President Joe Biden’s American Citizenship Act of 2021, introduced in Congress in February, would provide large-scale immigration reform. But it will be difficult to pass such a comprehensive bill.

The last time comprehensive immigration reform made it through Congress was in 1986, during the Reagan Administration (although another, smaller bill passed in 1990, during the Bush Administration). Given that outlook, the administration has developed a “multiple trains” strategy – prioritizing certain pieces to move through Congress.

Legislation to protect “Dreamers” could be a successful carve-out. Of course, the idea of passing a separate measure to protect Dreamers is not new. Congress has tried to pass legislation for permanent relief for these individuals close to a dozen times since 2001. While these bills have generally garnered bi-partisan support, they have never passed. That is why President Barack Obama instituted the Deferred Action for Childhood Arrivals (DACA) Program as a stop-gap measure in 2012. DACA has managed to survive despite the Trump Administration’s efforts to end the program. But DACA still leaves Dreamers in limbo without a long-term solution.

There are two bills to help the Dreamers in Congress: the Dream Act of 2021 (the Senate bill) and a version of that act which is part of the American Dream and Promise Act of 2021 (the House bill). Within 15 days of being introduced, the House bill was passed in the House with a 228-197 vote. The House bill has more lenient terms for Dreamers, but both bills would provide a path to citizenship for Dreamers, with several differences in terms of eligibility.

  • The Senate bill sets the age of arrival at 17 years old or younger. In the House bill, the age limit is a bit more lenient – 18 or younger.
  • The Senate bill requires continuous presence for four years prior to the bill’s enactment. The House bill instead requires physical presence since January 1, 2021.
  • Both bills have a period of conditional permanent residence (CPR), which would include work authorization: eight years for the Senate bill and 10 years for the House version. CPR leads to Legal Permanent Residence and ultimately naturalization.
  • Both bills have disqualifying criminal convictions and exclude crimes related to lack of immigration status. But there are some differences. For instance, the House bill excludes minor traffic offenses, certain marijuana-related crimes, nonviolent civil disobedience, and domestic violence if related to victimization.

Additionally, the House bill has a secondary review process giving DHS the discretion to deny applications from individuals deemed to be threats to public safety. The House bill also would repeal the 1966 law penalizing states granting in-state tuition to Dreamers, allow Dreamers to access federal financial aid, and allow Dreamers deported under the Trump Administration to apply for relief from outside the U.S.

It has been estimated that the Senate bill would help 2 million Dreamers, while the House bill would help 3 million.

 

 

The Social Security Administration (SSA) has stated that it has discontinued mailing No-Match letters (also known as EDCOR notifications) to employers.

SSA stated that it plans to focus instead on making it easier for employers to fix errors electronically through its Business Services Online Portal.

Immigration advocates and many employers welcomed the announcement, particularly as businesses begin rehiring employees who may have been terminated over the past year due to the COVID-19 pandemic.

No-Match letters are notifications that an individual employee’s W-2 form does not match SSA’s records. Beginning in 2018, SSA restarted the practice of sending No-Match notifications to employers where employee records generated a mismatch. Receipt of a No-Match letter does not by itself mean the employee was working illegally or using a fraudulent Social Security card. Mismatches might be due to administrative errors, misspelled names, reversed numbers, or name changes (such as due to marriage). Nonetheless, employers, upon receipt of the EDCOR No-Match notification, were expected to take the appropriate actions – checking for errors in records and notifying the employee to resolve the issue with SSA. Employers were advised not to take adverse employment action against “noticed” employees solely due to a No-Match letter. Employers had to walk a narrow path – fearful that a No-Match letter puts them on notice that an employee might not have valid work authorization but, at the same time, hesitant to take any adverse action that could raise allegations of discrimination or document abuse under the law.

In announcing its decision to discontinue EDCOR letters, SSA said it will look for new ways to educate employers and update its software to inform employers instantly of errors in wage reports. SSA also will educate employees about the importance of accurate SSA records and how to take advantage of its online system to manage their personal records. If wages are not accurately reported, employees can lose out on future Social Security benefits.

SSA did not issue a formal public announcement about the end of No-Match letters; however, it was published on the SSA website under “Educational Correspondence to Employers” and stated:

At present, we are discontinuing EDCOR letters to focus on making it a better, easier, more convenient experience for employers to report wages electronically. We also will continue to seek out new opportunities to educate employers.

