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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.

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

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

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

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

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

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

President Joe Biden has revoked the immigrant visa ban because he believes it did not advance the interests of the United States, but instead harmed United States industries, families, and diversity immigrant visa lottery winners.

The ban was put in place by former President Donald Trump in April 2020 on the stated ground that it was necessary to protect U.S. workers in the aftermath of the COVID-19 pandemic. It has prevented individuals who were abroad from seeking to enter the United States as permanent residents. Originally set to last for only 60 days, the ban was extended through March 31, 2021, by President Trump. The immigrant visa prohibition prevented some talented employment-based applicants from entering, but most of the people affected were diversity visa lottery winners, as well as family members of U.S. citizens and lawful permanent residents, who were prevented from joining their families in the United States.

This is now the third Trump travel ban that Biden has terminated. The first two were the bans that prevented individuals from 13 primarily Muslim or African countries from entering the United States. Still in effect is the nonimmigrant visa ban that has been thwarting U.S. businesses by preventing certain applicants for H, L, or J status from obtaining visas or coming to the United States absent an exemption or a national interest exception. This ban, like the immigrant visa ban, is still set to terminate on March 31, 2021, but it is not clear if that will happen.

The other travel ban that has been making it difficult for businesses to function is the 14-day ban that prohibits U.S. entry by individuals who have been in over 30 countries (China, Iran, the U.K., Ireland, the 26 Schengen countries, Brazil, and South Africa) in the 14days prior to their arrival in the United States. This ban, unlike the immigrant and nonimmigrant visa bans, is based on COVID-19-related health concerns.

The Department of State has issued specific instructions on how to proceed for 2020 Diversity Visa Applicants and immigrant visa applicants who were previously refused visas or entry due to the April 2020 proclamation. In addition, the Secretary of State has granted a national interest exception for 2020 Diversity Visa Applicants who hold valid visas but are subject to one of the 14-day bans.

Jackson Lewis attorneys are available to assist you in developing strategies to deal with the bans that are still in effect and to advise on the effects of the most recent revocations.

The Biden administration announced that restrictions on travel known as the “14-Day Rules” will remain in effect, despite former President Trump’s decision to terminate some of them. These rules restrict entry by most non-U.S. citizens and non-Green Card holders from China, Iran, the United Kingdom, Ireland, Brazil and the 26 Schengen Zone countries.  While there are exemptions and national interest exceptions, these restrictions prevent travelers who have been in the named countries within 14 days prior to departure from entering the United States. On Saturday, January 30, 2021, South Africa will be added to the list of restricted countries due to the new strain of COVID discovered in that country. The new strain has not yet been discovered in the United States.

As of January 26, 2021, under CDC regulations, individuals who can travel to the United States will be required to provide proof of a negative COVID-19 test within three days of departure or documentation of recovery from COVID-19 before boarding flights. This requirement applies to all passengers over two years old flying to the United States from abroad, including U.S. citizens and Green Card holders. More than 120 countries have similar requirements. The White House confirmed that at this time there will not be any waivers for travelers coming from countries where testing is limited. The CDC also directs people to stay home for seven days upon return and get tested three-to-five days after return.

As a further preventive measure, mask-wearing will be required domestically at all airports, on commercial aircraft, trains, public maritime vessels, including ferries, and intercity bus services and on all federal properties.

Jackson Lewis will continue to follow these changes and provide updates as they become available.

President Joseph Biden signed the Proclamation on Ending Discriminatory Bans on Entry to The United States (“Proclamation Ending Discriminatory Bans”) during his first hours in office, terminating the controversial Muslim Ban and its sequel, the Africa Ban.

The Muslim Ban was based on an Executive Order (EO) that former President Donald Trump signed almost four years ago during his first days in office. Litigation around that Executive Order kept the Muslim Ban from going into effect until June 2018, when the U.S. Supreme Court upheld the ban in a 5-4 vote. The new Proclamation Ending Discriminatory Bans also will terminate some previously instituted proclamations regarding extreme vetting.

