As of October 1, 2022, Canada is ending all travel, testing, and border requirements and restrictions related to COVID-19. This includes vaccination, mandatory use of ArriveCAN, and any testing or quarantine and isolation requirements for those entering Canada by land, sea, or air. Even masking on board is no longer required, although still recommended.

Since March 2020, when the U.S. northern border was closed due to COVID-19, the restrictions have been particularly harsh for border community businesses including tourism. Even the lifting of many restrictions in August 2021 appeared not to return businesses even close to pre-pandemic levels. Not only that, but the ArriveCAN system, which was supposed to make border crossing easier, may have been resulting in delays and confusion. The hope is that elimination of all restrictions will give a boost to the border community economies in Canada.

Since March 2020, the United States and Canada have generally acted in unison when adding or eliminating restrictions. This time, Canada is acting on its own. As of now, all non-immigrant, non-U.S. citizen air travelers to the United States still must be fully vaccinated and provide proof of vaccination status prior to boarding an airplane to the United States. In addition, to enter the United States at ferry land ports of entry (POE) and ferry terminals, individuals must be fully vaccinated. U.S. congressmen representing border communities that have been hurt economically by the restrictions are pushing for the United States to eliminate its restrictions as well.

With regard to Canada, the U.S. Embassy there continues to suggest consulting for updated information on any possible provincial regulations or restrictions regarding COVID-19 within Canada.

If you have questions about Canadian or any other COVID-19-related travel restrictions, Jackson Lewis attorneys are available to assist.

On September 27, 2022, Governor Gavin Newsom signed an amended version of California SB-1162, Employment: Salaries and Wages. Among the new provisions which will become effective on January 1, 2023 is the requirement that California employers with at least 15 employees include the pay scale for any position in any job posting, including advertisements posted by third parties. For more information on this law and how it will affect PERM labor certification recruitments, please see our immigration blog on the amendment and blog from our California Workplace group.

Announcing a new final rule, the Department of Homeland Security (DHS) is officially reinstating the 2020 asylum rules in light of the court decision that said they were invalid.

In February 2022, the U.S. District Court for the District of Columbia vacated two 2020 Trump-era rules that for two years had made it more difficult for asylum seekers to gain employment authorization: the Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal Rule) and the Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD Rule).

The Timeline Repeal Rule eliminated the requirement that USCIS adjudicate initial EAD applications for asylum seekers within 30 days of receipt and the Broader Asylum EAD Rule extended the wait period for EADs for asylum seekers from 180 days to 365 days. The Broader Asylum EAD Rule also excluded from eligibility for employment authorization individuals who failed to file for asylum within one year of their last entry.

DHS is officially reinstating the EAD provisions that had been in effect for Form I-589, Application for Asylum and Withholding of Removal, and Form I-765, Application for Employment Authorization, for applications that have been pending with USCIS as of February 8, 2022, or received on or after that date.

Under the vacatur and the new rule:

  • Asylum applicants can apply for initial EADs 180 days following the filing of their asylum applications;
  • Absent a denial, USCIS has 30 days from the date of filing of the EAD application to grant or deny the initial application;
  • Asylum applicants who fail to file within one year of their most recent admission to the United States are not precluded from filing for employment authorization;
  • Asylum EAD renewals must be received 90 days in advance of expiration;
  • To renew an asylum EAD, the applicant must establish the asylum application is still pending; and
  • EADs are renewable for the continuous time period necessary for an asylum officer or immigration judge to adjudicate the asylum application and during the period of any administrative or judicial review.

Asylees who have timely filed for an EAD renewal are entitled to a 540-day automatic extension if the renewal was filed between May 4, 2022, and October 26, 2023. After October 26, 2023, the 540-day extension will sunset, leaving only a 180-day automatic extension.

Jackson Lewis attorneys are available to answer any questions regarding asylum EADs and completion of Form I-9 Employment Eligibility Verifications for all employees, including asylum seekers.

In March 2022, the Transportation Security Administration (TSA) announced it would be implementing measures to conduct gender-neutral screening by enhancing screening technology, reducing the number of pat-downs needed, streamlining identity validation, updating TSA PreCheck, expanding airline partnerships to enhance the overall travel experience, and improving communications with the traveling public.

