Tag: Immigration Updates & FAQs

The Biden Administration issued a Presidential Proclamation restricting  travel to the U.S. for noncitizens who have been present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and  Zimbabwe at any point during the 14 day period prior to arrival in the U.S.

The ban took effect 12:01 AM EST on November 29, 2021 and will remain in effect until lifted by the President. This new regional travel restriction for countries in southern Africa stems from the emergence of the Omicron variant of COVID-19.

Who is Exempted from the New Regional Travel Restriction

Similar to prior regional travel restrictions, the new travel ban does not apply to:

• U.S. citizens
• U.S. lawful permanent residents;
• any noncitizen national of the U.S.
• 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 U.S. pursuant to the IR-4 or IH-4 visa classifications;
• any noncitizen traveling at the invitation of the United States 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 U.S. 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 or who is a spouse or child of a member of the U.S. Armed Forces;
• any noncitizen whose entry would further important United States 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; or,
• any noncitizen or group of noncitizens whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Visas and National Interest Exemptions

Imposition of the new regional travel ban raises questions regarding visa issuance in the impacted countries. With prior regional bans, U.S. consulates stopped processing visas for applicants in the travel restricted countries.  This prevented numerous individuals from securing a visa and then quarantining in a non-restricted country prior to traveling to the U.S.   Also, with prior travel bans, National Interest Exemptions (NIEs) were granted under evolving standards.  We await further guidance from the U.S. Department of State as to whether it will continue to process visa applications in the impacted countries, the standards for NIEs under the new ban, and the validity of NIEs that were previously issued for travelers from South Africa.  Individuals traveling from the restricted region who were previously issued an NIE should not assume that the NIE remains valid for travel to the U.S.

Update November 30, 2021: According to U.S. Customs and Border Protection, NIEs issued under previous proclamations are void with respect to the new regional travel ban for southern African countries. For example, a visa holder from South Africa who was previously issued an NIE in connection with the January 25, 2021 Proclamation restricting travel from South Africa may not use that NIE to secure admission pursuant to the November 26, 2021 Proclamation.  We await an official announcement from the Department of State confirming that the previously issued NIE is void and/or issuing instructions on how to secure a new NIE.

Vaccination and Testing Requirements for All International Travelers

Noncitizen nonimmigrants traveling to the U.S. who are not subject to the new regional travel restrictions nonetheless remain subject to the global vaccination requirement imposed by Presidential Proclamation 10294  and effective November 8, 2021.

Additionally, prior to boarding a flight to the U.S., all travelers – noncitizen nonimmigrants, U.S. citizens, U.S. LPRs and U.S. nationals – are required to show one of the following:

• If fully vaccinated: Proof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.
• If NOT fully vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Update: Effective December 6, 2021, all travelers, regardless of vaccination status or citizenship, must present a negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old are not required to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days. Additional information about the testing requirement is available here.

Additional Information

As the world reacts to the Omicron variant, other countries, including, but not limited to, the European Union member countries, the United Kingdom, Japan, Israel and Morocco, announced travel  restrictions, and some countries may impose additional quarantine and testing requirements for other travelers.  All travelers should check with airlines and  investigate restrictions imposed by their destination country when making travel plans and  immediately prior to departure.

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

On November 12, 2021, USCIS updated its Policy Manual to permit H-4, E and L nonimmigrant dependent spouses to receive automatic extension of employment authorization in certain circumstances. Earlier in the week, USCIS announced that it would implement new policies for H-4 and L spouses within 120 days. In updating its Policy Manual, USCIS moved quickly to implement the new polices and to expand the benefits to E spouses.

AUTOMATIC EXTENSION OF EADS – H-4, E and L Spouses

Effective immediately, nonimmigrant H-4, E and L spouses qualify for an automatic extension of their Employment Authorization Document (EAD) when they file to renew their EAD provided:

• The I-765 application to renew the EAD is filed prior to the EAD expiration date and
• The H-4, E or L spouse has an unexpired I-94 showing valid underlying nonimmigrant status.

