Category: Alerts

Presidential Proclamation (PP)  10052  suspending entry to the U.S. of certain nonimmigrants in  J, H and L status  expired March 31, 2021. The Biden Administration has declined to  extend the ban.

PP 10052 was initially implemented  by the Trump Administration in June 2020 with the stated rationale of protecting U.S. workers from the economic downtown stemming from the pandemic. The ban was later successfully challenged  by the U.S. Chambers of Commerce and other associations,  with a federal court invalidating significant portions of the ban, but limiting  the ruling to members of the plaintiff organizations.

What to Expect

Expiration of  PP 10052 is welcome news to U.S. companies, hospitals, universities and small businesses seeking to employ high-skilled and temporary workers, as well as multinational corporations seeking  to leverage the expertise of employees from overseas affiliate offices. Nevertheless, significant challenges remain in bringing nonimmigrants to the U.S.

• The regional COVID-related travel bans stemming from PP 10143 remain in place for the Schengen Area, the United Kingdom, Ireland, South Africa, Brazil, Iran and China. With limited exceptions, foreign nationals who have been physically present in these regions at any point during the 14-day period prior to arrival in the U.S. are prohibited from entering the U.S.
• The Department of State may issue National Interest Exemptions (NIEs) for certain individuals traveling to the U.S. from the Schengen Area, the United Kingdom and Ireland, but qualifying for an exemption is very restrictive.  Exemptions are limited to individuals seeking to enter the U.S.  to provide vital support for critical infrastructure, the public heath response, national security or other humanitarian considerations.
• With the termination of the nonimmigrant visa ban, which also had associated guidance for exemptions, it is not clear how travelers from Brazil, China, Iran and South Africa may qualify for an NIE. Gibney is monitoring Department of State guidance on this matter.
• Visa appointments at U.S. consular posts are likely to remain difficult to obtain  for the foreseeable future.  Consular posts worldwide continue to be impacted by the pandemic with many local health-related restrictions still in place. This continues to limit the ability of consular posts to process  cases for qualifying individuals.  Additionally, consular posts are prioritizing immigrant visa appointments pursuant to the revocation of the immigrant visa ban (PP 10014). Finally, after a year of suspended and limited consular operations,  significant backlogs exist for scheduling nonimmigrant and immigrant visa appointments.
• As a reminder, pursuant to CDC guidance, all international travelers to the U.S. age  2 years and older, including U.S. citizens and permanent residents, are required to present proof of a negative COVID-19 test result or documentation of recovery from COVID-19.  At this time, proof of COVID-19 vaccination does not exempt international travelers from the testing requirement.

Looking Ahead

As the U.S. and the rest of the world begin to loosen pandemic-related restrictions, opportunities for international travel and mobility  will increase. However,  considerable patience will be required as consular posts continue to grapple with appointment  backlogs, local health mandates and restrictions, and limited resources.   The lifting of the visa category ban will not mean that previously impacted individuals will be able to secure visas to travel to the U.S. immediately, and the COVID-related regional travel restrictions will continue to limit admission the U.S. until affirmatively lifted.  It is very important to confer with legal counsel prior to making international travel plans.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

Today USCIS announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 9, 2021 through March 25, 2021. H-1B petitions may be filed for selected registrations starting April 1, 2021.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve “submitted’ registrations until the FY 2022 cap is reached. This was the case last year, when numerous “submitted” registrations were later selected for a second round of filings, after the initial 90-day filing period concluded.
• Selected: Indicates that the employer may file an FY 2022 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Denied: A duplicate registration was submitted by the same registrant for the same beneficiary; all registrations submitted for this beneficiary for FY 2022 are invalid.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary in the applicable selected registration notice. Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2021.

Gibney will continue to monitor the FY 2022 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney representative or email info@gibney.com.

The Trump Administration’s draconian  2019 Public Charge Final Rule  is no longer in effect.  U.S. Citizenship and Immigration Services (USCIS) announced it will revert to utilizing the public charge guidance that was in effect prior to implementation of the 2019 rule. With elimination of the rule,  Form I-944,  Declaration of Self Sufficiency, is no longer required in connection with adjustment of status (“green card”) applications and individuals  no longer have to respond to questions regarding the receipt of public benefits on the current version of Forms I-485, I-129 and I-539.

