Category: Immigration

COVID-19 Fears Prompt State Department ‘Do Not Travel’ Advisory for UK, Other Restrictions Continue

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.

Jackson Lewis P.C. © 2021

Judge Again Finds DACA Program Illegal, Blocks New Applications, Allows Renewals

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Jackson Lewis P.C. © 2021
For more articles on DACA, visit the NLRImmigration section.

Immigration and Compliance Briefing: COVID-19 Summer Scoop & Quick Tips

Since March 2020, the U.S. Department of Homeland Security (DHS), Department of State (DOS), and Department of Labor (DOL) have issued and/or revised a significant number of rules and policies in response to the global COVID-19 pandemic. Below is a roundup of the current rules/policies covering the major areas of global mobility impacted by COVID-19.

International Travel

U.S. Land Borders

  • Canada: The border between the U.S. and Canada remains closed until July 21, 2021 except for essential workers and services. As of July 5, fully vaccinated Canadian citizens, permanent residents, and certain exempted individuals are not required to quarantine upon entry or undergo an 8-day COVID test.
  • Mexico: The border between the U.S. and Mexico remains closed until July 21, 2021 except for essential workers and services.

The U.S. land borders have been closed since March 21, 2020. While the border closures are currently set to expire on July 21, they may be extended for additional 30-day periods. As a reminder, the following types of travel/travelers are exempt from the restrictions:

  • U.S., Canadian, and Mexican citizens and permanent residents returning to their home country
  • Individuals traveling for medical purposes (e.g., to receive medical treatment)
  • Individuals traveling to attend educational institutions
  • Individuals traveling to work in the U.S.
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders)
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers transporting cargo between the U.S., Canada and Mexico)
  • Individuals engaged in official government or diplomatic travel
  • Individuals engaged in military-related travel or operations

Geographical Travel Bans

Entry into the U.S. is prohibited, with some exceptions, for most travelers who have been in any of the following countries at any time within the past 14 days (including transit):

  • China; Iran; European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City); United Kingdom (England, Scotland, Wales, Northern Ireland); Republic of Ireland; Brazil; South Africa; India

Exceptions to this ban include, but are not limited to:

  • U.S. Citizens and Lawful Permanent Residents (LPRs)
  • Certain family members of U.S. citizens
  • Diplomatic Travelers
  • Individuals traveling with an approved National Interest Exception (NIE)

QUICK TIP: The current COVID-19 travel bans are based on physical presence and do not ban citizens or residents of any country.

QUICK TIP: Even a layover/connecting flight in an impacted countries is enough to trigger the entry ban, so if traveling to the U.S. from a non-banned country, travelers are advised to double-check their itineraries to ensure that they do not inadvertently become subject to the ban.

National Interest Exceptions

Travelers and their derivative beneficiaries who would otherwise be subject to the geographic travel ban may request a National Interest Exception (NIE) based on their visa type and/or their intended purpose of stay in the United States.

QUICK TIP: Effective July 6, 2021, the DOS announced that approved NIEs are valid for 12 months and multiple entries. This policy applies retroactively to travelers granted an NIE within the prior 12 months. Previously, NIEs were valid for a single entry within 30 days of approval.

On June 24, 2021, the DOS updated its guidance on NIEs, including categories of individuals who are automatically considered for an NIE at ports of entry and those who may apply for an NIE at the U.S. Consulate.

Individuals automatically considered for an NIE include:

  • Immigrants (those seeking permanent residence in the U.S.)
  • Fiancé(e)s of U.S. citizens and their dependents (K visas)
  • Students (F and M visas)

Note: New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including Optional Practical Training (OPT)

Individuals who may apply for an NIE include:

  • Certain J-visa holders (exchange visitors, students, and academics; Educational Commission for Foreign Medical Graduates (ECFMG) participants)
  • Journalists
  • Travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains
  • Travelers providing vital support or executive direction for significant economic activity in the U.S.
  • Travelers whose purpose of travel falls within one of these categories: 1) Lifesaving medical treatment for the principal applicant and accompanying close family members; 2) Public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research); 3) Humanitarian travel, including those providing care, medical escorts, and legal guardians
  • Travelers whose work is in the national interest of the U.S.
  • Derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive an NIE

Individuals who are automatically considered for an NIE at a port of entry do not need to apply for the NIE at their consulate in advance of their travel. Those who believe they may be eligible for an NIE should contact their local consulate for instructions.

