Category: Immigration

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Following the issuance of Proclamation 10143, the State Department rescinded previous NIE guidance and simultaneously issued new guidance on March 2, 2021, as related to the Schengen Area, the United Kingdom, and Ireland.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.

UK Imposes Strict Quarantine Requirements for Passengers From ‘Red List’ Countries

On 15 February 2021, the UK government imposed stricter requirements on individuals travelling or transiting from any of the 33 countries (‘red list countries’) that have had a travel ban to England applied. Separate advice applies to Scotland, Wales, and Northern Ireland.

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

These individuals will need to quarantine in a government-managed hotel for 10 days (11 nights) from the date of their arrival. They must also abide by the following requirements.

  • Individuals must only arrive at an authorised airport. According to the guidance, authorised aiports include only Heathrow Airport, Gatwick Airport, London City Airport, Birmingham-Shuttlesworth International Airport, and Farnborough 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.
  • Individuals must provide a negative COVID-19 test to travel to the UK. The test must be taken in the three days prior to departure, and must be negative in order to travel or board the plane. Their results will need to be provided upon arrival in the UK, or else a fine of £500 could be imposed.
  • Individuals must reside in a government-managed hotel. The 10-day quarantine period must be in one of the government-managed hotels and reserved via the booking portal (before arriving in England). The fee for the ‘quarantine package’ for one adult is £1,750. To add another person over the age of 12 to the booking will cost £650, or £325 for a child between the ages of 5 and 12. This price includes transport to and from the hotel, meals, and COVID-19 testing on the second and eighth days of the 10-day quarantine period.
  • Individuals must complete an online ‘passenger locator form’ in the 48 hours prior to travelling to the UK. The form is intended to provide a passenger’s journey and contact details. Passengers who do not complete the form may face delays in entering England or they could be fined or refused entry. Once the form has been completed, passengers will receive a confirmation email with a document attached. The document will contain a QR code that will be scanned by the Border Force to confirm that the form has been completed successfully.

Sanctions may be imposed on passengers who provide false or deliberately misleading information on the passenger locator form. Passengers who provide inaccurate information may be fined ‘up to £10,000, imprisoned for up to 10 years, or both’. If the quarantine rules are broken, fines of up to £10,000 may be imposed.

The situation with COVID-19 and pre-entry requirements to the UK is constantly changing, and it is also likely that other countries may be added (or removed) from the red list. Individuals may want to review the guidance for updates and further information on how to quarantine when arriving in England.

The government also provides guidance for passengers who are not travelling to England from red list countries.

Wales

Passengers may not directly travel to Wales if they have visited or passed through a red list country in the previous 10 days. They must arrive through one of the designated ports of entry to the UK in England or Scotland and ‘isolate for 10 days in a managed quarantine hotel.’

They must also complete a passenger locator form, have proof of a negative COVID-19 test (taken no more than 72 hours before departure), and also take a test on or before the second day and on or after the eighth day of quarantining.

Scotland

Although part of the UK, different rules apply regarding quarantine for individuals arriving in Scotland. All travellers flying into Scotland from outside the Common Travel Area (not just the red-list countries) must book and pay for managed isolation in quarantine hotels. The Common Travel Area comprises of the United Kingdom, Ireland, the Isle of Man, and the Channel Islands.

The following requirements apply for individuals arriving by air into Scotland.

  • Individuals must provide a negative COVID-19 result during the three days before travel.
  • Individuals must ‘book and pay for managed isolation in a quarantine hotel for at least 10 days from the point of arrival’.
  • Individuals must ‘complete an online passenger locator form before travelling, and provide contact details, travel details and the address of [the] final destination’.
  • Individuals will also need to provide the booking reference for the quarantine package.
  • Individuals must be tested on the second and eighth days of the 10-day quarantine period.
  • Individuals must follow the national rules on ‘Coronavirus in Scotland.’
    © 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
    ARTICLE BY Ruhul K. Ayazi of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more, visit the NLR Immigration section.

Delays at USCIS Affecting F-1 Students with Work Authorization

With delays at USCIS lockbox and service centers due to COVID-19 and an unprecedented number of applications, those seeking to apply or renew their Employment Authorization Documents (EAD) have experienced issues in commencing or continuing employment.   One class of impacted nonimmigrants is F-1 students, who may apply for work authorization after graduation, called Optional Practical Training (OPT), and if the student has graduated with a STEM degree, may apply for an additional 24 months of STEM OPT.  Below are outlined issues, USCIS responses, and other considerations for both OPT and STEM OPT EAD applications.

