Portugal is designated an E-1/E-2 treaty country in the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (H.R. 7776/NDAA) passed by Congress on December 15, 2022. President Joe Biden is expected to sign the bill, providing Portuguese nationals E-1 and E-2 visa eligibility.  

E-1 and E-2 visas are for treaty traders and investors who enter the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national. There are close to 90 countries that qualify for E-1 visas, E-2 visas, or both. Once the bill has been signed, Portugal will be added to the list of E-1 and E-2 treaty countries.

The new legislation adds a new eligibility requirement for E-1/E-2 visas. Individuals who acquired the citizenship they are using to qualify for the E-2 visa (through investment) must show domicile in that country for “a continuous period of not less than 3 years at any point before applying for an E nonimmigrant visa,” limiting visa eligibility for those who acquire citizenship through investment, permitted by certain countries through immigrant investor programs, including Portugal’s “golden visa” program. This eligibility requirement will not apply to individuals who have already been granted E-1/E-2 status.

The general E-1 / E-2 eligibility requirements are summarized below.

To qualify for an E-1 visa as treaty trader, the individual or company must be a national of an eligible treaty country, carry on substantial trade involving numerous transactions over time, and conduct principal trade between the United States and the relevant treaty country.

To qualify for an E-2 visa as a treaty investor, the individual or company must be a national of an eligible treaty country, have invested in or are in the process of investing a substantial amount of capital in a bona fide enterprise in the United States and be entering the United States solely to develop and direct the investment enterprise.

An individual also may enter the United States in E-1 or E-2 status as an employee of a treaty trader or treaty investor. Such an individual must also be the same nationality as the principal and be engaging in duties as an executive or supervisor or have special qualifications as an essential employee.

The E-1/E-2 application process requires evidence of the investment or substantial and principal trade, including financial documentation, a five-year business plan, evidence of the enterprise’s viability, and documentation regarding the applicant’s proposed activities in the United States.

Immigration delays and limits of visas have plagued companies trying to fill key positions in the United States. Employers should not overlook the powerful, but somewhat obscure, immigration tool – the E visa.

Jackson Lewis attorneys are available to assist with filing these cases with USCIS or at a U.S. Consulate abroad.

The Department of Homeland Security (DHS) has provided guidance on the additional 64,716 H-2B temporary nonagricultural worker visas available for fiscal year 2023.

H-2B visas allow employers to bring workers to the United States to perform temporary nonagricultural seasonal work. The statute limits the total number of H-2B visas per year to 66,000. In recent years, there has been more demand than visas available. In October 2022, DHS announced that an additional 64,716 H-2B temporary nonagricultural worker visas would be available for fiscal year 2023. Now, DHS is setting out exactly for whom and when those visas will be available during the fiscal year.

Details for the additional allocation include:

  • 20,000 of the additional visas are reserved for nationals from El Salvador, Guatemala, Haiti, and Honduras.
    • Employers requesting start dates in the first half of FY 2023 may file petitions immediately after December 15, 2022.
      • Premium processing is not available until January 3, 2023.
    • Employers requesting start dates in the second half of FY 2023 may file no earlier than 15 days after the second half statutory cap is met. USCIS will identify this date in a public announcement.
  • 18,216 additional visas are immediately available for returning workers from any eligible country.
    • These petitions must request a start date on or before March 31, 2023.
      • Premium processing is not available until January 3, 2023.
  • 16,500 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from April 1, 2023, to May 14, 2023.
    • Petitions may be filed no earlier than 15 days after the second half of the statutory cap is met. USCIS will identify this date in a public announcement.
  • 10,000 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from May 15, 2023, to September 30, 2023.
    • Petitions may be filed no earlier than 45 days after the second half statutory cap is reached. USCIS will identify this date in a public announcement.

All petitions filed under the additional allocation must be filed at the California Service Center. Among other requirements, all employers requesting visas under the additional allocation must attest:

  • That they are suffering or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on the petition; and
  • That employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Jackson Lewis attorneys are available to assist in strategizing and filing these petitions.