QUICK TIP:  Approved NIEs may be noted directly in a visa or an applicant may be notified via email that they have received a digital approval. Both formats are equally valid, and travelers are advised to carry copies of the application materials and confirmation of approval with them when they travel.

I-9 Compliance

Extended Flexibility

For employees hired between June 1, 2021 and August 31, 2021, Immigration and Customs Enforcement (ICE) has temporarily waived the in-person I-9 document inspection requirement for employers that are fully remote due to COVID-19. Initially implemented on March 20, 2020, this guidance has been extended in 30 to 60-day increments since and may be extended after August 31.

To avoid inadvertent I-9 regulatory violations, employers should note the following:

  • As of April 1, 2021, an employer may utilize the flexible I-9 guidelines even if some employees are present at the worksite. However, this flexibility ends once the employee begins non-remote work on a regular, consistent, or predictable basis. This guidance does not extend to remote employees whose employment is normally remote, but only applies to remote employees who are temporarily remote due to COVID-19.
  • Prior to April 1, 2021, these guidelines applied only to employers and workplaces operating fully remotely due to COVID-19. If employees were present at the worksite, no exceptions were permitted. This guidance did not extend to remote employees whose employment is normally remote, but only applied to remote employees who are temporarily remote due to COVID-19.
  • Within three days of the remote employee returning to regular in-person employment or the termination of the flexible guidelines, whichever is earlier, the employer must physically inspect any I-9 documents that were inspected electronically in reliance on this policy. Failure to timely physically inspect these documents constitutes an I-9 violation.

QUICK TIP:  To avoid missing the three-day deadline, employers may begin the physical I-9 document inspection for individual employees prior to the return to in-person employment.

QUICK TIP:  To avoid I-9 compliance violations, employers are encouraged to conduct regular internal I-9 audits and periodically review the M-274 Handbook for Employers, guidance for completing Form I-9.

Ongoing COVID-19 Flexibilities

Additional Time For Responding To Agency Requests

On June 24, 2021, U.S. Citizenship and Immigration Services (USCIS) extended its policy granting additional time to respond to the following types of agency requests as long as they were mailed by the agency between March 1, 2020 and September 30, 2021:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny, Revoke, Rescind, or Terminate
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5

If a response to an eligible USCIS request and/or notice is received within 60 days of the stated deadline, then USCIS will consider the response prior to making a final determination.

Refiling Certain Applications Due To Delayed Rejection From USCIS Lockbox

Due to COVID-19, USCIS Lockbox facilities are experiencing significant delays in intake and processing of immigrant and nonimmigrant applications and petitions. In some cases, delayed rejections can prevent an applicant from timely refiling or cause an applicant to “age out” of a benefit. Therefore, for certain applications filed at a USCIS Lockbox between October 1, 2020 and August 9, 2021, the agency has issued the following guidance:

  • For applicants whose application was rejected solely because the filing fee expired due to USCIS Lockbox delays, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. USCIS will also waive the $30 dishonored check fee.
  • For applicants, co-applicants, beneficiaries, or derivatives who aged out of eligibility for the requested benefit due to a delayed rejection from a USCIS lockbox, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. This does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate.

QUICK TIP:  Both petitioners and applicants should periodically review the USCIS COVID-19 Response webpage (https://www.uscis.gov/about-us./uscis-response-to-covid-19) and the websites of other government agencies for up-to-date information on guidance on COVID-19 related policies and flexibilities.

Form I-539 Biometrics

On May 3, 2021, USCIS announced that it will suspend the biometrics requirements for I-539 applicant categories (H-4, L-2, E-1, E-2, E-3) for a two-year period beginning on May 17, 2021. The suspension applies to Form I-539 applications that are 1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, or 2) new applications received by USCIS from May 17, 2021, through May 23, 2022.

© 1998-2021 Wiggin and Dana LLP
For more articles on COVID-19 travel restrictions, visit the NLRImmigration section.

Homeland Security Withdraws Proposed Rules Affecting International Students

The U.S. Department of Homeland Security announced the withdrawal of proposed new rules that would have limited the time that individuals entering the U.S., including international students, could remain in the country, absent the issuance of a new visa. The proposed rules, which were published on September 25, 2020, had been the subject of significant concern by many higher education leaders due to their potential impact upon international student retention.