Initial OPT period (12 months)

Issue

For students applying for their initial 12 months of OPT, they must complete the 12 months within 14 months of the end of their program.  Due to delays from USCIS because of backlogs, the EAD applications can take several months to receipt, let alone adjudicate.  A student applying for an EAD may apply up to 90 days before, and 60 days after, their program end date, but it now takes more than 90 days to confirm receipt, and then even more time to receive an EAD, which is necessary to begin employment.

USCIS response

USCIS issued an announcement that allows for flexibilities within the 14 month OPT period.  Because of delays, USCIS will now allow the 14 months’ clock to start ticking when the EAD application (Form I-765) has been approved, and not start the clock from the program end date.  If a student receives an EAD that “shorts” them this time, they may request USCIS to issue a new EAD.  In addition, because USCIS allows 60 days after a program end date to apply for an EAD, the announcement also covers rejections of EAD applications, and the ability to refile the application if it was filed after October 1, 2020, and before May 1, 2021.  In addition, the refiles need not contain a new Form I-20.

Other Considerations

What is not addressed are current backlogs at USCIS that is delaying not only the issuance of receipt notices, but also the adjudication of EAD applications.  Even though USCIS is giving the full 12 months of OPT from the time the EAD application is filed, the delays will still affect graduates and their start dates if they cannot start without an EAD in hand.

STEM OPT Extensions

Issue

Students who graduate with a STEM degree may apply for an additional 24 months of STEM OPT.  The application can be filed up to 90 days prior to the expiration of the initial EAD period, and up to the expiration of the card.  EAD applications filed on time (prior to the expiration of the card) will be granted an automatic 180 day work authorization period.  Traditionally, if the card has expired and the 180 day automatic extension has commenced, the student and employer have confirmation the EAD application was filed timely due to the receipt notice issued by USCIS, even if the application is not yet adjudicated.  Due to delays, a student may not receive the receipt notice even after 90 days of sending in the application.

USCIS response

USCIS reminds its stakeholders that a receipt notice is not indicative of an F-1 student’s ability to remain employed.  In fact, the I-9 rules do not use the receipt notice as proof of work authorization, but dictate that the endorsed I-20 issued by the school, as well as the expired EAD, are the necessary documents to confirm work authorization.  In addition, as with the initial OPT EAD filings, USCIS will allow for refiles if the application is rejected with no penalty, if the STEM EAD extension was filed between October 1, 2020 and May 1, 2021, without requiring a new Form I-20.

Additional considerations

There is more flexibility when the application is a STEM OPT extension because of the 180 day automatic extension.  However, due to the issues of receipt issuance and adjudication, the EAD may not be issued within the additional 180 days, and there is currently no solution to that situation.

USCIS continues to show that it will modify its policies to address the ongoing COVID-19 situation and delays with the lockbox.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
For more, visit the NLR Immigration section.

Visas and Immigration in 2021 Under the Biden Administration

The Biden Administration took office on January 20, 2021. Many executive orders have been executed since that date, some of which directly change the manner of handling immigration matters.  However, the U.S. and the world are still dealing with the global pandemic and this directly affects submissions, filings, and consular appointments.  This update provides a list of the latest updates to U.S. visas and immigration matters, as well as what we forecast for the months to come.