In continuing its efforts to deal with processing backlogs, USCIS is allowing longer automatic extensions of green cards for lawful permanent residents who have applied for naturalization.

Although legal permanent residence (green card status) must be maintained, it does not expire once it is granted. The card that is issued to memorialize the status, however, does expire.

USCIS hopes this new automatic extension will eliminate the need for legal permanent residents who have applied for naturalization to apply for extensions of their green cards while they are waiting to naturalize. This new extension aligns with the previously announced 24-month extension granted to those who properly file a Form I-90 to renew or replace an expired or expiring green card unrelated to a naturalization filing.

The language on Form N-400, Application for Naturalization receipt notices will be revised to extend green cards for up to 24 months. That receipt notice, along with the expired green card, will be evidence of continued status and identity and employment authorization under List A of the Employment Eligibility Verification, Form I-9.

The 24-month extension receipt will be issued to all applicants who apply for naturalization on or after December 12, 2022. Those who applied to naturalize earlier will still have to file a Form I-90 to extend their green cards or receive an ADIT/Form 551 stamp in their passport at a district office to have evidence of their continuing status. A legal permanent resident who loses their green card even after receiving one of the 24-month receipt notices will need to file a Form I-90 because all noncitizens are required to carry proof of registration, in this case, a green card. The receipt notice is not enough to ensure compliance with that regulation.

To complete Form I-9, employers should enter the information from the employee’s expired green card in Section 2 as they normally would, then enter a date in the Expiration Date field that is 24 months from the “Card Expires” date shown on the card. Remember, employers must not reverify current employees who are lawful permanent residents – even if their green cards have expired.

Jackson Lewis attorneys are available to assist in navigating the green card and naturalization processes.

Prior to 2021, collegiate student-athletes were not able to make sponsorship deals and profit from their names, images, and likenesses (NILs). However, in 2021, that changed when the NCAA adopted a new policy allowing student-athletes (those headed for professional teams, as well as less prominent players) to profit from, and build their brands, while in school.

Colleges, sports associations, and states have enacted various rules to help and protect student-athletes. But there is one group of athletes who have yet another hurdle to jump. Foreign students who are on F visas are in murky waters with respect to the work authorization that would allow them to participate in endorsement-type deals in the United States. NIL deals do not currently qualify as authorized on-campus employment for students on F visas. Until the regulations are changed or clarified, there are some options for foreign student-athletes, but these do not hold much promise for most.

Nonimmigrant Visas

Although the standards are difficult to meet, student-athletes could apply for O or P visas. To apply for an O visa, a student must be able to show they have extraordinary ability in athletics, demonstrated by sustained national or international acclaim. The student must be in the small percentage of those who have risen to the very top of their field. Although not impossible (only one has been granted to date), this is a very high standard to meet, especially for a student just coming out of high school.

As for P visas, the student-athlete must come to the United States to perform at an internationally recognized level. Unless the student will be participating in something akin to the Olympics, it could be very difficult to meet the eligibility requirements.

Green Cards

An EB-1 extraordinary ability green card could be another path to work authorization. The student must meet an even more heightened version of the O visa standard– again, a difficult road.

If the student is an immediate family member of a U.S. citizen, a family-based green card is a possibility. This means the student would have to be sponsored by a U.S. citizen spouse or parent (if the student is under 21 years of age and unmarried).

Other Family-Based Possibilities

Students married to certain individuals on H-1B, L, or E visas might be eligible for work authorization based upon their dependent status. Dependents of individuals on L or E visas have work authorization incident to their status. Those married to H-1B visa holders who have reached a certain stage in their green card process are eligible for H-4 employment authorization.

Humanitarian Possibilities

There are various humanitarian statuses that allow for work authorization, including Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and Deferred Enforced Departure (DED). Students from countries that have been designated eligible for TPS due to country conditions may be eligible for work authorization. The same could be said for students who are eligible for DACA or DED.

