In a tweet on August 20, 2021, the Department of Homeland Security announced that:

“To minimize the spread of COVID19, including the Delta variant, the United States is extending restrictions on non-essential travel at our land and ferry crossing with Canada and Mexico through September 21, while continuing to ensure the flow of essential trade and travel.”

The closure on the United States side continues although Canada has opened its border to fully vaccinated American citizens and green card holders and hopes to open the border to other foreign nationals by September 7, 2021.

If you have questions about these restrictions, please reach out to your Jackson Lewis attorney.

One of the themes of this year’s USCIS Ombudsman Annual Report is that the agency has been through “a year like no other.” USCIS faced “unprecedented challenges.” With the COVID-19 pandemic came temporary office closures, reduced capacity, and budget cuts. This led to previously unseen levels of backlogs and deepening financial problems, according to the report.

The staff of the USCIS Ombudsman fields requests for help (as an avenue of last resort), is a force multiplier in disseminating immigration information, and gives recommendations to the USCIS about ways to improve services.

According to the report, USCIS made changes to adapt to COVID-19 to increase efficiency that may well continue: expansion of electronic filing and processing capabilities, increased outreach to stakeholders, and improved coordination between USCIS and other government agencies.

The report focused on the need for USCIS to speed up its transition to a digital environment. Initiated 15 years ago, the transition has been slow. As a result, during the pandemic, employees had problems accessing and returning paper files, and the lack of product lines that could be fully processed electronically added to the backlogs.

Another major issue that was exacerbated by COVID-19 is USCIS’ financial insecurity. Because the agency depends solely upon fees for revenue, the resources available to it can be unpredictable. During the COVID-19 pandemic, when the number of filings dropped, major furloughs were threatened. USCIS managed to avoid furloughs by instituting other budget reductions. USCIS used premium processing fees for operations (generally, those fees must be set aside for the digital environment project). Congress passed legislation that would allow USCIS to add more types of cases to premium processing (including I-765 Applications for Employment Authorization). The agency has not instituted those because it does not yet have the staff to accommodate the timelines. While it may take years for USCIS to re-achieve full staffing (after a hiring freeze), the report noted that more premium processing eligibility can be expected.

Moving forward, the Ombudsman recommended USCIS continue some of its pandemic policies:

  • Expansion of remote work, prioritization of online filing, and expansion of the digital environment project
  • Generous interview waiver policies
  • Drive-thru naturalization oaths
  • Reuse of biometrics
  • Remote appearances of attorneys and other representatives
  • Creation of more e-tools
  • More public engagement

Jackson Lewis attorneys will continue to monitor and report developments at USCIS. Please contact us with any questions.

E-Verify is moving toward tougher enforcement, which can result in a temporary termination from participation in the E-Verify program.

Early in the COVID-19 pandemic, E-Verify relaxed some of its standards regarding Tentative Nonconfirmation (TNCs). But, by November 2020, E-Verify stopped allowing extensions and began enforcing its usual timing requirements.

Employers receiving a TNC must notify the affected employee by providing the Further Action Notice explaining they must contact the appropriate government agency within 10 federal government workdays. If the employee does not respond or decides to “not contest” the TNC, the employer must note this choice in E-Verify by closing the case within 10 federal government workdays. When TNC cases remain open in E-Verify for more than 10 federal government workdays, it may be that the employer is not acting in accordance with TNC requirements. The government has stated that such failures may be considered policy violations that can lead to compliance action, up to and including termination of the employer’s E-Verify account.

Employers who have TNCs that have remained open for more than the 10 days have received notifications from E-Verify asking them to take action to resolve the open TNCs and reminding the employers of the possible consequences of non-compliance. Recent indications are that E-Verify may cut off employer access to E-Verify after 30 days if the government does not see sufficient follow up.

For employers who are required to use E-Verify under federal law (such as federal contractors and sub-contractors) or under state law or employers who use E-Verify primarily to provide STEM OPT, termination of their E-Verify accounts could have significant repercussions.

Jackson Lewis attorneys continue to monitor the situation. For advice on how to respond to TNCs or a notice from E-Verify regarding possible TNC non-compliance, Jackson Lewis attorneys are available to assist.

The Department of Homeland Security (DHS) announced that, because of new dire circumstances, TPS for Haiti will be designated for 18 months effective August 3, 2021, through February 3, 2023.

The designation is a response to the “[d]eteriorating political crisis, violence, and a staggering increase in human rights abuses,” as well as a deteriorating healthcare situation, along with food insecurity and lack of access to basic services.

