Category: Immigration

Labor Shortage: Will Additional Seasonal Visas Help?

The United States is in the midst of a significant labor shortage. In response to the growing demand for labor, the U.S. government recently announced it will expand the number of H-2B visas available for seasonal workers this winter. Although the announcement is hailed by some as necessary, critics suggest the response may be insufficient to meet growing demand.

The Modern Labor Shortage

Following the economic turmoil spawned by the COVID-19 pandemic, the U.S. economy faces an unusual set of circumstances: instead of a lack of jobs, there is a lack of workers to fill available positions. Experts attribute the labor shortage to a number of potential causes, but some suggest a lack of immigrant labor is at least partially to blame. Due to lengthy processing times for immigration applications, foreign born workers hoping to enter the United States face unprecedented challenges obtaining the necessary paperwork to work here legally.

Biden Administration Expands Seasonal Visas

In response to the growing challenges of the labor shortage, the Department of Homeland Security (“DHS”) and the Department of Labor (“DOL”) recently announced they will issue a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

The visas are in addition to 33,000 visas already set aside for seasonal employers, marking a substantial 60% increase from the previous limit.

What is the H-2B Program?

The H-2B visa program allows U.S. employers who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. The industries most reliant on the H-2B program vary, but include landscapers, hotels, and ski resorts. By providing foreign workers to meet labor shortages in the United States, the program is meant to support the fluctuating needs of the U.S. economy.

The program has restrictions, however. The employment must be for a limited period, including seasonal or intermittent needs. To hire H-2B workers, employers must, among other things, certify to a lack of U.S. workers available to fill the position. Additionally, employers must certify that using the program will not adversely affect wages for similarly-employed U.S. workers.

Will Additional Seasonal Visas Be Enough?

Expansion of the H-2B program is being praised as necessary relief by some. However, others suggest it may not be sufficient to answer the growing labor demand in the country.

Business owners from Cape Cod, Massachusetts, hailed the news, citing the strained vacation industry that relies so heavily on seasonal workers to meet the high demand. Additional workers will provide necessary relief on many strained industries.

Steve Yale-Loehr, a professor of immigration law practice at Cornell, recently noted that if employers get past these hurdles, the visas could help the labor shortage, but only a little bit. After all, the labor shortage in the United States exceeds the additional 20,000 seasonal visas being offered. Recent estimates suggest 10.4 million jobs are available here. Moreover, applications under the H-2B program can be costly, forcing employers to weigh the financial implications of sponsoring workers under the program.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

USCIS Issues New Policy Guidance for O-1B Visas

United States Citizenship and Immigration Services (“USCIS”) recently issued policy guidance to clarify how to determine the appropriate visa classification for persons of extraordinary ability in the arts. Given the massive changes in the entertainment industry in the past year, including the increasing popularity of internet and streaming services, this guidance provides essential insight for those seeking to understand the nuances of O-1B nonimmigrant visas and determine which visa applies to their unique circumstances.

O-1 Visa Program for Individuals with Extraordinary Ability or Achievement

The O-1 nonimmigrant visa program provides nonimmigrant visas for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have demonstrated extraordinary achievement in the motion picture or television industry and been recognized nationally or internationally for those achievements.

The O-1 nonimmigrant visa program is broken down into the following classifications:

  • O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);
  • O-1B (Arts): Individuals with an extraordinary ability in the arts;
  • O-1B (MPTV): Individuals with extraordinary achievement in the motion picture or television industry.

Generally, to qualify for an O-1 visa, a beneficiary must demonstrate “sustained national or international acclaim” in their respective field. To prove this, applicants must provide evidence of their credentials, including national or international awards or prizes, membership in professional organizations in their respective field, published articles in notable trade publications, high salary for their services, as well as other relevant evidence of exceptional expertise.

Under the O-1B category, as noted above, individuals in the entertainment industry can demonstrate either extraordinary ability in the arts or extraordinary achievement in the motion picture and television industry. With the recent shifts in the entertainment industry, including the prevalence of household names from YouTube, TikTok, Instagram, etc., it has become increasingly common for applicants to possess qualities that fall under both the O-1B (Arts) and the O-1B (MPTV) categories.

Determining the Relevant Standard for Artists with Some Connection to MPTV

The USCIS Policy Manual acknowledges the difficulties associated with petitions that have elements of both O-1B (Arts) and O-1B (MPTV) classifications. According to the newly issued guidance, inclusion in the motion picture or television industry is not limited to whether artistic content will air on television or movie screens, noting that “USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview.” Indeed, USCIS gives weight to whether an individual”s work aligns with industry organizations such as the Academy of Television Arts and Sciences.

However, under USCIS guidance, not all television stars are considered equal for the purpose of visa qualification. For instance, reality television poses an interesting problem because many of the “stars” are non-actors involved in a competition of some sort that takes place on television. According to USCIS, contestants on reality television programs fall outside of the MPTV industry, but judges, hosts, and those employed by the production company generally fall within industry parameters.