For purposes of Form I-9 employment verification purposes, the nonimmigrant spouse  may present the following as evidence of work authorization:

1. Unexpired  Form I-94 showing valid H-4, E or L-2  nonimmigrant status;
2. Facially Expired EAD; and
3. Form I-797C (Notice of Action/Receipt) showing a timely filed  I-765 EAD renewal application

The automatic extension of the EAD is valid until:

• Expiration of the underlying  Form I-94;
• 180 days from the prior EAD expiration; or
• Adjudication of the I-765 extension application, whichever comes first.

L AND E SPOUSES – EMPLOYMENT AUTHORIZED INCIDENTAL TO STATUS

USCIS also clarified that it will consider L and E dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 or E spousal status,  E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an EAD. This applies only to E and L spouses. It does not apply to H-4 spouses or H-4, E or L dependent children.

The Department of Homeland Security (DHS) will immediately take steps to modify Forms I-94 to distinguish E and L dependent spouses from dependent children. Once changes to the Form I-94 are made, the new Form I-94 with the spousal annotation will serve as evidence of employment authorization as a List C document for Form I-9 employment verification eligibility purposes.   Only a Form I-94 annotated as an L-2 or E “spouse” may serve as evidence of employment authorization. An L or E spouse with an I-94 that does not bear the new spousal annotation must also present an EAD for employment authorization purposes.

Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

International travelers  should expect busy consulates and U.S. Ports of Entry with the lifting of travel bans coinciding with the holiday season.  Additionally, some consulates are not fully operational and many are experiencing limited appointment availability and delays in visa processing. Consular appointments are subject to cancellation with little notice. We encourage all travelers to plan ahead to minimize delays when traveling abroad and entering the U.S. Our holiday travel checklist is designed to help foreign national employees and employers schedule appointments and gather required documentation in advance.

NEW REQUIRMENTS FOR INTERNATIONAL TRAVELERS

New requirements for international travelers to the U.S. took effect November 8, 2021.  Foreign nationals traveling to the U.S. are required to provide proof of full vaccination against COVID-19 and proof of a negative COVID-19 test taken within 3 days of boarding a flight to the U.S. The accepted types of vaccines include FDA approved or authorized vaccines and WHO Emergency Use Listing vaccines. More information regarding vaccines is available from the Centers for Disease Control (CDC).

U.S. ENTRY: STATUS AND DOCUMENTATION CHECKLIST

• Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their consulates or embassies in the U.S.
• Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document; Employment Authorization Document (EAD); Form DS-2019 with travel authorization; and/or endorsed Form I-20.
• Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record and issue a passport stamp, annotated with the class and duration of admission. Before leaving the CBP inspection area, verify that the admission classification and expiration date entered in the passport are correct, and immediately alert the CBP officer to any errors.
• Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa stamp. Send Immigration Counsel a copy of your I-94.

CHECKLIST FOR FOREIGN NATIONAL EMPLOYEES (AND EMPLOYERS) WHO DO NOT HAVE A VALID VISA IN THEIR CURRENT PASSPORT

• Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. consulates can range from a few days to a few months.
• Check the Consulate’s website prior to travel. If you require visa issuance at a consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little notice.
• Complete Form DS-160. This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many consulates require that the visa application be completed prior to scheduling a visa appointment.
• Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
• Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
• Update company information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
• Gather employment verification. If you are applying for a temporary work visa, most consulates require current employment verification letters from employers. Request these letters in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
• Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
• Check consulate wait times. Review the consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
• Confirm consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

TRAVEL DOCUMENTS IF YOU DON’T NEED A VISA FROM THE CONSULATE

• Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
• Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without Advance Parole may result in denial of the I-485 application.

HELPFUL LINKS

• To find the nearest foreign consulate in the U.S. visit Foreign Embassies and Consulates in the U.S.
• Check U.S. consulate wait times at U.S. Consulate Visa Wait Times
• Find links to U.S. consular posts around the world at U.S. Consular Posts
• For information on the Visa Waiver Program and current VWP countries visit Visa Waiver Program
• Obtain and review your electronic I-94 record at CBP I-94s
• Complete the DS-160 Online Nonimmigrant Visa Application at DS-160

For specific travel-related questions, please contact your Gibney representative or email info@gibney.com.