Eligible Haitians must have continuously resided in the United States since July 29, 2021, and been continuously physically present since August 3, 2021. The 18-month registration period will run until February 3, 2023.

Thousands of Haitians already have TPS-related documentation, including EADs, based on pending litigation. The DHS recommends all Haitians who meet the eligibility requirements apply as soon as possible for the new 18-month TPS period because the new designation provides more security. Failure to apply could result in possible gaps in status or employment authorization. Instructions on how to apply can be found in the Federal Register.

Please call your Jackson Lewis attorney or reach out to the Jackson Lewis Immigration Practice Group at TPS@Jacksonlewis.com if you need assistance in determining work authorization, how to complete the employment verification process, or strategy options.

Anyone thinking of travelling internationally next year needs to plan ahead. Due to backlogs, applications for new or renewed U.S. passports should be filed at least six months in advance. The Department of State (DOS) reports that regular processing takes up to 18 weeks and expedited processing takes at least 12 weeks. DOS is only prioritizing life and death emergencies.

Because of these delays, some individuals are being fooled by scammers who promise passports at “lightning speed.” The Better Business Bureau advises that applicants should be wary of phony websites, unsolicited emails and calls, and unusual forms of payment.

DOS has also been affected by technological issues. It has temporarily suspended its online passport booking system for urgent/emergency passports because of bots. Third parties have been using automated programs (bots) to scoop up all available appointments and then sell them to needy travelers.  During the temporary suspension, applicants will have to use a telephone to book an appointment. This suspension only affects the 26 passport agencies and centers that accept urgent requests. It does not affect bookings at passport acceptance facilities such as post offices, libraries, and certain government offices.

Members of Congress in both parties are looking for answers from DOS about how it is addressing the backlogs and long wait times.

President Joe Biden has authorized thousands of Hong Kong residents currently residing in the United States to remain in the country pursuant to Deferred Enforced Departure (DED) for up to 18 months. In addition, he authorized employment for covered Hong Kong residents and the relaxation of employment rules for F-1 students from Hong Kong.

DED is not a specific immigration status, but a humanitarian measure that exempts certain individuals from removal for a designated time period. DED is fully within the president’s discretion to authorize. Currently, there are two other countries with DED designation: Liberia and Venezuela. Venezuela also carries the Temporary Protected Status (TPS) designation.

Eligibility requirements for Hong Kong DED include the following:

  • The applicant must have continuously resided in the United States since August 5, 2021; and
  • The applicant cannot have voluntarily returned to Hong Kong or the People’s Republic of China (PRC) after August 5, 2021.

President Biden authorized DED in recognition of “the significant erosion of . . . rights and freedoms in Hong Kong by the People’s Republic of China” and stated that “[t]he United States will not waver in our support of people in Hong Kong.”

DED is a temporary measure, but a State Department representative has noted that Hong Kongers could still be referred for consideration as refugees. Since the PRC’s crackdown in Hong Kong, other countries have already offered certain immigration benefits. Britain created a new visa that could lead to citizenship. Canada and Australia have also started to facilitate immigration and permanent residency.

More information on how to apply for Hong Kong DED should be forthcoming in the Federal Register. Applicants should review that notice before attempting to apply for DED.

For more information about Hong Kong DED or other DED or TPS statuses, Jackson Lewis attorneys are available to assist.

The State Department, in coordination with the CDC, raised its Travel Advisory for the United Kingdom to “Do Not Travel” because of COVID-19 (Level IV).

Coincidentally, the Department’s move came on the same day Prime Minister Boris Johnson lifted most COVID-19-related restrictions in the United Kingdom (yet, excluding Wales, Scotland, and Northern Ireland). He made this move as the case numbers are rising because most adults in the United Kingdom are fully vaccinated.

Despite the United Kingdom lifting its restrictions, the European Union has opened its borders to individuals from the United States (with various restrictions). Further, Canada is about to open its borders to fully vaccinated U.S. citizens and permanent residents. Moreover, the White House reported that the United States will not be lifting travel restrictions due to the spread of the Delta variant. Press Secretary Jen Psaki said that it is not clear how long the restrictions will last. As of July 23, 2021, the CDC announced that the seven-day average of COVID-19 cases in the United States was up over 46 percent from the prior week.

