January 26, 2021

Regional Travel Ban Updates: CDC Testing Requirements for International Travelers

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.

January 21, 2021

Biden Administration Issues COVID-19 Travel Safety Order

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.

January 13, 2021

U.S. to Require International Passengers to Present Negative Covid Test Result

The U.S. Centers for Disease Control  and Prevention (CDC) issued an order requiring all passengers traveling to the U.S. on international flights to show written proof of a negative Covid-19 test  or documentation of recovery from Covid-19 after a prior positive test result prior to boarding flights to the U.S. The order is effective January 26, 2021.  Passengers must obtain the Covid-19 test within three days of traveling to the U.S. Additional information concerning testing, timing, and proof of recovery is available here.

The rule applies to all passengers, including U.S. citizens and U.S. lawful permanent residents, regardless of whether vaccinated. Air carriers have been instructed to deny boarding to any passenger who does not present written proof (paper or electronic) of a negative test result or recovery from the virus.

Note that proof of a negative test result does not exempt travelers from the regional and visa category bans currently in place pursuant to various Presidential proclamations. The bans prohibiting the admission of travelers from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil  remain in place with some exemptions. Individuals who are exempted from these 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 and visa category 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.

 

December 28, 2020

DHS Again Extends Form I-9 Compliance Flexibility

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements until January 31, 2021.  The policy, initially announced in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic.

Who does the Policy Affect?

Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until January 31, 2021, and could be extended further.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

November 24, 2020

TRAVEL RESTRICTIONS AT U.S. LAND BORDERS EXTENDED THROUGH DECEMBER 21, 2020

UPDATE –  The U.S. Department of Homeland Security further extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through December 21, 2020 and may extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.  Information concerning the scope of the travel restrictions and exemptions is available here.

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

November 24, 2020

DHS Extends Form I-9 Compliance Flexibility

The U.S. Department of Homeland Security (DHS) has extended two policies providing employers and employees with flexibility in meeting certain Form I-9 Employment Verification requirements.

DHS EXTENDS VALIDITY OF FORM I-797 FOR I-9 VERIFICATION DUE TO EAD PROCESSING DELAYS

DHS previously announced temporary relaxation of Form I-9 verification requirements pertaining to individuals utilizing an Employment Authorization Document (EAD) for employment, allowing  employees to use a Form I-797, Notice of Action, in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility.  DHS has extended the relaxed Form I-9/EAD verification requirements through  February 1, 2021. To utilize the Form I-797 in lieu of the EAD, the Notice must indicate approval of an Application for Employment Authorization, and must have a Notice date from December  1, 2019 and through and including August 20, 2020.  Additional information is available at Gibney’s insights.

DHS EXTENDS FORM I-9 COMPlIANCE FLEXIBILITY DUE TO COVID-19

In March 2020, DHS implemented a policy relaxing the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. DHS has extended Form I-9 compliance flexibility for qualifying  employers until December 31, 2020.

Who does the Policy Affect?

Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until December 31, 2020, and could be extended further.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

August 5, 2020

Court Blocks Immigration Public Charge Rule Nationwide

On July 29, 2020 a federal court prohibited the Trump Administration from enforcing its 2019 public charge inadmissibility rules while there is a declared national public health emergency due to the COVID-19 outbreak.  The U.S. Department of Homeland Security (DHS) is prohibited from “enforcing, applying, implementing, or treating as effective”  its Inadmissibility on Public Charge Grounds Final Rule  (Public Charge Final Rule) and the  U.S. Department of State is similarly restricted from implementing and  enforcing its revised rules pertaining to public charge and health insurance coverage.

Notably, an August 4 ruling from the Second Circuit limiting a prior preliminary injunction to New York, Connecticut and Vermont does not impact the July 29 nationwide injunction.  While the July 29 nationwide  injunction remains in effect,  all adjustment of status applications and petitions/applications to extend or change nonimmigrant status will be adjudicated under the standards and rules in place prior to implementation of the Public Charge Final Rule on February 24, 2020.

