Category: Immigration

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.

Form I-9 Requirement COVID-19 Flexibility Extended until August 31

U.S. Immigration and Customs Enforcement (ICE) has announced an extension of its interim policy that allows employers to inspect the Form I-9 requirement virtually through August 31, 2021. This flexibility was first issued by ICE in March 2020, due to the pandemic, and has been extended multiple times since.

COVID-19 Flexibility Extended

Form I-9 flexibility policy was set to expire on May 31, 2021. The policy applies only to employers and workplaces that are operating remotely. If the workplace is functioning even partially at the work location, the employer must implement an in-person verification process. Employers who meet the criteria for remote operation must diligently create cases for their new hires within three business days from the date of hire.

The announcement had no new information apart from that regarding the extension but encouraged employers to monitor the USCIS website for any latest guidance.

Form I-9 Requirement

Form I-9 is a mandatory form that employers must complete and maintain with its records, confirming the employment authorization of individuals hired for employment in the United States. Employers must verify the documents of the new hire within three days of hire, and both employee and employer must complete the form. The list of acceptable documents can be found on the last page of the form.

The Department of Homeland Security (DHS) inspects, either randomly or on tips or complaints, the records the employers maintain. The purpose of the audit is to ensure that the employers are following legal hiring practices. When an employee receives a Notice of Inspection (NOI) from the DHS about an upcoming audit, it is best to hire an attorney and have staff from Human Resources handle the audit. If the DHS finds discrepancies in the records, they issue a warning notice and provide time to correct the violations. If the violations are not rectified, the DHS issues a Notice of Intent to Fine; often the amount of the fine is huge.

©2021 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on form I-9, visit the NLRImmigration section.

Cultural Artifacts Returned to Thailand

After a three-year investigation by Homeland Security Investigations (HSI), two hand-carved lintels from ancient temples in Thailand were returned to the Thai government during a joyous ceremony including dancers and prayers at the Royal Thai Consulate-General in Los Angeles.

HSI is the principal investigative arm of the Department of Homeland Security. With a workforce of over 10,000 employees, HSI has Special Agents across the United States and in 53 countries. This presence abroad is “one of the largest international footprints in U.S. law enforcement.” HSI’s Cultural Property, Art and Antiquities Smuggling arm has, since 2007, returned more than 11,000 artifacts to over 30 countries.

The lintels are religious artifacts made of sandstone in the 9th and 10th centuries and are identified as being from the Nong Hong Temple and the Khao Lon Temple in northeastern Thailand – both protected sites. The sandstone lintels weigh about 1,500 pounds each. They were exported from Thailand more than 50 years ago, allegedly in violation of Thai law. They were donated to the Asian Art Museum in San Francisco.

In 2016, the Thai consul general saw the lintels displayed at the museum and asked to have them returned to Thailand. HSI negotiated their return for close to four years. The full provenance is not clear, but the lintels, donated to the museum, are valued at approximately $700,000.

Acknowledging that there is a continuing black market in Thai artifacts, the Thai ambassador to the U.S., Manasvi Srisodapol, hoped that the publicity surrounding the return would raise public awareness and help to stem the removal of cultural patrimony. Ambassador Srisodapol called the repatriation ceremony the beginning of the lintels’ “sacred journey back home.”

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

Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria

The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.

Travel Restrictions Based on Country of Physical Presence

Presidential Proclamation Current Status Impact
Proclamation 9984 In effect Suspends and limits entry into the United States by individuals who were physically present in China during the 14-day period prior to their entry/attempted entry
Proclamation 9992 In effect Suspends and limits entry into the United States by individuals who were physically present in Iran during the 14-day period prior to their entry/attempted entry
Proclamation 9993 Revoked Suspended and limited entry into the United States by individuals who were physically present in the Schengen Area during the 14-day period prior to their entry/attempted entry
Proclamation 9996 Revoked Suspended and limited entry into the United States by individuals who were physically present in the United Kingdom and Ireland during the 14-day period prior to their entry/attempted entry
Proclamation 10041 Revoked Suspended and limited entry into the United States by individuals who were physically present in Brazil during the 14-day period prior to their entry/attempted entry
Proclamation 10143 In effect Suspends and limits entry into the United States by individuals who were physically present in South Africa, the Schengen Area, the United Kingdom, Ireland, and Brazil during the 14-day period prior to their entry/attempted entry

Following the issuance of Proclamation 10143, the State Department rescinded previous NIE guidance and simultaneously issued new guidance on March 2, 2021, as related to the Schengen Area, the United Kingdom, and Ireland. According to the State Department, the original guidance had provided exceptions for “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” However, the updated guidance includes exceptions under Proclamation 10143 for individuals who “provide vital support for critical infrastructure.” [Emphasis added.] Additionally, NIEs remain available for individuals entering the United States “for purposes related to humanitarian travel, public health response, and national security.”