Video blogging, a staple of the increasingly popular YouTube and TikTok platforms, poses similar questions. However, USCIS makes clear that static web content, like video blogs, generally falls outside the O-1B (MPTV) classification and is more appropriate for O-1B (Arts) petitions. USCIS notes that if an artist’s work or appearance on an MPTV production is incidental to their non-MPTV work as an artist, the MPTV classification may not be appropriate.

Guidance for O-1B Visas

The newly-issued guidance provides some clarification of the nuances that distinguish O-1B (Arts) beneficiaries from O-1B (MPTV) beneficiaries. Potential beneficiaries and practitioners can continue to consult the USCIS Policy Manual for up-to-date guidance in this quickly changing industry.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, visit the National Law Review.

©2022 Norris McLaughlin P.A., All Rights Reserved

Current Pandemic-Related Regulations for Business Travel to the United States, Germany, and the EU

Recently, due to the availability of COVID-19 vaccines, many countries decided to lift their entry restrictions or change them in such a way that travelers who had recovered from COVID-19 infections or been vaccinated were allowed entry. Here is an overview of some of the current entry requirements for international travel.

Entry Into the United States

Since November 8, 2021, individuals have been allowed to enter the United States again from Europe. For 20 months, an entry ban had been in place in the United States for travelers from Brazil, China, India, Iran, Ireland, the Schengen Area (26 countries), South Africa, and the United Kingdom. A proclamation issued by President Joe Biden on October 25, 2021—“A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic”—ended these entry restrictions and the need for national interest exceptions (NIE) to the restrictions. Travelers from most countries (a recent U.S. ban on travel from eight African countries took effect on November 29, 2021) may enter the United States if they are fully vaccinated and present negative coronavirus test results (via RT-PCR tests or antigen tests) that are no more than three days old at the time of departure.

Travelers must prove to their airlines that they have been fully vaccinated with internationally recognized vaccines prior to their departures. Currently, the United States recognizes vaccines the Pfizer-BioNTech, Oxford-AstraZeneca, Oxford-AstraZeneca/Covishield, Covaxin, Moderna, Johnson & Johnson/Janssen, BIBP/Sinopharm, and Sinovacvaccines. A traveler’s last vaccination must have taken place at least 14 days before the planned date of travel. The United States accepts the EU Digital COVID Certificate as proof of vaccination.

Exempt groups include persons on diplomatic or governmental foreign travel, children under 18 years of age, and persons who cannot be vaccinated with a COVID-19 vaccine for documented medical reasons. Persons exempt from the October 25, 2021, proclamation’s requirements may enter the United States without being fully vaccinated, but they must quarantine for seven days upon arrival and test for COVID-19 infection three to five days after entry.

Regardless of the COVID-19–related entry requirements, all travelers still need an Electronic System for Travel Authorization (ESTA) entry permit issued by U.S. Customs and Border Protection (CBP). CBP advises travelers to apply online for ESTA authorization at least 72 hours in advance of departure.

Requirements for Entry Into the European Union

The European Union (EU) has a common approach to travel from third countries to EU member states. Entry requirements are constantly being adapted to the pandemic situation as international travel gradually opens up. Currently, in principle, any person from a third country who has been fully vaccinated with a vaccine approved by the European Medicines Agency (EMA) (BioNTech-Pfizer, Moderna, AstraZeneca, and Janssen-Cilag) may enter the European Union. The last vaccination must have taken place at least 14 days before the planned entry.

EU citizens and residents as well as their family members are allowed to enter EU member states without being fully vaccinated. Further exceptions apply to persons for whom absolutely necessary reasons for entry exist. “Absolutely necessary reasons” may exist, among other things, for highly qualified employees from third countries if their labor is necessary from an economic point of view and their work cannot be postponed or carried out abroad.

The EU also maintains a list of countries where the epidemiological situation has improved sufficiently (the so-called “EU White List”), so that entry from these countries is possible regardless of an individual’s vaccination status. This list is constantly updated according to the epidemiological situation. The United States is not currently on the EU White List, so entry from the United States is only possible for fully vaccinated persons.

Each EU member state may set its own additional entry requirements. The EU’s “Re-open EU,” a clearinghouse of information regarding EU member states’ pandemic-related measures, offers an overview of the quarantine and testing requirements of the individual countries.

Requirements for Entry Into Germany

All travelers to Germany from third countries that are not on the EU White List and are not EU citizens or residents must be fully vaccinated. In exceptional cases, entry is possible if it is absolutely necessary.

In addition, all travelers aged 12 or older must provide proof of vaccination. Before crossing the border, proof of vaccination or convalescence, or a test result showing negative for infection (e.g., an antigen test that is no more than 48 hours old or an RT-PCR test that is no more than 72 hours old), must be presented for inspection by the carrier or at the request of the Federal Police.

