International travel during the COVID-19 pandemic has been challenging, but conditions are finally improving. Many Americans are now vaccinated against COVID-19. The latest CDC reporting indicates 50.9% of the U.S. population has received at least one vaccine dose and more than 41% of the U.S. population has been fully vaccinated.

Many international destinations are planning for an uptick in tourism – including Europe. Unfortunately, there remains no consistency in the rules in effect across the pond. With Europe opening, many have been hoping since May that the United States will reciprocate and eliminate at least some of the COVID-19 international travel restrictions.

The EU Commission’s overall recommendation is that tourists from countries with low infection rates be allowed to enter if they are fully vaccinated with an EU-approved vaccine. This is reflected in some recent developments from European countries. For example:

  • Denmark has opened to EU/Schengen countries and plans to open to international tourists later in June.
  • France plans to use a “traffic light” system to determine which countries’ residents can visit and what restrictions will apply.
  • Malta is open fully to vaccinated travelers.
  • The UK plans to use a “traffic light” system that will determine “green-listed” countries, who will need to quarantine, and what testing will be required.
  • Portugal is open to EU/Schengen countries and the UK.
  • Italy is open to those from the UK, the EU, and Israel who are fully vaccinated.
  • The Netherlands is open to 15 low-risk countries.
  • Greece has been open to the EU, the United States, the UK, and Israel if the travelers are fully vaccinated or have a negative COVID-19 test.

In the meantime, the CDC has lowered travel restrictions for more than 100 countries. Further, especially due to upcoming international travel requirements, the United States is considering offering voluntary documentation that would allow U.S. residents to prove vaccination status. However, these vaccine “passports” have been controversial and a spokesperson from DHS noted that there will be “no federal vaccination database or a federal requirement for Americans to provide they’ve been vaccinated . . . . ” The status of these “passports” promises to be an evolving area, considering the privacy concerns that have been raised, such as in New York.

For now, everything is country by country and airline by airline – and everything is subject to change (make sure your airline tickets and hotel reservations are refundable!).

Those planning to travel need to make sure to check with the appropriate consulates before starting to plan. Jackson Lewis attorneys stand ready to assist with any questions you may have.

Secretary of the Department of Homeland Security Alejandro N. Mayorkas has announced several new USCIS policies meant to improve the legal immigration system, eliminate barriers, and reduce burdens on applicants.

He issued the following new policies:

  1. Expedite Criteria

USCIS generally does not consider expedite requests for petitions and applications where Premium Processing Service is available. However, a petitioner that is designated as a nonprofit organization by the IRS acting in furtherance of the cultural and social interests of the United States may now request that the benefit it seeks be expedited without a fee, even if premium processing is available for that benefit. Of course, USCIS retains discretion to deny that request.

  1. Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

In 2018, during the Trump Administration, USCIS issued a policy that permitted agency officers to deny certain immigration benefit requests without first issuing an RFE or a NOID. This meant that some petitioners or beneficiaries would not have an opportunity to fix minor errors or provide more documentation. Instead, they would have to file motions to reopen, appeals, or simply reapply. The updated policy restores those opportunities by noting that RFEs or NOIDs should be issued (before a denial) if there is a possibility the petitioner or applicant can overcome ineligibility by submitting additional evidence. The policy also emphasizes that unnecessary RFEs or NOIDs should not be issued.

  1. Employment Authorization Documents

The new policy increases current one-year validity period to two years for certain adjustment of status applicants. This should reduce the number of EAD applications that must be filed – helping USCIS – and mean that applicants will less frequently become subject to gaps in employment authorization due to USCIS backlogs.

These three changes will help reduce backlogs at USCIS and give some petitioners and applicants ways to avoid those backlogs.

Jackson Lewis attorneys are available to assist you in understanding how these changes will affect your immigration matters.

As several cities are allowing businesses to resume their operations to pre-pandemic levels, many employees are being called back to on-site work. Thankfully, schools have been welcoming children for in-person learning for several months now, and parents are hoping to send them to summer camps. Approximately 26 million American children attend summer camps in a “normal” year, and this year there is a pent-up desire and demand.

The president and CEO of the American Camp Association discussed the importance of summer camps in 2021 because “[c]hildren need to regain some of those unpracticed social and emotional competencies, friendship skills and communication skills” they have lost due to the COVID-19. The problem is that many summer camps rely on hiring foreign students in J-1 Work/Travel cultural exchange programs to serve as camp counselors – and this year, for many camps, that is not going well: like other businesses that rely on temporary, seasonal workers, summer camps are having visa troubles.

