Tag: Biden administration

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  • Immigrant Visa Ban:  The Immigrant Visa Ban that was imposed last year was revoked on February 24, 2021.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 Administration Issues “Regulatory Freeze” Memo

On January 20, 2021, the administration of President Joseph R. Biden, Jr. issued a “regulatory freeze” memorandum for the heads of executive departments and agencies to ensure that President Biden’s appointees or designees have an opportunity to review any new or pending rules (the Memo). Pursuant to the memo, rules that have been sent to the Office of the Federal Register but that have not yet been published must not be published until a department or agency head appointed or designated by the new administration reviews and approves the rule. In addition, the memo directs department and agency heads to consider postponing rules that have been published in the Federal Register but that have not yet taken effect to seek additional public comment on issues of fact, law and policy raised by the rules and thereafter to take appropriate action.

Although the SEC is not an executive department or agency but rather an independent regulatory agency of the U.S. federal government, there is, some ambiguity about whether the memo applies to SEC rules. In addition the SEC may choose to will voluntarily follow the memo’s directives and recommendations.

The regulatory freeze memo is available here. 

© 2020 Vedder Price
ARTICLE BY John S. Marten, Nathaniel Segal and Jacob C. Tiedt of Vedder Price
For more, visit the NLR Election Law / Legislative News section.

Shining a Spotlight on ESG Disclosures in the Biden Administration

In a period where almost nothing seems certain, it is inevitable that ESG issues will be on the front of the incoming SEC Chair’s mind. Jay Clayton, who resigned as SEC Chairman in December 2020, has urged that one-size-fits-all metrics for environmental disclosures aren’t appropriate given the varied impacts of climate change on different industries. However, President-elect Biden has made clear that climate change will be a high priority for his administration: he has vowed to rejoin the Paris Climate Agreement on his first day of office. Thus, the five-member SEC, where three seats are controlled by the President’s party, can be expected to make ESG disclosures a high priority.

Investors are also in part to thank (or blame) for the growing significance of ESG topics in public disclosures. An SEC advisory committee that advocates for investors urged last May that the SEC establish disclosure policies regarding ESG topics, arguing that investors want reliable information on these matters before making investment and voting decisions. And in its 2019 “Statement on the Purpose of a Corporation,” even the Business Roundtable—a former champion of “shareholder primacy”—agreed that the purpose of corporations is to promote “an economy that serves all Americans.” While this document has been criticized for not providing more palpable sustainability goals, Rep. Joe Kennedy (D-Mass.) called it “a welcome step toward a more moral capitalism” and the U.S. Chamber of Commerce said it “agreed wholeheartedly with the renewed focus.” With the changing of the guard at the SEC, all signs point in the direction of further steps toward “moral capitalism” in the months to come.

© 2020 Proskauer Rose LLP.

ARTICLE BY Erica T. Jones of Proskauer Rose LLP
For more, visit the NLR Securities & SEC section.