For previous stays in high-risk or virus-variant areas, digital travel registration is also mandatory. The Robert Koch Institute provides a current list of all high-risk and virus-variant areas.

Nonvaccinated or recovered travelers entering from high-risk areas must also present a negative test upon entry and enter domestic quarantine for 10 days. The domestic quarantine can be ended prematurely if another negative test result is presented five days after entry.

At present, travel from a virus-variant area is not possible, as a travel ban is in force for countries where virus mutations are widespread. Entry is possible only in a few exceptional cases (for example, for German nationals and persons with residence and an existing right of abode in Germany, as well as their immediate family members). Irrespective of vaccination or convalescent status, these travelers are obliged to register their entries digitally, present negative test results upon entry, and go into quarantine for 14 days. Only vaccinated and recovered persons may shorten their quarantine periods by presenting further negative test results five days after entry.

Employer Inquiries Into Employees’ Vaccination and Recovery Status

These extensive regulations raise a question as to whether an employer may inquire into an employee’s vaccination status, or whether the employee has recovered from a COVID-19 infection in connection with an upcoming business trip.

The vaccination and/or convalescence status of an employee, under 9 (1) of the EU’s General Data Protection Regulation (GDPR), is considered health data and thus protected personal information according to Art. An employer may request and process this information only if there is a legal basis for doing so. If a business trip requires proof of an employee’s vaccination against COVID-19 (e.g., due to entry restrictions), an employer may request and process this information from the employee in individual cases. However, employers may only request the information in the context of specific business trips and are prohibited from retaining the information for any other purposes.”

The COVID-19–related entry regulations of many countries may largely determine the feasibility of a contemplated business trip, as the prospect for international business travel will likely depend on the vaccination status of the employees involved. This situation may result in a legitimate interest on the part of the employer to inquire into employee vaccination status because the employer would otherwise be unable to find out whether a particular employee met the entry requirements of the destination country. Only by inquiring into vaccination status can the employer ensure that the employee is not turned away at the border—i.e., that the employee can fulfill the duty to provide the contractually agreed upon work within the scope of the business trip.

Whether an employer’s query regarding an employee’s vaccination status is legitimate is therefore a case- and fact-specific inquiry, which depends above all on the entry regulations of the destination country. If the destination country requires complete vaccination for entry, it may be permissible from a data protection perspective to ask about an employee’s vaccination status.

Article By Cynthia Lange of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more COVID-19 and travel-related legal news, click here to visit the National Law Review.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Omicron COVID-19 Variant Prompts US To Suspend Travel From Eight African Countries

The Republic of South Africa informed the World Health Organization (WHO) of a new B.1.1.529 (Omicron) variant of SARS-CoV-2, in late November. That notice led the Biden Administration to announce the suspension of travel and restricted entry into the United States, which went into effect on Nov. 29, 2021.

At the moment, these travel restrictions appear to apply to individuals who were physically present – during the 14-day period preceding their entry or attempted entry into the United States – within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe.

These travel restrictions do not apply to the following:

  • U.S. citizens and their spouses
  • Lawful permanent residents and their spouses
  • U.S. military personnel, their spouses and children
  • Parents or guardians of unmarried U.S. citizens, lawful permanent residents, and U.S. military personnel under the age of twenty-one
  • Siblings of U.S. citizens, lawful permanent residents, and U.S. military personnel under the age of 21, all of whom must be unmarried and under 21 years of age

The Centers for Disease Control and Prevention (CDC) provided clarification for international travelers, regardless of their vaccination status:

  • For fully vaccinated individuals, a viral test must be conducted no more than three days (72 hours) before the flight’s departure from the designated foreign country along with proof of being fully vaccinated against COVID-19. Individuals should bear in mind that the testing period may be reduced to 24 or 48 hours before boarding and should check with their respective airlines prior to departure.
  • For individuals who are not fully vaccinated, a viral test must be conducted no more than one day (24 hours) before the flight’s departure from the designated foreign country. A quarantine requirement is also under consideration.

Consideration should be taken for limiting international travel at present, since circumstances and requirements are changing rapidly.

This article was written by Tejas Shah, Sarah J. Hawk, Michael E. Durham, M. Mercedes Badida-Tavas and Mandira Sethi of Barnes and Thornburg law firm. For more information regarding COVID travel bans, please click here.

US to Expand Vaccination Requirement for Foreign National Travelers to Include All Land Border Crossers from Canada and Mexico in January

Starting Jan. 22, 2022, the Biden administration will require foreign national travelers engaged in essential travel to be fully vaccinated when crossing U.S. land borders or ferry terminals. Essential travel includes travel for work or study in the United States, emergency response, and public health. The new rules apply to foreign nationals; U.S. citizens and permanent residents may still enter the United States regardless of their vaccination status but are subject to additional testing requirements.

The new rules for essential travelers are in line with those that took effect Nov. 8, 2021, when the Biden administration lifted travel restrictions to allow fully vaccinated travelers engaged in non-essential (leisure) travel to enter the United States.

