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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.

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.

As President Joe Biden travelled to a meeting of the United National General Assembly, the Administration announced that, in early November, COVID-19 travel restrictions would be relaxed for fully vaccinated travelers from all the previously restricted countries: the UK and Ireland, the 26 Schengen Zone countries, Brazil, China, India, Iran, and South Africa.

The details are not yet in place, but the expectation is that the Centers for Disease Control and Prevention (CDC) will recommend which vaccinations will be accepted and how many shots of each will be necessary. Further, a negative COVID-19 test also is expected to be required within 72 hours of boarding and there will be a contract tracing aspect.

The “essential” travel restrictions at the northern and southern land and sea borders are still in effect and have not yet been addressed.

Jackson Lewis attorneys will provide updates as they become available.

The State Department, in coordination with the CDC, raised its Travel Advisory for the United Kingdom to “Do Not Travel” because of COVID-19 (Level IV).

Coincidentally, the Department’s move came on the same day Prime Minister Boris Johnson lifted most COVID-19-related restrictions in the United Kingdom (yet, excluding Wales, Scotland, and Northern Ireland). He made this move as the case numbers are rising because most adults in the United Kingdom are fully vaccinated.

Despite the United Kingdom lifting its restrictions, the European Union has opened its borders to individuals from the United States (with various restrictions). Further, Canada is about to open its borders to fully vaccinated U.S. citizens and permanent residents. Moreover, the White House reported that the United States will not be lifting travel restrictions due to the spread of the Delta variant. Press Secretary Jen Psaki said that it is not clear how long the restrictions will last. As of July 23, 2021, the CDC announced that the seven-day average of COVID-19 cases in the United States was up over 46 percent from the prior week.

Therefore, despite lobbying efforts aimed at increasing summer tourism from Europe, the Presidential Proclamations restricting travel to the United States due to COVID-19 are likely to remain in effect throughout the tourist season and beyond. The travel restrictions were imposed more than a year ago, in January 2020, when President Donald Trump instituted the ban on travel from China. Further bans were instituted in 2020 and 2021 on individuals travelling from Iran, the United Kingdom, Ireland, the 26-member countries of the Schengen Zone, Brazil, South Africa, and, more recently, India. To overcome these restrictions those who need to travel to the United States but are subject to the bans must either “camp-out” in a non-banned country (if they can enter such a country) for 14 days before attempting to enter the United States or they must apply for and receive a National Interest Exception (NIE) to the relevant ban. Eligibility for NIEs is set forth in a web of complex and changing guidance from the Department of State and Customs and Border Protection.

Employers all over the country are suffering due to the bans. Their key employees cannot travel back and forth from or to the United States for important business purposes. The highly skilled or temporary, seasonal workers they need to boost their businesses and the economy cannot be hired. This is compounded by the fact that most U.S. consulates abroad are extremely back-logged and understaffed due to COVID-19.

If you have questions about the travel bans, Jackson Lewis attorneys are available to assist you in developing travel strategies and applying for NIEs.

 

Travel restrictions related to COVID-19 have been in place for more than a year. Certain restrictions have been removed, but the ones on travel from Brazil, China, India, Iran, Ireland, the Schengen Zone, South Africa, and the United Kingdom remain in effect. The White House wants to remove more restrictions and has announced it is putting together working groups with Canada, Mexico, the European Union, and the United Kingdom to “chart a path forward, with a goal or reopening international travel with . . . key partners.”

The groups will include experts from the White House COVID-19 Response Team, the National Security Council, and the Centers for Disease Control and Prevention. They will focus on real-time data. But a White House official noted, lifting restrictions will not be happening “today.”

The travel industry, and airlines in particular, has been hoping the United States will act quickly to remove the current COVID-19-based restrictions on travel, so their businesses and the economy in general can benefit from the summer season. Airline officials from the United States and the United Kingdom have been urging the lifting of trans-Atlantic restrictions. But they “do not expect Washington to lift restrictions until around July 4 at the earliest as the administration aims to get more Americans vaccinated.”

At the G-7 meeting, Prime Minister Justin Trudeau and President Joe Biden spoke about travel restrictions on their shared border. The land border is open only to “essential” travel. The essential travel ban has been in effect since March 2020 and keeps being renewed a month at a time. Currently, it is set to expire on June 21, 2021. There was “speculation that the border could reopen as early as June 22.” That does not seem to be in the cards. Trudeau has not wanted to lift restrictions until 75% of all Canadians have had at least one shot of a vaccine – a mark they might meet in July. For now, Canada is working on a phased approach, where the country might first exempt travelers who are fully vaccinated from quarantine rules.

We will provide updates on the possible loosening of travel restrictions as they become available. In the meantime, if you have questions about any of the travel restrictions and need advice about developing strategies for overcoming them, Jackson Lewis attorneys are available to assist you.

 

The entry of nonimmigrants who were physically present in India during the 14-day period preceding their attempted entry will be suspended beginning 12:01 a.m. EDT on May 4, 2021, according to President Joe Biden’s April 30 proclamation on risk of transmitting COVID-19. Anyone on a flight that departed for the United States prior to that time is not subject to the proclamation.

The United States has adopted 14-day entry-suspension proclamations for many countries (each slightly different) due to the COVID-19 pandemic. Like the others, the India restriction:

  • Will remain in effect until terminated by the president (the situation will be reviewed in 30-day intervals); and
  • Exempts:
    • U.S. citizens and Legal Permanent Residents;
    • Spouses, parents, and legal guardians, siblings, and children of U.S. citizens and legal permanent residents;
    • Members of the U.S. Armed Forces and their spouses and children;
    • Individuals on diplomatic visas or travelling under the United Nations Headquarters Agreement;
    • Individuals entering to further important U.S. law enforcement objectives or whose entry would be in the national interest.

One difference from similar proclamations issued by the previous administration is that this one refers to the affected nonimmigrants as “noncitizens,” rather than “aliens,” and adds “noncitizen nationals” (individuals with ties to American Samoa including Swain’s Island) to the list of those exempted.

Please reach out to your Jackson Lewis attorney for assistance regarding eligibility for exemptions or strategies to employ for individuals who are subject to any of the 14-day restrictions by virtue of residing in China, Iran, the United Kingdom, Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and, now, India.

Customs and Border Protection has announced that travel restrictions on the Northern and Southern borders will be extended until May 21, 2021.

For close to 400 days, admission at the land ports of entry has been limited to “essential” travel. Essential travel generally includes individuals entering for work, but it does not include any sort of tourism and families have been separated during this time.

Representative Brian Higgins (NY -26), co-chair of the Northern Border Caucus, wants to see individuals with family, property, or business interests in Canada exempted from the restrictions and a full reopening of the Northern border by July 2021.

Representative Higgins said: “Families on both sides of the border have been torn apart, people who love each other, parents, grandchildren, unable to see each other …. We need a plan to open the U.S.-Canadian border. With vaccines, face masks and good physical distancing we can do so safely and successfully.” Beyond the essential travel restrictions, testing and quarantine requirements have been imposed as well.

Representative Higgins’ call comes at a time when the Department of State (DOS) is issuing new travel warnings due to “unprecedented” COVID-19 risks in 80 percent of the countries in the world. DOS plans to expand travel advisories and advise U.S. citizens to stay home. The Johns Hopkins Coronavirus Resource Center reports the top 10 COVID-19 “hot spots” include India, Brazil, France, Russia, the United Kingdom, Turkey, Italy, Spain, Germany, and the United States.

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.

 

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.