Under the current rules, international students approved for an F or J category entry visa are allowed to remain in the country for an unspecified period, so long as they continue to be enrolled in coursework leading to their degree or research activity. This so-called “duration of status” policy would have been replaced by fixed terms of up to four years, under the proposed changes.

The new rules would have required a reapplication and renewal of the visa status of the student at the expiration of the term for studies to be continued. Further, in the case of countries whose students have higher visa overstay rates, the proposed rule would have limited initial student visa terms to two years.

In a letter voicing opposition to the proposed changes, the American Council on Education (“ACE”) argued that the imposition of limitations on visa duration for international students would significantly impede the educational process. As the ACE letter noted, the average time for an international student to complete a B.A. degree is slightly more than 4.5 years, and almost six years to complete a Master’s/Ph.D. program. It further concluded that the proposed rules would be “largely unworkable for the majority of students.”

The announcement of the withdrawal of the proposed rules represents a positive step for colleges and universities seeking to attract international students. It reinforces the existing student visa regime and produces a more stable environment for applicants. Yet, the announcement of the withdrawal of the proposed rules came with the acknowledgement that other changes may be necessary “to protect the integrity of programs that admit nonimmigrants in the F, J and I classifications.” Accordingly, a new Notice of Proposed Rulemaking related to the rules regarding these specific visa categories could be forthcoming.

© Steptoe & Johnson PLLC. All Rights Reserved.
For more articles on international students, visit the NLRPublic Education & Services section.

England’s Current COVID-19 Quarantine Travel Entry Rules

The United Kingdom is operating a traffic light system for foreign travel, and what passengers must do upon arrival in England depends on where they have been in the 10 days before they arrive.

This article focuses on the guidance for England. Separate guidance applies to Northern Ireland, Scotland, and Wales.

The quarantine rules differ depending on what list the country or territory that the passenger is travelling from is on—red, amber, or green. Note that the rules apply to vaccinated passengers as well.

Red List Countries

Only British citizens, Irish citizens, and those with UK residence rights are able to enter England if they have visited or transited through a red list country in the 10 days prior to arrival.

Passengers travelling from a red list country or territory must abide by the following requirements:

  • Passengers must take a COVID-19 test within the three days prior to departure to England and provide proof of a negative test result in order to travel. Passengers may be fined £500 if they arrive in England without proof of a negative test result.
  • Passengers must undergo 10 full days of quarantine in a government-managed hotel (arrival day in England does not count toward 10-day requirement). Before travelling to England, passengers must book and pay for a managed quarantine hotel within the 14 days prior to arrival. The booking includes passengers’ hotel stay, meals, transportation to and from the hotel, and two COVID-19 tests, which must be taken on the second and eighth days of the quarantine period. Passengers who have not booked a ‘quarantine package’ prior to arrival in England could ‘face a penalty of up to £4,000 and will still have to pay for [a] quarantine package on arrival’.
  • Passengers must arrive at an authorised airport. Currently, the only authorised airports are Heathrow Airport, Gatwick Airport, London City Airport, Birmingham Airport, Bristol Airport, Farnborough Airport, and Biggin Hill Airport, although ‘[o]ther ports of entry may be added in the future’. Passengers whose flights are due to arrive at a different airport must reschedule them to an authorised airport, or face a penalty of up to £10,000 and transportation costs to the nearest designated port of entry.
  • Passengers must submit an online ‘passenger locator form’ in the 48 hours prior to arriving in England. The form is intended to provide a passenger’s journey and contact details. Passengers will need to book and pay for a quarantine package before completing a passenger locator form, as the form requires details of where the passenger will quarantine once they arrive in England. The guidance stipulates that passengers ‘could be fined, imprisoned or both if [they] do not provide accurate details about the countries [they] have visited in the 10 days before [they] arrive in the UK’.

Amber List Countries

Before travelling to England from an amber list country or territory, passengers must:

  • take a COVID-19 test within the three days prior to departure (proof of a negative test result is required in order to be able to travel to England),
  • book and pay for two COVID-19 tests to be taken on the second and eighth days after arrival in England, and
  • complete an online passenger locator form.

Upon arrival in England, passengers must:

  • quarantine at home or in the place they are staying for 10 days;
  • take a COVID-19 test on the second and eighth days of the quarantine period, which passengers are required to schedule prior to departure as mentioned above (children aged four years old and under are not required to take these tests).