The Student and Exchange Visitor Program (SEVP) is overseen by Immigration and Customs Enforcement (ICE). There are reports that ICE is considering whether students can participate in NIL deals on F visas, but guidance has yet to be issued. Participating in NILs without a proper visa could lead to damaging immigration consequences. Given the financial stakes, some students attempt to walk a very narrow line by entering contracts with companies outside of the United States or arguing that some of these endorsement agreements are simply passive investments that do not require them to “work” in the United States. This path must be carefully considered and analyzed by an experienced immigration attorney.

Jackson Lewis attorneys in the Immigration and Collegiate and Professional Sports practice groups are available to assist with any questions regarding foreign student-athletes.

On January 4, 2023, the U.S. Embassy in Havana will resume immigrant visa processing for immediate relatives, family preference applicants, diversity visa applicants and visas for K fiancées.

Until then, the U.S. Embassy Georgetown in Guyana will continue to process immigrant visa applications for Cubans with appointments scheduled through the end of December 2022.

Consular services were suspended in Havana in 2017 due to reports of Havana Syndrome (illnesses with unknown causes that first affected people at the U.S. Embassy in Havana in 2016-17). Since then, visa applicants resident in Cuba have had to apply in Georgetown, some 2,000 miles from Cuba.

Immigrant visa applicants who are being scheduled for January 2023 appointments in Havana started to receive those notices in November. Anyone originally scheduled in Georgetown will complete processing there. These cases will not be transferred from Georgetown to Havana.

Havana will process diversity visas for applicants residing in Cuba beginning in January 2023. Because the Havana option does not appear for diversity applicants in the dropdown menu on the DS-260, applicants should continue to select Georgetown for the DV-2023 program year. If the applicant’s residential address is in Cuba and the case has not already been scheduled in Georgetown, the case will be reassigned automatically to Havana.

The Embassy in Havana will work to expand visa processing while it continues to provide essential American citizen services and limited emergency nonimmigrant processing. Updates can be found on the Embassy’s website.

The resumption of visa processing in Havana reportedly is in exchange for Cuba agreeing to accept its own citizens who are being deported from the United States for entering illegally.

Applicants are being warned not to pay any visa processing fees to third parties. There is no additional fee to make an appointment. Visa processing fees are paid to the National Visa Center (NVC) (Immigrant Visas), Scotiabank Guyana (NIV & Fiancé Visas), or, in limited cases, directly to the Embassy’s cashier. Please e-mail FPUGeorge@state.gov if you are asked to pay any extra fees for an appointment.

Finally, those traveling to Guyana for an immigrant or non-immigrant visa interview, who are at least 12 years old, must be fully vaccinated against COVID-19. There is no longer a testing requirement for entry.

Jackson Lewis attorneys are available to assist you with any questions regarding the application process in Havana.

While many COVID-19 travel restrictions have been removed, all nonimmigrant foreign nationals continue to be required to present proof of being fully vaccinated against COVID-19 in order to board an international flight to the United States.

A summary of the COVID-19 vaccination requirements can be found below.

Someone is “fully vaccinated”:

  • 14 days after receiving one dose of an approved single dose vaccine;
  • 14 days after receiving the second dose in a two-dose series vaccine; or
  • 14 days after receiving two doses of any approved “mix and match” combination administered at least 17 days apart.

The CDC has a list of approved vaccines. Boosters are not required.

Acceptable proof include the following:

  • Vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Printout of COVID-19 vaccination record or certificate issued at a national or subnational level by an authorized vaccine provider
  • Digital photos of vaccination card or record, downloaded vaccination record or vaccination certification from an official source, or a mobile phone application without a QR code
  • All proof must have personal identifiers (full name plus at least one other identifier such as date of birth or passport number) that match passport or other travel documents
  • Airlines will determine is when a translation is required

The following are excepted from the requirement to provide proof of vaccination:

  • Those on official government business or diplomatic travel
  • Children under 18 years of age
  • Participants in certain COVID-19 vaccine trials
  • Persons with medical contraindications to vaccination
  • Persons issued humanitarian or emergency exception
  • Persons with valid nonimmigrant visas (except B-1/B-2) who are from countries with limited COVID-19 vaccine availability
  • Members of U.S. Armed Forces and their spouses and children (under 18 years old)
  • Sea crew members on C-1 or D nonimmigrant visas
  • Persons whose entry is in the U.S. national interest as determined by the Secretary of State, Transportation, or Homeland Security (or their designees)
  • Individuals who are excepted may have to agree to following certain protocols upon entry into the United States

In addition to the above COVID-19 travel restrictions, when traveling to the United States, all nonimmigrants should carry a passport valid for at least six months and a valid U.S. visa stamp or ESTA approval (if eligible).