While much cross-border traffic was shut down in the early days of the COVID-19 pandemic, essential travelers have been able to travel unimpeded via land borders or ferry terminals. Starting Jan. 22, 2022, however, all foreign national travelers crossing U.S. land borders or ferry terminals – traveling for essential and non-essential reasons – must be fully vaccinated for COVID-19 and provide related proof of vaccination. Any exceptions to the vaccination requirement available to travelers at U.S. land borders are expected to be limited, just as exceptions currently available for air travel have been limited. See CDC guidance for details.

©2021 Greenberg Traurig, LLP. All rights reserved.
For more on vaccine requirements, visit the NLR Coronavirus News section.

USCIS Announces Policy Changes for H-4, L-2, and E-1/E-2/E-3 Dependent EAD Workers

Since the publication of our November 12, 2021 alert, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance following the November 10, 2021 settlement agreement and updated the I-9 Handbook providing for automatic extensions of Employment Authorization Document (EAD) cards for H-4, L-2, and E-1 Dependent, E-2 Dependent, or E-3 Dependent visa holders. The USCIS policy guidance can be found here.

As described in our previous alert, the Department of Homeland Security (DHS) entered into a settlement agreement following a lawsuit brought by H-4 and L-2 spouses suffering from long-delayed adjudication for the processing of applications for Employment Authorization Document (EAD) cards. Effective November 12, 2021, USCIS allows for automatic extensions of employment authorization, in certain circumstances, while an EAD renewal application has been filed and is pending with USCIS for H-4, L-2, and now E-1/E-2/E-3 dependent (“E dependent”) spouses. In addition, USCIS has now changed its statutory interpretation and will soon afford employment authorization incident to status for L-2 spouses, E-1 Treaty Trader dependent spouses, E-2 Investor dependent spouses, and E-3 specialty occupation professionals from Australia dependent spouses. Once this policy takes effect, L-2 and E dependent spouses will no longer need to apply for an EAD card in order to be authorized to work.

Automatic Extension of EADs for H-4, L-2, and E Dependent Spouses

USCIS has officially issued guidance and updated the I-9 Handbook to provide for automatic extensions of EADs for H-4 and L-2 spouses. In this new policy alert, USCIS is granting these benefits to spouses of E-1 Treaty Traders, E-2 Treaty Investors, and E-3 specialty occupation professionals from Australia in the respective E dependent classification as well.

H-4, L-2, and E dependent spouses will qualify for automatic extension of their valid EAD for 180 days beyond the date of the EAD expiration if the nonimmigrant spouse:

  • Properly files a Form I-765 EAD renewal application to USCIS before the current EAD expires; and
  • Continues to maintain H-4, L-2, or E dependent status beyond the expiration of the existing EAD as evidenced on Form I-94.

The validity of the expired EAD will be extended until the earliest of:

  • 180 days following the EAD expiration;
  • The expiration of the H-4 / L-2 / E dependent nonimmigrant’s I-94 record; or
  • When a final decision is made on the EAD extension application by USCIS.

For I-9 purposes, an H-4, L-2, or E dependent employee may present: a facially expired EAD indicating Category C26, A18, or A17; Form I-797, Notice of Action for Form I-765 with Class requested indicating (c)(26), (a)(18), or (a)(17) and showing that the I-765 EAD renewal application was filed before the EAD expired; and an unexpired I-94, showing valid H-4, L-2, or E dependent nonimmigrant status.

L-2 and E-1/E-2/E-3 Dependent Spouses Will Be Granted Work Authorization Pursuant to Status

USCIS’ new policy guidance provides that both L-2 and E dependent spouses will be employment authorized incident to status, meaning that a separate Form I-765 EAD application will not need to be filed to obtain work authorization, and that the L-2 or E dependent spouse is authorized to work upon being admitted to the United States. USCIS, in cooperation with CBP, will change Form I-94 to indicate the individual is an L-2 spouse so that the I-94 can be used for I-9 purposes. DHS will, within 120 days, take steps to modify Form I-94. However, please note that until USCIS can implement changes to the I-94 to distinguish L-2 and E dependent spouses currently in the U.S. from L-2 and E dependent children, E and L spouses will still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9.

Obtaining an Extended I-94

As it is required for H-4, L-2, and E-3 spouses to have a valid I-94 for the automatic extension of the EAD, we are outlining two possible ways that a person applying for an H-4 or L-2 EAD extension can obtain an extended I-94:

  1. File the H-1B or L-1 extension using premium processing and wait for the H-1B or L-1 approval. The H-4 or L-2 spouse then departs the U.S. and obtains a new visa and returns with an extended I-94. Once the spouse returns, he or she will file the EAD extension upon return to the U.S.
  2. File the H-4 or L-2 and EAD extensions with the principal’s H-1B or L-1 extension. After the H-1B or L-1 is approved, the spouse departs the U.S. and obtains a new visa and returns with an extended I-94. The Form I-539, request for extension of status, will be abandoned, but Form I-765 will not and will continue to be processed by USCIS.