Background
The Trump Administration advanced the 2019 Public Charge Final Rule to impose a “wealth test” on intending immigrants and nonimmigrants.  The rule was almost immediately challenged as unlawful.  Several federal courts issued decisions invalidating or blocking enforcement of the rule, but the prior administration appealed the decisions at both the federal circuit court and U.S. Supreme Court level.    Upon taking office, the Biden Administration directed the Department of Homeland Security (DHS) to review the  2019 Public Charge Final  Rule and the ongoing federal court litigation.  DHS subsequently announced that it would not continue to appeal  judicial decisions invaliding the rule.  With dismissal of the appeals,  on March 9, 2021,  an earlier federal court decision from Illinois invaliding the rule took effect nationwide.  On March 15, 2021, the Department of Homeland Security published a final rule, effective March 9, 2021, removing the 2019 Public Charge Final Rule from the immigration regulations, and restoring the pre-2019 public charge guidance.

What This Means for Foreign Nationals
The 2019 Public Charge Rule, now vacated, had expanded the definition of public charge, potentially disqualifying large numbers of green card applicants, while also significantly increasing the burden of proof and evidence of income required for others.  Elimination of the rule is a significant step toward ending the chaos stemming from  publication of the rule in 2019 and restoring predictability to adjudication of adjustment of status applications.

• Elimination of rule will help to protect adjustment of status eligibility for many individuals, and will streamline the adjustment of status process, as submission  of the Form I-944, Declaration of Self Sufficiency, together with extensive supporting documentation,  is no longer required.
• If an adjustment of status applicant previously submitted Form I-944, the documentation will not be considered if the case is adjudicated after March 9, 2021.
• Applicants and petitioners seeking to  extend  or change of nonimmigrant status do not need to provide information related to the receipt of public benefits on Form I-129, Form I-129CW, Form I-539, and Form I-539A.
• USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.
• If USCIS issues a request for public charge evidence on a case filed before the rule was vacated, please contact your designated Gibney representative to evaluate the appropriate response.

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

On March 2, 2021, the U.S. Department of State issued revised guidance  further limiting eligibility for National Interest Exemptions (NIEs) for  travelers from the Schengen Area, the United Kingdom and Ireland whose admission to the U.S. is restricted by  Presidential Proclamation (PP) 10143.  PP 10143 restricts the  entry of travelers to the U.S. who were present within the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil and South Africa during the 14-day period preceding attempted entry to the U.S.  With limited exceptions, nonimmigrants traveling to the U.S. from these regions must obtain an NIE from the Department of State in order to enter the U.S.

In publishing its revised  guidance, the Department of State rescinded its prior national interest guidance and has narrowed eligibility for NIEs for travelers from the Schengen Area, the UK and Ireland.  Individuals traveling from these regions may request an NIE to enter the U.S. if providing vital support for critical infrastructure or if entering for purposes related to humanitarian considerations, the  public health response or national security.   As previously reported,  under the Department of State’s prior NIE guidance, certain technical experts, senior-level managers and executives, treaty-traders and investors, and professional athletes traveling to the U.S. from the restricted regions were generally eligible for  NIEs to gain admission to the U.S.    This will no longer be the case in all instances. Visas and NIEs issued pursuant to the previous guidance will not be revoked and remain valid. However, if a new visa or NIE is required, it may not be issued while PP 10143 remains in effect unless the request falls within the new eligibility criteria outlined above.

Notably, students with valid F-1 and M-1 visas traveling to the U.S.  from the Schengen  Area, the UK and Ireland do not require NIEs for admission (and students requiring an F-1 or M-1 visa to travel may apply for such visa pursuant to availability of visa services at the nearest embassy or consulate).

Due to rapidly evolving travel requirements and restrictions, individuals intending to apply for visas abroad or planning to travel to the U.S. should consult with immigration counsel prior to making any arrangements. For additional information, please contact your designated Gibney representative or email info@gibney.com.