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.

The average American may not know that some of the largest real estate developments in recent history were completed by foreign real estate companies. The L-1 nonimmigrant visa classification can provide a useful pathway for such multinational companies. See more in our publication here.

As long as they can show that they are fully vaccinated against COVID-19, foreign travelers will be allowed to visit the United States beginning November 8, 2021, according to the Biden Administration.

Until now, we knew only that the 14-day travel restrictions and the northern and southern border restrictions would be lifted sometime in November. Now, it has been reported that all these restrictions will be lifted, and new vaccination requirements will take effect on November 8, 2021.

On September 20, 2021, the Administration announced it would lift the 14-day travel restrictions that affected individuals trying to enter the United States from China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India in November. The quid pro quo for that was that all foreign travelers from any country would have to be fully vaccinated and provide a negative COVID-19 test three days before their proposed entry date to board an airplane to the United States.

On October 14, 2021, the Administration announced the northern and southern border restrictions that had been in place since March 2020 would be lifted when the 14-day travel restrictions were lifted and, at that time, fully vaccinated individuals could enter for any purpose. One proviso: unvaccinated individuals will still be able to enter the United States until January 2022 at land and sea ports of entry, but only if they are entering for “essential” purposes – such as work.

Details about exceptions or exemptions have not been released. We will provide updates as soon as those are available.

The United States will open its northern and southern land borders to fully vaccinated foreign nationals sometime in November 2021. When this happens, it will be the first time since March 2020 that these individuals will be able to enter the United States from Canada and Mexico for “non-essential” purposes, such as tourism, shopping, and family gatherings.

The reopening is expected to occur in two phases. During the first phase, fully vaccinated foreign nationals will be able to enter for non-essential purposes. Unvaccinated individuals will still be able to enter for essential purposes, including for work. During the second phase, scheduled to go into effect in early January 2022, all foreign nationals, whether entering for essential purposes or not, will have to be fully vaccinated. The expectation is that there will be limited exceptions, for example for children.

The “essential travel” restrictions applied only to land and sea borders. Foreign nationals have been able to fly into the United States from Canada or Mexico if they met the COVID-19 testing requirements. In November, however, new COVID-19 vaccination and testing requirements will be in place for all air travel. All foreign nationals seeking to enter the United States from anywhere, with limited exceptions, will have to be fully vaccinated, as well as show proof of a negative COVID-19 test taken within three days of departure. Unvaccinated U.S. citizens and legal permanent residents will need to provide evidence of a negative COVID-19 test taken within 24 hours of boarding a flight to the United States and undergo testing upon arrival.

The United States is a little late to the border game. Canada reopened its border to fully vaccinated Americans on August 9, 2021, and to other fully vaccinated foreign nationals on September 7, 2021. It is still not clear exactly when the new U.S. rules will become effective. The United States already announced that the 14-day travel restrictions on China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India are scheduled to be lifted sometime in “early” November. The northern and southern border restrictions will be lifted at the same time. We are still awaiting official guidance on documentation requirements and the implementation date.

Jackson Lewis attorneys will provide updates as they become available.

Secretary of the Department of Homeland Security (DHS) Alejandro N. Mayorkas has issued a policy directive to immediately discontinue mass worksite enforcement operations.

These involve large-scale law enforcement operations resulting in the arrest of hundreds of unauthorized workers. They were a significant part of the Trump Administration’s worksite enforcement strategy.

Secretary Mayorkas criticized these large-scale operations targeting unauthorized workers as failing to target “exploitative employers” and having a chilling effect on employees working for “substandard wages” and in unsafe working conditions.

The Secretary directed that ICE, USCIS, and CBP undertake a policy review to help develop an overall Departmental strategy that will:

  • Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers;
  • Increase the willingness of workers to report violations of law by exploitative employers, including making sure that employers do not threaten workers with E-Verify with the intent to prevent unauthorized workers from reporting unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation; and
  • Broaden coordination between DHS and other federal and state agencies involved worksite enforcement, such as the Department of Labor, Department of Justice, EEOC, NLRB, and state labor agencies.

