All visitors, except U.S. citizens, returning resident aliens, immigrant visa holders, and most Canadian citizens, must receive a Form I-94, Arrival/Departure record at the port of entry. Because travel is picking up, Customs and Border Protection (CBP) is encouraging travelers to fill out an I-94 application online in advance to reduce wait times and speed their arrival.

CBP has other travel tips for those arriving at the northern land border:

Jackson Lewis attorneys are available to assist with questions about entry requirements at the borders.

As of 12:01 a.m. on Sunday, June 12, 2022, passengers flying to the United States from abroad will no longer need to present a negative COVID-19 test to board (or prove that they have recovered from COVID-19 within the prior 90 days). Non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must still show proof that they are fully vaccinated.

This relaxation of the test requirement was announced by the White House based on a CDC recommendation.  The CDC determined that the science and data made it clear that the requirement was no longer needed, at least in part because of the great progress that the United States has made in terms of vaccines and treatments that prevent serious illness and deaths.  The CDC, however, will review the data within 90 days and reinstate the requirement if circumstances change.

The negative COVID-test rule for international travel back to the United States was first put in place in January 2021 by the Trump Administration.  At that time, the test had to be performed within three days of boarding.  By December 2021, the Biden Administration changed the rule to require the test within one day of departure. For some time, the rule has been opposed by airlines and the travel industry because of its financial impact.  Travel plans were being postponed because individuals feared being stuck abroad if they or any member of their party tested positive.  Moreover, some individuals who tested positive (or feared they would) were circumventing the rule by entering the United States at a land or sea port of entry where negative COVID-19 tests were not required.

In April 2021, a federal court struck down the COVID-19 mask mandate for planes, trains and buses, although the CDC still recommends masking, and the administration is appealing that decision.

Department of Homeland Security (DHS) has issued a Federal Register notice with instructions on how to apply for Temporary Protected Status (TPS) for Cameroon. The designation runs for 18 months, until December 7, 2023, and the government estimates that approximately 11,700 individuals may be eligible.

Cameroon has been designated for TPS due to extreme violence between government forces and armed separatists, deadly attacks by terrorist groups and vigilante self-defense groups, and human rights violations leading to a humanitarian crisis and economic decline.

Cameroonians who have continuously resided in the United States since April 14, 2022, may apply for TPS. Individuals arriving after that date will not be eligible. Those who meet the eligibility requirements, including demonstrating continuous physical presence in the United States since June 7, 2022, will be able to register for TPS and apply for employment and travel authorization during the registration period, which runs from June 7, 2022, until December 7, 2023.

Cameroonian students who are in the United States in F-1 status and who are suffering from severe economic hardship may be able to request work authorization, reduce their course loads, and work more hours.

Jackson Lewis attorneys are available to assist in making applications, determining work authorization, and advising on the employment verification process for employees with TPS.

In response to high skilled labor shortages, the UK has announced a program aimed at attracting the “best and brightest” from around the world.

Under the new scheme, alumni of top non-UK universities who have graduated within the past five years can apply for the streamlined High Potential Individual (HPI) visa and have their cases adjudicated within a few weeks.

Other key features include:

  • The HPI visa is good for two years, three if the individual has a doctoral degree.
  • There is no extension of the HPI visa, but beneficiaries will be eligible for other, more permanent statuses in the UK.
  • The beneficiary’s partner and children can join the beneficiary in the UK.
  • There is no job offer requirement; individuals with the HPI visa can work in most jobs, look for work, be self-employed, or even volunteer.

The current list of about 40 eligible universities includes 20 in the United States:

  • California Institute of Technology
  • Columbia University
  • Cornell University
  • Duke University
  • Harvard University
  • Johns Hopkins University
  • Massachusetts Institute of Technology
  • New York University
  • Northwestern University
  • Princeton University
  • Stanford University
  • University of California at Berkeley, Los Angeles and San Diego
  • University of Chicago
  • University of Michigan at Ann Arbor
  • University of Pennsylvania
  • University of Texas at Austin
  • University of Washington
  • Yale University

The UK is one of many countries that are expected to be increasingly hard hit by a dearth of high skilled workers. The UK has been having trouble attracting talent from the EU due to new immigration issues caused by Brexit. It is trying a new HPI visa option that might make things worse in the United States. Countries such as Canada have established pathways to attract high skilled workers from abroad. In the United States, there is also a need to attract and retain high skilled workers. The U.S. House of Representatives recently passed legislation that would help companies in the United States compete for top talent. It is unclear whether the Senate will pass similar legislation. Meanwhile, companies try to offer more benefits to attract top talent, while continuing to await much-needed government action.

