Category: Alerts

The Trump Administration’s draconian  2019 Public Charge Final Rule  is no longer in effect.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.

Democrats in Congress have introduced the U.S. Citizenship Act of 2021, advancing the Biden Administration’s efforts for reform of the U.S. immigration system.  Democrats will need 60 votes in the U.S. Senate to overcome a filibuster.

The bill includes a broad swath of reforms affecting the U.S. undocumented population, the family-based and employment-based immigration systems, and border management. Notably, the bill would create an 8-year path to citizenship for undocumented individuals.  Given the challenge of passing comprehensive reforms, various provisions, such as the Dream Act, may be sectioned off and advanced where there may be greater bi-partisan support.

Key provisions affecting employers and foreign workers include:

• PhD holders in STEM fields from an accredited U.S. institution of higher education, individuals with an approved immigrant petition bearing a priority date more than 10 ago, and spouses and children of employment-based applicants would all be exempted from the numerical limitations on employment based immigrant visas, substantially reducing overall backlogs;
• Elimination of the 7% per-country ceiling on employment-based immigrant visas;
• Reduction of the EB-1 and EB-2 preference categories from 28.6% to 23.55%, and increase of the EB-3 category from 28.6% to 41.2% of the employment-based worldwide level;
• Expanding the limit on EB-3 unskilled workers from 10,000 to 40,000;
• Provisions for temporary limitations on immigrant visas for areas with high unemployment;
• Temporary pilot program for 10,000 additional visas for regional economic development, subject to the labor certification process;
• Discretion to prioritize employment-based nonimmigrant visas based on offered wages;
• Eliminating the requirement of non-immigrant intent for F-1 students pursuing a full course of study;
• Establishing age-out protections for H-4 dependent children who were younger than 18 years when first granted non-immigrant status;
• Eligibility for EAD work authorization for both spouses and children in H-4 status; and
• Max-out protections and eligibility for status extensions in 1-year increments and work authorization for F-1, H-1B, L-1 and O-1 visa holders with a PERM labor certification or I-140 immigrant petition filed more than 365 days ago.

Gibney will continue to monitor developments, and will work with clients to analyze the impact on foreign national employees.

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

The Department of Homeland Security (DHS) announced that it will delay the effective date of the January 8, 2021 rule modifying the H-1B cap selection process  to prioritize high wage earners until December 31, 2021. This means that the fiscal year (FY) 2022 H-1B cap registration and selection process will proceed as it did last year, with selection based on a random lottery. The stated rationale for delaying the effective date of the January 8 rule is to provide USCIS with adequate time to complete system development, test system modifications, train staff, and conduct public outreach, though it was also noted that DHS leadership will further evaluate the legacy Trump Administration rule and its associated policies.

Additionally, today USCIS announced that the initial registration period for the FY 2022 H-1B cap will open March 9, 2021 at Noon Eastern Time (ET) and will close on March 25, 2021 at Noon ET.

FY 2022 H-1B CAP REGISTRATION – WHAT EMPLOYERS CAN EXPECT

Employers intending to file H-1B cap petitions for an employment start date of October 1, 2021 will have from March 9 to March 25 to electronically register each intended beneficiary and pay the associated $10 H-1B registration fee. The random H-1B cap lottery will be conducted after the registration period concludes, and employers will then be notified when to submit H-1B petitions for selected beneficiaries during a designated filing period expected to commence April 1. The agency may determine it is necessary to open an additional registration period later in the year if it does not receive enough registrations and subsequent petitions projected to reach the annual quota.

Gibney will continue to provide updates, and will be working with clients to prepare for the upcoming H-1B cap registration process.

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

On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as Department of Homeland Security (DHS) Secretary and President Biden signed three immigration orders aimed at reunifying children separated from their parents at the U.S.-Mexico border, addressing the U.S. southern border and asylum system, and improving the U.S. legal immigration system.

The latter, the Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans , stands to have the most direct impact on businesses hiring foreign workers. The order:

• Directs the White House Domestic Policy Council to create a task force to coordinate the federal government’s efforts to welcome immigrants, and improve and support immigration processes.
• Charges the Attorney General, the Secretary of State and the Secretary of DHS with
• reviewing existing regulations, orders, guidance and policies (collectively “agency action”) with a view to identifying barriers that impede access to immigration benefits and the fair and efficient adjudication of benefit applications.
• identifying agency actions that fail to promote access to the legal immigration system and rescinding or revising the policies and practices as appropriate.
• Submitting a plan within 90 days to advance policies consistent with improving and supporting immigration processes to welcome immigrants.
• Mandates immediate agency review of the public charge rule,  and requires agencies to address concerns with the policy and its impact on immigration processes and public health.
• Directs the Attorney General, the Secretary of State and the  Secretary of DHS to promote the naturalization process by eliminating barriers to naturalization, substantially reducing backlogs, improving the process, and promoting naturalization generally.

Impact Assessment

While the order does not advance a specific policy, its impact may be far reaching in the months ahead.  Numerous Trump Administration actions were implemented to create barriers to legal immigration, including agency action stemming from the Buy American, Hire American Executive Order . This included rescission of agency policies that gave deference to prior agency approval of benefits applications, and imposed a level of application scrutiny that exceeded statutory and regulatory authority. The result was a significant increase in requests for evidence, application backlogs, unconscionable adjudication delays, and denial of benefit applications.  U.S. businesses employing foreign nationals experienced a lack of predictability in adjudications, increased costs associated with sponsorship, interrupted  business continuity, and a loss of access to foreign talent generally.

