Customs and Border Protection (CBP) has been implementing “Simplified Arrival” at all airports, seaports, and most ports of entry since early 2022. The purpose is to secure and streamline the entry process. But the elimination of paper documentation is raising issues for foreign nationals.

One outcome of Simplified Arrival implementation is that CBP no longer issues paper Form I-94s. That information is entered into the I-94 online system, which means foreign nationals are not able to see the I-94 until they enter the United States, as opposed to being handed a paper Form I-94 when they interact with the CBP officer. Additionally, in August 2022, CBP started eliminating passport stamping, which is the only other immediate visual record of the entry.

Accurate entry and exist records are important and CBP does not always get it right, which creates downstream problems. Foreign nationals need to document their correct entries and exits for, among other things:

  • Tax residence purposes
  • H and L time recapture
  • Proving L intermittent status
  • Proving maintenance of status
  • Avoiding 3-and-10-year bars that result from unlawful presence
  • Documenting changes of status
  • Proving naturalization eligibility

The elimination of passport stamps may be particularly impactful to permanent residents tracking time in the United States to become eligible for U.S. citizenship,  because their entries and exits are not documented in the I-94 system.

Because the I-94 website is not always accurate and may not be available in the case of permanent residents, foreign nationals need back-up plans. Consider the following:

  • Download information from the I-94 website as soon as possible after entry – before leaving the airport would be best – to ensure the information is accurate.
  • If the information is not correct, the traveler should contact Deferred Inspection at the airport or the closest location. Thereafter, it is also possible to contact Deferred Inspection by email.
  • Try requesting a passport stamp upon arrival. This should still be possible, but it will be at the discretion of the officer.
  • Try requesting a passport stamp at Deferred Inspection.
  • As a final back-up, keep all your travel and lodging receipts, itineraries, and credit card statements to document time spent outside of the United States.

If you have questions about how best to document your international travel, Jackson Lewis attorneys are available to assist.

As a part of various USCIS immigration applications, the U.S. government requires the applicants’ biometrics to be collected in order to conduct relevant background checks and services prior to granting the requested immigration benefits. In the past, mobile biometrics services (e.g., photographs and fingerprinting) may be provided by USCIS at pre-determined locations for those with disabilities or health issues that prevent them from appearing at an Application Support Center (ASC). The agency may also provide mobile biometrics in limited other circumstances. For example, on a case-by-case basis, it may provide mobile biometrics for individuals who reside in remote locations who would have to use multiple modes of transportation or deal with substantial travel times to arrive at an Application Support Center (ASC).

USCIS employees or contractors will handle these services. If the applicant’s location is remote, USCIS may decide to coordinate with local law enforcement agencies or other DHS agencies to collect the biometrics. When the biometrics are not collected directly by a USCIS employee or contractor, USCIS provides the fingerprint card and requires a clear chain of custody until the biometrics are delivered to the carrier service and returned to the USCIS. As with biometrics applications at ASCs, the applicant must bring the Form I-797C appointment notice and an acceptable photo ID, passport, or driver’s license for identification purposes.

Mobile services are not provided for individuals in custody at correctional institutions or non-DHS detention facilities. Regular procedures, including rescheduling procedures, must be followed. To reschedule, the applicant must call before the date and time of the original appointment and establish good cause for rescheduling. Failure to reschedule may result in a denial of the petition or application.

As for those detained in DHS facilities and applying for USCIS benefits, ICE (Immigration and Customs Enforcement) and ERO (Enforcement and Removal Operations) handle background and security checks. Fingerprint waivers are possible and may be granted for medical reasons, including psychiatric reasons. Waivers cannot be reused. Any subsequent applications would require a new waiver application.

Requests for mobile biometrics based on living in a remote location should be made by calling the USCIS Contact Center. Requests based on disability or health issues should be made online.

Jackson Lewis attorneys are available to assist you with questions about biometrics appointments and waivers.

A new federal law restricts foreign investors’ access to E visas by adding a three-year domicile requirement for investors who obtained their citizenship through Citizenship by Investment (CBI) Programs.

Buried in the nearly 2,000-page National Defense Authorization Act (NDAA), P.L. 117-263, signed into law by President Joe Biden on December 23, 2022, is a provision requiring E visa applicants who acquired their citizenship in an E-visa-qualified country by way of an investment to have been domiciled in that country for a continuous period of at least three years prior to applying for an E-1 or E-2 visa to enter the United States.