Pursuant to a lawsuit brought by the American Immigration Lawyer Association and its litigation partners, U.S. Citizenship and Immigration Services (USCIS) will implement new policies to improve issuance of work authorization for nonimmigrant H-4 and L-2 spouses.

The following summarizes the key anticipated policy changes. Early indications are that it will take USCIS up to 120 days to implement the new policies. Please note that specific requirements and practices may change as USCIS develops and releases official guidance.

H-4 Spouses – Automatic Extension of EADs

Nonimmigrant H-4 spouses are currently required to have a valid I-94 document showing H-4 status and a valid Employment Authorization Document (EAD) for employment.

Under the new policy, nonimmigrant H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:

• The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
• The H-4 spouse has an unexpired I-94 showing valid H-4 status.
  • If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.
• The automatic extension of the EAD will be valid until:
  • Expiration of the underlying I-94 showing H-4 status;
  • 180 days from the prior EAD expiration; or
  • Adjudication of the I-765 extension application, whichever comes first.

L-2 Spouse – Employment Authorization Incidental to Status

Nonimmigrant L-2 spouses are currently required to apply for an EAD for employment.

Under the new policy, L-2 spouses will be authorized to work incidental to their status. This means that upon admission and issuance of a valid I-94 document showing L-2 status, the L-2 spouse will automatically be authorized to work without the need to apply for an EAD.

• USCIS will coordinate with U.S. Customs and Border Protection (CBP) to ensure the L-2 spouse is issued an I-94 that is appropriately annotated as “spouse” so that it may serve as evidence of employment authorization for purposes of Form I-9 employment verification. As noted, this initiative may take up to 120 days to implement.
• In the interim and until CBP updates its I-94 protocols, L-2 spouses may benefit from an automatic extension of previously issued EADs under the same terms as outlined above for H-4 spouses.

Form I-9 Employment Verification

H-4 Spouses

Upon implementation of the policy, it is expected that H-4 spouses will be required to present the following documents as evidence of work authorization for Form I-9 employment verification purposes when seeking the EAD auto-extension:

• Expired EAD;
• I-765 extension application receipt notice showing the renewal application was timely filed; and
• Unexpired I-94 showing valid underlying H-4 status.

L-2 Spouses

Upon implementation of the policy, including CBP issuance of appropriately annotated I-94s for L-2 spouses, it is expected that nonimmigrant L-2 spouses will be permitted to present evidence of identity (such as a valid passport) together with a valid I-94 document appropriately annotated as an L-2 spouse for purposes of Form I-9 employment verification.

If an L-2 spouse seeks to avail themselves of the 180-day EAD auto-extension as an interim measure, the spouse will be required to present the following:

• Expired EAD;
• I-765 extension receipt notice showing the renewal application was timely filed; and
• Unexpired I-94 showing valid underlying L-2 status.

Additional Information

The EAD auto-extension benefit will only apply to H-4 and L-2 spouses who continue to have an I-94 document showing valid underlying H-4 or L-2 status after their EAD expires. This may limit the immediate benefit, due to very lengthy processing times for I-539 applications to extend H-4 and L-2 nonimmigrant status.  Additionally, H-4 spouses and others applying for an initial EAD still face egregious USCIS processing delays.  Nonetheless, this successful litigation causing USCIS to reverse harmful policies is welcome news for H-4 and L-2 nonimmigrants and their employers.  It is also hoped that the new policies will contribute to greater efficiencies at USCIS with respect to adjudicating I-539 nonimmigrant extension of status applications and EAD applications, generally.

USCIS intends to issue official guidance to employers and government agencies. As previously noted, it is expected to take up to 120 days to implement the policies, in whole or in part.  Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

By Presidential Proclamation, the U.S. will reopen international air travel from previously restricted countries on November 8, 2021 at 12:01 am eastern standard time. As previously reported, the country-specific COVID-related travel bans that were implemented in response to the pandemic will be lifted, and will be replaced with a global vaccination requirement. The Proclamation will remain in effect until terminated by the President.