Regarding E dependent spouses, anyone entering the U.S. with an E visa is admitted for two years, so he or she may already have an extended I-94 card. If an E dependent spouse has an expiring I-94, he or she can follow one of the above steps to extend their I-94.

Article By Angel Feng, Shannon N. Parker, and John F. Quill of Mintz.

For more immigration law news, read more at the National Law Review.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Biden Administration to Open New For-Profit Immigrant Detention Center in Pennsylvania

After Pennsylvania’s York County prison dissolved its contract with Immigration Customs and Enforcement (ICE) in August, it was announced that a new immigration detention center will be opened in Clearfield County. The Clearfield County Board of Commissioners approved and signed a five-year contract with ICE and the GEO Group.

Clearfield County Immigration Detention Center

The prison, which operates for-profit, will convert the former Clearfield County Prison facility into a detention center to process individuals in violation of federal immigration laws. The prison can house roughly 1,900 immigrant detainees, but due to COVID-19 safety requirements, no more than 800 members will be held. “The beds will hold adults. There will not be any children. Primarily males, with some room for females,” said John Sibel, a Clearfield County Commissioner.

Training for prison employees is due to start soon, and the facility is expected to be in full operation within the next two months. Upgrades to the prison’s fencing and other areas will be underway soon.

GEO Group Detention Center and Clearfield County

GEO Group, a private company that ran the former Moshannon Valley Correctional Center, also owns the facility in Philipsburg. The correctional center, a federal prison, was closed in March this year. The closure impacted 300 employees, causing job loss in an already economically disadvantaged area.

Unlike York County, where the facility housed both immigrant detainees and other incarcerated people, the converted facility will house only immigrant detainees. Sibel said, “[t]he signing of the contract guarantees now that property tax revenues will continue to come to Clearfield County, Decatur Township, and the Philipsburg-Osceola School District.”

Safety Concerns for Local Residents

Residents of Clearfield County raised safety concerns over the new facility. However, Sibel reassured them that the GEO Group, which is responsible for running the facility, is in the process of upgrading the perimeter, and will transport immigrants who are released to the locations where they want to return.

“A lot of the folks that will be there, that will go through the processing center, will be there because they violate federal immigration laws, but they won’t necessarily have committed a criminal act… that would have caused them to be in the old prison,” Sibel said.

ICE’s Priorities Guidelines to Be Enforced

The Action field office director Brian McShane said that individuals held in the facility will fall under ICE’s enforcement priorities guidelines. Those priorities are focused on national security, border security, and public safety. “They will have their due process in immigration court if that’s what the law calls for while we go through the process to attempt to effectuate their removal,” he added.

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

Country-Specific International Travel Restrictions Will Be Rescinded November 8, 2021

Beginning November 8, 2021, international travelers subject to CDC country-specific travel restrictions will be able to resume travel to the U.S. without applying for an exemption. The current travel restrictions apply to certain travelers from China, Iran, the European Schengen area (the EU), the United Kingdom, the Republic of Ireland, Brazil, South Africa and India, and prohibit a foreign national who does not qualify for an exemption from traveling to the U.S. if they have been physically present in one of the designated countries 14 days in advance of their arrival to the U.S. These restrictions will be rescinded and replaced by new travel restrictions based on individual vaccination status:

  • Beginning November 8, 2021, all adult foreign national (i.e. non-immigrant, non-citizen) travelers will be required to prove that they have been fully vaccinated against COVID-19 and provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States. There will be very limited exceptions to this policy.
  • U.S. citizens and lawful permanent residents who are fully vaccinated against COVID-19 will still be required to provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States.
  • U.S. citizens and lawful permanent residents who are not fully vaccinated, or who cannot provide proof of full vaccination, will be required to provide proof of a negative COVID-19 test within 1 day of boarding a flight to the United States.
  • Airlines will verify a traveler’s negative COVID-19 test result and vaccination status.
  • Airlines will be required to collect comprehensive contact information for every passenger arriving in the United States, and provide that information to the CDC on request, and will be required to contact travelers who have been exposed to COVID-19.
  • Children under 18 are exempted from the vaccination requirement.
  • Children between 2 and 17 must present a negative COVID-19 test result.
    • If traveling with vaccinated adult, the 3-day testing requirement applies.
    • If traveling alone, or with unvaccinated individuals, a 1-day testing requirement applies.
  • Proof of vaccination must be a paper or digital record issued by an official source with the traveler’s name and date of birth, and the name and date of the administered vaccine doses.
  • Land travel at the U.S.-Canada and U.S.-Mexico borders is permitted for all fully vaccinated travelers, regardless of purpose of travel. Unvaccinated travelers must continue to demonstrate that their purpose of travel is essential. The essential travel requirement for unvaccinated travelers remains in effect through January 21, 2022. After January 21, 2022, all foreign national travelers, whether entering for essential or non-essential reasons, must be fully vaccinated.
  • Limited exceptions will be provided for the following classes of non-citizen, non-immigrant travelers:
    • Persons on diplomatic or official foreign government travel
    • Children under 18 years of age
    • Persons with documented medical contraindications to receiving a COVID-19 vaccine
    • Participants in certain COVID-19 vaccine trials
    • Persons issued a humanitarian or emergency exception
    • Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
    • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
    • Sea crew members traveling with to a C-1 and D nonimmigrant visa
    • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)
  • Exempted travelers must take a viral test within 3-5 days of arrival and self-quarantine for a full seven days regardless of test result. For those who intend to stay in the U.S. for 60 days or longer, they must become fully vaccinated within 60 days of arrival or as soon as medically appropriate.