The first major hurdle was when former President Donald Trump instituted a nonimmigrant visa ban last year that included most types of J-1 visas. That ban was lifted, but the backlogs at the U.S. consulates remain, and visas for camp counselors are not top priority. Some camps fear that they will not be able to open and others will have to cut back on programs – even those serving disabled children.

Exchange students from abroad also fill other seasonal jobs in tourist areas. In a typical year, about 100,000 students travel on a J-1 visa for Work/Travel programs. Exchange visitor programs are meant to “assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.” The foreign students learn about the United States, travel after finishing their work programs, and add to diversity. They “discover America and meet Americans.”

The J-1 exchange programs are sponsored by the Department of State and are diplomatic in nature. Businesses are pressing DOS to create national interest exceptions for J-1 cultural exchange applicants to facilitate their travel to the United States. Senator Jean Shaheen (D. NH) has also been pushing the White House to address the J-1 visa backlog, noting that the program is “critical to fill seasonal jobs . . . like summer camps and lifeguarding.” So, while camp directors make plans to open safely following CDC Guidelines, they may not be able to offer a full slate of programs due to lack of staff.

Last year, camps lost approximately $16 billion in direct revenue. If anything close to that happens again, the economies in areas that rely heavily on camping and tourism may not be able to bounce back.

If you have any questions regarding J-1 exchange programs, please reach out to your Jackson Lewis attorney.

 

 

In Sanchez v. Mayorkas, 593 U.S. ____(June 7, 2021), the U.S. Supreme Court resolved the circuit split on whether a grant for temporary protected status (TPS) authorizes eligible noncitizens to adjust status to lawful permanent resident even if they entered the United States unlawfully – the Court held that it does not.

Previously, courts in the Sixth, Eighth, and Ninth Circuits have held that the grant of TPS cured the unlawful admission, allowing individuals in those Circuits to adjust status.

TPS grants temporary humanitarian relief from deportation to individuals from certain countries where, due to natural disaster or armed conflicts, conditions are too dangerous for the individual to return. The TPS section of the Immigration and Nationality Act (INA), in Section 1254a(f)(4), establishes that individuals granted TPS are maintaining lawful nonimmigrant status. The INA also provides that a nonimmigrant may adjust status to permanent resident based upon “a lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Sanchez rests on whether there is an “indissoluble” link between “the conferral of nonimmigrant status” and the “conferral of admission.” The Supreme Court in this unanimous decision held that there was no such link. The Court held that the legal-entry requirement is distinct and independent.

With no link between the grant of TPS and the concept of “admission” to the United States, the decision creates two outcomes for TPS recipients: (1) those who entered legally are potentially eligible to adjust status to lawful permanent resident; and (2) those who entered the United States unlawfully are not eligible to adjust status to lawful permanent resident.  While Jose Santos Sanchez loses out, others still receive the desired benefit.

Justice Elena Kagan, writing for the Court, notes that there is pending in Congress the American Dream and Promise Act that specifically states that “a TPS recipient shall be considered ‘as having been inspected and admitted into the United States, ’ as being in, and maintaining, lawful status as a nonimmigrant . . . .” She also states that the Court simply cannot read that into the current statute.

In the past, some TPS beneficiaries were able to overcome their initial unlawful admission and adjust status by travelling outside of the United States and re-entering using Advance Parole. But that loophole was closed by a policy change in August 2020.

For advice on strategies for TPS beneficiaries who entered the United States unlawfully, please reach out to your Jackson Lewis attorneys.

 

 

By June 1, 2021, Department of Homeland Security (DHS) had received more H-2B visas petitions than the allotted 16,000 slots for returning workers. A lottery will be conducted to determine which petitions will be accepted for processing.

DHS announced in April that it will release 22,000 more H-2B visas for the summer season. Of those, 16,000 are available to returning workers and 6,000 are allotted to nationals from the Northern Triangle countries (El Salvador, Guatemala, and Honduras). Petitions were accepted by USCIS starting on May 25, 2021.

The 6,000 allotment for Northern Triangle countries has not yet been met and USCIS is still accepting these petitions through July 8. If all 6,000 spots are not filled, DHS will announce by July 23, 2021, that the remaining spots will be released and available to returning workers of any nationality. DHS encourages employers whose petitions were not selected under the returning worker quota to refile for workers from the Northern Triangle.