Section 5902 of the NDAA reads as follows:

(B)       Modification of Eligibility Criteria for E Visas. – Section 101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)) is amended –

(1)       In the matter preceding clause (i) —

(A) By inserting “(or, in the case of an alien who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the alien is a national and in which the alien has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this subparagraph)” before “, and the spouse ‘’; and….

This amendment undercuts the ability of countries with CBI programs (including Bulgaria, Egypt, Grenada, Jordan, Macedonia, Montenegro, and Turkey) to attract investment by offering the possibility of obtaining a United States E visa. It also makes it more difficult for citizens of countries that do not have E agreements with the United States to obtain a visa allowing them to move to the United States for trade or investment.

Persons who have previously been granted E-visa status are exempted from the new foreign residency requirement. Persons who acquired their citizenship in an E-visa country by means other than investment (e.g., through birth, marriage, or residency) are also not subject to the requirement.

Jackson Lewis attorneys are available to advise on options and strategies for investors to live and work in the United States.

USCIS announced that it is no longer necessary to provide supporting documentation to change or update a prior gender selection on immigration forms. The intention is to “reduce barriers to travel, employment, services, and benefits by eliminating delays and preventing discrimination and harassment due to inconsistent identity documents.”

USCIS will be changing its forms to include an “X” marker for gender.

The documentation policy change is consistent with state-level self-certification policies for gender marker designations on driver’s licenses and identification cards. Similar policies have been adopted by other federal agencies, such as the Transportation Security Administration.

USCIS has included a table on its website explaining how to update current documents to request a gender change. If the benefit request is pending, individuals will generally have to submit a letter explaining the change requested. If the USCIS-issued document has already been received, the requestor will generally need to submit a new application, a letter explaining the request, and pay the applicable filing fees.

There is one exception: Form N-565, Application for Replacement Naturalization/Citizenship Document, will still require submission of supporting documentation.

Jackson Lewis attorneys are available to advise regarding the new policy and will provide updates as they become available.

On Equal Pay Day, Congresswoman Eleanor Holmes Norton (D-DC) introduced three bills, including a national pay transparency bill, that she believes would help to close the pay gap between men and women.

She chose Equal Pay Day for the introduction of these bills because it marks the additional days women must work to earn what men earned the prior year.

One of the bills, the Salary Transparency Act, amending the Fair Labor Standards Act, would require all U.S. employers to provide the salary range for jobs in all advertisements. The salary range would need to include wages and other forms of compensation the employer anticipates offering the successful candidate for the job opportunity. The act includes civil penalties ranging from $5,000 for a first violation, increased by an additional $1,000 for each subsequent violation, not to exceed $10,000, plus liability to each job applicant for damages and reasonable attorneys’ fees. The bill also includes a private right of action.

This bill comes at a time when more states are adopting their own pay transparency laws, many of which have different requirements. Due to the difficulty of conforming to these various  laws, “some large corporations including Airbnb Inc. and Microsoft Corp. have begun to include pay information in all US job ads, which they’ve said also helps attract and retain employees.” Indeed, some employers, when doing PERM Labor Certification cases for sponsored visa employees, are choosing to comply with the most restrictive state law in their footprint to avoid possible state law violations, while balancing different geographic pay differentials, especially when many jobs can be worked remotely from anywhere within the United States. In that regard, federal legislation may come as a relief for some multi-state employers, particularly if it helps slow the wave of new and varied state requirements, which make compliance more difficult.

As compliance with a patchwork of state laws becomes more and more burdensome, employers will have to decide how risk-averse they are.

Jackson Lewis attorneys are available to assist in strategizing on how to comply with pay transparency laws in the employment and immigration arenas.

The Occupational Safety and Health Administration (OSHA) has been given the authority to issue certifications in support of applications for T and U nonimmigrant visas beginning March 30, 2023.

To assist agencies in combatting human trafficking and other crimes, OSHA will issue these certifications during workplace safety investigations that identify qualifying criminal activities, including trafficking, forced labor, and obstruction of justice.

T visas enable certain victims of severe trafficking to remain in the United States for up to four years if they comply with any reasonable request for assistance from law enforcement to detect, investigate, or prosecute human trafficking. T status protects individuals from retaliation for cooperating with law enforcement and offers individuals employment authorization and a path to permanent residence. T status can also be extended to qualifying family members. Because traffickers can take advantage of undocumented individuals, T visas protect them and, at the same time, help law enforcement agencies to investigate and prosecute trafficking crimes. Although 5,000 visas are available annually, that cap usually is not reached.