Employers searching for skilled workers should not overlook the powerful but somewhat obscure immigration tool, the E visa. While use of this visa is dependent on certain treaty laws, qualifying organizations may employ the E visa to hire executives, managers or essential employees which can provide needed options for companies struggling to replace employees in the post-pandemic economic marketplace. On this episode of We Get Work, we share the many benefits of the E visa, as well as who and how to qualify. Our hosts are James Stone, a principal in the Cleveland office of Jackson Lewis, and Kimberly Bennett, an associate in the DC region office.

As of January 1, 2023, Tennessee will require all private employers with at least 35 employees to use E-Verify and maintain E-Verify case results.

E-Verify is a federal electronic database intended to aid employers in confirming that the documentation provided by new hires to establish lawful employment eligibility is in fact valid. Except for federal contractors, federal law does not mandate the use of E-Verify, but states have passed various mandates.

Tennessee began phasing in E-Verify in 2012 by passing legislation requiring that most Tennessee employers either use E-Verify or review and maintain certain identification documents. In 2017, the Tennessee Lawful Employment Act (TLEA) took effect, requiring all Tennessee employers to demonstrate they are hiring and maintaining a legal workforce. The TLEA requires private employers with at least 50 employees to use E-Verify.

Additionally, beginning January 1, 2023, the Tennessee law will have the following new provisions:

  • If an employer with fewer than 35 employees or an employer that does not have internet access wishes to use E-Verify, the office of employment verification assistance can enroll the employer in E-Verify or conduct the work authorization status checks.
  • Those who use E-Verify can be protected from state claims of wrongful or retaliatory discharge if the employee is not authorized to work in the United States, but the employer was not aware of that.
  • An employee does not have a state cause of action for discrimination based on national origin if an employer discovers an employee is not authorized to work in the United States through E-Verify and discharges the employee based on that.

For employers with fewer than 35 employees, E-Verify is not required. However, all employers should periodically audit their employment verification records to ensure they have been completed fully and properly. The Department of Labor and Workforce Development has been active in auditing E-Verify compliance for employers with at least 50 employees. Critically, the Tennessee definition of “employee” includes and counts employees under the same FEIN – this means that employers that may have fewer than 35 employees in the state of Tennessee but have more than 35 employees under the same FEIN are subject to E-Verify for Tennessee employees come January 1, 2023.

Jackson Lewis attorneys are available to answer your questions about state E-Verify requirements and to assist employers in setting up employment verification policies and conducting internal compliance audits.

In March 2022, USCIS published a final rule expanding its premium processing service to include additional immigration petition and application types. This announcement was welcome news to businesses and foreign nationals dealing with extensive delays in the processing of immigration benefits.

On May 24, 2022, USCIS announced that premium processing will begin as of June 1, 2022, with Forms I-140, Immigrant Petition for Alien Workers, in the first preference EB-1 multinational managers and executives category and the second preference EB-2 national interest waiver category. However, the service is limited only to petitions that were filed more than a year ago.

According to USCIS, the initial phase of premium processing expansion will be as follows:

  • As of June 1, 2022, USCIS will start to accept Form I-907, Requests for Premium Processing, for EB-1 multinational executive and manager petitions received by the USCIS on or before January 1, 2021.
  • As of July 1, 2022, USCIS will start to accept Form I-907 requests for EB-2 national interest waiver petitions received on or before June 1, 2021.
  • As of July 1, 2022, USCIS will start to accept Form I-907 requests for EB-1 multinational manager or executive petitions received on or before March 1, 2021.
  • USCIS will reject interfiled requests for premium processing for any of the above before the effective start dates.
  • USCIS will not accept new “initial” filings for any of the above with premium processing requests at this time.

As to the Form I-907 itself:

  • For the month of June 2022, USCIS will accept both the 09/30/20 and the 05/31/22 edition of the form.
  • Starting on July 1, 2022, the older version will be rejected for all premium processing requests.

The cost for this expanded premium processing benefit will remain $2,500, but, unlike the current 15-day premium processing timeframe, USCIS will guarantee adjudication within 45 days. Nevertheless, that is considerably better than the current 12-to-18-month delays for many applications.

USCIS indicated that additional premium processing benefits are being introduced to increase efficiency on a staggered basis, when revenues exist to hire additional staff and when it would not adversely affect other processing times. It is not clear yet when premium processing for Form I-539 requests for change of status or extension of stay in nonimmigrant dependent categories or when Form I-765 Requests for Employment Authorization will become available. However, USCIS previously noted that all the new benefits may not be available until 2025.

If you have questions about the upcoming new premium processing benefits, please reach out to your Jackson Lewis attorney.

The Temporary Protected Status (TPS) grant for Afghanistan will go into effect on May 20, 2022, with publication of the notice in the Federal Register with instructions on how to apply for TPS and for Employment Authorization.

In March 2022, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced that Afghanistan was added to the list of countries eligible for TPS. This would benefit approximately 75,000 individuals and provide temporary employment authorization. The 18-month initial grant and registration period became effective on March 20, 2022, and runs through November 20, 2023.

