The Administration has imposed new restrictions beginning November 29, 2021 at 12:01 a.m. ET on individuals travelling to the United States from Botswana, Eswatini, Lesotho, Malawai, Mozambique, Namibia, South Africa, and Zimbabwe (the “South African restrictions”) in response to the appearance of the COVID-19 Omicron variant. These restrictions go into effect just three weeks after the lifting of other geographic travel restrictions. Those on board a flight to the United States that departed prior to 12:01 a.m. ET will not be affected.

Like the prior geographic limitations, the South African restrictions apply to anyone who has been in one of the restricted countries anytime during the 14 days prior to travel. U.S citizens and permanent residents are not subject to this ban. Others who are exempted include: family members of U.S. citizens and permanent residents, crew members, diplomats, members of the U.S. armed forces, and those whose entry is in the national interest. National Interest Exceptions (NIEs) are expected to be in effect.

The U.S. Embassy in South Africa has announced that consulates in South Africa will continue to accept and process nonimmigrant visa applications while the restrictions are in place. This is a marked change from NIE processing previously, where consulates refused to accept nonimmigrant applications without an approved NIE waiver.

These new restrictions have been described as precautionary. The CDC will be introducing other measures. Those who are exempted from the ban must show proof of a negative COVID-19 test prior to travel. The “fully vaccinated” rules (and its exemptions) also will apply.

The restrictions will remain in effect until terminated by the President.

Jackson Lewis attorneys will provide updates as they become available.

U.S. passport agencies maintained extremely limited operations as a consequence of the COVID-19 pandemic. There were significant delays, application status could not even be checked online and people were encouraged to wait to apply until normal operations resumed absent life or death emergencies. In June 2020, the agency started resuming regular operations with a backlog of 1.7 million applications in place. The Department of State recommends that individuals apply four to six months in advance of travel, but the published timelines are not quite that long. Those timelines suggest that regular processing should take two to three months and expedited processing (which is available now) takes five to seven weeks from the time the application is submitted.

Submission can be another hurdle. In-person application spots are limited and individuals must apply in person (not by mail) if any of the following apply:

  • First passport application;
  • Applicant is under 16 years of age;
  • Last passport was issued when the applicant was under 16 years of age;
  • Prior passport was lost, stolen, or damaged; or
  • Prior passport was issued more than 15 years ago.

Individuals applying for U.S. passports may receive the new Next Generation Passport. The new passport is modernized and designed to be smarter and safer than older passports. It has new security features including polycarbonate data page, laser engraved personalization, and updated artwork featuring images of U.S. architecture, history, culture, landscapes, and traditions. Prior versions of U.S. passports and cards continue to be valid until they expire. The Passport Agency also notes that even those who apply now may still receive the older style passport while it gradually replaces its passport printers.

Although most U.S. citizens receive passports with “regular blue” covers, some U.S. passports have different covers. Among others, there are:

  • Diplomatic Black Passports for foreign service officers and others with diplomatic status;
  • Official Brown Passports for employees of the U.S. government when travelling abroad on business; and
  • Service Gray Passports issued to third-party contractors travelling in support of the U.S. government.

When you travel abroad on a U.S. passport, you may be required to present a passport with at least six months’ validity beyond your proposed travel dates.

If you have any questions about applying for U.S. passports in the United States or abroad, Jackson Lewis attorneys are available to assist you.

Nonimmigrant spouses of H-1B and L-1 visa holders with long-pending EAD applications have finally received some relief. Based upon a settlement in Shergill v. Mayokas, USCIS is making major policy changes. Going forward, certain H-4 spouses with pending EAD applications will be entitled to 180-day automatic extensions of their EAD cards and L-2 spouses will no longer need EADs, they will have employment authorization incident to their L-2 status.

H-4 dependent spouses qualify for the 180-day automatic extension if:

  • The EAD renewal application is filed before the current EAD expires; and
  • The applicant’s Form I-94 Arrival/Departure Record shows unexpired H-4 status beyond the EAD expiration date.

The 180-day automatic extension will expire the earlier of:

  • The end of the applicant’s H-4 status as noted on their Form I-94;
  • The approval or denial of the Form I-765 renewal application; or
  • 180 days from the expiration date on the face of the current EAD.

With respect to Form I-9, Employment Eligibility Verification:

  • USCIS will issue specific guidance; basically, the employee will have to present the expired EAD, the I-797 receipt notice showing a timely filed renewal application, and an unexpired I-94 showing valid H-4 status.
  • Within 120 days, USCIS will start issuing receipt notices that detail the EAD automatic extension.