Reports on the policy reviews will be due in 60 days – by mid-December 2021.

During the interim period, ICE, USCIS, and CBP are directed to cease mass worksite operations that are not focused on exploitative employers. It is expected that DHS will continue to conduct I-9 audits which are administrative in nature.

While the full effect of this policy directive remains to be seen, employers can expect they will be the subject of further compliance efforts from both immigration and labor authorities.

Jackson Lewis attorneys will provide updates as the immigration enforcement agencies start acting on Secretary Mayorkas’ new policy.

The State Department cannot rely on presidential proclamations to refuse to adjudicate visas, Judge James E. Boasberg in the U.S. District Court for the D.C. District has held.

Judge Boasberg said nothing about what the State Department needs to do in line with its opinion, but established that the Administration’s travel restrictions did not include visa restrictions.

Since the issuance of the Presidential Proclamations restricting the entry of foreign nationals who have spent any time during the 14 days prior to their entry in over 30 countries (China, Iran, the UK and Ireland, the Schengen Zone countries, Brazil, South Africa and India), most U.S. Consulates abroad have been refusing to issue or even schedule visa interview appointments for individuals who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This has meant that even foreign nationals who were willing to wait out the 14 days in non-restricted countries would have difficulty getting a visa. It was a Catch-22. If they stayed in a restricted country, they might not get a visa because they did not qualify for an NIE and if they went to a non-restricted country, they might not get visas because they were third-country nationals.

The court recognized that this whole issue may soon become moot because the Biden Administration has said that the 14-day travel restrictions will be lifted in early November. But even when the restrictions are lifted and the Consulates go back to issuing visas rather than NIEs, it is likely that backlogs and delays will persist.

Visa processing at U.S. Consulates abroad was effectively suspended from March through July 2020. Since then, Consulates started a phased resumption of services. However, services are still not fully restored due to various COVID-19 restrictions abroad and many U.S. Consulates are not even fully staffed. As Consulates rely on visa fees rather than government funding, some have been unable to hire new staff due to the lack of fees. This means that it may be difficult for Consulates to staff up to eliminate backlogs.

If you have any questions about the effect of the D.C. Court’s ruling, Jackson Lewis attorneys are available to assist.

Croatia will be the 40th country to join the Visa Waiver Program (VWP). This announcement was made by Secretary of Homeland Security Alejandro N. Mayorkas in coordination with Secretary of State Antony J. Blinken.

No later than December 1, 2021, the Electronic System for Travel Authorization (ESTA), which is the portal for the VWP, will be updated to include citizens and nationals of Croatia. Once that happens, there will be only three European Union countries that are not yet part of the program: Bulgaria, Cyprus, and Romania.

The VWP allows citizens and nationals of the selected countries to enter the United States for up to 90 days for tourism or as a business visitor without having to obtain a B1/B2 visa. Business visitors include those who are coming to the country to consult with business associates, attend meetings or conventions, negotiate contracts, and participate in short-term training, among other reasons.

Although it is not necessary to apply for a B1/B2 visa once the VWP is available, it is necessary to sign up with ESTA through the Customs and Border Protection (CBP) website. There is an application fee and the applicant must have a valid e-passport. E-passports contain a chip with biographic and biometric information and are identified by a symbol on the front cover. Once issued, ESTA is generally valid for two years, after which it can be renewed.

Countries that participate in ESTA must meet certain eligibility requirements related to counterterrorism, immigration, and law enforcement. They must also have a low nonimmigrant visa refusal rate – below 3%.

Responding to the announcement, Croatian President Andrej Plenkovic welcomed the decision, the benefit that this will accord Croatian citizens, and the continuing strengthening of ties with the United States.

Although the VWP simplifies travel to the United States, it does not change any COVID-19 travel restrictions, nor does it change COVID-19 testing requirements. Moreover, DHS noted that Croatian travelers who hold valid B1/B2 visas should continue to use them for travel to the United States.

Please reach out to your Jackson Lewis attorney for any questions about the VWP.

 

 

Diversity Visa (DV) Electronic Registration for Fiscal Year (FY) 2023 opens October 6, 2021, at noon ET and closes on November 9, 2021, at noon ET.