The Muslim Ban affected individuals from seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. While there were some exceptions, the EO basically blocked entry of citizens from those countries as immigrants or nonimmigrants. (Venezuela’s ban was directed solely at government officials and their family members.) Although waivers were available, almost 75% of all waiver requests reportedly were denied. The Africa Ban, issued in early 2020, blocked individuals applying for immigrant visas from Eritrea, Kyrgyzstan, Myanmar, and Nigeria and individuals applying for Diversity Visas from Sudan and Tanzania.

The Proclamation Ending Discriminatory Bans does not affect other travel restrictions related to COVID-19, including the Presidential Proclamations blocking the entry for immigrants and certain nonimmigrants due to economic conditions brought on by COVID-19. The Presidential Proclamations related to travel restrictions from the UK, EU, and certain other countries due to COVID-19 contagion concerns  will also remain in effect, notwithstanding the Trump administration’s indications that these would be withdrawn as of January 26, 2021.

Under the new Proclamation Ending Discriminatory Bans, the Department of State (DOS) will provide a proposal for how to reconsider applications denied based on now-suspended restrictions, a plan for adjudicating pending waiver requests, and recommendations on how to improve the vetting and screening process, including an assessment of the benefits of using social media identifiers in that process, among other things.

If you have any questions regarding the web of travel restrictions terminated and those still in effect, please reach out to your Jackson Lewis attorney.

On December 31, 2020, just as it was about to expire, President Donald Trump extended the ban on immigrant and nonimmigrant visas until March 31, 2021. Initiated in April and June 2020, the bans were intended to block immigrants and nonimmigrants (with H, L and J visas) from coming to the United States due to economic concerns related to the COVID-19 pandemic.

The nonimmigrant ban which has created a great deal of uncertainty for employers was partially blocked by a federal judge who determined that it likely exceeded the authority of the Executive Branch. The injunction, however, was not nationwide and only applies only to members of the plaintiff organizations: National Association of Manufacturers, Chamber of Commerce of the United States, National Retail Federation, Technet and Intrax. Some national interest exemptions are available but the requirements vary from consulate to consulate. Moreover, just obtaining visa appointments at the consulates can be challenging due to reduced operations.

These are far from the only travel restrictions that are still in effect. Presidential Proclamations blocking the entry of individuals who have been in 30 different countries during the 14-day period prior to admission remain in effect and due to the new strain of COVID-19 identified in the United Kingdom, air passengers from the United Kingdom are not allowed to board flights to the United States unless they have proof of a negative COVID test within no more than three days prior to the flight. Passengers must provide an attestation regarding the testing. This restriction, unlike the others, applies not only to foreign nationals but to U.S. citizens and green card holders as well.

Jackson Lewis attorneys are available to assist you with questions regarding these restrictions as well as those COVID-related restrictions such as those at the Northern and Southern borders which have been extended until January 21, 2021.

The entry period for the 2022 Diversity Immigrant Visa (DV) Program will open on Wednesday, October 7, 2020 at noon, Eastern Daylight Time (EDT) and will close at noon EDT on Tuesday, November 10, 2022.  There is no cost to register.

Individuals born in the following 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: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  Individuals born in Macau SAR and Taiwan are eligible.  It is notable that last year individuals born in Hong Kong SAR were also eligible, but this year, they are not.

Although there is no cost to register, individuals may not submit more than one application.  Doing so will lead to disqualification.  Eligibility requirements are set out on the Diversity Lottery website.  The Department of State (DOS) recommends that applicants 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 will be accepted.