Yesterday’s  order, together with last week’s order revoking the Buy American, Hire American order, signals that the Biden Administration  is set on reversing restrictionist Trump-era immigration policies with a view to restoring integrity and enhancing efficiency in the legal immigration system.   Additionally, and notably, DHS Secretary Mayorkas previously served as the director of U.S. Citizenship and Immigration Services (USCIS) under the Obama Administration. His experience leading USCIS – the benefits agency within the Department of Homeland Security – is another signal that the Biden Administration will prioritize and emphasize improving access to legal immigration benefits.

For additional information on the Biden Administration’s impact on U.S. immigration, please contact your designated Gibney representative or email info@gibney.com.

The Biden Administration is expanding and strengthening travel restrictions to the U.S. as new strains of the coronavirus emerge globally.

SOUTH AFRICA ADDED TO LIST OF TRAVEL RESTRICTED COUNTRIES

The Biden Administration issued an Executive Order extending COVID-related  travel restrictions to foreign national travelers from South Africa. The South Africa restriction will take effect January 30, 2021 at 12:01 AM ET.  Impacted travelers restricted from entering the U.S. will include most foreign nationals  who have been physically present in South Africa at any point during the 14 day period prior to arrival in the U.S.

The order also maintains similar travel restrictions imposed for foreign nationals traveling to the U.S. from Brazil, China, Iran, Ireland, the United Kingdom, the Schengen Area countries (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy,  Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).  Prior to leaving office,  the Trump administration sought to lift the travel restrictions for Europe and Brazil effective January 26, but the Biden Administration  order reverses that directive, and keeps the restrictions in place.

Who is Exempted from the Bans?
The regional entry restrictions do not apply to U.S. citizens and lawful permanent residents. Also exempted are:

• noncitizen nationals of the United States;
• any noncitizen who is the spouse of a U.S. citizen or lawful permanent resident;
• any noncitizen who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
• any noncitizen who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
• any noncitizen who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications
• any noncitizen traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
• any noncitizen traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any noncitizen otherwise traveling to the United States as air or sea crew;
• any noncitizen seeking entry into or transiting the U.S. pursuant to one of the following visas:  A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
• any noncitizen who is a member of the U.S. Armed Forces and any noncitizen who is a spouse or child of a member of the U.S. Armed Forces
• any noncitizen whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
• any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

How Long with the Bans Remain in Effect
The restrictions  will remain in effect until terminated by the President, and will be subject to  monthly review and recommendation regarding continuance, modification or termination from the Secretary of Health and Human Services.

CDC TESTING REQUIREMENT FOR INTERNATIONAL TRAVELERS

The CDC also issued updated instructions for international travelers, including an order requiring all air passengers traveling to the U.S. from a foreign country to get tested for COVID-19 no more than three days before boarding a flight to the U.S.  Pursuant to the CDC order:

• All passengers age 2 years and older must provide  written or electronic proof of a  negative COVID-19 test result or documentation of having recovered from COVID-19 prior to boarding a flight to the U.S.  This requirement  includes U.S. citizens and lawful permanent residents.
• Documentation  of recovery must be a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel.
• Passengers must present evidence of the negative test result or recovery documentation to the air carrier prior to boarding the flight, and may also be required to present the documentation to any U.S. government official or cooperating state or local public health  authority once in the U.S.
• Additional information from the CDC regarding international travel is available here.

As we previously reported,  proof of a negative test result does not exempt travelers from the regional travel bans referenced above. The bans prohibiting the admission of travelers from South Africa, the European Schengen Area, the United Kingdom and Ireland, China, Iran and Brazil remain in place. Individuals who are exempted from the regional travel bans and individuals who have been granted National Interest Exceptions to travel to the U.S. must still provide proof of the negative COVID-19 test result in order to travel to the U.S. as of January 26, 2021, consistent with the CDC order.   Individuals who are otherwise subject to the regional travel bans remain restricted, and cannot travel to the U.S. even with a negative COVID-19 test result.

For additional information concerning travel restrictions to the U.S., please contact your designated Gibney representative or email info@gibney.com.

The Biden administration issued an Executive Order Promoting COVID-19 Safety in Domestic and International Travel requiring that masks be worn in airports or on commercial aircraft, trains, maritime vessels, intercity bus services and other forms of public transportation  within the U.S. consistent with CDC guidelines.  Agency heads are also directed to present recommendations for additional public health measures for domestic travel in the weeks ahead.

Additionally, the order provides that travelers entering the U.S. from abroad should be required to present proof of a negative COVID-19 test prior to traveling to the U.S. and to comply with applicable CDC guidelines pertaining to self-quarantine after entry to the U.S.  In this respect,  the Department of Health and Human Services and the Department of Homeland Security will consider further the timing, types and proof  of COVID-19 tests required to satisfy the CDC order of January 12, 2021 mandating a negative COVID-19 test result for international travelers. The agencies are also required to submit plans to support self-quarantine requirements.

The U.S. will also make outreach to the governments of Canada and Mexico in order to establish health protocols for land ports of entry within 14 days. Similar measures will be considered with respect to public health measures for arrivals at sea ports.  Finally, the order directs the Secretaries of State, Homeland Security, and Health and Human Services to assess the feasibility of linking COVID-19 vaccinations to International Certificates of Vaccination Prophylaxis (ICVP) and producing electronic versions of same.

For additional information about COVID-related travel restrictions and requirements, please contact your designated Gibney representative or email info@gibney.com.