For early-stage tech employers, rapid business growth can quickly lead to costly employment and immigration law missteps. Risks can be magnified when striving to attract talent. Please listen to the robust and enlightening discussion among Jackson Lewis immigration attorneys Zain Abidi and Benjamin Lau, together with Jackson Lewis employment attorney Doug Klein, here.

As 2021 comes to an end, the White House and the Department of State have announced:

  1. South African Travel Restrictions Lifted.

The 14-day travel restrictions on southern African countries will be lifted as of midnight on December 31, 2021. Adopted on November 29th, the restrictions based on spread of the COVID-19 Omicron variant have been in effect for travelers from Botswana, Eswantini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. The requirements that all travelers to the United States, unless otherwise excepted, must be fully vaccinated and present a negative COVID-19 test taken within one day of travel remain in effect.

  1. New Waivers of In-Person Visa Interviews.

To help ease the nonimmigrant visa backlogs, consular officials will have the discretion to waive in-person interview requirements for some with H-1, H-3, H-4, L, O, P, and Q USCIS-approved petitions until the end of 2022. The eligibility requirements for those who were previously issued a visa in the same category are:

  • No visa refusals, unless the refusal was overcome or waived
  • No apparent or potential ineligibility
  • Must be applying in their country of nationality or residence

For those applying for the first time for the visa category:

  • Must be a citizen or national of a Visa Waiver country
  • No apparent or potential ineligibility
  • Previously travelled to the U.S. on ESTA

The discretionary interview waiver has also been extended until the end of 2022 for certain students, professors, research scholars, short-term scholars, or specialists (e.g., F, M, and academic J applicants), for those applying for H-2 (temporary agricultural or non-agricultural) visas, and for those who are renewing any visas within 48 months of expiration.

Because consular resources and COVID-19 restrictions vary, applicants should check the relevant embassy or consular website to confirm available services.

  1. Expired U.S. Passports Can Still Be Used.

Citizens can continue to use expired U.S. passports to return to the U.S. until March 31, 2022. To be eligible, the individual must:

  • Be a U.S. citizen
  • Be currently abroad
  • Be flying directly to the United States, a U.S. territory, or have only a short-term transit, or connecting flight, through a foreign country on their return to the United States
  • Have been issued and possess an expired, undamaged passport that was originally valid for 10 years or, if 15 years of age or under when the passport was issued, the original validity must be for five years

Jackson Lewis attorneys are available to advise you on these new procedures. We wish you a happy new year!

The City Council of New York City unanimously passed legislation giving non-U.S. citizens the right to vote in local elections starting on January 9, 2023.

The bill grants this local franchise to 800,000 non-citizens if they are Permanent Residents or have work authorization and have been in residence in the City for at least 30 days. The bill does not allow non-citizens to vote in state or federal elections.

Some who support the legislation question its constitutionality, and the bill will likely face court challenges. Beyond that, the bill is controversial even in the pro-immigration community. Some proponents believe that granting the right to vote in local elections gives immigrants more of a voice and, therefore, more of a stake in the community. Others believe that, because the right to vote is a major reason to obtain citizenship, giving immigrants the right to vote in local elections might suppress their desire to become U.S. citizens.

With the passage of this legislation, New York City joins 15 other municipalities in New York state, Maryland, Vermont, and San Francisco that allow noncitizens to vote in local elections. Similar bills are being considered in Illinois, Maine, and Massachusetts.

Any immigrants who plan to register and vote in local elections pursuant to such laws need to understand the parameters. They may not register to vote or vote in any federal, state, or local elections not covered by the specific legislation. Doing so can result in immigration problems – particularly with applications for permanent residence (Green Cards) or naturalization, which ask applicants about falsely claiming to be a U.S. citizen and registering to vote in elections, respectively.

Although registering to vote or voting in an election where non-citizens are eligible to do so is not an immigration violation, it is important for non-U.S. citizens to carefully review any forms they are signing to be sure they are not asserting they are U.S. citizens. They should also take care to not vote in any election that requires U.S. citizenship.

Jackson Lewis attorneys are available to assist with any questions about Green Card or naturalization eligibility and applications.

