The U.S. Supreme Court has heard oral argument on whether individuals who initially entered the United States without permission and subsequently were granted Temporary Protected Status (TPS) are eligible to adjust to lawful-permanent-resident status without leaving the United States. Sanchez v. Mayorkas, No. 20-315. If the individuals must leave the United States, they can become subject to three or 10 year bars to admission.

The brief for the government was filed by the Department of Justice in December 2020, near the end of the Trump administration. Despite the Biden administration’s stated pro-immigration stance, in this case, the government is defending the position that TPS is not a “lawful admission,” effectively limiting the ability of many individuals in TPS to adjust status in the United States.

During oral arguments, the Supreme Court Justices appeared skeptical that approval of TPS could be deemed a lawful admission under current statutory interpretation but, as law, Chief Justice John Roberts noted, the government seemed to be continually “underselling” its case. Indeed, in response to questioning from Justice Brett Kavanaugh, the government said that it would just as soon have the Court decide that their interpretation of the statute was reasonable, but not unambiguously correct. The government also indicated it could change its interpretation in the future.

While President Joe Biden has voiced support for individuals in TPS, and has called for permanent status for these individuals, a decision favorable to the government will shut the door to green cards for thousands of TPS holders for now.

A decision is expected by June 2021. Jackson Lewis attorneys will continue to monitor the case and provide updates. Please contact us with any questions.

USCIS has issued a new policy guidance clarifying eligibility requirements for internationally recognized athletes (P-1A nonimmigrants). Effective immediately, the policy applies to P-1A petitions filed on or after March 26, 2021.

The policy explains some of the statutory definitions. For instance, a “major United States sports league” means one that has a distinguished reputation, commensurate with an internationally recognized level of performance, and a “major United States sports team” is one that participates in such a league.

A P-1A petition can be submitted for an “internationally recognized” individual or team to allow entrance into the United States to participate in an athletic competition. The competition must have a “distinguished reputation” and requires participation of an athlete or team to perform “at an internationally recognized level.”

Under the policy, the following are considerations for determining whether competitions qualify:

  • The level of viewership, attendance, revenue, and major media coverage of the events;
  • The extent of past participation by internationally recognized athletes or teams;
  • The international ranking of athletes competing; or
  • Documented merits requirements for participants.

The relevant statutory and regulatory provisions do not require an athlete or team to participate in a competition that is limited only to internationally recognized participants. It is sufficient to show the competition requires some level of participation by internationally recognized athletes to maintain its distinguished reputation in the sport.

That a competition is open to competitors at all skill levels can be a negative factor in the analysis. If the event includes differentiated categories of competition based on certain skill levels, however, the focus should be on the reputation and level of recognition of the specific category of competition in which the athlete or team seeks to participate. For instance, the Boston Marathon is open to many skill levels, but an individual who will be competing in the “elite category” is likely at the level required for a P-1A.

For a team submission, the petition must include evidence that the team as a unit is internationally recognized. If proved, each athlete will receive P-1A classification based on their membership on the team. In this circumstances, the individual may not perform services separate and apart from the team while in the United States. To do that, they must present evidence of international recognition based on their own reputation.

While these clarifications are useful, individuals planning to come to United States. to participate in competitions will still have to overcome COVID-19 travel restrictions if they have been in the UK, Ireland, the Schengen Zone, Brazil, South Africa, China, or Iran during the 14-day period prior to their planned admission to the United States. In May 2020, certain athletes were specifically exempted from these bans to allow planned competitions to continue; but in February 2021, that exemption was removed.

For any questions, please contact your Jackson Lewis attorney as we are available to assist you in bringing professional and amateur athletes to the United States.

 

One of industries perhaps hardest hit by the coronavirus, the travel industry, received welcomed news late last week in the form of CDC guidance stating that people fully vaccinated against COVID-19 can resume domestic travel and do not need to get tested for COVID-19 before or after travel or self-quarantine after travel. Our full publication is here.

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis attorneys are available to assist you in determining how to continue to cope with the 14-day bans, COVID-19 test requirements for travel into the United States, and the reciprocal land port of entry travel bans at the Northern and Southern borders with Canada and Mexico.