So far, TSA has implemented the following:

  • The TSA PreCheck application allows non-binary and gender non-conforming Americans to select gender based on self-attestation, regardless of sex assigned at birth. Those who are already PreCheck members may update gender data by calling the program at (855) 347-8371 weekdays between 8:00 a.m. and 10:00 p.m. EDT. It is not necessary to update gender on other identification documents so long as the name, known traveler number, and date of birth on the reservation matches the TSA record.
  • TSA is working with domestic air carriers to promote use and acceptance of the “X” gender marker. TSA recommends making reservations with the same gender marker that is on a traveler’s government-issued ID. If the marker on the traveler’s government-issued ID is not offered in the air carrier’s system, reach out to the air carrier. In 2016, Oregon was the first state to affirm the choice of nonbinary as a gender in the United States. Today, 22 states and the District of Columbia permit an “X” gender marker on a driver’s license. In addition, the “X” gender marker is available on U.S. passports.
  • Gender information is not considered when a traveler appears at the travel-document checker podium for identity verification, but the name shown on the identification documents should match the boarding pass.
  • All baggage must be screened. For carry-on baggage, individuals must inform the TSA officer if there are any medically necessary liquids, medications, medical equipment such as syringes or liquid medications, or prostheses. Those should be separated from other belongings before screening. If the bag must be opened, you may ask for it to be opened in private.
  • TSA is using Advanced Imaging Technology (AIT), a walk-through metal detector, or pat-down procedures. AIT still relies on gender-specific algorithms that only designate male or female and the officer will select the gender based on the officer’s assessment of how the individual presents. TSA is in the process of implementing a gender-neutral AIT algorithm. It is in the testing phase, and TSA anticipates implementing the new technology by the end of this year.
  • If there is an alarm during screening, additional screening, including a pat down, may be required. Pat downs are generally conducted by officers of the same sex as the traveler as determined by the officer, again, based on visual assessment. Individuals may inform the officer of their gender identity and request an officer of that gender. However, non-binary officers might not be available even upon request. Pat downs, like screening of baggage, can be done in the screening area or a private area may be requested.
  • As to communications, any individual who believes they have experienced an inappropriate screening process may ask to speak with a supervisor at the checkpoint and may also submit their concern to the TSA Contact Center.

If an employer is interested in developing gender-inclusive policies, please contact the Jackson Lewis attorney with whom you work. Jackson Lewis attorneys will provide further updates on TSA’s efforts.

After years of litigation followed by uncertainty, the Department of Homeland Security (DHS) has taken the official action of issuing a new final rule that “restores the historical understanding of a ‘public charge’ that had been in place for decades . . . .” The new rule, which goes into effect on December 23, 2022, basically codifies the Interim Field Guidance that had been in effect from 1999 until 2019.

In 2019, the Trump Administration started to consider supplemental public health benefits and nutritional assistance as part of the public charge determination. That 2019 rule, which was enjoined through litigation, frightened immigrants and their families into foregoing government services to which they were entitled. It also created a good deal of confusion in the immigrant community about what was and was not allowed. By enacting the new final rule and doing public outreach, DHS hopes to meet the goal of making the public charge assessment “consistent with America’s bedrock values” and restoring faith in the system.

Under the “new” rule, the public charge determination will be based on:

  • The age, health, assets, resources, financial status, family status, education, and skills of the noncitizen;
  • The applicant’s prior or current receipt of public cash assistance for income maintenance, such as;
    • Supplemental Security Income (SSI);
    • State, territorial, Tribal, or local cash benefit for income maintenance (often referred to as “General Assistance”); or
    • Cash assistance under Temporary Assistance for Needy Families (TANF) for income maintenance.
  • Long-term institutionalization at government expense; and
  • The Form I-864, Affidavit of Support, if required.

USCIS has clarified that past or current receipt of the above cash benefits does not, alone, render an applicant inadmissible. It is only one factor in the assessment that includes consideration of the totality of the circumstances at the time of the application. Indeed, because the decision on public charge is based on the totality of circumstances, it is possible that an applicant who has never received public benefits in the past could still be found inadmissible. Moreover, the public charge rule does not (and never has) require repayment of public benefits to avoid a finding of inadmissibility.

Public benefits that are not considered under the final rule include, but are not limited to:

  • Medicaid and other health insurance and health service programs;
  • Child Health Insurance Program (CHIP);
  • Nutrition programs;
  • Housing benefits and childcare services;
  • Head Start;
  • Job-training programs;
  • COVID-19 vaccines and public benefits related to the coronavirus pandemic; and
  • Benefits received by family members of the applicant (unless that benefit is the family’s only means of financial support).

Jackson Lewis attorneys are available to assist you with questions about how the public charge rule affects green card applications and general issues of admissibility.

