 and proof of a negative COVID-19 test taken within 3 days prior to boarding a flight to the U.S. Limited exceptions may be made for children ineligible for a vaccine and for humanitarian considerations if an individual lacks access to a vaccination but has a critical reason to travel.

Additional Information

The official policy has not been released as of the publication of the this alert. However, the administration has shared the following information with the American Immigration Lawyers Association (AILA):

• Starting in early November, foreign nationals traveling to the U.S. will be required to be fully vaccinated against COVID-19 and to show proof of vaccination prior to boarding an airplane.
• The current requirement for everyone to show proof of a negative test taken within 3 days of boarding a flight to the U.S. will remain in place for all fully vaccinated travelers.
• American citizens and permanent residents who are not vaccinated will be required to have a COVID-19 test taken within 1 day of  a flight to the U.S. rather than 3 days.
• The new requirements will apply globally as the U.S. moves toward a consistent, stringent requirement for all international air travelers coming to the U.S.
• The Centers for Disease Control (CDC) will publish guidance concerning testing requirements and  which vaccines will be accepted. The CDC will also issue a Contact Tracing Order that will require airlines to collect comprehensive contact information for every passenger coming to the United States and to provide that information promptly to CDC upon request, to follow up with travelers who have been exposed to COVID-19 variants or other pathogens.
• The policy will apply globally to all international air travel to the U.S.  Restrictions on non-essential travel at the land borders to the U.S. will remain in place at least through October 21, 2021. The administration is not updating its land border policies at this time.
• Exceptions to the international air travel requirements will be very narrow and may include children not eligible for a vaccine and individuals lacking access to a vaccine in a timely manner. Such individuals must agree to be vaccinated upon arrival in the U.S.
• Requirements for National Interest Exemptions for travelers from the current travel restricted regions will remain in place until the regional travel bans are rescinded and the new travel requirements are implemented in early  November.

Although not effective until early November, the administration has announced its intended policy now to give the various impacted government agencies such as the Department of Homeland  Security, the Federal Aviation Administration, and the CDC time to develop the directives and processes to implement the required changes and to provide airlines and businesses an opportunity to plan ahead for international travel contemplating the new requirements.

Gibney is monitoring this matter closely and will provide updates and more detailed information and guidance when the implementing policy guidelines are released.   In the interim, for additional information concerning travel restrictions to the U.S., please contact your designated Gibney representative or email info@gibney.com.

Effective October 1, 2021, by order of the Centers for Disease Control (CDC),  USCIS and the U.S. Department of State will require individuals applying for permanent resident status to be vaccinated for COVID-19, with limited exceptions.  Refugees are also covered by the order.  Proof of full COVID-19 vaccination will be required along with the other vaccination requirements already in place in connection with green card applications.

Who is Impacted?

• A foreign national filing an Application to Adjust Status (I-485)  and completing the required I-693, Medical Examination with a designated USCIS Civil Surgeon or after October 1, 2021 must be vaccinated.
• A  foreign national applying for an immigrant visa at a U.S. consulate abroad and undergoing a physical examination with a designated Panel Physician on or after October 1, 2021  must be vaccinated.

If the medical exam is completed before October 1, 2021, and the exam results are within the validity period (typically 2 years from completion with some exceptions), COVID-19 vaccination is not required.

Exemptions

Blanket waivers of the vaccination requirement are available if

• The vaccination is not age appropriate.  This includes applicants younger than the lowest age limit for the approved COVID-19 vaccine formulations in use.
• The vaccination is medically contraindicated.
• The applicant does not have access to one of the approved COVID-19 vaccines in their country.

In all instances, the request for exemption must be documented.

Applicants may also apply for an individual waiver of the vaccine requirement on religious or moral grounds. USCIS will make the determination as to whether an individual waiver will be granted. If the wavier is denied and the individual is not vaccinated, the individual will be deemed inadmissible, and ineligible for lawful permanent resident status.

Proof of Vaccination and Associated Requirements

Approved COVID-19 vaccines  are those authorized for emergency use by the U.S. Food and Drug Administration  or those  listed for emergency use by the World Health Organization.

Written documentation proving vaccination is required. This may include:

• An official vaccination record.
• A medical chart with physician entries pertaining to the vaccination.
• Appropriate medical personnel attestation.

An individual’s personal attestation that they have been vaccinated is not sufficient.  Additionally, an individual may not be exempted from the vaccination requirement on the basis of testing that establishes immunity  or recovery from prior COVID-19 infection.

Finally, keep in mind that proof of vaccination does not exempt international travelers from the requirement to present proof of a negative COVID-19 test prior to boarding an international flight to the U.S.

For additional information about this emerging requirement, please contact your designated Gibney representative or email info@gibney.com.

USCIS conducted a second lottery for the fiscal year (FY) 2022 H-1B cap on July 28, 2021 and has notified employers that additional registrations have been selected.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2021 to November 3,  2021.

USCIS conducted its initial  H-1B cap lottery  in March 2021, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period (April 1, 2021 to June 30, 2021) were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve. USCIS has not announced how many additional registrations were selected from the reserve.

What This Means for Employers and Foreign Nationals:

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period(August 2, 2021 to November 3, 2021)  specified on the relevant registration selection notice.
• Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

For more information, please contact your designated Gibney representative or email info@gibney.com.

The U.S. Department of State has extended the validity of National Interest Exceptions (NIEs) for travelers from China, Iran, India, Brazil, South Africa, the Schengen Area, Ireland and the United Kingdom whose admission to the U.S. is restricted by COVID-related regional travel bans.

Under the new policy, NIEs are now valid for multiple entries during the 12 month period following the date of approval. The policy applies retroactively to NIEs that were previously approved or granted in connection with a visa application. Previously NIEs were valid for one entry within 30 days of approval.

What does this mean for travelers?

Travelers who have been  granted an NIE may be admitted to the U.S. pursuant to the NIE for a period of up to 12 months from the date of approval provided that the travel to the U.S. is consistent with the purpose for which the NIE was originally granted.  If required for the class of admission, the traveler must also have a valid visa along with the NIE.   Travelers without a valid visa will be required to apply for a new visa and a new NIE.

NIE qualifying criteria includes:

• Providing vital support or executive direction for significant economic activity in the U.S.;
• Journalism;
• Travel due to extraordinary humanitarian circumstances; or
• Travel to support national security or public health.

NIEs have become increasingly difficult to obtain as the U.S. consulates abroad have struggled to meet the demand for consular services due to COVID-related closures, staffing shortages, restrictive qualifying criteria, and backlogged visa and NIE applications. Extending the validity of NIEs, including that of previously issued NIEs, should help to relieve some of the demand for consular services while facilitating critical travel to the U.S.

Gibney is closely monitoring the impact of the new policy and will provide updates as they become available.  For additional information, please contact your designated Gibney representative or email info@gibney.com.