There is no cost to register, but, if selected, applicants must pay the visa application or I-485 Adjustment of Status fees.

Individuals born in certain countries are not eligible to apply because more than 50,000 natives of those countries have immigrated to the United States in the past five years. The list of ineligible countries is basically the same as last year, except Guatemala has been removed and Venezuela has been added.

The ineligible countries for FY 2023 are:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela and Vietnam. Individuals born in Macau SAR and Taiwan are eligible.

Although there is no registration fee, individuals may not submit more than one application. Doing so will lead to disqualification. Eligibility requirements are on the Diversity Lottery website. Interested applicants should apply early and not wait until the last week when heavy demand could lead to website delays. Applicants must apply online. No late or paper entries are accepted.

A few highlights from the instructions:

  • Applicants must have a valid, unexpired passport to apply. There are some waivers available, including for stateless applicants or applicants who cannot get a passport from a Communist-controlled country.
  • Cross-chargeability is a possibility. Applicants can apply based upon the country of birth of a derivative spouse or possibly based upon the country of birth of either of their parents if neither parent was a “resident” (other than on a temporary basis) of the applicant’s country of birth at the time of the applicant’s birth.
  • Applicants may apply from within the United States or from abroad.
  • Eligible applicants must have at least a high school education or its equivalent or two years of work experience within the past five years in an occupation that requires at least two years of training or experience as defined by the Department of Labor.
  • No one eligible country will be allocated more than 7% of the 55,000 DVs that are available for the year.

FY 2023 DV entrants will be able to check the status of their applications online at www.dvprogram.state.gov starting on May 8, 2022.

Due to COVID-19, the 2021 Diversity Lottery has been mired in litigation. The hope is that the FY 2023 DV will not have similar problems.

If you have questions about the DV Program 2023 process, Jackson Lewis attorneys are available to assist.

While not all the details are available, the Biden Administration is releasing more information about the lifting of the 14-day travel restrictions.

Here is what is known so far:

  • The 14-day travel restrictions on China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa and India are scheduled to be lifted sometime in “early” November. No specific date has been provided.
  • On that same date, the new rule requiring all foreign national adults to be fully vaccinated before boarding flights to the United States, in addition to showing proof of a negative COVID-19 test taken within 72 hours of departure, will become effective.
  • Individuals must be “fully vaccinated” with a COVID-19 vaccine approved for emergency use by the World Health Organization (WHO). However, the specific vaccines that will be accepted and the criteria for proof of vaccination have yet to be released. This may mean that the approved vaccines could go beyond those that are currently authorized for use in the United States.
  • Unvaccinated U.S. citizens and legal permanent residents will face tougher requirements. They will need to provide a negative COVID-19 test taken within 24 hours of boarding a flight to the United States and will undergo testing upon arrival.
  • Airlines will be required to collect information on travelers that can be used for contact tracing.

Details not yet available include:

  • How children will be treated under the new regimen.
  • The specifics regarding the types of testing that will be required and accepted (e.g., rapid tests, PCR tests, and so on)
  • How the “upon arrival testing” of unvaccinated U.S. citizens and permanent residents will be conducted.
  • Some limited exemptions to the requirements (perhaps for children and for some humanitarian concerns) are expected, but those have not been detailed. In addition, anyone who receives an exception may have to agree to “vaccination on arrival.”
  • Whether some form of the current national interest exception program will remain in effect for travelers who do not meet the proposed vaccination requirements.

While companies have surely been stymied by the 14-day travel restrictions, it is not yet clear how the switch from the 14-day restrictions for 33 countries to vaccination requirements for all foreign nationals will affect businesses and the economy overall. While employers who have been dealing with the 14-day travel restrictions have something to look forward to, employers with employees they wish to transfer from abroad or who have business dealings in countries with low vaccination rates or limited access to WHO-approved vaccines need to be thinking ahead to November.

Jackson Lewis attorneys will continue to provide updates on these important travel requirements as they become available. If you have any questions about strategies to deal with the proposed changes, please contact us.