For L-2 dependents:

  • USCIS will issue policy guidance indicating that L-2 spouses are employment-authorized incident to status.
  • Within 120 days, in cooperation with Customs and Border Protection, USCIS will change the Form I-94 to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for I-9 purposes.
  • Until the Form I-94 is changed, L-2 spouses who timely file EAD renewal applications and have L-2 status beyond the EAD expiration date will be entitled to the same 180-day automatic extension that will apply to H-4 spouses.

As noted, these extensions will only help applicants who have valid H-4 or L-2 status that extends beyond the expiration dates of their current EADs. Applicants with pending H-4 extensions, however, may be able to take advantage of the automatic extensions if their spouses’ H-1B statuses have already been extended and they can leave the United States and extend their H-4 status by re-entering.

If you have questions about how the new policy will apply and what strategies may be necessary, Jackson Lewis attorneys are available to assist.

More business immigrant visas may become available if the latest version of the Build Back Better reconciliation bill passes.

If approved by the Parliamentarian and passed as it stands, the bill would make more immigrant visas available by:

  • Recapturing unused visa numbers from 1992 to 2021;
  • Retaining the availability of Diversity Visas from fiscal years 2017 to 2021; and
  • Making it possible for individuals with approved employment-based immigrant visas and priority dates more than two years away to file applications for adjustment of status by paying an additional $1,500 fee.

The bill substantially increases many filing fees and, rather than depositing those fees into the USCIS account, the supplemental fees would be deposited into the U.S. Treasury’s general funds. Because the budget for USCIS operations is based on the fees collected, this would be a change that would not directly benefit USCIS. USCIS needs funds to build its staffing and decrease its backlog of applications. To adjust for this, the reconciliation bill proposes to add $2.8 billion to the USCIS budget to increase its capacity.

This is not the first time in recent years that USCIS filing fee increases have been proposed. In August 2020, during the previous administration, the Department of Homeland Security published a new rule that raised USCIS filing fees by a weighted average of 20 percent. Some of the most popular business-related petitions were slated for larger increases. There were complaints over the negative effects this would have on the economy. This led to litigation and, by the end of 2020, the fee increase was not implemented.

The supplemental fees in the current House reconciliation bill include an additional:

  • $500 for E, H-1B, L, O, and P petitions (Form I-129);
  • $500 for each application to change or extend nonimmigrant status (Form I-539);
  • $500 for applications for employment authorization (Form I-765);
  • $75 for each approved nonimmigrant visa;
  • $800 for each employment-based immigrant visa petition (Form I-140);
  • $500 for requesting a replacement or expired permanent residence card (Form I-90); and
  • $15,000 for each immigrant petition for an alien entrepreneur (Form I-526).

If these $500 changes become law, the fee increases will be higher than those proposed in 2020. For example, in 2020, H-1B fees were being increased by $235, to $695. L petitions were to be increased by $345, to $805. Applications to change or extend nonimmigrant status were being increased by only $20, to $390. Fees for Form I-140s were scheduled to decrease.

The fate of the House reconciliation bill and its various provisions is far from clear. Jackson Lewis will provide updates as they become available.

Efforts to pass “Dreamers” bills that would provide a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA) recipients have remained stagnant. In an effort to stabilize the DACA program, absent congressional action, the Department of Homeland Security (DHS) has published a proposed federal regulation announcing its intent to codify the DACA program.

The proposed rule keeps DACA eligibility guidelines consistent with the June 15, 2012, DACA memorandum issued by former Secretary of Homeland Security Napolitano during the Obama Administration, but provides some clarification:

  • The optional employment authorization requires a separate application. Accordingly, although the total fees will remain at $495, requestors can pay $85 when requesting DACA (Form I-821D) and can request a work permit, which would cost an additional $410 (Form I-765). The request for a work permit can be submitted at the same time or subsequently. Regardless of when employment authorization is requested, the grant period for the work permit will not exceed the grant period given by DACA.
  • DACA requestors must establish an economic need to be eligible for employment authorization by filling out Form I-765WS along with Form I-765.
  • DACA recipients are lawfully present in the United States under the Social Security regulations.
  • DACA recipients do not accrue unlawful presence.
  • DACA recipients are eligible to petition for advance parole for urgent humanitarian or significant public benefit reasons.
  • DACA recipients returning with advance parole can satisfy the “inspected and admitted or paroled” requirement for adjustment of status purposes under INA § 245(a).
  • Information about DACA recipients and their family members included in DACA requests will not be shared affirmatively with Immigration and Customs Enforcement, U.S. Customs and Border Protection or law enforcement agencies for immigration enforcement-related purposes, unless an exception applies, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
  • USCIS may terminate a person’s DACA at any time with or without issuance of a Notice of Intent to Terminate when a person does not meet the threshold criteria, commits disqualifying crimes, or presents national security, public safety concerns, or other adverse factors.
  • USCIS will automatically terminate DACA when a Notice to Appear (NTA) is filed with the immigration court (unless USCIS issues the NTA in relation to an asylum application) or a DACA recipient leaves the United States without advance parole.
  • A DACA termination automatically results in termination of the employment authorization document.
  • DACA itself does not confer any rights or entitlements to remain in or re-enter the United States. DHS may initiate any criminal or other enforcement action against a DACA recipient at any time.

The proposed rule seeks to clarify criminal-related bars for DACA eligibility. DHS is proposing to clarify the term “significant misdemeanor” by identifying specific misdemeanors that would be automatic bars to DACA eligibility. These would be offenses for which the individual was sentenced to time served in custody of more than 90 days. Having a felony or significant misdemeanor conviction are already automatic bars to DACA eligibility, but the proposed rule would expand this to expunged convictions. DHS is welcoming comments on whether to include a more detailed definitions of these offenses, including what constitutes “minor traffic offenses.” The public has until November 29, 2021, to submit comments about this rule.

Even after the proposed rule becomes final, the DACA program would continue to hinge on courts’ interpretations of the program. But absent a court order preventing DHS from continuing the DACA program, once the final rule is published, USCIS may begin to accept and adjudicate initial DACA requests from persons who never had DACA, along with DACA renewals.

 

As of 12:01 a.m. ET on November 8, 2021, the United States’ country-specific 14-day COVID-19 travel restrictions that have been so troublesome and disruptive for individuals and businesses will be eliminated. Instead, protecting the country from COVID-19 will focus on vaccination status.

President Joe Biden’s “A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic” provides that, on November 8, 2021, the entry by air of nonimmigrants (not U.S. citizens, immigrants, or green card holders) who are not fully vaccinated will be suspended, with certain exceptions and requirements. The Proclamation will not apply to passengers already on airplanes at 12:01 a.m. ET on November 8 and clearly states that the new restrictions will not affect the issuance of visas. One exception is for individuals whose entry is in the “national interest” – National Interest Exceptions (NIEs), it seems, will still be on the list of those who are not fully vaccinated (although they must get vaccinated within 60 days of entry into the country, unless they qualify for an exemption).

The list of nonimmigrants excepted from the fully vaccinated requirement includes:

  • Crew members of airlines (or sea crew members) whose operators adhere to all CDC guidelines;
  • Individuals in certain diplomatic-type visa status;
  • Individuals whose age makes vaccination inappropriate;
  • Individuals involved in certain clinical trials;
  • Individuals for whom vaccination is medically contraindicated;
  • Individuals who have received emergency or humanitarian exceptions from the CDC;
  • Individuals (except for those seeking to enter in B status) seeking to enter from countries where COVID-19 vaccination is limited — including countries with less than 10% of their total population fully vaccinated or as otherwise determined by the CDC;
  • Members of the U.S. Armed Forces, their spouses, and children; and
  • Any noncitizen or group of noncitizens whose entry would be in the national interest as determined by the Secretaries of State, Transportation, Homeland Security, or their designees.

Where an individual qualifies for entry based on at least one exemption, they must still:

  • Provide proof of a pre-departure negative COVID-19 test;
  • Wear a face mask throughout their travel;
  • Arrange for post-arrival COVID-19 testing prior to arrival;
  • Provide proof of arrangements for self-quarantine or self-isolation upon arrival; and
  • Agree to become vaccinated within 60 days of arrival if medically appropriate, unless the stay is determined to be sufficiently brief, the individual is participating in certain clinical trials, the individual has already received a COVID-19 vaccine that is authorized in their country, or the CDC determines vaccination is not warranted.

The Proclamation directs the Secretary of Health and Human Services, through the Director of the CDC, to implement the Proclamation and define all the requirements, including, but not limited to, what constitutes “fully vaccinated,” how individuals must prove compliance with all applicable CDC recommendations, and what countries will be on the list of places where vaccination is limited.