 

Senate Parliamentarian Elizabeth MacDonough has ruled for a third time that specific immigration provisions in the Build Back Better Act (BBBA) granting parole and work authorization to unauthorized aliens who entered the United States before January 1, 2011, cannot be included in the reconciliation bill because the policy changes outweigh the budgetary impact.

Unless Senate Democrats overrule this advisory opinion, Section 60001 will be eliminated from the bill. This is a blow to proponents of Section 60001. They believe those individuals should be granted some sort of relief. They also argue the change would be a boost to the economy and provide needed relief to the current labor shortage.

The other immigration provisions in the House-passed version of the BBBA (to recapture unused immigrant visas and allow some long-waiting green card applicants to speed up their processes) were not addressed by MacDonough and so remained in place.

On MacDonough’s ruling, Senators Charles Schumer (D-N.Y.), Bob Menendez (D-N.J.), Alex Padilla (D-Calif.), Catherine Cortez Masto (D. Nev.), and Ben Ray Lujan (D-N.M.) issued the following statement:

We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.

On the other side, Senator Charles Grassley (R-Iowa) stated:

This guidance confirms, once again, what everyone already knew – that giving amnesty to millions of illegal immigrants isn’t a budgetary matter appropriate for reconciliation.

The Senate Democrats have the option of rejecting the parliamentarian’s advisory opinion. It is far from certain whether that, or even passage of the BBBA itself, will be successful.

Jackson Lewis attorneys will provide updates as they become available.

 

ICE has announced it will extend I-9 flexibility until April 30, 2022, due to continuing precautions related to COVID-19.

The guidance remains the same:

  • Employees who work exclusively in a remote setting due to COVID-19 continue to be temporarily exempt from the in-person requirements associated with Form I-9 Employment Eligibility Verification, until they start working at a worksite on a regular, consistent, or predictable basis (or until flexibility is terminated).
  • As before, ICE reiterates that, if employees are physically present at a work location, flexibility does not apply.

Advocates have been encouraging the Department of Homeland Security (DHS) to continue this flexibility indefinitely because, although many employees are returning to worksites, remote work will continue to play an important role in the 21st century workplace.

The ability to conduct Form I-9 verifications remotely allows companies to centralize their I-9 processes so that experienced staff can conduct the reviews, to eliminate the need to hire agents who may not be as experienced to conduct remote verifications, and to make it easier to hire key employees who may work remotely. Moreover, it would eliminate barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Employers should continue to prepare for the possible end of flexibility by:

  • Keeping track of employees who have been verified virtually, when they will be returning to work, and the deadline for in-person verification; and
  • Identifying and training staff to conduct the necessary in-person reviews.

Employers should also review the newly adopted process for verifying employment authorization for individuals with long-pending H-4, E, and L-2 EADs.

Jackson Lewis attorneys are available to assist you in instituting compliant Form I-9 processes and policies.

Applicants for Adjustment of Status to Permanent Residence will have more than 60 days after completing their medical examinations to file their Forms I-485 Adjustment of Status applications, USCIS has announced.

Due to COVID-19-related delays, USCIS has temporarily waived the requirement that a civil surgeon sign the Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files a Form I-485. This temporary waiver will be in effect until September 30, 2022, and will help applicants whose I-485 applications were delayed due to the pandemic and who, without the waiver, would have had to schedule and pay for a second medical examination.

This waiver will particularly benefit Afghan nationals who were evacuated under Operation Allies Welcome, many of whom completed their medical examinations more than 60 days before they could submit I-485 applications.

To protect the U.S. public, applicants for Adjustment of Status have long been required to submit a medical examination signed by a Department of Homeland Security-designated civil surgeon proving admissibility on medical grounds. Current medical grounds for inadmissibility include:

  • A communicable disease of public health significance;
  • The failure to show proof of required vaccinations;
  • A physical or mental disorder with associated harmful behavior; and
  • Drug abuse or addiction.

COVID-19 led to this signature flexibility, but it also necessitated the addition of COVID-19 to the list of vaccines that applicants are required to take to avoid an inadmissibility determination. The vaccine record is a part of the standard medical examination and, with limited exceptions, a civil surgeon cannot sign the medical examination report unless the applicant is “fully vaccinated” with one of the acceptable COVID-19 vaccines.