This is welcome news for international travelers from the 33 countries affected by the travel restrictions who have not been able to qualify for an exemption. Under the current travel restrictions, set to expire November 8, 2021, U.S. citizens, lawful permanent residents and their spouses are exempt, as well as parents of U.S. citizen minor children (under age 21). Otherwise, affected travelers must apply for a National Interest Exemption through a U.S. Consulate abroad.

For more information on the new travel policies, please view this information from the Department of State and the CDC.

© 2021 Miller, Canfield, Paddock and Stone PLC

Article By Julianne Cassin Sharp, Elizabeth Baker, and Christopher M. Dutot of Miller Canfield

For more articles on immigration, visit the NLR Immigration section

Immigration and Compliance Briefing: Fall Travel & COVID-19 Policy Update

On October 25, 2021, the Biden Administration issued a Presidential Proclamation to lift the travel bans which currently restrict entry into the U.S. directly from specific geographic areas (for a full list of restricted countries, see our prior client alert here), to be effective November 8, 2021. Instead of banning entry from specific locations abroad, the U.S. will utilize vaccine status-based restrictions for incoming travelers entering the country as noncitizen nonimmigrants (i.e., temporary visa holders or visa-free travelers). Once the new rules go into effect, most travelers will be required to provide proof of being fully vaccinated for COVID-19 prior to boarding an airplane, regardless of recent travel history (“fully vaccinated” refers to individuals who received the final dose of the COVID-19 vaccine more than 14 days prior).

Currently, the list of acceptable vaccines approved/authorized by the U.S. Food and Drug Administration (FDA) and World Health Organization (WHO), are as follows:

  • Pfizer-BioNTech

  • Moderna

  • Johnson & Johnson

  • Oxford-AstraZeneca/Covishield

  • Sinopharm

  • Sinovac

  • Mixed doses comprising of any two authorized/approved vaccines

As additional vaccines receive authorization/approval by either the FDA or WHO, it is anticipated that they will be added to the list of acceptable vaccines. In addition, the U.S. Centers for Disease Control will implement contact-tracing protocols. Mask mandates for airlines and airports, as well as the pre-travel negative COVID-19 test requirements, will remain in place until at least mid-January.

Exceptions include, but are not limited to, the following types of noncitizen nonimmigrants:

  • Certain noncitizen nonimmigrants traveling in an official capacity (i.e., foreign government officials and their family, individuals entering pursuant to a NATO visa classification, or individuals traveling pursuant to the United Nations Headquarters Agreement)

  • Children under the age of eighteen (18) years

  • Individuals participating in COVID-19 clinical trials*

  • Individuals unable to receive the vaccine due to a medical contraindication, as determined by the CDC

  • Individuals unable to receive the vaccine due to unavailability in their country of residence who are seeking to enter the U.S. on a nonimmigrant visa except B-1/B-2

  • Members of the U.S. Armed Forces

  • Sea crew members

  • Individuals whose entry is in the national interest

  • Individuals granted exceptions for humanitarian or emergency reasons

*The CDC will determine the qualifying criteria for individuals seeking to enter under this exception.

In addition to the restrictions above, all unvaccinated travelers traveling to the U.S. must show proof of a negative COVID-19 test taken within one day of travel. This requirement includes unvaccinated U.S. citizens and Lawful Permanent Residents (“green card” holders).

Vaccinated U.S. citizens and Green Card holders must show proof of a negative COVID-19 test within three days of travel.

Finally, additional measures may be required for certain types of travelers, including self-quarantine and vaccination within sixty (60) days of entry.

This policy will remain in place for an initial period of sixty (60) days and may be renewed on a monthly basis after that.

U.S. Land Border Updates

The Department of Homeland Security (DHS) announced that it will lift travel restrictions for land and ferry border crossings from Canada and Mexico in two phases, beginning November 8, 2021. Instead of keeping the land borders closed to nonessential travel, the Biden administration will implement the same policy as for air travel. Beginning November 8, nonessential travel will be permitted for fully vaccinated individuals, as described above. Nonessential travel will continue to be permitted regardless of vaccination status. However, beginning in early January 2022, all individuals entering the U.S. via the land border or ferry will be required to be fully vaccinated. This decision will permit nonessential travel via the land border between Canada and Mexico for the first time since March 21, 2020.