USCIS has indicated that while the order is in effect:

  • Adjustment of status applications (Form I-485) adjudicated on or after July 29, 2020 will be adjudicated under the 1999 public charge guidance. USCIS will not consider information or documentation that applicants provided on Form I-485 or in connection with  Form I-944, Declaration of Self-Sufficiency, in determining whether an individual is inadmissible as a public charge.
  • Adjustment of status applicants whose I-485 applications are postmarked on or after July 29, 2020 and while the order is in effect are not required to include Form I-944 or associated documentation.
  • USCIS will not apply the public charge condition to applications to extend or change nonimmigrant status filed on Form I-129, Petition for Nonimmigrant Worker, or Form I-539, Application to Extend/Change Nonimmigrant status,  filed on or before July 29, 2020.
  • Form I-129 petitions and Form I-539 applications postmarked on or after July 29, 2020 should not include information regarding the receipt of public benefits.

USCIS intends to issue additional guidance regarding the use of the affected forms.  In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether the public benefits questions have been completed or left blank.

Background

As previously reported,  individuals seeing admission to the U.S. must show they are not likely to become a public charge. The Trump Administration’s Public Charge Final Rule dramatically expanded the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.  The rule has been the subject of ongoing litigation. In January 2020, the U.S. Supreme Court lifted prior nationwide injunctions, allowing the rule to take effect on February 24, 2020 while litigation on the merits proceeds.  The July 29 injunction stems from litigation challenging the rule in the context of the coronavirus pandemic and the concern that noncitizens  might forgo use of available health care, housing and food programs to the detriment of public health during the pandemic.  The Trump Administration is expected to challenge this latest injunction.

Gibney will continue to monitor this matter and provide updates as they become available. For additional information, please contact your designated Gibney representative or email.

July 29, 2020

Travel Restrictions at U.S. Land Borders Extended to August 20, 2020

UPDATE – On July 16, 2020, the Department of Homeland Security further extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restriction is extended 30 days, and will remain in place through August 20, 2020.  The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.

Information concerning the scope of the travel restrictions and exemptions is available here.

The COVID-related travel restrictions at the U.S. land border are distinct from the visa-related travel ban imposed by the Trump Administration on June 22, 2020 in  Presidential Proclamation (PP) 10052.  PP 10052 restricts the admission of certain H, L and J visa holders to the United States  until December 31, 2020.    While PP 10052 also remains in effect,  U.S. Customs and Border Protection has indicated that Canadian citizens are not subject to P.P. 10052, as previously reported by Gibney.  In contrast, Mexican citizens are also subject to the restrictions imposed by PP 10052.

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

July 22, 2020

UK Visa Application Centres in US and Canada Start Phased Reopening

UK visa applicants in the US can book biometric appointments at either a U.S. Citizenship and Immigration Service (USCIS) Application Support Center (ASC) or a VFS Global Premium Application Centre (PAC). ASCs and PACs, which previously closed in March, began a phased reopening on July 13, 2020.

Application Support Center Appointment Guidelines

  • Appointment availability is limited as more ASCs continue to reopen in the coming weeks
  • ASCs will not accommodate walk-ins; all customers must have a confirmed appointment
  • Only the applicant can attend a scheduled biometrics appointment; separate appointments must be made for each applicant
  • A parent may accompany a minor for the scheduled appointment

Premium Application Centre Appointment Guidelines

  • All VFS Global PACs will reopen, with the exception of the Seattle PAC and the Los Angeles Premium Application Center (PAC), which re-closed due to a new government mandate
  • VFS will contact applicants to reschedule previously booked appointments that were cancelled as a result of the lockdown
  • Only Bronze Premium Package service is available; no Gold, Silver or Settlement Premium service will be offered until further notice
  • Standard services will take 15 business days (not including mailing time)
  • Applications must be mailed in to the New York scanning hub via UPS or FedEx with a return label/package
  • There will be no in-person collection of documents at PACs; all documents will be returned to the applicant via UPS only. Courier fees are included with each Bronze Package.

Canada

Canada VAC appointments have also resumed, and the operations reopened at the four VACs from July 17, 2020.