Please contact a Jackson Lewis attorney with any questions about SSA’s announcement or how your business may be affected.

USCIS expects to suspend biometrics requirements for H-4, L-2 and E-1, E-2, and E-3 Form I-539 applications beginning May 17, 2021, for at least 24 months. It will retain the discretion to require biometrics on a case-by-case basis.

The suspension is intended to eliminate the adjudication backlog that has prevented H-4 and L-2 spouses from receiving Employment Authorization Documents (EADs) in anything close to a timely fashion.

The suspension is expected to apply to these categories of Form I-539 applications if:

  • The application is pending as of May 17, 2021, and a biometrics appointment notice has not been received; or
  • The application is received by USCIS between May 17, 2021, and the expiration date of the suspension.

How USCIS will handle biometrics fees is not clear but guidance is expected.

Notice of the proposal came in a declaration from USCIS Service Center Operation Directorate Associate Director Connie L. Nolan in Edakunni v. Mayorkas, a litigation pending in federal district court in Seattle.

Background

In 2019, biometrics requirements were imposed on Form I-539 applications. This resulted in delays in processing H-4 and L-2 extensions and the dependent EAD applications. When the COVID-19 pandemic struck and Applications Support Centers that process biometrics closed, the delays mounted. On top of that, there were even printing delays. It was taking so long to get H-4 and L-2 EADs approved that individuals were losing their jobs and their benefits while waiting for the cards – even if they applied the full six months before their cards expired.

Suggested Changes

About 30 companies, including many large technology firms, wrote to USCIS on March 22, 2021, with some ideas on how to eliminate the current problem hamstringing them and many of their employees. They asked the Biden administration to consider the following:

  • Rescind the 2019 biometrics collection policy for EAD applicants because it is largely redundant. Most applicants have had biometrics collected as part of a consular visa application or another benefit application.
  • Provide automatic extensions of employment authorization for timely filed EAD applications as is done for TPS (Temporary Protected Status) EAD applications.
  • Allow applicants to file EAD renewal applications more than six months before their current EAD expires, giving USCIS more flexibility in terms of adjudication.

For now, USCIS appears to have chosen the first option on a temporary basis.

If you have questions about how the expected suspension will affect H-4 or L-2 EADs for spouses, Jackson Lewis attorneys are available to assist.

The entry of nonimmigrants who were physically present in India during the 14-day period preceding their attempted entry will be suspended beginning 12:01 a.m. EDT on May 4, 2021, according to President Joe Biden’s April 30 proclamation on risk of transmitting COVID-19. Anyone on a flight that departed for the United States prior to that time is not subject to the proclamation.

The United States has adopted 14-day entry-suspension proclamations for many countries (each slightly different) due to the COVID-19 pandemic. Like the others, the India restriction:

  • Will remain in effect until terminated by the president (the situation will be reviewed in 30-day intervals); and
  • Exempts:
    • U.S. citizens and Legal Permanent Residents;
    • Spouses, parents, and legal guardians, siblings, and children of U.S. citizens and legal permanent residents;
    • Members of the U.S. Armed Forces and their spouses and children;
    • Individuals on diplomatic visas or travelling under the United Nations Headquarters Agreement;
    • Individuals entering to further important U.S. law enforcement objectives or whose entry would be in the national interest.

One difference from similar proclamations issued by the previous administration is that this one refers to the affected nonimmigrants as “noncitizens,” rather than “aliens,” and adds “noncitizen nationals” (individuals with ties to American Samoa including Swain’s Island) to the list of those exempted.

Please reach out to your Jackson Lewis attorney for assistance regarding eligibility for exemptions or strategies to employ for individuals who are subject to any of the 14-day restrictions by virtue of residing in China, Iran, the United Kingdom, Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and, now, India.

White House Press Secretary Jen Psaki announced today that based upon CDC advice, India will be added to the list of countries subject to the 14-day travel restriction rule.  It is reported that the new rule will go into effect on Tuesday, May 4, 2021 at 12:01 am and that airlines and Congress have already been informed.  It appears that like the other 14-day restrictions, the India restriction will not apply to US citizens, US Legal Permanent Residents or others with exemptions.

Travelers who can enter the United States from India will be subject to the same testing restrictions as all other international travelers.

Jackson Lewis will provide updates as soon as they become available.