  • Immigrant Visa Ban:  The Immigrant Visa Ban that was imposed last year was revoked on February 24, 2021.  Now employment and family based immigrant visas can again be issued by the U.S. Consulates.  See: A Proclamation on Revoking Proclamation 10014 | The White House
  • Entry to the U.S. via a Land Port of Entry from Mexico and Canada:  The entry via land ports remains restricted to essential travel, those on work visas, U.S. citizens, U.S. permanent residents, and a few other limited exceptions.  The entry restrictions are temporary in nature and as of now are expected to remain in effect through March 21, 2021.  The date has been postponed several times and it is unknown if it will again be postponed.  See:  https://help.cbp.gov/s/article/Article-1694?language=en_US
  • Air Travel from Mexico and Canada into the U.S.: Currently there are no limits to air travel from Mexico and Canada.
  • Covid Travel Ban Restrictions: Any travel from Brazil, China, U.K., Ireland, Schengen Countries, and Iran is subject to a National Interest Exception (NIE) waiver from the U.S. Consulate prior to traveling to the U.S.
  • Negative Covid Test:  All inbound passengers are required to obtain a negative Covid test within 72 hours prior to boarding the flight.  This includes air travel from Mexico and Canada.
  • Local Quarantine Rules in the U.S.:  All travelers must also research local travel rules upon arrival in the U.S.  For example New York City and San Francisco have additional quarantine rules upon arrival.
  • Visa Stamping Ban:  The Visa Stamping Ban that was imposed through an executive order from the prior administration for H-1B, L-1, J-1, and H-2B remains in effect. This ban expires on March 31, 2021.  The Biden administration is not expected to extend this ban.  This ban prevents the U.S. Consulates from issuing new visas in this category.  This ban has prevented many executives and highly skilled workers from being able to enter the U.S.
  • Travel from the Middle East:  The U.S. has canceled the blanket travel ban from select countries in the Middle East.
  • H-1B Lottery:  The selection criteria will be the same as last year.   The lottery starts on March 9, 2021 and goes to March 31, 2021.  Winners will be announced on March 31 and then the employer has until June 30, 2021 to file the H-1B petition.
  • H-1B Adjudications at USCIS:  The H-1B Adjudications at the United States Citizenship and Immigration Services (“USCIS”) are expected to return to 2016 standards,  with deference given to prior adjudications, acceptance of multiple educational pathways to an H-1B occupation, etc.
  • USCIS Operational Efficiency: Expected to be a priority going forward.  The Administration is expected to ensure that USCIS operates at an efficient pace so that the backlogs of prior years are not repeated.
  • DACA: The Deferred Action for Childhood Arrivals (“DACA”) has been reaffirmed for both existing DACA recipients and new applicants.
  • Asylum:  The U.S. will again provide opportunities for applicants to apply and have a credible fear interview at the border. If they pass the credible fear interview, they will be allowed into the U.S. to await for their full asylum merits hearing before an Immigration Judge.
  • Comprehensive Immigration Reform: Under the new Administrations some sort of immigration legislation is expected.  Such new provisions are expected to address both labor market and humanitarian needs.  The Administration announced a draft plan on  February 18, 2021.

E-2 Investor Visas:  In recent months Mexican investors have shown an increased interest in the E-2 non-immigrant visa.  As the pandemic slowly subsides, it is hoped that the U.S. Consulate in Ciudad Juarez will be able to increase their volume of E-2 reviews.  The firm has a robust E-2 visa practice.

NAFTA TN Visas:  The United States– Canada- Mexico Agreement (USCMA) replaced the NAFTA Agreement.  The new USMCA went into effect on July 1, 2020.   However, the TN occupational list and regulations remained the same. Therefore for select occupations, the TN visa continues to be a quick and efficient way for an U.S. employer to get a Mexican or Canadian citizen on the U.S. payroll.    See:  https://www.nafsa.org/regulatory-information/usmca-chapter-16-appendix-2-professionals

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

ARTICLE BY Greg L. Berk and Laura M. Nava of Sheppard, Mullin, Richter & Hampton LLP
For more, visit the NLR Immigration section.

Biden Directs Review of Immigration Policies, Seeks to Reduce Unnecessary Barriers

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis P.C. © 2020
For more, visit the National Law Review Immigration section.

 

President Biden Rescinds Muslim Travel Bans

On his first day in office, President Joseph Biden sought to end a series of discriminatory travel bans set forth by the previous administration.  President Biden focused his initial presidential actions on returning to this country’s tolerant and welcoming principles and values, the traditional American sentiment laid out in the inscription on the Statue of Liberty itself.  He did so by revoking one Executive Order and four Presidential Proclamations enacted by former President Trump that had controversially prevented certain individuals from entering the United States. The bans targeted individuals initially from primarily Muslim counties and in later proclamations, from largely African countries. The various bans included restrictions on entry for nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Nigeria, Burma/Myanmar, Eritrea, Kyrgyzstan, Sudan, Tanzania, North Korea and Venezuela.

