On April 14, 2022, the Centers for Disease Control (CDC) updated its post-arrival recommendations.

Almost everyone (unless specifically exempted) who is at least 2 years old must have a negative COVID-19 test (tests include an antigen test or a nucleic acid amplification test) to board an airplane for the United States. Travelers fall into two broad categories: 1) U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants, and 2) non-U.S. citizen and non-U.S. immigrant entering on temporary visas.

After Arrival in United States

After arrival, CDC recommends all travelers, including U.S. citizens, legal permanent residents, nonimmigrant foreign nationals, and any individuals who are fully vaccinated but are not up to date on vaccinations (i.e., not boosted) should:

  • Get a COVID-19 viral test 3-5 days after travel.
  • Self-monitor and quarantine, then isolate if the COVID-19 test is positive or if symptoms develop.
  • If the traveler recovered from a documented COVID-19 infection within the past 90 days (regardless of vaccination status), then COVID-19 viral testing or self-quarantine is not required unless symptoms develop.

Vaccination Requirement

Those in group 1 (U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants) need not show proof of being fully vaccinated against COVID-19 before traveling to the United States by air, but those in group 2 (non-U.S. citizen and non-U.S. immigrant entering on temporary visas) do. However, the following members in group 2 can be excepted from the fully vaccinated requirement:

  • Diplomats
  • Children under 18 years of age
  • Individuals with documented medical contraindications for vaccination
  • Participants in certain COVID-19 vaccine trials
  • Documented humanitarian or emergency exceptions
  • Individuals with valid nonimmigrant visas (other than B visas) who are citizens of countries with limited COVID-19 vaccine availability
  • Member of the U.S. Armed Forces and their spouses and children under 18
  • Crew members with C or D visas
  • Individuals whose entry into the United States is in the national interest

Non-citizens who have been excepted from the fully vaccinated requirement may have to attest to some or all the following upon arrival:

  • Take a viral test 3-5 days after arrival, unless within 90 days of recovering from COVID-19.
  • Stay home or in a hotel room and self-quarantine for 5 days even if the viral test is negative, unless within 90 days of recovering from COVID-19.
  • Isolate if the viral test is positive or if symptoms develop during the 5 days.
  • If planning to remain in the United State for at least 60 days, the individual must become fully vaccinated within 60 days of arrival unless vaccination is not medically appropriate.

To receive an exception, an individual must provide an attestation to show their eligibility for such an exception.

Jackson Lewis attorneys are available to assist you with any questions regarding travel eligibility.

I-9 flexibility is extended until October 31, 2022, due to continuing COVID-19 precautions.

The Department of Homeland Security (DHS) guidance remains the same and preparing for the possible end of the flexibility is still advised. Indeed, DHS stated, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

Jackson Lewis attorneys are available to assist you with any questions regarding I-9 flexibility, E-Verify, employment authorization verification policies and procedures, and establishing processes to prepare for the possible end of flexibility.

Starting April 25, 2022, the “Uniting for Ukraine” program for Ukrainians seeking to enter the United States will allow Ukrainians who are sponsored by family members or non-governmental agencies to come to the United States and apply for a two-year humanitarian parole.

While humanitarian parole does not offer a direct pathway to long-term residence in the United States, it provides temporary residence and allows beneficiaries to seek other immigration options. Due to this program, which is intended as a streamlined, fast track option for those with sponsors, the United States wants to stem the tide of Ukrainians who are arriving at the Mexican border. While it seems that it may be possible to apply for Uniting at the Mexican border, the process will be more difficult, and the United States may no longer waive Title 42 for Ukrainians. Title 42 allows the expulsion of migrants who arrive at the border without permitting them to apply for asylum.

To date, while some Ukrainians have made it to the United States, the Uniting program is meant to help the United States meet its announced goals of opening its doors for up to 100,000 Ukrainian citizens and others seeking to leave Ukraine. Other legal pathways include Temporary Protected Status (TPS), immigrant and nonimmigrant visa routes, the U.S. Refugee Admissions Program, “regular” humanitarian parole, and asylum.