The Department of Homeland Security (DHS) has extended Temporary Protected Status (TPS) for Venezuelan nationals from September 10, 2022, through March 10, 2024, due to the country’s continuing severe political and economic crises.

On September 7, 2022, DHS published instructions in the Federal Register regarding TPS eligibility and how to apply for an extension.

The extension is only available to those already in TPS status. Eligible individuals must apply during the 60-day re-registration period that runs from September 8, 2022, through November 7, 2022. Failure to re-register during that period may result in a loss of TPS. Those with pending registrations or pending employment authorization applications need not re-apply. Upon approval of these pending submissions, applicants will receive a validity period that will extend through March 10, 2024. Those requesting extensions may also apply for travel authorization.

DHS recognizes that it may not be able to adjudicate TPS holder applications to extend an employment authorization document (EAD) prior to expiration. Accordingly, those who timely apply during the re-registration period and have EADs that expire on September 9, 2022, will receive an automatic extension of their employment authorization until September 9, 2023.

Venezuelan students in F-1 status who are suffering severe economic hardship resulting from the crisis in Venezuela are eligible for work authorization and may request to have increased work hours and a reduced course load.

While the renewal applies only to those who already have Venezuelan TPS, DHS may grant late initial registrations if the individual meets specific eligibility requirements, has resided in the United States since March 8, 2021, and has maintained continuous presence since March 9, 2021.

Venezuelans were previously entitled to Deferred Enforced Departure (DED) from January 20, 2021, to July 20, 2022. However, many individuals instead applied for TPS over concern that DHS may not have extended DED. Confirming these concerns, DHS decided to not extend DED. Since then, TPS remains the sole humanitarian option for Venezuelan nationals.

If you have questions about TPS for Venezuelan nationals and how to prepare Forms I-9 Employment Eligibility Verification, please contact your Jackson Lewis attorney.

Employers that sponsor foreign nationals for green cards using PERM Labor Certification have been watching as a growing number of states and localities require salary transparency in job postings. California soon may join that list.

If the amended version of California’s SB-1162, Employment: Salaries and Wages, is signed by Governor Gavin Newsom, California employers with at least 15 employees (on the company’s payroll – full-time or part-time) will be required to include the pay scale for any position in any job posting. This includes advertisements that are posted by third parties. The California Labor Commissioner will have the authority to investigate any complaints alleging violations and to order civil penalties ranging from $100 to $10,000 per violation, depending upon the circumstances. First violations may be forgiven if the employer can demonstrate that all job postings for open positions have been updated to include the pay scale. The amendment, which focuses on updated pay data reports and updated disclosure requirements (but also includes the new job posting requirement), would become effective January 1, 2023, if signed by the Governor.

Unlike wage transparency laws in other localities, the California law does not specify:

  • Do all 15 employees need to be working in California?
  • Does the 15-employee count include subsidiaries and affiliates?
  • Does the law include postings for jobs that are not located in California?
  • Does the law include remote jobs that could be performed in California?

If the bill is signed, California will likely provide additional guidance, as it did when the initial reporting requirements went into effect.

If the amended version is signed, California will join Colorado and Washington State, as well as localities in the New York area (including New York City, Westchester County, Ithaca, and Jersey City, New Jersey) in requiring salary ranges in job postings. While waiting for Governor Newsom’s decision, employers are also waiting to see if Governor Kathy Hochul will sign a similar law for New York State.

If you have any questions about how these laws affect your PERM recruitment obligations, please reach out to your Jackson Lewis attorney.

President Joe Biden extended Deferral of Enforced Departure (DED) and employment authorization for Liberians from June 30, 2022 until June 30, 2024. On September 6, 2024, the Department of Homeland Security (DHS) published instructions regarding that implementation in the Federal Register.

Those who are eligible for the extension are Liberians who:

  • Are present in the United States and have been under a grant of DED since June 30, 2022; or
  • Have continuously resided in the United States since May 20, 2017.

Eligible Liberians who do not have Employment Authorization Documents (EADs) may apply.  Those who already have EADs with the following expiration dates will have their work authorization automatically extended until June 30, 2024, and do not need to reapply:

  • March 30, 2020
  • January 10, 2021
  • June 30, 2022

Eligible Liberians may also apply for travel authorization. DHS warns that those who leave the United States without travel authorization may lose their DED eligibility and may not be able to return to the United States.

Employers completing or updating Form I-9, Employment Eligibility Verification, may refer to the Liberia DED page, which provides confirmation that employees whose EADs have an expiration date of March 30, 2020, January 10, 2021, or June 30, 2022, and state A-11 under the Category heading, are automatically extended through June 30, 2024. After June 30, 2024, employers will be required to reverify the employees’ work authorization on Form I-9.