Appointment COVID-19 Safety Guidance Guidelines

  • Individuals will be asked to observe physical distancing and must wear facemasks
  • Individuals may be subject to additional protocols and travel restrictions in keeping with local authority guidelines
  • Anyone exhibiting COVID-19 symptoms, including fever, cough or difficulty breathing will be helped to reschedule their application submission and will be advised to seek medical attention at the nearest healthcare facility of their choice
  • Only the applicant will be permitted entrance to the PAC, unless they are a an adult accompanying a minor, a translator or the caretaker for an elderly or disabled person

Reopening Schedule and Protocol Updates

Phased reopening details can be found here.

UK Visa Validity

When you collect your passport from a VFS Centre, you will receive a vignette visa which allows travel to the UK for 30 days. All UK visas where the start date is January 24, 2020 or later, are eligible for free replacement, with a new 90 day vignette, before the end of 2020. Further details about the process to obtain these replacement vignettes will be released by UK Visas and Immigration in the coming weeks.

Online Applications

Access UK, the online application system for applying to visit the UK, is now holding applications for an increased period of 240 days. This will ensure that applications remain live and valid and supporting enrolment of biometric data once services have resumed.

Gibney will continue to monitor developments and provide updates as they become available. If you have questions or need specific legal advice, please contact your Gibney representative.

July 20, 2020

U.S. Ends Preferential Immigration Treatment for Hong Kong

On July 14, 2020, the Trump Administration issued an executive order ending differential treatment for Hong Kong under U.S. law.  The order, effective immediately, directs government agencies to amend regulations within 15 days of the order, including trade and immigration regulations, as they pertain to special treatment of individuals born in Hong Kong and those holding Hong Kong SAR passports. The change in legal status for Hong Kong will have significant immigration consequences for many foreign nationals and their U.S. employers.

Impact on U.S. Immigration

The following changes are expected from the U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS):

  • Individuals born in Hong Kong who apply for U.S. permanent residence will now be counted under the annual quota of immigrant visas allocated for nationals of the People’s Republic of China (China), resulting in lengthy backlogs for green card issuance.
  • Hong Kong passport holders will now be subject to the visa reciprocity rules that apply to Chinese passport holders, resulting in shorter visa validity periods and restricted travel for many nonimmigrant visas, such as B-1/B-2 (business visitor and tourist), H-1B (specialty occupation professional), L-1 (intracompany transferee) and O-1 (extraordinary ability) visas.
  • Hong Kong passport holders will more likely to be deemed subject to a 2-year home residence requirement following a period of stay in the U.S. in J-1 (exchange visitor) and J-2 (dependent) status, which currently is common for Chinese passport holders.
  • The order directs the elimination of the Fulbright exchange program with China and Hong Kong.
  • Hong Kong passport holders who are employed in the U.S. in jobs that require access to certain export-controlled technologies will now be subject to the restrictions and higher level of background checks currently in place for nationals of China.

What U.S. Employers Need to Know

  • Employees from both China and Hong Kong will face longer waiting periods for U.S. permanent residence.
  • When international travel resumes, employees from Hong Kong will have less flexibility to travel due to shorter visa validity periods.
  • A 2-year home residence requirement is likely to be imposed at the conclusion of new J-1 programs for individuals from Hong Kong and their dependents.
  • It will be more difficult to employ individuals from Hong Kong in jobs that involve controlled technologies.

Background

Originally part of the People’s Republic of China, Hong Kong was a British colony from 1842 to 1997. In 1997, Hong Kong was transferred back to China as a Special Administrative Region, maintaining a separate government and economic system. The United States Hong Kong Policy Act of 1992 set forth various provisions to assist Hong Kong in maintaining its autonomy from China, including special treatment under U.S. immigration laws.  Specifically, individuals born in Hong Kong were treated separately and distinct from nationals of China.

In response to recent political events and the increased authority China has exerted over Hong Kong, the Trump Administration determined that Hong Kong is “no longer sufficiently autonomous to justify differential treatment” and ordered the suspension or elimination of various laws giving different and preferential treatment to Hong Kong and Hong Kong nationals.

Gibney will continue to monitor developments and provide updates as they become available. If you have questions or need specific legal advice, please contact your Gibney representative.