TPS is helpful for Ukrainians already in the United States continuously since April 11, 2022, but not for those currently attempting to flee, unless the DHS moves the eligibility date further forward.

About two hundred immigrant visas and 1,500 temporary nonimmigrant visas were issued to Ukrainians in February 2022. Visitor visas, which require an intent for only a temporary stay in the United States and a showing of definitive plans to return to the home country, are generally not available for Ukrainians due to their uncertain near-term future.

The U.S. Refugee Admissions Program (unlike humanitarian parole) can lead to U.S. citizenship, but the path is very long. In January and February 2022, 514 Ukrainians made it to the United States through the refugee route. Only 12 made it in March 2022, as flight cancellations related to the conflict limited the number of those who were able to leave.

The normal humanitarian parole program, which will still be available for Ukrainians who do not have sponsors, can be granted on urgent humanitarian grounds. Yet, the high bar for meeting these grounds can make it unavailable as an alternative to the regular visa issuing or the refugee application processes. So far, 350 Ukrainians have been granted “regular” humanitarian parole, including 28 children who were granted parole for medical care purposes.

Asylum is for Ukrainians who have been persecuted or demonstrate reasonable fear of persecution on account of their nationality, race, religion, membership in a particular social group, or political opinion. One of the eligibility criteria for asylum is being in the United States. Thousands of Ukrainians have entered the United States through the Mexican border. Some have had U.S. visas, but most have applied for asylum. Reportedly, there are 2,400 Ukrainians waiting for asylum processing in Tijuana, Mexico. With the start of the Uniting program and the rescission of the Title 42 exception for Ukrainians, those still waiting in Tijuana, if sponsored, may have to try to apply for the Uniting program from the border.

Jackson Lewis attorneys will provide updates as they become available.

When a district court judge in Florida lifted the Centers for Disease Control and Prevention (CDC) federal COVID-19 mask mandate on April 19, 2022, the Transportation Safety Administration stopped enforcing it. However, the judge’s ruling left it up to airlines and local transit agencies to decide how to respond.

Many airlines immediately lifted the mandate – making masking optional, but the same cannot be said for local transit authorities. There is a patchwork of regulations with masks still required at certain airports, bus terminals, subway stations, and ferries. If traveling, even those who are opposed to masking should probably keep a mask on hand.

About a week before the ruling, on April 13, 2022, the CDC had extended the federal mask mandate until May 3, 2022, due to the surge in the COVID-19 Omicron BA.2 variant. The purpose was to have additional time “to assess the potential impact the rise of cases has on severe disease, including hospitalizations and deaths, and health care system capacity ….”

The Department of Justice (DOJ) has decided to appeal the judge’s ruling to preserve the mask mandate and, according to White House press secretary Jen Psaki, “to ensure the CDC’s authority and ability to put in mandates in the future remains intact.” Although the appeal has been filed, the DOJ has yet to request an injunction. The Florida ruling remains in effect for now.

In the meantime, the Biden Administration continues to urge Americans to wear masks on public transportation based upon current CDC guidance.

The Jumpstart Our Legal Immigration System Act (Jumpstart), introduced by Zoe Lofgren (D-Calf.) in the House of Representatives, if passed, could revolutionize the green card process. The legislation would recapture thousands of unused family- and employment-based visas and allow beneficiaries to expedite their processes by paying additional fees.

The Jumpstart Act would help to eliminate green card backlogs that have built up for years and were exacerbated by the COVID-19 pandemic. There are over one million people waiting in the employment-based green card backlog (with an additional four million in the family-based categories). Pursuant to the Jumpstart Act, approximately 157,000 visas that were not used from 1992 though 2021 would be rolled over and put to use. The bill also would allow 40,000 individuals who “won” the diversity lottery from 2017 through 2021, but did not receive visas due to delays or restrictions on entry to the United States, to reapply.

