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WEEKLY IMMIGRATION UPDATE 1.06.2021

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WEEKLY IMMIGRATION UPDATE 1.06.2021

HEADLINES: January 6, 2021

 

  1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions– President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021. He also extended a separate memo on visa sanctions for certain countries related to the coronavirus pandemic.
  2. State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021– The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.
  3. State Dept. Updates FAQ on Phased Resumption of Visa Services; Machine Readable Visa (MRV) fee validity extended to 9/30/22-The Department of State suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic.  In July 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services.  No specific date is provided for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels.
  4. Filing Period for Certain Liberians Applying for Adjustment Extended to Two Year– The filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.
  5. USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants– USCIS is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status.

 

HEADLINES:  December 27, 2020

 

  1. Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance– President Trump signed the Consolidated Appropriations Act of 2021, which extends the expiring E-Verify, Conrad 30, and non-minister religious worker green card programs, among other things.
  2. I-9 Flexibility Extended to January 31– The flexibility applies only to employers and workplaces that are operating remotely.
  3. Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January– H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.
  4. In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology– A court order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.
  5. DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns– DHS and DOJ issued a joint final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.
  6. CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico– On December 22, 2020, CBP issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico. “Essential travel” is still exempted.

 

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DETAILS

 

1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions

On December 31, 2020, President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021, and stating that the proclamation “may be continued as necessary.” The nonimmigrant suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, and summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

The President also extended a memorandum on visa sanctions, to “continue in force until terminated by the President.” The memo states that “countries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic caused by SARS-CoV-2 [the COVID-19 pandemic] create unacceptable public health risks for Americans.” The earlier memo on which it is based states that “visa sanctions” will be imposed on such countries.

2.  State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021

The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only those applicants whose nonimmigrant visas expired within 12 months were eligible for an interview waiver. The expiration period is temporarily extended to 24 months. The policy, which was set to expire December 31, 2021, is now effective through March 31, 2021.

Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.

3.  State Dept. Updates FAQ on Phased Resumption of Visa Services;  Machine Readable Visa (MRV) fee validity extended to 9/30/22.

https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html

Last Updated: December 30, 2020

  • The Department of State suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic.  In July 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services.
  • The resumption of routine visa services, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities.  U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able.  As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.
  • We are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels.  See each U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.
  • Our missions overseas continue to provide all possible services to U.S. citizens. More information is available on each post’s website.
  • This does not affect travel under the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.
  • Applicants with an urgent matter who need to travel immediately should contact the nearest embassy or consulate to request an emergency appointment.  Contact information is on the embassy or consulate’s website.

FAQ

Q:  Which additional visa services are embassies/consulates beginning to provide?

  • All of our missions are continuing to provide emergency and mission-critical visa services.  As post-specific conditions permit, and after meeting demand for services to U.S. citizens, our missions will phase in processing some routine immigrant and nonimmigrant visa cases.  Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions (consistent with Presidential Proclamation 10014) fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.  Posts processing non-immigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and temporary employment visas (consistent with Presidential Proclamation 10052).  We expect the volume and type of visa cases each post will process to depend on local circumstances.  An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.

Q:  What criteria are missions using to determine when to resume routine services?

  • We are closely monitoring local conditions in each country where we have a U.S. presence. Local conditions that may affect when we can begin providing various public services include medical infrastructure, COVID-19 cases, emergency response capabilities, and restrictions on leaving home. 

Q:  What steps are being taken to protect customers from the spread of COVID-19?

  • The health and safety of our workforce and customers will remain paramount.  Our embassies and consulates are implementing safeguards to keep staff and customers safe, including implementing physical distancing in our waiting rooms, scheduling fewer interviews at a time, frequent disinfection of high touch areas, and following local health and safety regulations. 

Q:  Do the various Presidential Proclamations/travel restrictions still apply, or are those lifting with the resumption of visa services?

  • The five geographical COVID-19 Proclamations (P.P. 9984, 9992, 9993, 9996, 10041) and the two COVID-19 Labor Market Proclamations suspending the entry of certain aliens (P.P. 10014 and 10052) remain in effect.

Q: Is my situation an emergency? I need to go the United States immediately for X.

  • Applicants can find instructions on how to request an emergency visa appointment at the Embassy or Consulate’s website

Q:  What about my application fee that expired while routine services were suspended? 