To be eligible, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and their continuous physical presence in the United States since March 20, 2022. Any nationals or residents of Afghanistan who are not currently residing in the United States or who arrived after March 15, 2022, will not be eligible for this TPS designation.

Eligible individuals must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period. They may also submit a request for an Employment Authorization Document using Form I-765, Application for Employment Authorization. The applications may be submitted together and may be submitted online.

Afghan nationals who arrived in the United States through the evacuation effort, Operation Allies Welcome, received humanitarian parole and work authorization for a period of two years. Those individuals may also be eligible for TPS.

DHS has also announced that F-1 students from Afghanistan experiencing severe economic hardship due to the situation in Afghanistan will be eligible for work authorization, increased permittable work hours, and a reduction in their course load as an accommodation.

Jackson Lewis attorneys are available to assist with TPS applications and advise on employment authorization verification requirements for Afghan nationals and residents.

Federal courts could not review the U.S. Attorney General’s decisions denying discretionary relief from removal – even in a case where the alien contends that the decision was based on a factual error, the U.S. Supreme Court has held, 5-4, affirming the opinion of the U.S. Court of Appeals for the Eleventh Circuit. Patel v. Garland, No. 20-979 (May 16, 2022).

The decision was authored by Justice Amy Coney Barrett. She was joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanagh, and Clarence Thomas. The Supreme Court had granted review to resolve a split in the circuits.

In this case, Pankajkumat Patel and his wife sought discretionary relief from removal and deportation in the form of two different adjustment of status applications. They had entered the United States illegally in the 1990s. They have three sons – one a U.S. citizen and two who are legal permanent residents. In 2007, the Patels tried to repair their situation by seeking discretionary relief, but their adjustment applications were denied because Patel had claimed to be U.S. citizen by checking the wrong box on a driver’s license application. He argued that this was a simple error on his part and that he had no intention or any reason to claim to be a U.S. citizen to obtain a driver’s license because, in Georgia (where he lived), he was eligible for a driver’s license based upon the fact that he had a pending adjustment application and valid work authorization.

The U.S. government supported Patel and argued that factual findings were not discretionary and, therefore, could be reviewed. Since the government did not support the Eleventh Circuit’s ruling, the Supreme Court appointed an amicus to argue on its behalf, Taylor A.R. Meehan, a former 11th Circuit and Supreme Court law clerk. Meehan is one of the few women who have ever selected for this role. Meehan argued that any authoritative decisions encompassing any and all decisions related to the granting or denying of discretionary relief are unreviewable.

Justice Neil Gorsuch joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan offered a strong dissent:

It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In cir­cumstances like that, our law has long permitted individu­als to petition a court to consider the question and correct any mistake.

Not anymore. Today, the Court holds that a federal bu­reaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely as­sertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Exec­utive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of hav­ing to correct even its most obvious errors.

Due in part to motor voter laws, other immigrants since 2017 have made the mistake that Patel made. The harshness of this ruling further emphasizes how one small mistake can ruin an immigrant’s chance at immigrating the United States.

 

 

 

The Department of State (DOS) has reinstituted talks with Cuban representatives about how to support family reunification and safe, orderly migration from Cuba to the United States.

Talks of this nature were instituted in 1984 and continued biannually from 1994 until 2018 when the talks were paused by the Trump Administration.

The Biden Administration is considering a resumption of the bilateral accords that formed the basis of these talks. Under the accords, the United States agreed to issue 20,000 immigrant visas to Cubans annually if the Cuban government would accept deportation flights (which Cuba has not been doing). Reinstituting these accords also could be part of the administration’s effort to limit problems at the southern border. Cubans are the second largest group of migrants there, second only to Mexicans. In March 2022, 32,000 Cubans were taken into custody at the border. Since November 2021, 65,000 have reached the southern border. Attempted migration surged at that time when Nicaragua eliminated visa requirements for Cuban nationals, allowing Cubans to travel overland to the United States. Previously, most of the attempted Cuban migration was across the Florida straits — a treacherous journey that Secretary of Homeland Security Alejandro Mayorkas would like to see halted.

A growing number of Cubans reportedly are receiving humanitarian parole after being released from U.S. Customs and Border Protection custody. While humanitarian parole generally does not lead to permanent residence, it can for Cubans pursuant to the Cuban Adjustment Act of 1966 (CAA). Under the CAA, natives or citizens of Cuba are eligible to adjust status if they were inspected and admitted or paroled into the United States after January 1, 1959, have been physically present in the United States for at least one year, and otherwise are eligible for admission.

Consular services were basically suspended in Havana in 2017 due to reports of Havana Syndrome. Visa applicants have had to apply in Guyana, some 2,000 miles from Cuba. As of May 2022, the U.S. Embassy in Havana may begin to process immigrant visas “on a limited basis” with a skeleton crew.