If you need assistance regarding Liberian DED and how to document employment authorization for Form I-9 purposes, please reach out to your Jackson Lewis attorney.

USCIS is resuming the Cuban Family Reunification Parole (CFRP) Program beginning with already pending CFRP applications. This program started in 2007 and has been on hold for some time. It allows beneficiaries of approved Forms I-130, Petitions for Alien Relative, to come to the United States on parole while waiting for an available visa number.  The purpose of the program is to offer safe immigration pathways for those confronting humanitarian crises and alleviate the dangers associated with irregular immigration efforts for family members of U.S. citizens and legal permanent residents.

Under the CFRP, USCIS sends invitation letters to petitioners who are eligible for the program. Upon receipt of an invitation, parole forms and fees must be submitted. The last step is the scheduling of a consular interview in Havana. Upon arrival in the United States, beneficiaries are eligible to apply for work authorization. When the beneficiary’s immigrant visa becomes available or after one year of physical presence in the U.S., the beneficiary may apply for lawful permanent residence, if otherwise eligible.

At this time, USCIS is not issuing new invitations. The agency, however, has started to mail interview notices to petitioners with pending applications along with instructions for the beneficiary interviews. The Embassy in Havana was closed in 2017 and the USCIS field office in Havana was closed in 2018. Currently, there is limited interview capacity; however, on August 18, 2022, USCIS began conducting interviews.

USCIS is also sending general information about the program to petitioners with pending applications.  That information includes points that petitioners and beneficiaries should consider to determine whether they are still eligible for the program and how to proceed. These considerations include:

  • Has the beneficiary already applied for adjustment of status?
  • If the petitioner has naturalized, can the beneficiaries be considered immediate relatives for adjustment purposes?
  • Have any beneficiaries aged out?
  • Is immigrant visa processing an alternative?

USCIS has:

  • Recommended petitioners with pending CFRP applications for family members should ensure that USCIS and National Visa Center (NVC) both have their current address; and
  • Warned petitioners and beneficiaries to avoid scams explaining that the government agencies will not email or call to ask for money or payment or fees.

In June 2022, DHS announced that it would resume both the CFRP and the Haitian Family Reunification Parole (HFRP) Program. To date, the Haitian program has not resumed.

Jackson Lewis attorneys are available to advise regarding these family reunification programs.

Marijuana still is considered a Schedule I drug under the federal Controlled Substances Act. A conviction under the Controlled Substances Act can lead to severe consequences for a non-U.S. citizen.

Under U.S. immigration law, any non-U.S. citizen who is convicted under the Controlled Substances Act, even green card holders, who participate or make investments in the marijuana industry or use marijuana where it is legal (even for medicinal purposes) may be subject to inadmissibility, be barred from returning to the United States or be prevented from naturalizing (for at least five years). For example, a Russian national reportedly was denied a green card (although he has not been deported) for “aiding and abetting” in the trafficking of marijuana for “installing and maintaining a security camera system for a cannabis grower ….”

Serious immigration consequences can result even in states where employees may be protected from employer sanctions based on marijuana use. Currently, 37 states (and the District of Columbia) have decriminalized marijuana or enacted laws authorizing its use for medical or recreational purposes. Additionally, some states prohibit employers from disciplining employees for marijuana use outside of the workplace, and some states prohibit employment discrimination against medical marijuana users. As employers adopt policies in line with state laws, they should be careful not to encourage non-citizens to participate in activities that involve marijuana and remind all employees that, while there may not be many federal prosecutions for individual use, the possession, sale, cultivation, and distribution of marijuana remains illegal under federal law and may have serious immigration consequences. [. ]

Congress is considering legislation to decriminalize marijuana, i.e., the Marijuana Opportunity Reinvestment and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA). If the MORE Act or the CAOA is passed, it would eliminate the confusing conflicts that arise for foreign nationals between state and federal law. Either law would:

  • Remove marijuana from Schedule I of the Controlled Substances Act;
  • Expunge low-level federal marijuana convictions;
  • Create new marijuana industry opportunities in states where the industry is legal; and
  • Eliminate the threat of inadmissibility or deportation for foreign nationals participating in the legal marijuana industry.

Until marijuana is decriminalized at the federal level, foreign nationals must be wary. If you have questions about how federal law regarding marijuana might affect immigration benefits, please reach out to your Jackson Lewis attorney.