The DV Program is continuing despite the Administration’s long-stated intention to eliminate it and this year’s Presidential Proclamation that made it impossible for all of the 2020 DV Program winners to apply for immigrant visas.  Those DV Program lottery winners sued the Administration and gained some relief.  They recently asked Judge Amit P. Mehta, the presiding federal judge in the District of Columbia, to preserve 30,000 visas for 2020 DV applicants beyond the September 30, 2020 deadline.  Judge Mehta did so but lowered the figure to 9,095 based upon his estimate of the number of visas DOS reasonably could have processed during the six months in which it illegally refused to process DV Program applications.  With the additional 9,095 visas, the total number issued for the 2020 Program would be about 24,000 – still far short of the close to 50,000 usually issued.

If you have questions about the DV Program 2022 process, Jackson Lewis attorneys are available to assist.

The Department of Homeland Security (DHS) is making it a little easier for some foreign nationals to fly to the United States by lifting certain restrictions in place following the outbreak of the COVID-19 pandemic.

Under the restrictions, any airplanes carrying passengers who had recently travelled to or had been present in China, Iran, the 26 countries in the Schengen Area, the United Kingdom, Ireland, and Brazil but were exempt or received waivers to enter the U.S. were required to land at a limited number of U.S. airports. At those designated airports, there were public health resources for conducting enhanced entry screening. The 15 international airports were in:

  1. Atlanta
  2. Boston
  3. Chicago
  4. Dallas-Fort Worth
  5. Detroit
  6. Fort Lauderdale-Hollywood
  7. Honolulu
  8. Houston
  9. Los Angeles
  10. Miami
  11. New York City
  12. Newark
  13. San Francisco
  14. Seattle-Tacoma
  15. Washington-Dulles

Now, those restrictions have been lifted. This change should make it easier for covered travelers, as they will have more flights, more airlines, and more U.S. arrival destinations to choose from for international travel.

According to its announcement, DHS hopes to stimulate air travel while using its health resources more effectively. Due to COVID-19, TSA hit a low point in daily travelers in mid-April – 87,534. On September 20, 2020, TSA reported 847,968 – a 10-fold increase. But, about three times as many passengers were screened on the same date in 2019 – 2,517,826.

Despite the changes, DHS will continue using an illness reporting system and passenger education for all arriving passengers, along with other TSA health measures. So that passengers and TSA employees “Stay Healthy and Stay Secure” during the screening process, the Agency has instituted, among other things:

  • Social distancing
  • A mask requirement
  • Plastic shielding
  • Increased cleaning
  • To make screening more “contactless”:
    • Each traveler holds their own IDs and boarding passes and places them on the reader, rather than handing the documents to the screener
    • Screeners will use new gloves for each pat down and new explosive trace swabs for each passenger
    • Belts and other items, including change and paper currency, that must be removed from pockets will be placed in the traveler’s own carry-ons, not in bins
  • Each traveler will be allowed to have up to 12 ounces of hand sanitizer in their carry-ons
  • To accommodate identification problems caused by COVID-19 closings:
    • Driver’s licenses or state-issued IDs that expired on or after March 1, 2020, and could not be renewed can be used as identification for up to one year after expiration
    • REAL ID enforcement deadline originally scheduled for October 1, 2020, has been changed and pushed out until October 1, 2021

Even though international travel is down, TSA still recommends arriving early for flights because COVID-19 has affected staffing throughout the airport environment.

If you have questions about international travel and visa restrictions, Jackson Lewis attorneys are available to assist you.

 

Judge Amit Mehta in Gomez v. Trump ordered the Department of State (DOS) to make good faith efforts to “expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications” and issue visas to those eligible by September 30, 2020 – the deadline for the Diversity Visa program.

In response, DOS has issued guidance, but the agency’s “good faith” efforts will not be good enough for many DV applicants. Indeed, DOS said that it does not expect to be able to accommodate everyone. Embassies and consulates have been told they may begin processing DV applications where local health conditions and post resources allow.