The COVID-19 pandemic has forced DHS to delay full enforcement of the REAL ID law from October 1, 2021, to May 3, 2023, the agency has announced.

The REAL ID law requires every air traveler 18 years or older to show genuine REAL ID-compliant identification documents at airport security checkpoints for domestic travel. Those under 18 must be travelling with an individual who has acceptable documentation.

As air travel continues to pick up, full enforcement of REAL ID is being extended by 19 months to May 3, 2023. This is good news for air travelers who have not yet been able to obtain REAL ID-compliant driver’s licenses or another TSA-acceptable forms of identification.

Secretary of Homeland Security Alejandro Mayorkas announced the extension, explaining: “As our country continues to recover from the COVID-19 pandemic, extending the REAL ID full enforcement deadline will give states needed time to reopen their driver’s licensing operations and ensure their residents can obtain a REAL ID-compliant license or identification card.”

While all 50 states (and most U.S. territories) are prepared to issue REAL ID driver’s licenses and identification cards, many have had to extend driver’s license renewal deadlines and switch to appointment-only scheduling because of COVID-19 restrictions. In its announcement, DHS stated, due to the pandemic, only 43 percent of state-issued driver’s licenses and identification cards are REAL ID-compliant.

The REAL ID Act was passed by Congress at the recommendation of the 9/11 Commission in 2005 as a way to improve security. Other forms of compliant documents for boarding domestic flights include:

  • U.S. passport or U.S. passport card
  • DHS trusted traveler card (Global Entry, NEXUS, SENTRI, and FAST)
  • U.S. Department of Defense ID, including IDs issued to dependents
  • U.S. permanent resident card
  • Border crossing card
  • DHS-designated enhanced driver’s license
  • Federally recognized, tribal-issued photo ID
  • Foreign government-issued passport
  • Canadian provincial driver’s license or Indian and Northern Affairs Canada card
  • U.S. Citizenship and Immigration Services Employment Authorization Card (I-766)

REAL ID-compliant driver’s licenses have a star at the top of license.

If you have questions about REAL ID, Jackson Lewis attorneys are available to assist you.

Deference is back! USCIS announced that, effective immediately, it will reinstate its 2004 policy of deferring to prior determinations of eligibility.

Rescinded by the Trump administration, this policy directed officers to “generally defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.” This means that prior determinations made by USCIS will receive deference unless “there was a material error, material change in circumstances or in eligibility, or new material information” that would have an adverse impact on eligibility.

This change is a result of President Joe Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The order was meant to break down barriers to fair and efficient USCIS adjudications, among other things.

The Trump administration’s rescission of USCIS deference policy has been identified as one of the factors that created processing delays and substantial backlogs at USCIS. Officers have been forced to unnecessarily re-adjudicate cases that previously would have been approved quickly and efficiently. Beyond processing delays, the rescission of the deference policy led to uncertainty for both foreign national employees and their employers. Even when circumstances were unchanged, employees and employers who may have worked together for years were suddenly confronted with the possibility that the rug might be pulled out from under their feet. Requests for evidence (RFEs) and even denials loomed. The return of the deference policy, though not a complete safeguard against a denial, would restore a degree of predictability and consistency that is necessary for family security, the smooth flow of business, and continuing economic growth.

Under the reinstated policy, if an officer does not defer to a prior approval, the officer must:

  • Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
  • Articulate the reason for the lack of deference;
  • Provide the petitioner or applicant an opportunity to respond to any new information; and;
  • Importantly, obtain supervisory approval before deviating from a prior approval.

If the problem is one of inadmissibility or of failure to maintain status, a “split decision” may be rendered – approving the petition classification, but not the extension. In such a case, it will be up to a consulate to make the final determination.

For any questions about the reinstated policy, please reach out to your Jackson Lewis attorney.

Customs and Border Protection has announced that travel restrictions on the Northern and Southern borders will be extended until May 21, 2021.

For close to 400 days, admission at the land ports of entry has been limited to “essential” travel. Essential travel generally includes individuals entering for work, but it does not include any sort of tourism and families have been separated during this time.

Representative Brian Higgins (NY -26), co-chair of the Northern Border Caucus, wants to see individuals with family, property, or business interests in Canada exempted from the restrictions and a full reopening of the Northern border by July 2021.