Please reach out to your Jackson Lewis attorney if you will be traveling internationally or have any questions about COVID-19 travel restrictions.

USCIS has announced that Ukrainian and Afghan parolees with certain classes of admission are employment authorized incident to status which means they can begin working without an EAD.

Covered individuals include:

  • Afghan parolees and qualifying family members with an unexpired Form I-94, Arrival/Departure record, with a class of admission “OAR”
  • Ukrainian parolees and qualifying family members with an unexpired Form I-94 with a class of admission “UHP”
  • Ukrainian parolees and qualifying family members with an unexpired Form I-94 with a class of admission “DT” if issued between February 24, 2022, and September 30, 2023, and the document indicates Ukraine as the country of citizenship

For the covered parolees, the I-94 serves as an acceptable List A receipt that shows identity and work authorization for purposes of Form I-9, Employment Verification Eligibility. No foreign passport is needed for the initial I-9 under the guidance—only the I-94 is recorded as a receipt in List A.

Within 90 days of hire (or reverification), however, the employee must present:

  • An unexpired Employment Authorization Document (EAD); or
  • An unrestricted Social Security card and a List B identity document.

To receive an EAD, both Ukrainian and Afghan parolees must apply for one using Form I-765, Application for Employment Authorization. But, like refugees, there is no fee for the initial EAD.

Ukrainian and Afghan parolees are advised by USCIS to find and print their I-94 documentation on the Customs and Border Protection I-94 website by entering their passport or Alien Identification Number (A#).

Jackson Lewis attorneys are available to assist you regarding Form I-9 processes and procedures.

The new Deferred Action for Childhood Arrivals (DACA) final rule is in effect – to the extent permitted by court orders.

DACA allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. There are approximately 600,000 immigrants, known as “Dreamers,” who are protected by DACA.

The DACA policy instituted in 2012 during the Obama Administration was just that – a policy. The policy was issued without going through the rulemaking process. DACA has been in limbo for years because the program has been challenged in court and by the Trump administration. Litigation regarding DACA has been ongoing since 2018 – even making it the U.S. Supreme Court. Most recently, on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit, affirmed that the original DACA policy is unlawful. Despite that, the court continued the partial stay that allows USCIS to adjudicate DACA renewals and to accept (although not adjudicate) new initial DACA applications.

To overcome some of the problems identified in the litigation, the Biden Administration issued a new rule essentially codifying the old policy through the notice-and-comment process to fortify DACA. The new final rule, which went into effect on October 31, 2022, maintains the existing threshold criteria for DACA, allows for two-year renewable Employment Authorization Documents (EADs), and confirms that DACA is not a form of lawful status, but rather DACA recipients are considered lawfully present in the United States. Unfortunately, the final rule has not solved the problem and the program remains limited to the extent permitted by court orders, such as the Fifth Circuit Court of Appeals’ decision on October 5, 2022. The Fifth Circuit also remanded the case back to the district court to consider the new DACA final rule.

The Fifth Circuit’s ruling does not affect the validity of current grants of DACA or EADs already issued by USCIS. Those with DACA and/or EADs may continue to renew their DACA status and their EADs. There is no need to conduct reverifications until the EAD expires. The FAQs issued by USCIS in July 2021 are still applicable.

Because of the “instability” of the program and because the administration would like to see it expanded to cover more individuals, President Joe Biden has continued to call for Congressional action. Secretary of Homeland Security Alejandro Mayorkas has said, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

If you have questions about DACA recipients and their employment authorization or how to handle Form I-9 Employment Eligibility Verification for DACA recipients, Jackson Lewis attorneys are available to assist.