Green List Countries

Before travelling to England from a green list country or territory, passengers must:

  • take a COVID-19 test within the three days prior to departure (proof of a negative test result is required in order to be able to travel to England),
  • book and pay for a COVID-19 test to be taken on the second day after arrival in England, and
  • complete an online passenger locator form.

Passengers must take a COVID-19 test on the second day after they arrive in England, which they are required to book prior to departure as mentioned above. Passengers do not need to quarantine unless they receive a positive test result.

These lists are reviewed every three weeks and a country or territory can move between lists at short notice. Passengers may therefore want to review the guidance for updates before they travel.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on travel restrictions the NLR Immigration section.

Carlos Rios, A U.S. Citizen, Sues ICE for Wrongful Detention, Seeks $500,000 in Damages

On November 17, 2019, Carlos Rios was arrested by the Washington State Patrol in Pierce County, Washington, allegedly for driving his motorcycle under the influence. Rios was imprisoned in Pierce County Jail, and his belongings were confiscated. Upon his release two days later, he was taken into custody by two U.S. Immigration and Customs Enforcement (ICE) officers. Rios repeatedly told the officers that he was a U.S. citizen, but his protests went unheard.

Now, Rios, a welder at the Port of Everett, is suing ICE for unlawful arrest, false imprisonment, intentional infliction of emotional distress, and negligence. Rios is also seeking compensatory damages totaling $500,000. He is represented in his lawsuit by the Northwest Immigrant Rights Project (NWIRP).

Rios was born in Mexico, entered the U.S. in the 1980s, and has lived here ever since. He became a naturalized citizen in 2000. “I cannot understand why I was detained and why no one listened to me,” he said in a news release issued by the NWIRP.

The Arrest by ICE

Rios said he kept telling the officers who handcuffed him outside the prison that he was a U.S. citizen. No one listened to him, and instead, put him in a van to be transported to the Northwest Detention Center in Tacoma, where he stayed for a week. Ironically, Rios was carrying a passport in his plastic bag but was never given the opportunity to show it to the officers.

His lawsuit says that he was kept in an isolated cell allocated to people who are at risk of self-harm. He slept on the floor. The officers also told him that if he caused trouble, then even his clothes would be confiscated.

Pierce County Prison Notified ICE of Rios’s Release

The officials of the Pierce County Jail had notified ICE that Rios was to be released. However, because county prison officials did not hold him for any additional period, they avoided violating any state laws. Six months ago, Washington State passed a “Keep Washington Working Act,” which prohibits cooperation between the state and immigration officials.

Rios faces the consequences of his disappearance. He claims that he lost his job and that his absence strained his marriage. Rios is seeking $500,000 in compensation for his humiliation and distress.

Wrongful Detention by ICE

U.S. Army veteran and Belize native, Rennison Castillo, was taken to the Tacoma facility, where he was detained for seven-and-a-half months. He was detained despite having repeatedly claimed that he is a naturalized citizen of the United States. In 2010, the U.S Army veteran received a $400,000 settlement and an apology from the Department of Justice. It was around that time that NWIRP investigated and compiled a list of 16 U.S. citizens who were subject to such wrongful detention in Tacoma.

Following many claims of wrongful detention, ICE instituted new policies requiring officers to immediately investigate claims of citizenship and to instantly alert supervisors. ICE has also been warned against conducting discriminatory stops based on the people’s looks and the language they were speaking. The NWRIP has won two $35,000 settlements from the federal government for similar issues.

©2021 Norris McLaughlin P.A., All Rights Reserved
For more articles on ICE, visit the NLR Immigration section.

Canada to Ease Travel Restrictions for Fully Vaccinated Individuals

The Government of Canada has announced the first phase of its plan to ease border restrictions for travelers entering Canada. Under the new policy, travelers whose vaccination status meets the criteria of “fully vaccinated” will be exempt from quarantine restrictions, mandatory hotel stays pending test results, and day-eight testing, provided all conditions are met.

Effective July 5, 2021, at 11:59 p.m. EDT, fully vaccinated individuals will not be required to quarantine or take a COVID-19 test on the eighth day of their quarantine period. In addition, fully vaccinated travelers arriving by air will not be required to stay at a government-authorized hotel. A fully vaccinated traveler must provide documentation verifying that he or she has received, “at least 14 days prior to entering Canada,” the full series of a vaccine or a combination of vaccines that are accepted by the government of Canada. It is important to note that fully vaccinated travelers are not automatically exempt from Canada’s travel restrictions, as a representative of the Canadian government will make the final determination “at the border based on the information presented at the time of entry.”