Travel Restrictions Based on Visa Type

On April 22, 2020, the Trump administration issued Proclamation 10014 suspending the entry of individuals to the United States on immigrant visas. This proclamation did not affect applications for adjustment of status or nonimmigrants, such as business visitors or temporary workers. On June 22, 2020, the Trump administration issued Proclamation 10052, which extended the sunset date of Proclamation 10014 to December 31, 2020. Proclamation 10052 also suspended the entry of certain individuals to the United States on select nonimmigrant visas, including H-1B, H-2B, J-1, and L-1 visa holders, as well as their dependents through the end of the year. On December 31, 2020, the Trump administration issued Proclamation 10131, extending Proclamations 10014 and 10052 until March 31, 2021. On February 24, 2021, the Biden administration revoked Proclamation 10014 and section 1 of Proclamation 10052. The Biden administration allowed the remaining sections of Proclamation 10052 to expire on March 31, 2021, and has not expressed any plans to renew or replace it at this time. As a result, Proclamations 10014 and 10052 are no longer in effect.

Backlogs Remain for Most Consular Operations

While the expiration of Proclamation 10052 is certainly welcome news, foreign nationals should not expect immediate processing of their visa applications. The backlog of cases pending at the U.S. consulates around the world remains an ongoing issue due to COVID-19. The U.S. consular posts have confirmed they will begin a phased resumption of routine visa services based on local conditions but no specific timeline is available. Additionally, applicants who are no longer subject to Proclamation 10052 may still face obstacles entering the United States due to country-specific travel restrictions. Foreign nationals who are subject to country-specific travel bans will continue to require an NIE authorizing each entry to the United States.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

ARTICLE BY Ashley K. Kerr and Melissa Manna of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on COVID-19 travel restrictions, visit the NLR Immigration section.

Legislation to Create a Pathway to Legalization Passes House and Goes to Senate

On March 18, 2021, the House passed two bills designed to create paths to legalization for certain groups of immigrants. Both the Dream and Promise Act of 2021 and the Farm Workforce Modernization Act have been sent to the Senate.

American Dream and Promise Act

Legislation that will create a route for legalization for Dreamers (residents who were brought to the United States as children) has passed the House. The legislation received bipartisan support, although a closer battle can be expected in the Senate. The bill passed 228-197, with nine Republicans joining the Democrats.

The bill’s sponsor said that this legislation will bring relief to 2.5 million undocumented immigrants. The legislation covers all the undocumented immigrants who entered the U.S at the age of 18 years or younger. This legislation also includes immigrants who have protection under the Deferred Action for Childhood Arrivals (DACA). It would also provide a path to legal status for individuals with Temporary Protected Status (TPS) as of 2017 and Deferred Enforced Departure (DED), which are the two forms of temporary protection for immigrants from countries that face a crisis.

The bill “eliminates the ambiguity in their lives and recognizes the talents and indispensable contributions Dreamers make to our country,” Rep. Lucille Roybal-Allard, a primary sponsor, said on the House floor. “Some are married or educated, they speak the language, they’re working, they pay the taxes,” said Rep. Fred Upton of Michigan. “When you get to know these people, and I do, it breaks your heart.”

Pathway to Legalization

The Biden administration expressed its support for this legislation in a statement before the vote on March 18. “Americans recognize that our Nation is enriched by the contributions of immigrants. [The bill] is a critical milestone toward much-needed relief for the millions of undocumented individuals who call the United States home,” the statement said.

Farm Workforce Modernization Act

The House also passed the Farm Workforce Modernization Act by a 247-174 vote. Thirty Republicans voted for the bill, while one Democrat voted against it.

The legislation will provide a temporary status, Certified Agricultural Workers, for those who were agricultural workers for at least 180 days during the past two years. Spouses and children of the workers can also apply under the Act. Undocumented farmworkers will have to pay a fine and engage in additional agricultural work depending on their length of period they have performed agricultural labor in the United States.

Those with ten years of previous agricultural experience will be eligible to apply for a green card after working four more years. Those with less than ten years of experience will have to work eight more years to apply.

The legislation also streamlines the process to get an H-2A visa, which is a work visa for foreign citizens to work temporarily in the United States. This bill is seen as a welcome measure for many in the agricultural sector, as there has always been a dearth of farmworkers in the United States. Undocumented farmworkers are especially vulnerable to the COVID-19 virus, as they have limited access to medical facilities and are often underpaid due to their immigration status.

©2020 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on immigration, visit the NLR Immigration section.

Temporary Suspension of Entry Ends for Certain H, L, J Visa Categories

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis P.C. © 2020

ARTICLE BY John E. Exner IV of Jackson Lewis P.C.
For more articles on visas, visit the NLR Immigration section.