Despite the 60-day waiver, USCIS advises that it is best to have the medical examination as close to the adjustment filing date as possible, because the medical examination will only remain valid for two years. Some applicants who expect that their cases will not be adjudicated within the two-year validity period may, with advice of counsel, choose to submit a Form I-693 medical exam later in the process – either at an interview or in response to a Request for Evidence from USCIS, rather than risk possible invalidation and the need to redo the medical examination.

The new waiver applies to all Forms I-693 that have not been adjudicated, regardless of when the application was submitted or when the Form I-693 was signed.

Jackson Lewis attorneys are available to advise on strategies about medical examinations and the filing of Forms I-485.

In response to the COVID-19 Omicron variant, the Administration is expanding COVID-19 mitigation and tightening international travel requirements.

All individuals (including U.S. citizens) entering the United States from abroad will have to be fully vaccinated and present a negative COVID-19 test taken within one day of their departure. Previously, individuals were required to be fully vaccinated and supply a negative COVID-19 test taken within three days of departure. The updated testing requirement applies to all individuals two years of age and older. Meeting the one-day testing requirement may be challenging in some countries. In addition, mask requirements on all public transportation will be continued until mid-March 2022, instead of mid-January 2022.

On November 8, 2021, the geographic travel restrictions that prevented individuals who had been in over 30 countries within 14 days of their trip to the United States were lifted in exchange for vaccination and testing requirements. On November 29, 2021, 14-day travel restrictions were again implemented, but this time for travelers coming from eight countries in southern Africa. The new vaccination and testing requirements will be applied to all travelers – even those who are exempt or receive National Interest Waivers (NIEs) from the southern African restriction.

NIEs previously granted under other proclamations are no longer valid.

It is important to check out testing options in your country of travel to ensure that you can get the correct test result within the one-day window.

Jackson Lewis attorneys are available to assist you with compliance issues.

The Department of Homeland Security (DHS) has announced that it plans to add mandatory social media collection to the Electronic System for Travel Authorization (ESTA) process.

ESTA is an automated online system that makes an initial determination about a visitor’s eligibility to travel to the United States under the Visa Waiver Program (VWP). The VWP allows individuals from 40 countries to enter the United States for tourism or business visitor purposes for up to 90 days without a visa.

ESTA authorization, like a visa, does not determine whether a traveler is admissible to the United States. U.S. Customs and Border Protection (CBP) officers make that determination at the port of entry. The ESTA online system collects biographical information and answers to VWP eligibility questions.

In 2019, the Department of State updated its immigrant and nonimmigrant visa application forms to request additional information, including social media identifiers, to enhance screening of noncitizens for potential risks to national security. DHS is proposing to make the provision of this information a mandatory part of the ESTA process, as well. ESTA applicants are already required to provide certain contact information, travel history, and family member information.

CBP also plans to begin collecting biometric data to confirm identity on ESTA applications. A “liveness” test will be required. Applicants will have to provide a selfie or other live photo and scan in passport information for comparison. For convenience, CBP plans to make this function available on a mobile application for mobile phones and tablets, but applicants will still be able to submit their applications on the ESTA website.

The current ESTA fee is $14.00 and DHS does not plan to raise that fee (at this time).

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

Through a joint effort of our immigration team headed by John Exner in our Los Angeles office and our sports industry group led by Gregg Clifton in our Phoenix office, Jackson Lewis was able to guide Olympic bobsledder Kaillie Humphries to U.S. citizenship just in time for her to qualify to compete on the U.S. team in the upcoming Winter Olympics. For one of the many articles on this success and also to watch an exciting video of Kaillie winning her races in Germany just a day after being sworn in as a U.S. citizen in California, please see here and here.

The U.S. House of Representatives passed the Build Back Better Act (BBBA) (H.R. 5376) by a vote of 220–213. Supported by the Biden Administration and congressional Democrats, the controversial bill heads to the Senate with key immigration reform provisions.

Protections and Work Permits 

Section 60001 of the BBBA includes language that would amend the Immigration and Nationality Act (INA) to make unauthorized aliens eligible for immigration parole if they:

  • Entered the United States prior to January 1, 2011;
  • Have resided continuously in the United States since that time;
  • Pay a fee;
  • Complete background checks; and
  • Are not otherwise inadmissible.