Regardless of one’s vaccination status, the following entry requirements remain in effect for all travelers entering Canada:

  • Pre- and on-arrival testing will apply for all travelers, whether arriving by air or land, to ensure that all travelers are asymptomatic.
  • Each traveler “must have a suitable quarantine plan” in case a border officer determines that the traveler does not meet all conditions necessary to qualify for an exemption.
  • Travelers must electronically submit documentation of their vaccination status or COVID-19 test results through ArriveCAN prior to arrival in Canada.

Travelers who are not fully vaccinated must continue to adhere to current requirements for testing and quarantine. Unvaccinated travelers arriving in Canada by air must also have a reservation for a three-night stay at a hotel authorized by the government to await their arrival test results.

The Canada-U.S. border currently remains closed to nonessential travel. Canada’s Quarantine Act likewise remains in effect, and local provinces and territories may continue to impose additional travel restrictions.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on Canada border restrictions, visit the NLR Global news section.

International Travel After the US Travel Ban is Lifted – What Visa Holders Can Expect

At some point this year, we expect that the United States will lift the travel ban that includes all of the Schengen countries, the United Kingdom, China, and others.  While there have been many rumors about when this will happen, the US government remains silent.

When the United States lifts the travel ban, US visa holders in the United States will have many questions about whether they can travel abroad, when they can return, and what impediments they may face.  The following FAQs address these questions.  We will update them as needed.

1. When the United States lifts the travel ban, will I still need a National Interest Exception?

Answer:  No.  If the travel ban is completely lifted and no other restrictions are put in its place, travel will return to pre-pandemic “normal.”  In other words, you will not require any special advance permission to fly directly to the United States from countries that were previously under the travel ban.  You will also not need to show that you are exempt because you have an immediate relative (spouse or child) who is a US citizen.

2. When the United States lifts the travel ban, will I need a Covid vaccination to return after international travel?

Answer:  Possibly. The travel ban may be lifted in phases, allowing first for travel of vaccinated individuals.

3. When the United States lifts the travel ban, will I need a negative Covid test to return after international travel?

Answer:  Possibly. That will be up to the CDC. As of early June 2021, a negative Covid test is required for all US-bound air passengers 2 years of age or older, regardless of where they are flying from. If the CDC decides to change this rule, it will be announced on the CDC website.

4. When the United States lifts the travel ban, can I leave the United States and travel to my home country to see my family and friends?

Answer:  As a US visa holder, you are always free to leave. The issue is when you can return, which may depend on whether you require a US visa in your passport that only US consulates can issue.  (See below.)

5. Will I need a US visa in my passport in order to return to the United States to resume my current nonimmigrant visa status?

Answer:  Except for Canadian passport holders (other than E visa holders), every employment-based nonimmigrant visa holder must have a valid, unexpired visa in their passport that matches their work-authorized status, as indicated on their USCIS approval notice (Forms I-797 or I-129S) in order to return to the United States.  Family members holding dependent status must also have valid, unexpired visas in their passports to return to the United States.

6. My current visa is unexpired and is in the same category as my approval notice.  Will I need a new visa to return to the United States after travel abroad?

Answer: As long as you return with your unexpired, valid visa and your approval notice before either expire, US Customs should admit you in the same visa status through the end date listed on the approval notice.  For example, if you have in your passport an unexpired H‑1B visa that references a prior employer’s name and your most recent H-1B approval notice is for a new employer with a longer expiration date than listed on the visa, the two documents together will allow a US Customs officer to admit you in H-1B status. The visa and the approval notice must be in the same visa classification, however.

7. My current visa has expired, but I have an approval notice extending my status in the same visa classification.  Do I need a new visa to return to the United States?

Answer:  Yes, you will need to use the new approval notice to obtain a new visa at a US consulate abroad.  Your family members will need new dependent visas as well.

8. The visa I used to enter the United States is in a different visa classification than the approval notice my employer obtained for me, which changed my visa classification.  Do I need a new visa in order to return to the United States?