U visas are available to victims of a broad range of crimes who have suffered mental or physical abuse and who help law enforcement or government officials in such criminal investigations. Like the T visa, the U visa is designed to strengthen law enforcement and protect undocumented individuals from abuse, exploitation, and retaliation. There are 10,000 U visas available annually but, if the cap is reached, petitioners can be placed on a waiting list and granted deferred action or parole and may apply for work authorization. Also like T visas, U visas are available to qualifying family members, and principals and eligible family members may apply for employment authorization. Permanent residence is also a possibility after three years in U status.

Both T and U visas require evidence to establish compliance with any reasonable request for assistance from law enforcement unless the individual qualifies for an exemption from that requirement. Victims may submit a Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons for T visas. U visa applicants must submit a Form I-918, Supplement B, U Nonimmigration Status Certification. Agencies that can provide certifications include: tribal and territorial law enforcement, prosecutors, judges, child and adult protective services, federal and state departments of labor, and other government agencies with civil or administrative investigation and prosecutorial authority. Now, OSHA is specifically included.

Jackson Lewis attorneys are available to assist with any questions regarding OSHA investigations and the intersection between those investigations and grants of T and U visas.

New travel authorization systems are being postponed again in the United States and in Europe: REAL ID until May 7, 2025, and ETIAS (European Travel Information and Authorisation System) until 2024.

During the peak of the COVID-19 pandemic, the Department of Homeland Security (DHS) extended the deadline for REAL ID until May 3, 2023. As this date approached, it became clear the country was still not fully ready. At this point, approximately 53% of the population has REAL ID-compliant documentation. Since more than 40% do not, enforcement regarding domestic flights would cause significant problems.

REAL ID was passed by Congress based on recommendations from the 9/11 Commission. It sets minimum security requirements for the issuance of state driver’s licenses and identification cards. REAL ID documents have a star at the top.

These secure documents will be required for every air traveler 18 or older at airport security checkpoints for domestic travel. Those under 18 must be travelling with an individual who has acceptable documentation. When it is in force, REAL ID-compliant documentation will also be necessary for accessing federal facilities and entering nuclear power plants. Because federal facilities do have the authority to require REAL ID compliance even before May 7, 2025, those without a compliant identification document should check with the facility before planning avisit.

Even when REAL ID is in force, other documents can be substituted or used instead of REAL ID. Those other documents include U.S. passports, DHS trusted traveler cards, U.S permanent residence cards, federally recognized tribal-issued photo IDs, USCIS Employment Authorization Cards, and certain Canadian documents, among others.

In the meantime, Europe has been planning to roll out a program, ETIAS, since 2022, which will be similar to the U.S. Electronic System for Travel Authorization Registration System (ESTA). Once ETIAS is in force, all U.S. citizens travelling to Europe to enter the Schengen Zone will be required to register in advance online. The Schengen Zone consists of 27 members states, including those in the European Union. To register, the individual will need a passport valid for three months beyond the intended stay, an email account, and a credit card or debit card.

ETIAS has been delayed more than once, and it is being delayed again due to staffing issues, technical issues relating to data infrastructure, and the COVID-19 pandemic.

Be on the lookout for Jackson Lewis updates on REAL ID and ETIAS.

Department of Homeland Security (DHS) has announced a one-year extension of parole for certain Ukrainian nationals who, after the Russian invasion, were paroled into the United States for a period of one year before the two-year parole became available under the Uniting for Ukraine (UFU) program.

On a case-by-case basis, DHS will consider the extension for these early parolees and their family members who were paroled into the United States at a port of entry between February 24, 2022, and April 25, 2022. DHS expects to take approximately four weeks to review all individuals in this group.

If the parole is extended, DHS will proactively update Form I-94 online with the extension at the Customs and Border Protection (CBP) I-94 website. Individuals should download the updated I-94 as evidence of their extended status. In conjunction with this, USCIS will send new Form I-797 notices evidencing the extension of Employment Authorization Document (EAD) for another year to those individuals whose parole period is extended and already have EADs based on their parole. These will be mailed to the individuals’ addresses on file with USCIS. Those who have moved must change their address online through their existing USCIS online accounts. Alternatively, addresses can be changed by submitting a Form AR-11, Alien’s Change of Address Card or by using the USCIS online Change of Address page.

Ukrainian nationals who do not have an EAD may apply for one based on their parole by filing a Form I-765, Application for Employment Authorization, with USCIS. The USCIS’s fee for filing Form I-765 is waived for first-time Ukrainian parolee applicants. In addition:

  • Those who believe they are part of this group eligible for a one-year extension of parole but do not find an updated I-94 online by early April 2023 should reach out to TCCPMO@cbp.dhs.gov.
  • Those who believe they are part of this group eligible for a one-year extension of parole and hold a valid EAD based on parole but do not receive a new I-797 extending their current EAD by the end of April 2023 should reach out to UkrainianEADExtensions@uscis.dhs.gov.