Such parolees would also be eligible for work authorization and travel authorization.  This is a diluted and less favorable version of prior proposals and does not include an opportunity to apply for permanent residence.

Recapture of Unused Immigrant Visa Numbers

Section 60002 amends the INA to “recapture” unused immigrant visas. Currently, the waiting list for green cards has grown well into the millions. Each year, there is a ceiling of green cards available for employment-based and family preference immigrants. The accumulation of applications, along with disruption of processing caused by the COVID-19 pandemic, has resulted in hundreds of thousands of unused green card slots.

This provision would stipulate the available visa numbers will include unused visas from prior years. The language in the bill recaptures unused family-based and employment-based visas from Fiscal Year 1992 onward. In addition, Diversity Visas that were not issued or have not been used since FY2017 would also be recaptured.

Adjustment of Status

Section 60003 revises the filing requirements for adjustment of status applications in both the family-based and employment-based categories. New Section 245(n) to the INA would permit family-based and employment-based applicants (and the spouse and children of such applicants) to apply immediately for adjustment of status for a supplemental fee of $1,500 (for the principal applicant) and $250 (for each derivative beneficiary), even though a visa number may not be available yet.

In addition, Section 60003 would create a waiver from the annual and per-country family-based and employment-based immigrant visa numerical limitations for individuals who:

  1. Have filed adjustment of status applications; and
  2. Have a priority date that is at least two years before the date of application for a waiver of the per-country numerical limitations.

This waiver can be requested at a supplemental fee that varies depending upon the family-based or employment-based category under which the adjustment of status application was filed as follows:

  1. Family-based applicants: Individuals who filed for adjustment of status based on an approved I-130 would be required to pay a supplemental fee of $2,500. This category encompasses: (i) married and unmarried sons and daughters, brothers and sisters, and immediate relatives of a U.S. citizen with an approved I-130; and (ii) spouses and unmarried children of lawful permanent residents with an approved I-130.
  2. Employment-based applicants: Individuals who filed for adjustment of status based on an approved I-140 petition in the EB-1, EB-2, or EB-3 category would be required to pay a supplemental fee of $5,000.
  3. Immigrant Investor-based applicants: Individuals who filed for adjustment of status based on an approved EB-5 petition would be required to pay a supplemental fee of $50,000 (although it is unclear how this waiver would apply to EB-5 adjustment of status applicants who filed based on an approved I-526 associated with an approved regional center following the sunset in authorization for the EB-5 Immigrant Investor Regional Center Program on June 30, 2021).

Additional Supplemental Fees

Section 60004 establishes additional supplemental fees for immigrant visa petitions (which are in addition to other applications fees, such as filing fees, early adjustment fees, and the waiver of numerical limitation fees provided for under Section 60003 of the BBBA). These include:

  1. Family-based applicants: A supplemental $100 fee for family-based immigrant visa petitions for: (1) married and unmarried sons and daughters, brothers and sisters, and immediate relatives of U.S. citizens; and (2) spouses and unmarried children of lawful permanent residents.
  2. Employment-based petitions: A supplemental fee of $800 for EB-1, EB-2, and EB-3 immigrant visa petitions.
  3. Immigrant Investor-based petitions: A supplemental fee of $15,000.

All supplemental fees paid in conjunction with each of these immigrant visa petitions would be deposited into the General Treasury fund, not given to USCIS.

USCIS Supplemental Funding

Section 60005 would appropriate an additional $2.8 billion to USCIS “for the purpose of increasing capacity of U.S. Citizenship and Immigration Services to effectively adjudicate applications described in sections 245B and 245(n) of the Immigration Nationality Act, as added by sections 60001 and 60003 of this Act, respectively, and to reduce case processing backlogs.”

In its current form, the BBBA is aimed at providing immigration relief to certain documented and undocumented foreign nationals. The immigration provisions also aim to improve the green card backlogs that have notoriously plagued USCIS over the past several years by recapturing unused visa numbers and permitting more individuals in the family- and employment-based categories to apply for adjustment of status.

The Senate bill will likely go through many changes before the Senate votes on it. For more on the bill, see our article, House Passes Build Back Better Act, Here’s What Employers Need to Know as It Goes to Senate.

Jackson Lewis attorneys will provide updates as they become available.