U.S. Customs and Border Protection (CBP) will no longer issue a paper Form I-94, Arrival/Departure Record, to individuals arriving to the United States at a land border. Now, the information that was on the I-94 is on the CBP’s I-94 website and available on the CBP One Mobile application.

It has taken some time, but paper Form I-94 Arrival/Departure Records and passport admission stamps are becoming a thing of the past. CBP has automated this process at land borders. (CBP had already automated the Form I-94 process for foreign nationals arriving to the United States by air and sea several years ago.)

Nonimmigrants entering the United States by land used to receive a paper Form I-94 that they would staple into their passports as evidence of their approved length of stay. The Form I-94 serves as an official record of one’s status in the United States and when their lawful stay in the country expires.

CBP also has started to eliminate the practice of stamping an admission date inside the passport of foreign nationals arriving in the United States, according to several reports.

Accordingly, nonimmigrant individuals should check the CBP’s I-94 website or the mobile app upon their arrival to ensure the information entered is correct (i.e., visa classification, duration of permitted stay, and so on). This is a critical step to take. The Form I-94 may be the only proof a foreign national may have of their lawful admission the United States. Using the website, the individual simply needs to enter their name, date of birth, passport number, and country of citizenship. Sometimes the nonimmigrant might have to enter their name more than once in different formats (reversing first and last names or including or not including middle initials or checking spelling) to pull up the information. On the website or the mobile app, the nonimmigrant will find their visa status and approved length of stay. They can also review their travel history as the CBP site should list all arrivals and departures.

The CBP has a system for correcting errors, but reaching out to its deferred inspection office where you entered or sending an email to the office is likely faster. If the information is not correct (or not what you thought it should be), it is crucial to reach out to your immigration counsel. An unreported or incorrect length of stay or visa classification can lead to a nonimmigrant overstaying or being out of status, and the individual starts to accumulate unlawful presence. If a nonimmigrant is out of status, that individual will not be able to extend or change status without leaving the United States. In addition, if an individual accumulates 180 days or more of unlawful presence, that individual is not only out of status, but could become subject to the three- and 10-year bars to reentry if they must leave the United States to apply for a visa abroad.

Nonimmigrants who need a paper Form I-94 can request one at the port of entry, but they likely will need to go to deferred inspection office to receive one.

Jackson Lewis attorneys are available to assist with any questions about the I-94 process and issues.

Now, Mexicans applying for TN status are eligible for four-year visas by paying a larger fee. This option allows Mexicans to avoid the hassles associated with having a three-year TN visa approval but only a one-year visa.

Since 1993, Canadians and Mexicans have been able to enter the United States to work in certain fields in TN status pursuant to the North American Free Trade Agreement. That treaty became the United States, Mexico, Canada Agreement in 2020 with no major substantive changes to TN status and the process for obtaining a TN visa.

TN visas are available to Canadian and Mexican citizens who wish to work in the United States for a specific employer in more than 60 professions. There is no cap on the number of TNs available. Therefore, TN visas become particularly useful when H-1B visas are no longer available. With a TN visa, an individual who meets the eligibility requirements can enter the United States to work for up to three years at a time, and the status may be extended for three-year periods with no strict maximum limitation. Dependents may enter as well, but are not granted work authorization.

Generally, Canadians can apply directly at Class A ports of entry, or United States preclearance and preflight stations, without first having to apply through USCIS — thus expediting the process. Processing time usually is one hour to three hours, and Canadians are not required to apply for a TN visa.

For Mexicans, the process is more involved. Mexicans must apply directly at a U.S. Consulate and follow the general visa application instructions. From 2010 until 2022, TN visas for Mexicans were issued only for one year. This meant that even if the TN status was issued for three years, the holder would have to apply yearly for a new visa if they travelled internationally. Not only that, but CBP officers at the border often would mistakenly issue I-94s only for the period of the visa validity. With the change in the reciprocity tables set by the Department of State, Mexicans can receive a four-year visa for a $382 reciprocity fee, instead of the $104 fee for a one-year visa. These fees are on top of the usual $160 nonimmigrant visa application (MRV) fee.

If you have any questions about applying for or travelling in TN status, please reach out to your Jackson Lewis attorney.