Specifically, the Proclamation:

• Revokes the country-specific limitations on entry that restricted travel from most European countries, Ireland, the United Kingdom, Brazil, India, Iran, South Africa, and China.
• Suspends air travel to the U.S. for those noncitizen nonimmigrants who are not fully vaccinated against COVID-19.  “Noncitizens nonimmigrants” are  individuals who are not U.S. citizens or lawful permanent residents (LPRs) and who are traveling to the U.S. for a temporary period.
• Provides that the suspension on traveling to the U.S. unless fully vaccinated does not affect nonimmigrant visa issuance. This means that the State Department can now process visa applications for individuals present in the formerly restricted countries. However, the State Department cautions that rescission of the regional travel bans does not mean that the local consulate will be able to immediately schedule visa interviews  for applicants. This is largely due to application backlogs, resourcing issues, and demand for appointments.

The Proclamation does not apply to U.S. citizens, U.S. LPRs and U.S. nationals. However, the Centers for Disease Control and Prevention (CDC) guidance for this population cautions against  international travel unless fully vaccinated.

CDC Testing and  Vaccination Guidelines

The Proclamation was issued in conjunction with orders and guidance  from the CDC  that require travelers to

• Provide proof of a  negative COVID-19 test result or documentation of recovery from COVID-19 prior to boarding a flight to the U.S.
• Wear a mask in indoor areas of public transportation (including airplanes) traveling into, within, or out of the United States and indoors in U.S. transportation hubs (including airports).

Who is Considered Fully Vaccinated?

According to the CDC, an individual is considered fully vaccinated

• 2 weeks (14 days) after receiving an accepted single dose COVID-19 vaccine
• 2 weeks (14 days) after receiving a second dose of an accepted 2-dose series
• 2 weeks (14 days) after receiving the full series of an active (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials
• 2 weeks (14 days) after receiving 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart.

Fully vaccinated noncitizen nonimmigrants should ensure that their vaccine and proof of vaccination are acceptable to board a flight to the U.S.

What are the Exceptions to the Vaccination Requirement?

Categories of noncitizen nonimmigrants that meet the criteria for an exception under the Proclamation and CDC’s Order may include:

• Persons on diplomatic or official foreign government travel
• Children under 18 years of age
• Persons with documented medical contraindications to receiving a COVID-19 vaccine
• Participants in certain COVID-19 vaccine trials
• Persons issued a humanitarian or emergency exception
• Persons with valid visas (excluding B-1 business or B-2 tourism visas) who are citizens of a foreign country with limited COVID-19 vaccine availability
• Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
• Sea crew members traveling with to a C-1 and D nonimmigrant visa
• Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

A noncitizen nonimmigrant claiming one of these exceptions may be required to:

1. Be tested with a COVID-19 viral test 3–5 days after arrival in the U.S., unless providing documentation of having recovered from COVID-19 in the past 90 days;
2. Self-quarantine for a full 7 days, even if the test result for the post-arrival viral test is negative, unless possessing documentation of having recovered from COVID-19 in the past 90 days; and
3. Self-isolate if the result of the post-arrival test is positive or if developing COVID-19 symptoms.

Based on the category of the exception, the noncitizen nonimmigrant may additionally be required to:

• Agree to be vaccinated against COVID-19; and
• Arrange to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, or as soon thereafter as is medically appropriate, unless too young to be vaccinated.

Testing Requirements – All Travelers

Before boarding a flight to the U.S., all travelers – noncitizen nonimmigrants, U.S. citizens, U.S. LPRs and U.S. nationals – are required to show one of the following:

• If fully vaccinated: Proof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.
• If NOT fully vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old are not required to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days. Additional information about the testing requirement is available here.

Additional Resources

Valuable information for all travelers, including information on how vaccination status will be verified by airlines and how exemptions for children will work, is available in the State Department’s Frequently Asked Questions, the  White House Fact Sheet, and the CDC’s Frequently Asked Questions.   For additional information, please contact your designated Gibney representative or email info@gibney.com.

The Biden Administration  announced today that it will lift COVID-related regional travel restrictions for fully vaccinated  international travelers effective November 8, 2021.

International Air Travel

As previously reported,  the restrictions currently in place for travelers from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India, will be replaced 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 of boarding a flight to the U.S.