Answer:  If the USCIS changed your status after you arrived in the United States, you will need a new visa in your passport in the same visa classification listed on the new approval notice.  For example, if you entered using an F‑1 student visa, and then a US company filed an H-1B change of status petition for you and approved by USCIS, you will need an H-1B visa in your passport to return following travel abroad.  Your family members will need new dependent visas as well.

9. I heard that if the USCIS extended my status and/or changed my status to a new visa classification, I can travel to Canada or Mexico and back without getting a new visa in my passport.  Is this true?

Answer: Yes, it is true, but only if you are visiting either of those countries for 30 days or less, you do not apply for a US visa while there, and you do not travel to another country in between departing from and returning to the United States.  This process is the “automatic revalidation of visa at port of entry”.  You should consult with an attorney before using this provision of law to make sure that it is still available when you plan to return and that you have the necessary documentation to return after your short trip.

10. I heard that scheduling visa appointments at US consulates has been very difficult during the pandemic and while the travel ban has been in place.  Once the United States lifts the travel ban, will it be easier to schedule visa appointments abroad?

Answer: Possibly, but probably not immediately. We expect lingering backlogs in visa appointments. While we do expect that US consulates will return to pre-COVID appointment scheduling, we do not expect it to happen very quickly.  When the United States lifts the travel ban, the consulates may not be operating at full staff.  Even those that will be fully staffed will not likely return immediately to pre-COVID scheduling, as there is still a risk of COVID transmission in many countries.  As the vaccine rollout becomes more widespread, US consulates are likely to make more appointments available.  For countries with rising COVID cases, appointments will remain hard to secure.  At this time, most US consulates are only scheduling emergency appointments, and those scheduling regular appointments are doing so for late 2021 and early- to mid-2022.

11. I have a visa appointment scheduled for early 2022.  If the consulate opens up more appointments, will my appointment be moved to an earlier date?

Answer:  It may depend on the specific consulate whether it will automatically move appointments to earlier dates, or whether it falls on the applicant to reschedule.  It is advisable to check the consulate’s website often to see if earlier appointments become available.  This may require checking daily.

12. What are the chances that I can secure an emergency appointment to obtain my visa?

ANSWER:  Low. At this time, US consulates are inundated with emergency appointment requests, most of which are denied.  Unless the emergency rises to a life-or-death situation, you can assume that you will not get one.  However, there is no harm in making the request.

13. Can I apply for a US visa at a US consulate in a country other than my home country?

ANSWER: Probably not. Because visa appointments are difficult to schedule, most US consulates are not entertaining visa applications from third-country nationals and are only granting visa appointments to local citizens or long-term residents.

14. Can I renew my visa while I am in the United States?

ANSWER:  Unfortunately no. The ability to apply to the State Department for “visa revalidation” ended after the tragic events of 9/11/2001.  Therefore, you must apply at a US consulate abroad.  There are rumors that the US may reinstate visa revalidation in the United States at some point to relieve the backlogs at US consulates, but we do not know if or when this could become a reality.

15. I have an unexpired B-1/B-2 visitor’s visa in my passport.  Can I use it to return to the United States to continue my employment?

ANSWER: No. You cannot use a B-1/B-2 visa (or any other nonimmigrant visa not related to your work-authorized approval notice) to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also should not use it to enter the United States intending to have your employer re-sponsor you for a work-authorized change of status, as you cannot enter as a visitor with the intention of changing status after arrival.

16. I have an unexpired ESTA (Visa Waiver) registration (or can obtain the registration). Can I use it to return to the United States to continue my employment?

ANSWER:   No. You cannot use ESTA to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also cannot apply to extend your ESTA visit or to change to a new status while you are in the United States.

17. Can I ask for Congressional assistance to schedule a visa appointment?

ANSWER: You can certainly reach out to your member of Congress for such assistance; however, it is unlikely that you will be successful, as Congressional offices are inundated with such requests.  If you have compelling facts, it may help, but unless you have a life-or-death situation, Congressional assistance is not likely to help.

18. If I depart the United States and cannot get a new visa, can I work from abroad until I can obtain the new visa to return to the United States?

ANSWER:  It depends on your company’s policies. Your employer may not allow you to perform your US position from abroad, as it may raise tax or other legal issues.  This is something you should discuss with your manager, human resources, and/or your global mobility department before making plans to depart.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.
ARTICLE BY Ian P. Band of Hunton Andrews Kurth
For more articles on international travel, visit the NLR Immigration section.