Representative Higgins said: “Families on both sides of the border have been torn apart, people who love each other, parents, grandchildren, unable to see each other …. We need a plan to open the U.S.-Canadian border. With vaccines, face masks and good physical distancing we can do so safely and successfully.” Beyond the essential travel restrictions, testing and quarantine requirements have been imposed as well.

Representative Higgins’ call comes at a time when the Department of State (DOS) is issuing new travel warnings due to “unprecedented” COVID-19 risks in 80 percent of the countries in the world. DOS plans to expand travel advisories and advise U.S. citizens to stay home. The Johns Hopkins Coronavirus Resource Center reports the top 10 COVID-19 “hot spots” include India, Brazil, France, Russia, the United Kingdom, Turkey, Italy, Spain, Germany, and the United States.

The Department of Homeland Security (DHS) has announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

U.S. employers may bring foreign nationals to this country to fill temporary, non-agricultural jobs in H-2B status. H-2B visas are relied on heavily by the tourist, hospitality, landscaping, seafood, and construction industries. In recent years, all the visas have been used up and businesses have gone begging for more – often just to be able to remain afloat.

Annually, 66,000 H-2B visas are available, half for the winter season and half for the summer season. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. For the summer of 2021, the Department of Labor received applications for a total of 98,000 workers, all vying for one of the coveted 33,000 spots. Due to the overwhelming demand, the 33,000 H-2B visas were used by February 12, 2021. The prospect of thousands of jobs unfilled for their busiest season panicked many industries.

For years, employers have advocated for additional H-2B visas. In response, Congress authorized DHS to release more visas. In 2020, DHS planned to release an additional 35,000 visas, with 10,000 specifically reserved for nationals of Guatemala, El Salvador, and Honduras, but that was put on hold due to high unemployment rates resulting from the COVID-19 pandemic.

It could be a few months before USCIS issues the final rule and obligations for employers to obtain one of the 22,000 new H-2B visas. If it is like last year, U.S. employers likely will need to perform additional recruitment before applying for the visas.

Jackson Lewis attorneys are available to assist you through the process of applying for the newly released H-2B visas and bringing new workers to the United States.

The Healthcare Workforce Resilience Act (HWRA) has been introduced in the Senate again. The bill would recapture 15,000 immigrant visas for doctors and 25,000 for nurses.

The bill has bipartisan support. Introduced by Senators Dick Durbin (D-IL), John Cornyn (R-TX), Todd Young (R-IN), Chris Coons (D-DE), and Susan Collins (R-ME), the bill focuses on starting to eliminate the shortage of healthcare workers in the United States that has become more apparent during the COVID-19 pandemic. Providing immigrant visas to doctors and nurses would not only be an attractive incentive to those overseas, but to those already in the United States because they would no longer be restricted by the geographic scope of their nonimmigrant visas. That limitation and questions about telehealth continue to be obstacles to deploying medical assistance where needed during spikes in COVID-19 cases across the country.

At the introduction of the bill, Senator Collins said, “By issuing unused employment-based visas to immigrant medical professionals, this bipartisan legislation would help strengthen our health care workforce and preserve access to care, particularly in rural and underserved communities in Maine and across our country.” If the bill passes as proposed, the filing period for the unused visas would end 90 days after the termination of the COVID-19 emergency declaration.

Under its provisions, the bill:

  • Recaptures unused visas for doctors, nurses, and their families;
  • Exempts the recaptured visas from country caps;
  • Requires employers to attest that no United States workers will be displaced by those petitioning for the visas; and
  • Requires no-fee expedited processing.

This bill has been introduced before, but might have even more force now because the idea of recapturing unused visas has been proposed by President Joe Biden in his U.S. Citizenship Act. Visas often go unused due to the mistakes in counting and administrative delays and errors – some, but not all, unused visas have been recaptured in the past by legislation.

The HWRA is supported by many organizations, including physicians groups (such as the American Medical Association, the American Academy of Family Physicians, and the American Academy of Pediatrics), nursing associations (such as the American Organization for Nursing Leadership), the National Rural Health Association, as well as the American Immigration Lawyers Association and the American Business Immigration Coalition.

The bill will be introduced into the House of Representatives, also on a bipartisan basis, by Representatives Brad Schneider (D-IL), Tom Cole (R-OK), Tom O’Halleran (D-AZ), and Don Bacon (R-NE).

Jackson Lewis attorneys will follow the progress of the bill and provide updates as they become available.