ICE has announced that I-9 flexibility will be continued for another 60 days, until May 31, 2021. Here is ICE’s full announcement.

With this extension, ICE specifically noted that employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19 related precautions will be exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis or until the flexibility policy is terminated which is earlier.”

Specific issues related to I-9 compliance and return to the worksite will need to be resolved on a case-by-case basis, depending on the particular circumstances.

If you have questions about how to remain in compliance as employees return to your worksite, Jackson Lewis attorneys are available to assist.

The U.S. Supreme Court agreed to hear a case from the Third Circuit that will resolve the circuit split on whether a grant of temporary protected status (TPS) authorizes eligible noncitizens to obtain lawful-permanent-resident status. Sanchez v. Mayorkas, No. 20-315. Arguments for the case are set for April 19, 2021.

A circuit court split has existed for years regarding whether individuals who initially entered the United States without permission and subsequently were granted TPS were eligible to adjust status to permanent residence. Applicants for adjustment of status to permanent residence must show they were inspected and admitted or paroled into the United States to be eligible. The Sixth, Eighth, and Ninth Circuits found that TPS was considered an inspection and admission for adjustment purposes. The Third and Eleventh Circuits came to opposite conclusions. That means, for example, that TPS holders residing in Ohio can potentially adjust status, but TPS holders in neighboring Pennsylvania cannot. The difference in the courts’ opinions comes from the interpretation of whether Congress crafted the TPS statute to treat all TPS recipients as “nonimmigrants” under the Immigration and Naturalization Act who have been inspected and admitted, regardless of whether that inspection and admission occurred at a port of entry or within the United States.

With the Biden administration recently adding Venezuela and Burma TPS list, there are now 12 countries and over 400,000 individuals on the list. The other countries are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen.

TPS protection is humanitarian relief granted to individuals residing in the United States who cannot return safely to their home countries due to ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. Although TPS beneficiaries can apply for employment authorization and travel authorization, and may apply for other immigration statuses if eligible. TPS is just a temporary stay of deportation, meaning that holders of the status have protection from removal or deportation from the United States. TPS is generally granted for up to 18 months with the possibility of renewal. Many TPS beneficiaries have been in the United States for more than two decades, are thoroughly entrenched in their communities, and have homes, jobs, and U.S.-born children.

Regardless of the Supreme Court’s decision, the proposed American Citizenship Act of 2021 would offer an eight-year path of citizenship for TPS beneficiaries. In conjunction with that, the House passed a stand-alone bill granting similar relief with some bipartisan support. This legislative solution would provide a straightforward path to relief if it can pass in the Senate. In the meantime, the Supreme Court’s decision could provide a very important benefit.

Jackson Lewis attorneys will provide updates on this matter as they become available.

On his first day in office, President Joe Biden signed a memorandum fortifying the Deferred Action for Childhood Arrivals (DACA) policy. His administration also has granted Temporary Protected Status (TPS) to more individuals: those from Venezuela and Burma. Building on this, President Biden also proposed broad legislative immigration reform, including a path to citizenship for DACA (or Dreamers) and TPS beneficiaries, as well as for the 11 million undocumented immigrants currently living and working in the United States. But finding enough bipartisan support for passing broad immigration reform is far from assured. In recognition of that, the administration has adopted a “multiple trains” strategy to move specific pieces of the plan.

On March 18, 2021, the House passed two such bills: The American Dream and Promise Act (“Dream Act”) and the Farm Workforce Modernization Act (“Farm Act”).

The Dream Act would provide a path to citizenship for Dreamers, certain TPS beneficiaries, and Deferred Enforced Departure (DED) beneficiaries, approximately two million people in total. The bill passed the House with a 228 to 197 bipartisan majority. The Farm Act passed with a larger 247 to 174 bipartisan majority. It would allow undocumented farm workers who pass necessary background checks and pay a $1,000 fine to receive temporary legal status. This status could be renewed indefinitely for as long as the individual maintains farm employment. There would also be a path to permanent residency for longtime workers, streamlining of the H-2A visa process, new wage standards, and a mandate for E-Verify for agriculture.