There are certain workers who are exempt from the cap and DHS will continue to accept petitions from them:

  • Current H-2B workers in the United States petitioning to extend their stay;
  • Workers associated with fish roe processing; and
  • Certain workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam.

For help with H-2B visas, please reach out to your Jackson Lewis attorney.

After a three-year investigation by Homeland Security Investigations (HSI), two hand-carved lintels from ancient temples in Thailand were returned to the Thai government during a joyous ceremony including dancers and prayers at the Royal Thai Consulate-General in Los Angeles.

HSI is the principal investigative arm of the Department of Homeland Security. With a workforce of over 10,000 employees, HSI has Special Agents across the United States and in 53 countries. This presence abroad is “one of the largest international footprints in U.S. law enforcement.” HSI’s Cultural Property, Art and Antiquities Smuggling arm has, since 2007, returned more than 11,000 artifacts to over 30 countries.

The lintels are religious artifacts made of sandstone in the 9th and 10th centuries and are identified as being from the Nong Hong Temple and the Khao Lon Temple in northeastern Thailand – both protected sites. The sandstone lintels weigh about 1,500 pounds each. They were exported from Thailand more than 50 years ago, allegedly in violation of Thai law. They were donated to the Asian Art Museum in San Francisco.

In 2016, the Thai consul general saw the lintels displayed at the museum and asked to have them returned to Thailand. HSI negotiated their return for close to four years. The full provenance is not clear, but the lintels, donated to the museum, are valued at approximately $700,000.

Acknowledging that there is a continuing black market in Thai artifacts, the Thai ambassador to the U.S., Manasvi Srisodapol, hoped that the publicity surrounding the return would raise public awareness and help to stem the removal of cultural patrimony. Ambassador Srisodapol called the repatriation ceremony the beginning of the lintels’ “sacred journey back home.”

The Department of Homeland Security will no longer be collecting civil financial penalties for noncitizens who fail to depart from the United States. Secretary Alejandro Mayorkas announced that “[t]here is no indication that these penalties promoted compliance” and that the penalties were “ineffective and unnecessary punitive measures.”

The fines for undocumented workers who failed to leave the country in accordance with an order of deportation were $799 per day. It is reported that one such immigrant who was seeking sanctuary in a church in Ohio was levied a fine of $497,777 (which was ultimately withdrawn after her attorney made the fine public). Fines of that nature were impossible to collect. Indeed, it is reported that ICE was only able to collect about 1% of the fines issued. DHS has had the ability to impose these penalties for twenty years, but they had not been used until 2018, during the Trump administration.

Secretary Mayorkas and Acting ICE Director Tae Johnson explained that the fines were ineffective and that ICE plans to coordinate with the Department of Treasury to cancel any pending debts. ICE stopped assessing these fines on the day President Joe Biden was inaugurated but now the rescission of these fines has been formally announced. This is part of the Biden administration’s overall plan to focus on removing individuals who pose “the greatest risk to national security and public safety.”

Acting Director Tae Johnson is a holdover from the Trump administration, which had eight acting directors of ICE but never a Senate-confirmed Director. On April 27, 2021, President Biden announced that he will nominate Ed Gonzalez, the current Harris County (Texas) Sherriff, to head ICE. Before becoming Sherriff in 2016, Gonzalez spent 18 years in the Houston Police Department and served several terms on the Houston City Counsel. He is known for his opposition to the “zero tolerance” policy and to having local law enforcement act on behalf of the immigration agency.

It is not yet known when his confirmation hearing will be scheduled.

Although the Biden Administration has taken steps to maintain H-4 EADs for spouses of highly skilled H-1B workers, the program is still in jeopardy. Now, the Biden Administration is representing the Department of Homeland Security (DHS) in defending the H-4 EAD rule.

In 2014, the Obama Administration published the H-4 EAD rule, giving certain H-4 spouses the ability to apply for work authorization. These spouses were married to H-1B workers who were being sponsored for green cards and who were waiting in line, along with their spouses, to get permanent residence, including work authorization. By 2015, a group of technology workers filed a suit in federal court claiming that the Obama Administration had exceeded its authority by granting work authorization to non-citizens without legislation. That case had various starts and stops and ups and downs, but it is now active again. During the Trump Administration, the case was slowed down because it seemed that President Donald Trump was going to withdraw the H-4 EAD rule. Despite many threats, that never happened.