Jackson Lewis attorneys are available to assist with questions about options for Ukrainians and how to complete Form I-9, Employment Eligibility Verifications, for those with various statuses or extensions.

USCIS announced it has completed the annual H-1B selection process (“lottery”) for Fiscal Year 2024, with early reports indicating a record number of registrations submitted. Each year, it becomes increasingly difficult to obtain one of the 85,000 H-1B visas allotted under the congressionally mandated quota or “cap.” In light of the news, employers and foreign-national employees are now reviewing their contingency plans for those whose registrations were not selected.

Employers must understand the duration and limitations of their employees’ current visa status and evaluate potential opportunities to retain these talented individuals. For instance, some employees may be able to remain in the United States on their current visa to retry the H-1B lottery next year. Others may be eligible to change to another limited type of visa – such as TN, E-3, O-1, or, possibly, L-1 – if they can meet the specific eligibility requirements for those categories. Still others may be able to remain in the United States, and even apply for employment authorization, through a dependent visa of a spouse.

While the limit on H-1B visas is meant to protect U.S. workers, the unanticipated consequence is work leaving the United States. When companies are unable to hire enough skilled workers in the United States, they often resort to “offshoring” (i.e., relocating) the work abroad, giving countries such as India, China, and Canada a competitive advantage over the United States. However, when companies offshore work abroad, in addition to decreasing the number of foreign-nationals working in the United States, they may also find negative, unintended outcomes. For instance, if certain processes are no longer handled in the United States, companies may be required to reduce their number of U.S. workers as well. The effect of lost foreign-national workers also negatively affects the U.S. economy, as consumers and income disappear from the supply chain.

Other countries have taken advantage of the limitations of U.S. immigration. They have expanded their visa offerings to include remote or nomad visa categories to attract foreign-national workers and individuals who do not “win” the H-1B lottery. Some countries, like Canada, have made it easier for highly skilled workers to obtain temporary work visas and even pursue permanent residence. Canada, Mexico, the United Kingdom, Germany, and Australia have increasingly become popular alternatives to the United States as they broaden their immigration horizons.

Another way other countries have capitalized on the pool of available foreign-national talent is the creation of digital nomad visas, which allow various periods of work authorization with attractive tax benefits and perks. Of course, these nomadic work arrangements raise other questions and implications. For example, employers must consider, among other things:

  • Will having an employee abroad raise the risk of the employer becoming subject to local business taxation?
  • How will the company handle local payroll requirements and comply with local employment laws?
  • How will the company deal with the employee’s tax liabilities, workplace injuries, insurance and benefit plans?
  • How will the company handle communications, data protection, and cybersecurity?
  • What costs will the employee have to pay, and which will be borne by the company?

Jackson Lewis attorneys are available to assist companies and their foreign national employees in developing strategic alternatives to the H-1B visa and evaluating potential non-U.S. visa opportunities.

Lawful permanent residents may receive temporary evidence of their lawful permanent resident (LPR) status by mail, rather than physically visiting a field office, USCIS has announced.

LPRs eligible for delivery of temporary evidence of status will be mailed a Form I-94 with ADIT stamp, DHS seal, and a printed photo of the LPR obtained from USCIS systems.

Like the “in person” stamp, the “delivery” form is an acceptable travel document and an acceptable List A receipt for Form I-9 and E-Verify purposes.

To request temporary evidence of status, applicants must call the USCIS Contact Center, and:

  • The officer at the Center will verify the applicant’s identity, physical mailing address, and whether that address can receive UPS or FedEx express mail.
  • The officer will then create an in-person appointment, if necessary, or submit a request to the field office to initiate the creation of temporary evidence.
  • If temporary evidence need to be created, USCIS will review the request and mail the applicant a Form I-94 with ADIT stamp, DHS seal, and a printed photo of the LPR obtained from the USCIS database.

The “delivery” Form I-94 will look the same as the “in-person” form, except that the printed photo will be on the top right, instead of the top left, of the form.

If the applicant’s identity cannot be confirmed over the telephone, the applicant will still need to appear in person. Others with urgent needs or who do not have a useable photo in the USCIS system will also have to appear in person.

The purpose of the new process is to provide a more efficient way for individuals to receive temporary evidence of status without needing to schedule an appointment and travel to a USCIS field office.

Jackson Lewis attorneys are available to assist with this new process.