Vaccine Requirement for Individuals Seeking Permanent Immigrant Status

Effective October 1, 2021, applicants for immigrant status (i.e., a “green card”) in the U.S. who are subject to submitting Form I-693, Report of Medical Examination and Vaccination Record must be fully vaccinated as described above against COVID-19, before a civil surgeon designated by the Immigration Service can complete and sign the Form I-693 medical exam.

Waivers may be granted in certain circumstances, including where the COVID-19 vaccine is:

  • Not age appropriate;

  • Contraindicated due to a medical condition;

  • Not routinely available where the civil surgeon practices; or

  • Limited in supply and would cause significant delay for the applicant to receive the vaccination.

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For more articles on COVID-19 Immigration, visit the NLR Immigration section.

How the Labor Shortage is Impacting the Supply Chain: Would Immigration Reform Help?

As the COVID-19 pandemic continues to present challenges to the US economy, labor shortages are contributing to the ongoing supply chain disruptions facing many industries. Companies are finding it difficult to find the right candidates for the jobs they’re looking to fill while millions of Americans are quitting their jobs or threatening to strike or walking out for better working conditions.

One industry in particular affected by the labor shortages brought on by COVID-19 is the   shipping and warehousing industry. At the Port of Los Angeles, for example, there aren’t enough workers to unload goods from ships, causing shipping delays across the US. Additionally, a shortage of truck drivers is contributing to the problem. Ninety percent of leaders who spoke to the U.S. Chamber of Commerce said labor shortages are impacting economic growth in some areas.

To help remedy the problem, President Joe Biden announced the Port of Los Angeles will be open 24/7, with logistics companies FedEx and UPS making similar pledges. Another potential solution is increasing immigration through offering more worker visas in order to bring in more workers to the country.

Difficulty Hiring During COVID-19: Labor & Visa Shortages

US Chamber of Commerce Chief Policy Officer Neil Bradley told CNN Business that immigration is one of the key ways to solve the labor shortage. However, despite immigration’s potential to add additional employees to the workforce, the number of immigrants US employers can hire has remained flat. Additionally, while there are options for workers with a high level of education, there aren’t as many visa options for employers needing seasonal or temporary worker visas or workers in many service industry roles.

The Chamber of Commerce requested Congress and the White House to double the cap on employment-based visas, specifically to double H-1B temporary worker visas and H-2B visas for seasonal workers.

“When we see these workforce gaps in the nonprofessional roles for instance, US companies are not typically able to turn to the US immigration system to help fill that need,”  said Caroline Tang, immigration shareholder in the Austin office of Ogletree Deakins.  “Across the board, there’s just a tighter labor market now in terms of candidate availability, people willing to do certain types of work or wanting to come back to work in environments where they will be more physically closer to other people, which oftentimes are the roles that really heavily impact our supply chain.”

Also contributing to the ongoing supply chain disruptions is the labor shortage that’s impacting  a wide variety of industries. Some of the factors impacting the labor market during the COVID-19 pandemic include the demand for higher wages as the prices for goods and services rises, as well as better benefits and protections for workers. Additionally, some workers aren’t able to come back to work because they’re taking care of family members sick with COVID-19, or are sick with the virus themselves or childcare problems. Many workers are also leaving their jobs in record numbers, and are delaying coming back to work. For example, in August, 4.3 million Americans quit their jobs.

“I think everyone has been impacted by the Great Resignation as people are calling it. And certainly, that has impacted a lot of the industries that impact our supply chain and a lot of areas in the US,” Ms. Tang said.

Specifically, Ms. Tang said the semiconductor industry in particular is impacted by the labor and supply chain shortages. The shortage is expected to last until 2022 and beyond, and impacts a variety of industries from the automotive industry to appliances and toothbrushes.

“I work extensively in the semiconductor industry. They have definitely been impacted by pandemic related supply chain issues, which we can tell from the cost of automotive prices here in the US since all these cars rely on microprocessors,” she said.

Even though many of the supply and labor shortage issues are expected to last for many years to come, companies can take steps to help mitigate some of the problems they’re facing, Ms. Tang said.

US Company Workers Offshore Solve Some of the Visa Quota Issues

“For the companies that have international offices, they have a wider footprint and have some options with staffing their workers in other countries. So, for instance where companies hire some college graduates from the US who are not able to get one of those H1-B visas, they might potentially work in the person’s home country where they don’t need a visa to work. And that way they can keep that person working on the same project and still contributing research and development efforts for that company,” Ms. Tang said.

If a company doesn’t have international offices, handling visa shortages and delays may be a little harder.