Summer Is Here: International Vacation Travel During a Pandemic

International travel during the COVID-19 pandemic has been challenging, but conditions are finally improving. Many Americans are now vaccinated against COVID-19. The latest CDC reporting indicates 50.9% of the U.S. population has received at least one vaccine dose and more than 41% of the U.S. population has been fully vaccinated.

Many international destinations are planning for an uptick in tourism – including Europe. Unfortunately, there remains no consistency in the rules in effect across the pond. With Europe opening, many have been hoping since May that the United States will reciprocate and eliminate at least some of the COVID-19 international travel restrictions.

The EU Commission’s overall recommendation is that tourists from countries with low infection rates be allowed to enter if they are fully vaccinated with an EU-approved vaccine. This is reflected in some recent developments from European countries. For example:

  • Denmark has opened to EU/Schengen countries and plans to open to international tourists later in June.
  • France plans to use a “traffic light” system to determine which countries’ residents can visit and what restrictions will apply.
  • Malta is open fully to vaccinated travelers.
  • The UK plans to use a “traffic light” system that will determine “green-listed” countries, who will need to quarantine, and what testing will be required.
  • Portugal is open to EU/Schengen countries and the UK.
  • Italy is open to those from the UK, the EU, and Israel who are fully vaccinated.
  • The Netherlands is open to 15 low-risk countries.
  • Greece has been open to the EU, the United States, the UK, and Israel if the travelers are fully vaccinated or have a negative COVID-19 test.

In the meantime, the CDC has lowered travel restrictions for more than 100 countries. Further, especially due to upcoming international travel requirements, the United States is considering offering voluntary documentation that would allow U.S. residents to prove vaccination status. However, these vaccine “passports” have been controversial and a spokesperson from DHS noted that there will be “no federal vaccination database or a federal requirement for Americans to provide they’ve been vaccinated . . . . ” The status of these “passports” promises to be an evolving area, considering the privacy concerns that have been raised, such as in New York.

For now, everything is country by country and airline by airline – and everything is subject to change (make sure your airline tickets and hotel reservations are refundable!).

Those planning to travel need to make sure to check with the appropriate consulates before starting to plan.

Jackson Lewis P.C. © 2021
ARTICLE BY Kristopher W. Peters of Jackson Lewis P.C.
For more articles on international vacations, visit the NLR Immigration section.

 

Canada Easing COVID-19 Border Restrictions: How to Prepare & Adapt to Changing Travel Rules

Canada announced it is expecting to ease COVID-19 quarantine restrictions for Canadians entering the country in early July. Under the new rules, fully vaccinated Canadians arriving by air won’t have to quarantine in a government-designated hotel and will be allowed to quarantine at home for the required 14 days.

“The first step … is to allow fully vaccinated individuals currently permitted to enter Canada to do so without the requirement to stay in government-authorized accommodation,” said Canadian Health Minister Patty Hajdu said in a press conference. “We do want to be cautious and careful on these next steps to be sure that we are not putting that recovery in jeopardy.”

The U.S.-Canada border closed to travelers on March 20, 2020. Currently, the Canadian border is only open to essential travel, and the Canadian government hasn’t released a plan yet for restarting non-essential travel for international travelers.

The Biden Administration announced on June 8 it is forming expert working groups with Canada as well as the United Kingdom (UK), Mexico and the European Union (EU) to determine how to lift border restrictions. However, White House Press Secretary Jen Psaki said in a press conference June 8 that she didn’t have a prediction for when the U.S.-Canada border would open for non-essential travel.

Even though restrictions are beginning to lift, travel is going to look different than it did before the coronavirus pandemic within North America and beyond.

What to Expect for Travel to Canada & Beyond

Canadian Prime Minister Justin Trudeau said all visitors traveling to Canada will have to be fully vaccinated, and is working on a phased approach to reopening the borders to non-essential travel.  Additionally, Ms. Hadju said the government supports the idea of requiring travelers to have COVID-19 vaccine passports to enter Canada.

Mr. Trudeau said that the Canadian border restrictions will remain until at least 75 percent of Canadians are vaccinated. Under increasing pressure to allow travel between the US and Canada, Mr. Trudeau said in a press conference on May 31 that he wouldn’t be pressured to open the borders without taking the necessary precautions in order to avoid another wave of infections that could slow the economic recovery already taking place.