President Biden’s Proclamation directs embassies and consulates to resume visa processing and clear the backlog created by these orders. The embassies and consulates are required to assess the number of visa applicants who were being considered for a waiver of restrictions and create a plan to adjudicate the pending visa applications. The Proclamation ensures that any individual whose immigrant petition was denied on the basis of these orders may have their application reconsidered and endeavors to ensure a plan where visa applicants are not prejudiced as a result of a previous visa denial due to the suspension or restriction of the proclamations. The Proclamation further mentions that the current administration will analyze screening and vetting procedures for all immigrant and nonimmigrant entry into the United States to determine recommendations to improve the current practices.

President Biden has clearly set a new tone, addressing these issues within hours of taking office. His actions provide hope for a more inclusive and thoughtful immigration system.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Danielle A. Porter of Mintz
For more, visit the NLR Election Law / Legislative News section.

A Glimpse Into Biden’s Immigration Policies: The U.S. Citizenship Act of 2021

On January 20, 2021, Joseph R. Biden, Jr. was sworn into office as the 46th president of the United States. With this change in administration, it is expected that sweeping policy reviews and changes will be forthcoming. The acts of a president over the first few days and weeks of the new administration are seen as an indicator of the priorities and the intentions of that new administration. The Biden administration is no different. President Biden has expressed his intention to pursue a host of policy and regulatory changes over the first 100 days of the administration.

In one of the first acts of the new administration, President Biden announced that he would be sending the U.S. Citizenship Act of 2021 to Congress as part of his plan to reform the U.S. immigration system. The goal of the legislation is to “modernize[] our immigration system,” prioritize family unity, “grow[] our economy,” and “ensur[e] that the United States remains a refuge for those fleeing persecution.” The bill proposes changes to reimagine diverse areas of immigration from employment- and family-based immigration to asylum, refugee, and other humanitarian protections, as well as border security.

Resetting the Tone of the Immigration System

The U.S. Citizenship Act of 2021 states that it is attempting to reset the tone of the immigration system by “restor[ing] humanity and American values to our immigration system.” The legislation proposes integral and substantial changes to immigration law starting at the highest level.

Over the past four years, the Trump administration produced numerous executive orders and regulations aimed at restricting immigration, some of which were viewed as discriminatory in nature. Most notably, one of President Donald Trump’s earliest executive orders, often referred to as the “Muslim ban,” was immediately rescinded through a separate presidential proclamation. Moving forward, by and through a provision of the U.S. Citizenship Act of 2021 termed the NO BAN Act, the Biden administration seeks to “prohibit[] discrimination based on religion and limit[] presidential authority to issue future bans.”

Further, the proposed bill seeks to continue to reset the tone of the immigration system in the United States through changes in the existing language of immigration laws and statutes. A long held point of linguistic contention has been the usage of the term “alien” in relation to foreign nationals and noncitizens throughout the Immigration and Nationality Act and its body of regulations. The U.S. Citizenship Act of 2021 proposes changing the term “alien” to “noncitizen” in all federal immigration laws.

Overhauling the Immigration System and Pathways to Citizenship

The U.S. Citizenship Act of 2021 seeks to reform major areas of the U.S. immigration system, including creating new pathways to citizenship for undocumented individuals  and individuals with temporary status, as well as increasing the efficiency of various employment-based immigrant processes.

Pathways to citizenship for undocumented individuals, Dreamers, TPS recipients

The proposed bill includes an eight-year pathway to citizenship for many living in the United States without legal status and who were physically present in the United States on January 1, 2021. This eight-year pathway has two phases. The first phase would grant temporary legal status, with the option to apply for permanent residency after five years. This phase would require applicants to clear background checks, pay taxes, and fulfill other requirements. The second phase would allow “green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics [to] apply to become citizens.”

Under the legislation, three groups that have been at the forefront of immigration legislation in the recent years, Dreamers, temporary protected status (TPS) recipients, and agricultural workers, could benefit from immediately qualifying for permanent residency. Many Dreamers, or individuals who arrived in the United States as children, have benefited from the Deferred Action for Childhood Arrivals (DACA) program enacted by President Barack Obama in 2012. The program provides temporary relief for Dreamers by providing a two-year work permit after meeting certain requirements. Similarly, TPS provides nationals from some countries affected by armed conflict or natural disaster temporary status and work authorization. These programs have been at the forefront of immigration and legislative agendas in recent years. The third group, agricultural workers, has been at the frontlines of the COVID-19 pandemic as essential workers.