Please contact a Jackson Lewis attorney if you have any questions.

The PERM Labor Certification Process (PERM) has been used since 2005 by U.S. employers to sponsor foreign national employees for Lawful Permanent Residence, also known as “green cards.” Through the PERM process, employers are required to test the U.S. labor market through a very structured, highly regulated recruitment designed to protect U.S. workers and see if any minimally qualified U.S. workers are available for the position. The employer can only sponsor a foreign national for a green card through the PERM process if no minimally qualified U.S. workers apply for the position. Employers may need to adjust their settled expectations about PERM recruitments in light of a recent lawsuit filed by the Department of Justice (DOJ).

The DOJ in that case stated that similar recruiting efforts should be undertaken for U.S. workers and foreign nationals. In 2020, the DOJ filed a lawsuit against a company alleging that its PERM recruitment process discriminated against U.S. workers. Even though the company had followed all regulatory requirements set by the Department of Labor (DOL), which supervises the green card process, the DOJ posited the company’s recruitment was still discriminatory because the process did not closely resemble the employer’s usual recruiting procedures. DOJ said the company’s recruitment practices for comparable PERM-related and non-PERM-related positions varied significantly. Although the company complied with DOL’s recruitment procedures for the PERM-related positions, the DOJ alleged the company relied on purportedly less effective advertising methods designed to deter U.S. applicants when recruiting for PERM-related positions, and that in doing so they effectively discriminated against U.S. workers. The company decided to settle the case for millions and allow its PERM processes to be subject to additional scrutiny (“supervised recruitment”) from DOL for the next three years.

DOJ appears to be taking a holistic approach when enforcing the PERM program. In addition to ensuring that all regulatory requirements are met, the government is communicating to all U.S. employers that they should align their normal recruiting practices when recruiting for PERM positions. DOJ did not comment on whether the DOL regulations are discriminatory in and of itself.

For the time being, the PERM process remains unchanged; however, PERM-sponsoring employers should consider reviewing their hiring practices for both PERM and regular recruitment to:

  • Ensure all positions have associated requisition numbers categorized by job profiles
  • Institute centralized application methods so all applicants are invited to submit resumes using same or similar media (i.e., email or electronic submission through careers website)
  • Streamline job descriptions across all ad postings
  • Maintaining a database of applicants for all positions and allowing internal HR teams to identify, consider, and hire from the larger pool of applicants
  • Capture requirements (i.e., educational, years of experience) and benefits offered for each role (e.g., telecommuting or remote work, travel requirements)
  • Offer newly opened positions to recently laid off employees
  • Provide anti-discrimination training for HR and Talent Acquisition teams

Employers are urged to consult their legal counsel to review the practical application of PERM recruiting regulations on their standard practices to ensure they are fairly considering applicants who apply for employment.

The decades-old I-9 Employment Eligibility Verification process may be in for some changes. The Department of Homeland Security is requesting “public input” regarding the document examination process.

Employers interested in the permanent continuation of Form I-9 flexibility might be encouraged by the agency’s official announcement on October 26, 2021. While the request is for “information and program-planning purposes” and any changes would be at the agency’s sole discretion, changes may be considered as long as they “offer an equivalent or higher level of security.” These changes likely are part of the administration’s move toward modernization in the I-9 process.

Since March 2020, companies that have been operating remotely due to the COVID-19 emergency have been able to inspect Section 2, Form I-9 documents virtually, over video link, or by fax or email. In April 2021, the DHS clarified that, for companies continuing to operate at least partially remote due to COVID-19, in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” DHS announced that the ongoing flexible procedures would continue at least through December 31, 2021. The agency now appears to be considering making some remote I-9 procedures permanent.

Through the Request of Information, DHS seeks comments from employers of all sizes, trade groups, recruiting and onboarding organizations, researchers, policy experts, and other members of the public. The department has identified certain questions for guidance purposes but notes that the list is non-exhaustive. The questions range from those geared toward understanding employers’ experiences with the technology involved in I-9 flexibility to those about the results from subsequent E-Verify or physical examinations. DHS wants to know how often the subsequent results were inconsistent with the remote examinations in determining whether the documents presented were genuine and, in fact, relate to the person presenting the documents for inspection.