“We’re on the right path, but we’ll make our decisions based on the interests of Canadians and not based on what other countries want,” he said.

The slow and cautious approach to reopening the U.S.-Canada border drew criticism from both politicians and organizations. Last month, U.S. Senate Majority Leader Charles E. Schumer called on the Department of Homeland Security (DHS) to implement a four part plan to reopen the Canadian border, which includes expanding the definition of “essential travelers” to include vaccinated individuals who have family or property across the border.

Dan Richards, travel crisis expert, CEO of Global Rescue and member of the U.S. Travel and Tourism Advisory Board said in an interview with the National Law Review that while the argument of protecting Canada and the U.S. from spikes in infections is one made in good faith, it needs to be weighed with the economic impact of keeping borders closed, especially if vaccination rates are high and infection rates are low.

“When you look at the Canadian challenge, its population is a tiny fraction of the population in the United States and they’re one of our biggest trading partners. Closing that border is a big deal,” Mr. Richards said. “If the public health systems in the two countries that have a border between them are capable of dealing with the level of infection that is occurring, then the borders should be open…Any friction in the travel process for people crossing borders should be removed.”

Mr. Richards said that while there is a possibility smaller pockets of COVID-19 infections could occur, the likelihood of another large scale wave of infections is slim.

“Trudeau is not entirely off the mark when he says there could be another wave, but the reality is that there’s almost no likelihood that could occur,” he said. “By and large, the average is dropping like a stone in the United States, and we’re starting to see that happening as well in Canada.”

The US and Canada’s cautious approach to reopening to international visitors contrast with countries like Spain, which opened their borders to fully vaccinated international travelers on June 7. More broadly, the European Union (EU) agreed to take steps to open up to fully vaccinated tourists, but did not give a timeframe for when that would happen.

Some countries like the United Kingdom (UK) are open to travelers who can produce a negative COVID-19 test upon arrival. But, international travelers to the UK are required to be quarantined for 10 days after their arrival and must take two COVID-19 tests.

“Europeans got off to a slow start, but now they’re now vaccinating close to 4 million people a day,” Mr. Richards said. “They’re only a month or so away from looking at dropping all their restrictions as well.”

How Might Travelers and Businesses Adapt to Easing Travel Restrictions?

With the news that some countries like Canada may ease border restrictions soon, travelers and businesses are beginning to adapt to the change.

“We’re going to see people combine business and leisure travel in ways that haven’t been done before,” Mr. Richards said. Specifically, people may choose to travel and work remotely for longer periods and then come back to the physical office for shorter periods.

“There is value to being in the same room with your colleagues and certainly with your clients,” Mr. Richards said. “But I think the days traveling long distances for one meeting with one person are going to be greatly diminished in the future.”

For businesses with employees traveling during the pandemic, there are steps to take to ensure the travel is done safely. Mr. Richards said it is the employer’s responsibility to monitor and alert employees if they are traveling to areas where there may be COVID-19 outbreaks.

“Businesses are more concerned right now about the duty of care that they have to their employees that are traveling than ever before,” he said. “If you send someone somewhere and they get sick or have an adverse event happen to them, it is your responsibility to provide a reasonable level of support as an employer under the law.”

How Will Travel Change Post-COVID-19?

While the travel and tourism industry took a hit during the COVID-19 pandemic, there is room for a robust rebound as the pandemic shows signs of slowing. However, when non-essential travel is possible again, it may look different than it did before the pandemic.

“It’s going to be tough to get a seat on an airline,“ Mr. Richards said. “I unfortunately think that getting on an airplane to go where you want to go is going to be challenging in the near term and more expensive than anybody expected.”

While rising fuel prices and airlines having fewer planes in use contribute to higher prices, Mr. Richards said the leisure travel segment is going to see an increased level of activity as people are eager to leave their homes and take trips.  Additionally, technologies such as COVID-19 PCR tests that can detect virus particles in travelers’ breath can help prevent the next pandemic and its impact on travel.

“If COVID showed us anything, it’s that work can be done from almost anywhere in many industries and people are going to take advantage of that,” Mr. Richards said. “The days where you had to be tethered to an office weekly are going to go away for some industries.”

Copyright ©2021 National Law Forum, LLC
ARTICLE BY Rachel Popa of The National Law Review / The National Law Forum LLC
For more articles on Canadian border restrictions, visit the NLR Global news section.