Here is the DOS priority list:

  • The named plaintiffs in Gomez
  • Applicants who were already interviewed and are seeking reissuance
  • Applicants whose appointments in March, April, and May were cancelled
  • Applicants with cases pending at the KCC are at the bottom of the list

DOS has advised:

  • DV applicants who had previously scheduled appointments (even if cancelled) are directed to reach out to the relevant embassy or consulate for information about their case.
  • If a post is unable to process cases, an applicant may request a transfer to another post by reaching out to the desired post directly – but not all transfer requests will be accommodated.
  • DV applicants who had valid visas on April 23, 2020 (and therefore, are exempt from the Presidential Proclamation), but could not travel and now have expired visas, may apply to have their visas reissued before the September 30 deadline.
  • Because the 14-Day COVID-19 bans were not part of the Gomez case, DV applicants who are subject to the 14-Day COVID-19 bans (China, Iran, the Schengen Zone, UK and Ireland, and Brazil) may be interviewed, but visas will not be issued to them unless they are exempt or fall within an exception to the those bans.

Once a Diversity Visa is issued, the applicant must be able to enter the United States before the visa expires. In addition:

  • Those who fall within an exemption or exception to the July Presidential Proclamation or the 14-Day COVID-19 bans should be able to enter if their visas are issued.
  • Because immigrant visas generally expire when the underlying medicals expire, applicants may opt to submit a new medical exam with a later expiration date.
  • While there is not much time left and the logistics may not work, it is possible for individuals who are subject to a 14-Day COVID-19 ban to try to wait it out in a non-banned country prior to their visa appointment.

Jackson Lewis attorneys are available to assist with any questions regarding the new DOS guidance.

 

 

U.S. Immigration and Customs Enforcement (ICE) has announced that students in F-1 or M-1 nonimmigrant status will not be able to remain in or enter the United States if they are taking only online courses during the upcoming fall semester. This is a last-minute change from the flexibility that students were given this past spring and through the summer when COVID-19 forced most universities online.

The new restriction not only causes problems for foreign students, but it also is likely to increase the economic pressures colleges and universities are facing due to COVID-19 by inducing foreign students to attend universities elsewhere. This is on top of the already confounding travel restrictions that affect foreign students, such as the Schengen, UK, Ireland, Brazil, China, and Iran COVID-19 bans, as well as the various pre-COVID-19 travel bans and restrictions that affect a smaller number of students.

According to ICE:

  • F-1 and M-1 students cannot remain in the United States and visas will not be issued to them if their school is operating entirely online. Those already in the U.S. must depart or take other measures, such as transferring to a school with in-person instruction, or be subject to immigration consequences up to and including removal.
  • F-1 students who are attending schools that are operating “normally” (in-person instruction) are subject to the existing regulations, i.e., eligible to take only one course (three credit hours) online per semester.
  • F-1 students whose schools are adopting the hybrid model for instruction will be allowed to take more than one course online, but the schools will be required to make specific certifications regarding their teaching model and course loads. The hybrid model exemption is not available to students in English language training programs or M-1 students pursuing vocational studies.

If there is a change in circumstances during the semester, such as a return to fully online instruction due to COVID-19 spike, foreign students will need to leave the country (if they can), switch to a different program (which may not be possible), or take alternative steps such as a reduced course load (which is allowed only in limited circumstances).

Colleges and universities are struggling in an uncertain environment to develop plans to balance educational goals with COVID-19 safety measures. Despite the financial problems involved for the institutions, most are changing their calendars, limiting the number of students on campus at any one time, providing hybrid teaching models, and even putting all classes online while still bringing students to campus. Indeed, some have already announced they will be teaching fully online for the fall semester. The fully online approach allows the schools to accommodate not only students who are at risk, but also faculty, many of whom are in high risk categories. ICE’s announcement may force schools to rethink their already carefully balanced plans and adopt the hybrid model. Foreign students will be forced to take some in-person classes – despite the health risk – in order to come to or remain in the United States with their classmates.

Please contact a Jackson Lewis attorney with any questions.