  • The Machine Readable Visa (MRV) fee is valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased.  However, the Department understands that as a result of the pandemic, many visa applicants have paid the visa application processing fee and are still waiting to schedule a visa appointment.  We are working diligently to restore all routine visa operations as quickly and safely as possible.  In the meantime, the Department extended the validity of MRV fees until September 30, 2022, to allow all applicants who were unable to schedule a visa appointment due to the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.

4.  Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years

U.S. Citizenship and Immigration Services (USCIS) announced that the filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.

The provision provides an opportunity for certain Liberian nationals and family members to obtain lawful permanent resident status in the United States.

5.  USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on December 30, 2020, that it is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.

This extension applies only to those whose applications remained pending on December 31, 2020. Parole (and employment authorization) for such parolees will be extended without interruption through June 30, 2021, or the date on which USCIS makes a final decision on the parolee’s Form I-955 (Application for CNMI Long-Term Resident Status) and Form I-765 (Application for Employment Authorization), whichever is earlier.

6.  Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance

On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which extends several expiring immigration programs. The E-Verify, Conrad 30, and non-minister religious worker green card programs are reauthorized through September 30, 2021, and the EB-5 Regional Center Program is reauthorized through June 30, 2021. These programs had been set to expire on December 28, 2020.

The legislation also provides that certain nonimmigrants who pay taxes and meet other requirements may be eligible for a COVID-19 pandemic recovery rebate.

The Department of State’s Visa Bulletin for January 2021, which was released before Congress voted on this legislation, stated that with respect to the employment fourth preference Certain Religious Workers (SR) category, an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a March 1, 2018 final action date, and for Mexico, which would be subject to a December 1, 2018 final action date.”

With respect to the employment fifth preference (I5 and R5) categories, the bulletin states that an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except China-mainland born, which would be subject to an August 15, 2015 final action date, and for Vietnam, which would be subject to a September 15, 2017 final action date.”

7.  I-9 Flexibility Extended to January 31

U.S. Immigration and Customs Enforcement announced an additional 30-day extension to January 31, 2021, of flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to the COVID-19 pandemic. The flexibility applies only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation for the I-9 process.

8.  Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit H-2B Applications for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2021, or later will open on January 1, 2021. H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.

OFLC said it will randomly order all H-2B applications requesting a work start date of April 1 that are filed during the initial three calendar days (January 1-3) using randomization procedures published on March 4, 2019.

9.  In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology

On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL enjoining the Department of Labor (DOL) from implementing a final rule on adverse effect wage rate (AEWR) methodology for the temporary employment of H-2A nonimmigrants in non-range occupations. The court’s order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.

Effective immediately, and until further notice, H-2A job orders filed with the State Workforce Agency serving the area of intended employment on or after December 21, 2020, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations, must use the AEWRs in effect on December 20, 2020.

10.  DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns

The Departments of Homeland Security and Justice issued a final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.

The final rule responds to comments and reflects (and, in some instances, modifies) intervening changes made to the regulations since the proposed rule was published in July 2020.

11.  CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico

On December 22, 2020, U.S. Customs and Border Protection (CBP) issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico.

From December 22, 2020, through January 21, 2020, travel from Canada and Mexico into the United States via land ports of entry and ferry service is limited to “essential travel,” as defined in the notices. Essential travel includes, but is not limited to, returning U.S. citizens and lawful permanent residents; individuals traveling for medical purposes, to attend educational institutions, to work in the United States, for emergency response and public health purposes, to engage in lawful cross-border trade, and others. Those subject to the restrictions include those traveling for tourism, including sightseeing, recreation, gambling, or attending cultural events.

The notices do not apply to air, freight rail, or sea travel but do apply to passenger rail, passenger ferry travel, and pleasure boat travel.

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COVID-19 RESOURCES

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

CBP:

–        Updates and Announcements:   https://www.cbp.gov/newsroom/coronavirus

–        Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

–        OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/

–        COVID-19 FAQs:

State Department: https://www.state.gov/coronavirus/

Justice Department

AGENCY TWITTER ACCOUNTS

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

I-9 AND E-VERIFY WEBINARS

USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes.  For more information or to register, see: https://www.justice.gov/crt/webinars.

E-Verify webinar schedule:  https://www.e-verify.gov/calendar-field_date_and_time/month/202004.

 

AGENCY PROCESSING TIMES

USCIS case processing times: https://egov.uscis.gov/processing-times/

US Department of Labor:   https://flag.dol.gov/processingtimes

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country.   Larrabee Albi Coker LLP is an active member of ABIL.

Legal Disclaimer:   This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.

 

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