DHS also is interested in finding out how many employers successfully used “authorized agents” for verification purposes due to COVID-19. Further, it wants to know whether conditions on using flexibility (such as required enrollment in E-Verify, document or image quality requirements, document retention requirements, or required training) would “impact an employer’s desire or ability to utilize” flexibility.

Public input is due within 60 days, or by December 27, 2021. For information about the DHS request or details about the flexibility requirements and how to ensure your company is in compliance, please reach out to your Jackson Lewis attorney.

Instructions allowing Hong Kong Deferred Enforced Departure (DED) beneficiaries to apply for employment authorization have been published in the Federal Register.

On August 5, 2021, President Biden granted DED for certain eligible residents of Hong Kong for 18 months, until February 5, 2023, and directed that instructions on how to apply for employment authorization be issued. DED is a humanitarian administrative stay of removal and is authorized based upon the President’s constitutional authority to conduct foreign relations. It is generally granted where foreign nationals in the United States might face danger if required to return to areas or countries experiencing political instability, conflict, or other unsafe conditions.

Those eligible for Hong Kong DED must, among other things:

  • Hold a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region Document of Identity for Visa Purposes;
  • Have been present and continuously resided in the United States since August 5, 2021; and
  • Have not voluntarily returned to Hong Kong or the People’s Republic of China after August 5, 2021.

There is no “application” for DED, but those who are eligible for DED may apply for an Employment Authorization Document (EAD). To do so, the applicant must:

  • File an Application for Employment Authorization (Form I-765) and indicate that they are eligible for DED, which is category (a)(11) on the form;
  • Submit the requested documentation pursuant to the form’s instructions; and
  • Submit the fee ($410) or request a fee waiver.

USCIS will notify the applicant if biometrics are required.

EADs, including those issued based on DED, are List A Documents for Form I-9 Employment Eligibility Verification purposes and should be accepted as such.

The instructions indicate that DED beneficiaries may also apply for travel authorization (Advance Parole), which will be granted in the discretion of the Department of Homeland Security. Filing for Advance Parole means filing with USCIS a Form I-131 with the appropriate fee. The Form I-131 may be filed concurrently with the Form I-765.

For more detailed instructions, please see the Federal Register.

If you have any questions about Hong Kong DED, please reach out to your Jackson Lewis attorney.

In the past, the O-1 visa was how many foreign musicians and other artists were able to tour and work in the United States. Now, for many reasons, they may have to consider other strategies.

The O-1 visa category is for “artists of extraordinary ability” and obtaining O-1B visa status for foreign musicians has always meant clearing a high bar. But, the previous administration erected other obstacles, such as “extreme vetting,” for some, depending upon their home country. Then, the COVID-19 pandemic happened, and concerts and tours were cancelled.

Foreign musicians in the United States in O status lost their livelihoods during the pandemic. Although some might have been able to collect unemployment benefits, many hesitated, fearing possible calamitous effects on future immigration applications. In the meantime, without work, they were technically “out of status.” One option was to change to B visitor status to remain in the United States and wait out the pandemic. Only musicians with sufficient funds could afford that route. Others left the country if they could and now need to return.

Now that concert venues are starting to reopen, cancellations continue because musicians from abroad still cannot obtain visas. The 14-day travel restrictions raised issues for musicians coming from the covered countries – symphony orchestras have had to substitute artists at the last minute and national tours have been cancelled. But, even with those restrictions set to lift in early November, it seems that visa delays will continue to affect touring artists.

Many U.S. Consulates abroad continue to be understaffed and are working through backlogs. At some, the first visa appointments are in the spring of 2022. In addition, it is expected that because the 14-day travel restrictions are being lifted, there will be a surge in applications and the lines will get even longer. Although the Biden Administration has made it easier for non-profit organizations to apply for expedited petition processing, that does not help with the visa application process. Musicians who are trying to tour to make up for lost revenue when concerts were cancelled are being stymied. Arts organizations are lobbying for relief.

Of course, the problems are not just in the United States. Musicians are also being hampered by travel and quarantine restrictions abroad.

O visas are not the only possibilities for musicians. Other options include P-1 visas for members of internationally recognized entertainment groups, P-2 visas for entertainers participating in certain reciprocal exchange programs, and Q-1 visas for those participating in cultural exchanges. While each of these visas carries different eligibility requirements, the visa backlog at U.S. Consulates affects them all.

If you have any questions, please reach out to your Jackson Lewis attorney. Attorneys in the firm are available to assist in choosing visa strategies for musicians, artists and their support staffs as well as others in the entertainment industry.