The COVID-19 pandemic has forced DHS to delay full enforcement of the REAL ID law from October 1, 2021, to May 3, 2023, the agency has announced.

The REAL ID law requires every air traveler 18 years or older to show genuine REAL ID-compliant identification documents at airport security checkpoints for domestic travel. Those under 18 must be travelling with an individual who has acceptable documentation.

As air travel continues to pick up, full enforcement of REAL ID is being extended by 19 months to May 3, 2023. This is good news for air travelers who have not yet been able to obtain REAL ID-compliant driver’s licenses or another TSA-acceptable forms of identification.

Secretary of Homeland Security Alejandro Mayorkas announced the extension, explaining: “As our country continues to recover from the COVID-19 pandemic, extending the REAL ID full enforcement deadline will give states needed time to reopen their driver’s licensing operations and ensure their residents can obtain a REAL ID-compliant license or identification card.”

While all 50 states (and most U.S. territories) are prepared to issue REAL ID driver’s licenses and identification cards, many have had to extend driver’s license renewal deadlines and switch to appointment-only scheduling because of COVID-19 restrictions. In its announcement, DHS stated, due to the pandemic, only 43 percent of state-issued driver’s licenses and identification cards are REAL ID-compliant.

The REAL ID Act was passed by Congress at the recommendation of the 9/11 Commission in 2005 as a way to improve security. Other forms of compliant documents for boarding domestic flights include:

  • U.S. passport or U.S. passport card
  • DHS trusted traveler card (Global Entry, NEXUS, SENTRI, and FAST)
  • U.S. Department of Defense ID, including IDs issued to dependents
  • U.S. permanent resident card
  • Border crossing card
  • DHS-designated enhanced driver’s license
  • Federally recognized, tribal-issued photo ID
  • Foreign government-issued passport
  • Canadian provincial driver’s license or Indian and Northern Affairs Canada card
  • U.S. Citizenship and Immigration Services Employment Authorization Card (I-766)

REAL ID-compliant driver’s licenses have a star at the top of license.

If you have questions about REAL ID, Jackson Lewis attorneys are available to assist you.

Deference is back! USCIS announced that, effective immediately, it will reinstate its 2004 policy of deferring to prior determinations of eligibility.

Rescinded by the Trump administration, this policy directed officers to “generally defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.” This means that prior determinations made by USCIS will receive deference unless “there was a material error, material change in circumstances or in eligibility, or new material information” that would have an adverse impact on eligibility.

This change is a result of President Joe Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The order was meant to break down barriers to fair and efficient USCIS adjudications, among other things.

The Trump administration’s rescission of USCIS deference policy has been identified as one of the factors that created processing delays and substantial backlogs at USCIS. Officers have been forced to unnecessarily re-adjudicate cases that previously would have been approved quickly and efficiently. Beyond processing delays, the rescission of the deference policy led to uncertainty for both foreign national employees and their employers. Even when circumstances were unchanged, employees and employers who may have worked together for years were suddenly confronted with the possibility that the rug might be pulled out from under their feet. Requests for evidence (RFEs) and even denials loomed. The return of the deference policy, though not a complete safeguard against a denial, would restore a degree of predictability and consistency that is necessary for family security, the smooth flow of business, and continuing economic growth.

Under the reinstated policy, if an officer does not defer to a prior approval, the officer must:

  • Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
  • Articulate the reason for the lack of deference;
  • Provide the petitioner or applicant an opportunity to respond to any new information; and;
  • Importantly, obtain supervisory approval before deviating from a prior approval.

If the problem is one of inadmissibility or of failure to maintain status, a “split decision” may be rendered – approving the petition classification, but not the extension. In such a case, it will be up to a consulate to make the final determination.

For any questions about the reinstated policy, please reach out to your Jackson Lewis attorney.

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.

The Department of Homeland Security (DHS) has announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

U.S. employers may bring foreign nationals to this country to fill temporary, non-agricultural jobs in H-2B status. H-2B visas are relied on heavily by the tourist, hospitality, landscaping, seafood, and construction industries. In recent years, all the visas have been used up and businesses have gone begging for more – often just to be able to remain afloat.

Annually, 66,000 H-2B visas are available, half for the winter season and half for the summer season. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. For the summer of 2021, the Department of Labor received applications for a total of 98,000 workers, all vying for one of the coveted 33,000 spots. Due to the overwhelming demand, the 33,000 H-2B visas were used by February 12, 2021. The prospect of thousands of jobs unfilled for their busiest season panicked many industries.

For years, employers have advocated for additional H-2B visas. In response, Congress authorized DHS to release more visas. In 2020, DHS planned to release an additional 35,000 visas, with 10,000 specifically reserved for nationals of Guatemala, El Salvador, and Honduras, but that was put on hold due to high unemployment rates resulting from the COVID-19 pandemic.

It could be a few months before USCIS issues the final rule and obligations for employers to obtain one of the 22,000 new H-2B visas. If it is like last year, U.S. employers likely will need to perform additional recruitment before applying for the visas.

Jackson Lewis attorneys are available to assist you through the process of applying for the newly released H-2B visas and bringing new workers to the United States.

The Healthcare Workforce Resilience Act (HWRA) has been introduced in the Senate again. The bill would recapture 15,000 immigrant visas for doctors and 25,000 for nurses.

The bill has bipartisan support. Introduced by Senators Dick Durbin (D-IL), John Cornyn (R-TX), Todd Young (R-IN), Chris Coons (D-DE), and Susan Collins (R-ME), the bill focuses on starting to eliminate the shortage of healthcare workers in the United States that has become more apparent during the COVID-19 pandemic. Providing immigrant visas to doctors and nurses would not only be an attractive incentive to those overseas, but to those already in the United States because they would no longer be restricted by the geographic scope of their nonimmigrant visas. That limitation and questions about telehealth continue to be obstacles to deploying medical assistance where needed during spikes in COVID-19 cases across the country.

At the introduction of the bill, Senator Collins said, “By issuing unused employment-based visas to immigrant medical professionals, this bipartisan legislation would help strengthen our health care workforce and preserve access to care, particularly in rural and underserved communities in Maine and across our country.” If the bill passes as proposed, the filing period for the unused visas would end 90 days after the termination of the COVID-19 emergency declaration.

Under its provisions, the bill:

  • Recaptures unused visas for doctors, nurses, and their families;
  • Exempts the recaptured visas from country caps;
  • Requires employers to attest that no United States workers will be displaced by those petitioning for the visas; and
  • Requires no-fee expedited processing.

This bill has been introduced before, but might have even more force now because the idea of recapturing unused visas has been proposed by President Joe Biden in his U.S. Citizenship Act. Visas often go unused due to the mistakes in counting and administrative delays and errors – some, but not all, unused visas have been recaptured in the past by legislation.

The HWRA is supported by many organizations, including physicians groups (such as the American Medical Association, the American Academy of Family Physicians, and the American Academy of Pediatrics), nursing associations (such as the American Organization for Nursing Leadership), the National Rural Health Association, as well as the American Immigration Lawyers Association and the American Business Immigration Coalition.

The bill will be introduced into the House of Representatives, also on a bipartisan basis, by Representatives Brad Schneider (D-IL), Tom Cole (R-OK), Tom O’Halleran (D-AZ), and Don Bacon (R-NE).

Jackson Lewis attorneys will follow the progress of the bill and provide updates as they become available.

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.