“If a company doesn’t have an international footprint, it’s hard. I’ve been talking to employers that say, ‘Hey, we are just sort of living with the fact that we might only have these employees on our payroll for two to three years because of their visa limitations.’ We need to be considering what we’re going to do about succession planning and making sure that we diversify our employee population as much as possible. I think it’s definitely requiring a lot of creativity from employers,” Ms. Tang said.

How US Immigration Policy Affects the Labor Shortage 

One potential method for addressing labor shortages is to alter current U.S. immigration policy. Despite the ongoing need for workers in all industries, visa caps have remained relatively static, limiting the number of foreign nationals allowed to work in the U.S. long-term. Changes to such policies would be a considerable boon for the supply chain especially, allowing companies to quickly fill roles left empty by the pandemic.

The most likely target for change might be the H-1B visa, which allows employers to hire foreign workers for positions that require particular skills or specialized knowledge. “The annual quota on H-1B visa numbers – it would certainly be helpful to increase that quota,” said Ms. Tang. “That 85,000 number has been static for many, many years. It’s not a fluctuating number based on any sort of economic conditions or economic or supply or demand. So, I certainly think it would be beneficial for the government to have some sort of system where that quota number can have a fluctuating number depending on our economic conditions.”

How Does US Immigration Policy Impact the US’ Supply Chain Woes?

Of course, changes to H-1B policy intended for highly skilled employees, are only helpful to a certain point. Some sectors of the U.S. economy are in dire need of employees for non-professional roles, such as the retail and service industries, where highly specialized knowledge is not as critical. According to the Bureau of Labor Statistics (BLS), foreign-born workers were more likely than native-born workers to be employed in service occupations; natural resources, construction, and maintenance occupations; and production, transportation, and material moving occupations. Companies often utilize the H-2B visa to fill these gaps; again, however, logistical considerations and static caps stand in the way. In May, the BLS released updated statistic revealing that employment fell by 2.7 million among the foreign born from 2019 to 2020, a decline of 9.8 percent.

Ms. Tang points to manufacturing as a key example of an industry for which immigration reform would be a windfall. “For the non-professional roles, I think there is certainly an area where perhaps the government needs to create some sort of a work permit to fill these specific demands that our manufacturers are seeing in that area, with respect to the need to staff their manufacturing facilities,” she said. “A visa that’s available that’s for seasonal or peak load work, but again, there’s a quota on that visa as well.”

Per the BIS, the demographic composition of the foreign-born labor force differs from the native-born US labor force. In 2020, men accounted for 57.3 percent of the foreign-born labor force, compared with 52.1 percent of the native-born labor force. By age, the proportion of the foreign-born labor force made up of 25- to 54-year-olds (71.8 percent) was higher than for the native-born labor force (62.2 percent). Labor force participation is typically highest among persons in the 25-54 age bracket.

“It can be very difficult to get the perspective of timing, and oftentimes, employers who are trying to pursue this H-2B visa, if the pursuit of that visa is unsuccessful and they miss the quota, then they’re out of luck with respect to being able to staff the staff in these areas that really require someone to be doing the frontline work.”

In considering how to alter U.S. immigration practices to address supply chain woes, it is also vital that American workers are not forgotten. Policy changes must take into account a variety of factors to ensure a fair playing field. “There have been some proposals in the past, that number be moved up or down based on for instance, the unemployment rate in the United States, so that you were not disadvantaging US workers,” said Ms. Tang. “But in years when unemployment is extremely low, and clearly we are having labor shortage issues, perhaps we can increase the quota numbers there for the H-1B.”

Aging Workforce and the US Losing its Ability to Attract and Keep Top Talent – Is Immigration Reform a Solution?

The US Census Bureau (USCB) projects that one in every five US residents will be older than age 65, by 2030. Additionally, by 2030 the USCB projects that net international migration will overtake birthrate as the primary driver of population growth in the United States, a first for the US. Accordingly, US will have to rely more on foreign workers as our workforce ages. If the labor shortage continues, the Chamber of Commerce said it’s possible the shortage will pressure lawmakers to act to raise the cap on workers. 

Additionally, bringing in more foreign workers in the US could help boost the economy, as foreign workers tend to be more focused in the service industries and more likely to be of prime workforce age, can fill job shortages and create additional jobs to alleviate the strain on the supply chain. Who wants to live in a country with shortages of basic supplies and poor infrastructure, if they have a choice to live elsewhere?  If lawmakers don’t act, the US risks losing talent and entrepreneurs to other countries that have more flexible immigration policies.

“I think we’re going to see some brain drain from the US to other countries that are perceived as having more favorable immigration systems and policies – for instance, Canada,” Ms. Tang said. Entrepreneurs need workers for their enterprises and have global mobility, and the US’ worker shortage for both service workers and specialized high skilled workers, limits the US’ ability to compete in the world marketplace.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa, Chandler Ford, Jennifer Schaller of The National Law Review / The National Law Forum LLC

For more articles on immigration and hiring, visit the NLR Labor & Employment section.