Updating the family-based and humanitarian systems

The proposed bill seeks to “reform[] the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.” In line with the theme to restore the system, the legislation would “eliminate[] the so-called ‘3 and 10-year bars,’ and other provisions that keep families apart,” and support families “by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families.” Because of the per-country visa caps, historically there have been lengthy backlogs in green card availability. The proposed bill seeks to reduce these wait times and “allow[] immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.”

In terms of asylum, the proposed bill would “eliminate[] the one-year deadline for filing asylum claims and provide[] funding to reduce asylum application backlogs.” In addition, the legislation would “increase[] protections for U visa, T visa, and VAWA applicants,” as well as raise the cap on U visas, reserved for victims of crimes, from 10,000 to 30,000 per year.

Restructuring employment-based immigration

On the employment-based forefront, the proposed bill seeks to grow the U.S. economy by “clear[ing] employment-based visa backlogs, recaptur[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give[] the [U.S. Department of Homeland Security] the authority to adjust green cards based on macroeconomic conditions, and incentivize[] higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

The proposed bill would provide additional benefits and protections to dependents of foreign national workers. It would increase the opportunities for dependents of H-1B visa holders to obtain work authorization. This is an expansion of the current H-4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.

The U.S. Citizenship Act of 2021 includes additional protections for the family unit, which would prevent children from “aging out” of the system. Currently, children who turn 21 years old may no longer qualify for immigration benefits as a dependent of their parents’ permanent residency applications. The Child Status Protection Act currently provides some exceptions to permit children who turn 21 years old to continue to qualify for immigration benefits. The proposed bill would expand upon these protections.

Looking Forward

Although President Biden’s immigration proposal was introduced to Congress on the first day of his presidency, it likely will face a long road ahead. The proposed bill has been met with some early criticism, but the president and his allies hope to find common ground and move the legislation forward. As part of this common ground, the legislation would seek to increase border security by authorizing additional funding “to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry.”

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more, visit the NLR Immigration section.

Immigration Weekly Round-Up: I-9 Flexibility Rules Extended, Stimulus Aid for Mixed Immigration Status Households

Immigration & Customs Enforcement Extends I-9 Flexibility Rules

U.S. Immigration and Customs Enforcement (“ICE”) has announced that it will extend its flexibilities for compliance with I-9 regulations until at least January 31, 2021, due to the COVID-19 pandemic. The flexibilities in I-9 compliance were set to expire on December 31, 2020.

On March 19, 2020, ICE issued guidance permitting flexibility in several verification rules in order to allow businesses to safely comply with I-9 regulations during the pandemic. Generally, an employer or its representative must personally inspect the employee’s original documentation during the I-9 verification process. Due to concerns about such interactions during the COVID-19 pandemic, ICE announced that businesses operating remotely could instead conduct remote inspections of verification documentation. The guidance also allowed employers to accept expired documentation, such as driver’s licenses, that had been extended automatically by a state or federal agency. Finally, ICE guidance suspended the requirements that employees initiate contact with the Social Security Administration after being notified about a tentative non-confirmation on information contained in the Form I-9.

COVID-19 Stimulus Aid Available for Mixed-Status Families

The new coronavirus relief bill, passed by Congress on December 21, 2020, and signed by President Trump over the weekend, will provide stimulus checks to mixed immigration status families, including those whose undocumented parents or spouses are present in the United States.

These benefits constitute a significant change from the original stimulus package issued earlier this year. The CARES Act, passed in March 2020, did not provide benefits to people with individual taxpayer-identification numbers, or “ITINs,” which are frequently issued to undocumented immigrants who pay taxes but are ineligible for a Social Security number. The CARES Act further denied benefits to spouses who filed taxes jointly with the undocumented individual, so that many American citizens did not receive emergency aid. The new stimulus bill eliminates that provision – although the new stimulus package still excludes aid for those with ITINs, their American citizen family members will now receive emergency benefits, providing benefits to mixed-status households. This will have a substantial impact on millions of individuals; according to the nonpartisan Migration Policy Institute, 3.7 million U.S. citizens and lawful immigrant children reside in mixed-status households, and 1.4 million U.S. citizens or lawful immigrants are married to undocumented immigrants.

©2020 Norris McLaughlin P.A., All Rights Reserved
For more, visit the NLR Immigration section.