American citizens and U.S. permanent residents who are not vaccinated will be required to have a COVID-19 test taken within 1 day of boarding a flight to the U.S.

Canada and Mexico – Ferry and Land Border Crossings

Earlier this week, the Department of Homeland Security (DHS) also announced that it  will lift restrictions on non-essential travel at ferry and land border crossings between the U.S. and Canada and Mexico in early November 2021.  The restrictions at ferry and land border crossings  will be lifted in two phases:

• In November, DHS will allow fully vaccinated  travelers to enter the U.S.  at ferry and land border crossings for non-essential reasons.  Unvaccinated individuals may enter for essential reasons only.
• Starting in  January 2022, DHS will require all foreign travelers – essential or not – to be fully vaccinated, with very limited exceptions.

Vaccinated travelers entering at ferry and land crossings are not required to provide proof of a negative COVID-19 test.

Authorized Vaccines and Other Requirements

For purpose of entry, according to the Centers for Disease Control and Prevention (CDC),  acceptable vaccinations will include FDA approved vaccines or authorized and World Health Organization Emergency Use Listing vaccines.

Additional details regarding the new global requirements are expected in the coming weeks, including information on testing requirements, mandatory contact tracing orders, and  limited exemptions for those not eligible for vaccines (e.g.,  children) and individuals lacking access to a vaccine.

Looking Ahead: The Good News and the Not-So-Good

The lifting of travel restrictions is welcome news and, upon implementation, will immediately benefit vaccinated foreign national  travelers who do not require a visa to enter the U.S. or those who are already in possession of a valid visa for entry.

Vaccinated foreign national travelers who do require a visa to enter the U.S., though eligible to travel with the lifting of restrictions, are likely to face significant delays in securing a visa, due to the lack of available visa appointments at the U.S. consulates abroad.  Many U.S. consulates are significantly backlogged in processing visa applications, offering appointments well into 2022, and some showing no appointment availability at all.  The existing backlogs are expected to be compounded by a surge in demand with the lifting of the travel restrictions, holiday travel, and consular closures and resourcing issues.   Foreign nationals requiring a valid visa for entry into the U.S. are strongly encouraged to review visa appointment wait times before making any travel plans.

Gibney continues to monitor this matter closely and will provide updates as additional guidance is released. For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

WHAT IS THE DIVERSITY VISA LOTTERY?

The Diversity Immigrant Visa Program (DV Program) provides up to 55,000 immigrant visas (aka permanent residence or green cards) for issuance in Fiscal Year 2023 to persons from countries with low immigration rates to the U.S. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2023 Program began on Wednesday, October 6, 2021 at 12:00 p.m. noon, Eastern Daylight Time (EDT) (GMT-4), and concludes on Tuesday, November 9, 2021 at 12:00 p.m. noon, Eastern Standard Time (EST) (GMT-5). Individuals who submit more than one entry during the registration period will be disqualified. Applicants are encouraged to apply as soon as possible.

WHO IS ELIGIBLE?

• An individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Great Britain (United Kingdom, except Northern Ireland) and its dependent territories, Venezuela, and Vietnam. Natives of Macau SAR and Taiwan are eligible.
• Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.
• A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

HOW DO I APPLY?

DV Lottery applicants may submit the Electronic Diversity Visa Entry Form online at dvprogram.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

The principal applicant must also enter valid international travel passport information unless they meet the requirements for an exemption. An exemption may apply if they are stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

HOW DOES THE SELECTION PROCESS WORK?

• DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application.
• All DV-2023 entrants must go to the Entrant Status Check website using the unique confirmation number from the online registration to find out whether their entry has been selected in the DV P
• Entrant Status Check will be available at dvprogram.state.gov from 12 p.m. noon Eastern Daylight Time (EDT) on Saturday, May 7, 2022, through at least September 30, 2023. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR or green card) status – only the opportunity to apply for LPR

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM ELIGIBLE?

Applications for permanent resident status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2023; if an application is not approved by that date, the application is invalidated.  Note: more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. legal permanent residents if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the FY2023 Diversity Visa Lottery may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2023 Program Instructions.

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

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.