For individuals, including many employment-sponsored green card applicants who are waiting to apply for adjustment of status, new fees would allow them to move their processes forward. The fees are as follows:

  • Individuals with approved immigrant visa petitions, who are waiting for their priority dates to become current, would be allowed to apply for adjustment of status by paying supplemental fees:
    • $3,000 for employment-based first, second, and third preference petitions
    • $15,000 for employment-based fifth preference petitions
    • $1,500 for family-based petitions

The benefits would be:

    • The ability to apply for Advance Parole and Employment Authorization
    • The ability to port to another job after 180 days (if the application is employment-based)
    • Children could be prevented from “aging out”
  • For larger fees, beneficiaries of approved immigrant visa petitions with priority dates that are more than two years away could receive an exemption from the country-based limitations and adjust status to legal permanent residence, i.e., become green card holders, right away:
    • $7,500 for employment-based first, second, and third preference petitions
    • $100,000 for employment-based fifth preference petitions
    • $2,500 for family-based petitions

The Jumpstart Act would also add supplemental fees to various types of petitions and applications – the first $400 million in collected supplemental fees would go directly to USCIS to adjudicate petitions and reduce backlogs. The fees are as follows:

    • $800 for each Form I-140, employment-based immigrant visa petition
    • $500 for each Form I-129 petition for E, H-1B, L, O, or P nonimmigrant status
    • $500 for Form I-765 employment authorization filed by spouses of certain nonimmigrants
    • $15,000 for each I-526, employment-based fifth preference petition
    • $100 for certain Form I-130 family-based immigration visa petitions

The major provisions of the Jumpstart Act were included as part of the House-passed version of the Build Back Better Act. If passed as stand-alone legislation, some of the new supplemental fees would likely fall to employers; however, the additional green card fees could be paid by the beneficiaries. One benefit to employers is that once employees become green card holders, they no longer need underlying nonimmigrant status. The costs saved in not having to continue to file extensions year after year while waiting for employees to become current would likely make up for the supplemental fees. Anecdotally, it seems that many foreign nationals waiting in long lines to become green card holders would be happy to pay the extra fees to get legal permanent residence without long waits.

Jackson Lewis attorneys will continue to follow the progress of the Jumpstart Act and provide updates as they become available.

 

 

 

 

Department of Homeland Security (DHS) has issued a Federal Register notice with instructions on how to apply for Temporary Protected Status (TPS) for both Ukraine and Sudan. Both designations run for 18 months, until October 19, 2023.

When Ukrainian TPS was originally announced, only individuals who had continuously resided in the United States since March 1, 2022, were eligible to apply. With the new announcement, DHS has moved that date forward by more than a month to April 11, 2022.

Ukrainians who meet the eligibility requirements will be able to register for TPS and apply for employment and travel authorization during the registration period that runs from April 19, 2022, through October 18, 2023.

The new initial designation of TPS for Sudan applies to all Sudanese nationals and those of no nationality who last habitually resided in Sudan who have continuously resided in the United States since March 1, 2022. During the registration period, which runs from April 19, 2022, through October 19, 2023, eligible individuals may submit applications for TPS, employment, and travel authorization.

There are Sudanese nationals who already have TPS and employment authorization that has been continued until December 31, 2022, based on pending litigation. While this status might be further extended, DHS advises that even those individuals should apply for the new initial designation to avoid any possible gaps in status.

Ukrainian and Sudanese 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 increased hours.

Instructions on how to apply for Ukrainian TPS and the new Sudanese TPS are found in the Federal Register.

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

 

The Department of Homeland Security has announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months.

The designation is based on the ongoing armed conflict in Cameroon. Secretary Alejandro N. Mayorkas stated, “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”

Only individuals who have continuously resided in the United States as of April 14, 2022, will be eligible for TPS under this designation. Individuals who attempt to travel to the United States after that date will not be eligible for TPS.

The TPS designation will go into effect on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and an Employment Authorization Document. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Jackson Lewis attorneys are available to assist you with any questions.