Summary judgment motions have been filed in the lawsuit, and a group of tech giants and trade groups have filed an amicus brief arguing, along with DHS, that there was nothing illegal about the program’s establishment. The companies argue that:

  • Granting spouses work authorization makes it easier to hire and retain highly skilled H-1B workers; and
  • Eliminating H-4 EADs could mean that needed talent would be more attracted to other countries that are more hospitable.

More than 90,000 spouses currently work pursuant to H-4 EADs. Most of these spouses are highly educated themselves and are married to Indian nationals. Further, most of them are women – many of whom have already been negatively affected economically by the COVID-19 pandemic.

The amicus brief explains the problem succinctly:

This is a case of enormous practical consequence: The regulation at issue here—the H4 Rule . . . —provides work authorization to more than 90,000 H-4 visa-holders (spouses of certain H-1B visa-holders), more than 90% of whom are women. Invalidation of this rule would result in these talented individuals being barred from the workplace, forcibly severing tens of thousands of employment relationships across the country. The results would be utterly destructive for the families impacted; by just one measure, about 87% of these families have made crucial life decisions on the promise of H-4 employment, including whether to have a child and whether to buy a house.

Regardless of the result of the summary judgment motions, there will probably be appeals and, with the appeals, more uncertainty. At a time when our economy needs boosting, this uncertainty can prevent new H-1B workers from coming to the United States and prevent those who are already here from making long-term economic commitments. The best solution is legislation.

President Joe Biden has included work authorization for H-4 spouses in his American Citizenship Act of 2021. The Biden Administration has indicated that it is open to passing parts of the legislation where there can be bipartisan agreement. Bills have been previously introduced that would have prevented the rescission of the H-4 EAD rule. Perhaps actually providing H-4 employment authorization will also come to the fore.

Jackson Lewis attorneys will continue to provide updates on this topic.

By tweet, the Department of Homeland Security announced an extension of the travel restrictions at the Northern and Southern land and sea borders until June 21, 2021.  These borders have been closed to “non-essential” travel since March 2020 due to COVID-19.  According to the restrictions:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes.
  • Individual are admitted for “essential” purposes including travel for work, medical reasons, to attend educational institutions, and diplomatic or military-related travel.
  • Citizens and permanent residents of the country they are entering are excepted from the ban.

While these restrictions do not apply to air travel, some families have not been able to see each other for over a year. But, in accordance with its tweet, DHS has stated it is working with Canada and Mexico to “ease restrictions as conditions improve.” Canada’s COVID-19 positivity rate is dropping in some provinces, while infections multiply in others. In the meantime, DOS has issued Level 4 Do Not Travel Advisories for both Canada and Mexico.

Jackson Lewis will provide updates on the travel restrictions as they become available.

Based on the Centers for Disease Control and Prevention’s (CDC) updated guidance, USCIS is opening its doors to “unmasked,” “fully vaccinated” people.

According to USCIS’ new visitor policy:

  • Fully vaccinated people (those who are at least two weeks out from a dose of a single-dose vaccine or the second dose in a two-dose vaccine series) no longer need to wear face coverings in USCIS facilities.
  • Individuals over two years old who are not fully vaccinated must still wear face coverings, and those face coverings must meet USCIS standards.

In addition:

  • Fully vaccinated people with no COVID-19 symptoms who have returned from domestic or international air travel or cruise ship travel in the previous 10 days may enter USCIS facilities.
  • Fully vaccinated people who have been in close contact with anyone known to have COVID-19 in the previous 14 days also may enter USCIS facilities.

This should ease some of the problems that have arisen for those who need to attend USCIS appointments but have also had to travel or have been exposed to someone with COVID-19 – as long as they are fully vaccinated.

Of course, there are still restrictions including:

  • Individuals with appointments may only be accompanied by an attorney, interpreter, parent or legal guardian, dependents listed on the interview notice, or someone assisting a disabled person to allow for social distancing.
  • No guests are allowed at naturalization ceremonies other than individuals assisting disabled persons – again, to allow for social distancing.
  • Those who are feeling sick are told not to come to any USCIS office, but they will be able to reschedule appointments with no penalty.
  • Individuals who have been instructed to self-isolate or self-quarantine within the previous 14 days will not be allowed to enter a USCIS facility.

Jackson Lewis attorneys will continue to provide updates.