Therefore, despite lobbying efforts aimed at increasing summer tourism from Europe, the Presidential Proclamations restricting travel to the United States due to COVID-19 are likely to remain in effect throughout the tourist season and beyond. The travel restrictions were imposed more than a year ago, in January 2020, when President Donald Trump instituted the ban on travel from China. Further bans were instituted in 2020 and 2021 on individuals travelling from Iran, the United Kingdom, Ireland, the 26-member countries of the Schengen Zone, Brazil, South Africa, and, more recently, India. To overcome these restrictions those who need to travel to the United States but are subject to the bans must either “camp-out” in a non-banned country (if they can enter such a country) for 14 days before attempting to enter the United States or they must apply for and receive a National Interest Exception (NIE) to the relevant ban. Eligibility for NIEs is set forth in a web of complex and changing guidance from the Department of State and Customs and Border Protection.

Employers all over the country are suffering due to the bans. Their key employees cannot travel back and forth from or to the United States for important business purposes. The highly skilled or temporary, seasonal workers they need to boost their businesses and the economy cannot be hired. This is compounded by the fact that most U.S. consulates abroad are extremely back-logged and understaffed due to COVID-19.

If you have questions about the travel bans, Jackson Lewis attorneys are available to assist you in developing travel strategies and applying for NIEs.

 

USCIS made more random Cap H-1B selections on July 28, 2021. Notifications started to go out today – July 29, 2021. Due to a glitch in the USCIS system, attorneys do not yet have access to the notices (although some employers do). USCIS is aware of this technical problem and is working to resolve it. In the meantime, if you receive notification that an employee has been selected, please forward that notice to your Jackson Lewis attorney. The filing period for the newly selected cases begins on August 2, 2021 and will close on November 3, 2021.

If you have any questions about this, please contact your Jackson Lewis attorney.

The hoped-for opening of the U.S.-Canadian border is set to begin in August.

Canada plans to open its land borders to fully vaccinated U.S. citizens and U.S. permanent residents for non-essential travel at 12:01 a.m. on August 9, 2021. The United States, however, has extended its land border travel restrictions on the northern and southern borders until August 21, 2021.

U.S. citizens and permanent residents who are residing in the United States (who are not otherwise exempt from the travel restrictions) will be able to enter Canada at land borders for discretionary travel, i.e., tourism, with proof of vaccination in English or French. Individuals must be 14 days out from full vaccination to be eligible.

Requirements include:

*            Translations of proof of vaccination will be accepted if accompanied by the original vaccination certificates.

*            Travelers should use ArriveCAN to submit travel information, including proof of vaccination.

*            Vaccinations must be from vendors accepted by the Canadian government.

*            Unvaccinated children under 12 years of age will be able to enter Canada if they are travelling with a parent or guardian who is fully vaccinated.

*            Those who cannot receive the vaccinations for health reasons will be able to enter Canada (and the Canadian government will be providing more information on what proof will be required soon).

*            Pre-entry COVID-19 molecular tests will still be required even for fully vaccinated travelers.

*            Quarantines will be required only for individuals who show COVID-19 symptoms.

*            All visitors must adhere to Canada’s COVID-19 health measures, including masking in public places, carrying vaccination proof, and monitoring themselves for COVID-19 symptoms.

Other fully vaccinated foreign nationals will be allowed to enter Canada on or about September 7, 2021, if the country’s epidemiological profile “remains favourable.”

Jackson Lewis attorneys are available to assist you with questions about travel restrictions.

Secretary of Homeland Security Alejandro N. Mayorkas announced an 18-month extension and re-designation of Somalia for Temporary Protected Status (TPS) through March 17, 2023.

The Secretary stated, “Three decades of conflict in Somalia, along with natural disasters and disease outbreaks, have worsened an already severe humanitarian crisis.” Somalia has been dealing with violence, drought, flooding, and food insecurity along with the additional challenges to their healthcare system due to COVID-19.

The approximately 450 Somali nationals in TPS in the United States will be able to extend their status. The re-designation will allow an estimated 100 additional individuals who have resided in the United States continuously since July 19, 2021, to file initial applications for TPS protection. DHS has not announced the particulars, but current and new beneficiaries will have to apply during a 60-day registration period and will be able to apply for employment authorization and travel authorization.

The specifics regarding the application process should be announced in the Federal Register soon. It is important not to attempt to file any applications before that notice is published.

TPS is a form of humanitarian relief. DHS may designate countries for TPS due to temporary conditions that prevent nationals from safely returning home or that prevent countries from being in a position to handle repatriation adequately.

Jackson Lewis attorneys will provide updates as they become available.