The COVID-19 pandemic brought to the fore the essential nature of the work performed by many DACA, TPS, and DED beneficiaries, particularly in healthcare, as well as work performed by undocumented workers, especially in agriculture, ranching, and the dairy industry. Despite that, some Senators’ concerns about amnesty, asylum policies, and the increase in individuals detained at the Southern border may delay or block the passage of the bills.

Jackson Lewis attorneys will provide updates as they become available.

Some of the inbound international travel restrictions that have bedeviled U.S. employers reportedly are expected to be lifted by mid-May.

This will include restrictions on travel from the UK, Europe, and Brazil, as well as the travel restrictions at the Northern and Southern borders, which were recently continued until April 21, 2021. An anonymous senior administration official said there would be a “sea-change in mid-May when vaccines are more widely available to everyone.”

The administration reviews the travel restrictions weekly. There appear to be two schools of thought: 1) those who are concerned about lifting travel restrictions due to the spread of COVID-19 variants and 2) those who believe that the COVID-19 testing requirements for boarding international flights are sufficient.

The plethora of world-wide travel restrictions has led to confusion and hardships to businesses and individuals, and there is no direct evidence that the travel bans are needed now that COVID-19 testing is widely available.

Industry groups, including the airlines, have been urging the administration to loosen restrictions and rely on “core public health protections, such as the universal mask mandate, inbound international testing requirements, physical distancing or other measure that have made travel safer and reduced transmission of the virus.”

Jackson Lewis attorneys will be monitoring this situation and provide updates as soon as they become available.

Over 40 percent of counties in the United States are experiencing population declines, and the country is experiencing a decline in the working-age population. Together, these demographics, some say, may signal an eventual slowdown of the economy. How to reverse the trend? Immigrants moving to targeted areas could help stem the decline.

Countries such as Australia and Canada have already adopted immigration programs that focus on their particular states’ or provinces’ needs for workers.

In the United States, various internal economic development programs have targeted immigrants for training and have found way to “match” immigrants with local businesses. But these programs are aimed at tapping immigrants who are already in the United States. For at least 10 years, some states have been trying to gain permission to establish their own work visa programs. The American Citizenship Act of 2021 (ACA 2021), proposed by the Biden administration, would provide such an opportunity. One of its many features is a five-year pilot program that would allow states to essentially recruit immigrants from abroad to join particular industries in specific geographic areas.

The ACA 2021 program would allow an additional 10,000 immigrant visas a year based on localized economic development strategies. Labor certifications proving there are not sufficient U.S. workers in the area to fill the need would be required. The bill also would give the Department of Homeland Security (DHS) the authority to adjust the number of green cards available annually based on macroeconomic conditions.

The “heartland visa” program discussed in Congress is similar to the ACA 2021 pilot program. It is also geographically targeted, with communities and foreign skilled workers “opting-in.” The heartland visa program would require communities to provide funding to “welcome” the new immigrants in exchange for the immigrants remaining in the community for at least a certain amount of time. Similar programs have been adopted by states outside the immigration context to welcome new residents to work and build their state economies. A couple of examples include Tulsa, Oklahoma, which has a remote worker program that includes a $10,000 stipend. Newton, Iowa, also offers a $10,000 grant toward purchasing a home to bring residents to the city.

As the country looks toward a post-COVID-19 economy, targeted immigration programs could speed the recovery. Jackson Lewis attorneys will provide updates particularly regarding the progress of the ACA 2021 as they become available.

Syrian Temporary Protected Status (TPS) has been extended until September 30, 2022. DHS announced that the 60-day registration and re-registration period for Syrian TPS and Employment Authorization Documents (EADs) was to begin on March 19, 2021 and run until May 18, 2021. Only those who have been residing in the United States since March 19, 2021 can apply. Full instructions regarding the application procedure can be found in the Federal Register.

Employment authorization will be automatically extended until September 27, 2021 for those who reapply and have current TPS EADs expiring on March 31, 2021. Those who have already re-registered and/or applied to extend their registrations and TPS EADs need not reapply. When their cases are approved, the approval will run until September 30, 2022.

For more information on how to verify or re-verify employment authorization for TPS beneficiaries, please reach out to your Jackson Lewis attorney.