On April 18, 2022, USCIS announced that it had received 483,927 registrations for the FY 2023 H-1B Cap. This is the largest number ever received – almost 200,000 more than the total count of 308,613 for FY 2022.

Out of the 487,927 registration applications, USCIS selected 127,600 to fill the 85,000 available spots. Employers whose H-1B Cap Registrations have been selected have a 90-day window to file the H-1B Cap Petitions with USCIS.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, COVID-19 was a big unknown and USCIS had to conduct three selections totaling 131,970 to reach the goal of filling 85,000 H-1B Cap slots. In the first selection round last year, USCIS selected only 87,000 registrations.

Now, with better historical data, the agency has selected more registrations this year, which means it may not conduct any additional selections later this year.

If you have any questions about this year’s H-1B cap selection process, Jackson Lewis attorneys are available to assist.

Starting May 2, 2022, foreign nationals who are citizens of the 40 Visa Waiver Program (VWP) countries will have to use the Electronic System for Travel Authorization (ESTA) to enter the United States at land ports of entry.

The paper Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Record, that is currently in use at the northern and southern borders is being eliminated.

The VWP allows citizens of the VWP countries to enter the United States for up to 90 days for tourism or as a business visitor without obtaining a visa. ESTA has been required for VWP travelers arriving by air or sea since 2008. Although Customs and Border Protection (CBP) officers have final say at the border, ESTA provides a kind of “pre-approval.” The new rule is simply an expansion of the program to “produce a consistent, modern Visa Waiver Program admission policy, strengthen national security through enhanced traveler vetting, expedite entry processing at land ports of entry, collect Form I-94W information electronically, and reduce inadmissible traveler inspections, generating time and cost savings for CBP [] and Visa Waiver Program travelers.”

Except for one big difference, the ESTA regulations for land borders are the same as air and sea borders. VWP travelers arriving by air or sea must obtain ESTA approval prior to embarkation and provide the ESTA information to their air or sea carriers. VWP travelers arriving by land, often in private vehicles, will have to obtain the ESTA approval just prior to admission for presentation to CBP.

The Department of Homeland Security has a few tips:

  • The agency recommends applying for ESTA at least 72 hours in advance to avoid possible processing delays.
  • After May 2, 2022, any VWP travelers arriving without ESTA pre-approval will be asked to return to Canada or Mexico and make that application (which, hopefully, will take just a couple of hours, but that is not guaranteed).
  • ESTA is generally approved for two years and is valid for multiple entries. Anyone who already has a valid ESTA approval can use that and does not need to reapply for an arrival at a land port of entry.

Citizens of Canada are visa exempt and have not been required to have an ESTA pre-approval for entry in visitor status by air or sea. This same exemption likely will apply for land entries.

For more information about the VWP or ESTA, please reach out to your Jackson Lewis attorney.

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House of Representatives on April 1, 2022. If passed by the Senate and signed by the President, the bill would clear marijuana-related convictions from people’s records and remove marijuana from the federal controlled substances list. The bill specifically prohibits the denial of benefits and protections under immigration law based on marijuana related conduct.

Thirty-seven states allow use of medical marijuana and 18 of them allow non-medical use. Canada legalized marijuana in 2018. The legal marijuana industry is clearly growing in the United States, but foreign nationals cannot participate and cannot even invest in these companies without risking immigration consequences. Any foreign nationals, even green card holders, can be barred from returning to the United States or prevented from naturalizing (for at least five years) for participation in the marijuana industry or using marijuana even where it is legal. This is due to the conflict between state and federal laws. Removing marijuana from the federal controlled substance list would eliminate the conflict and eliminate the immigration “penalties” that affect those working in or with the legal marijuana industry.  Without this change in federal law, the United States would find it more difficult to attract high-skilled talent and investments for the legalized marijuana industry from foreign countries – making it harder for the U.S. industry to compete – especially with Canada.

Jackson Lewis attorneys will continue to follow the progress of the MORE Act.