DOS Expands Certain National Interest Exception Eligibilities to All Countries Subject to U.S. Geographic COVID-19 Entry Bans
On April 26, 2021, the Department of State announced that it is expanding certain national interest exception eligibilities to all countries subject to U.S. geographic COVID-19 entry bans. In addition to the national interest determinations already in place, travelers affected by travel bans due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are entering the U.S. to provide vital support for critical infrastructure; journalists; students and certain academics covered by exchange visitor programs, may now qualify for a National Interest Exception (NIE). The DOS will continue to grant NIEs for humanitarian travel, public health, and national security.
Students with valid F-1 and M-1 visas who are entering the U.S. to begin or continue an academic program beginning on August 1, 2021 or later do not need to contact a U.S. consulate to obtain a NIE. They may enter the U.S. no earlier than 30 days before the start of their program of study. Students who require a visa should check the status of visa services at their U.S. consulate and consult with their school’s international office.
DHS Extends Land Border Restrictions between Canada and Mexico through May 21, 2021
CBP issued a notification of the continuation of temporary travel restrictions of non-essential travel to the United States from the Canadian and Mexican borders, which will remain in effect until May 21, 2021. The restriction applies to “non-essential” travel by nonimmigrants or immigrants via land border, rail, and ferry crossing. It does not apply to air travel or sea travel (excluding ferry and pleasure boat travel).
“Essential travel” is determined by Customs & Border Protection, and it includes traveling to attend educational institutions or to work in the United States. U.S. citizens and lawful permanent residents returning to the United States are excluded from this restriction. Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about travel to and from Canada and Mexico.
DHS Announces New Guidance to Limit ICE and CBP Civil Enforcement Actions in or near Courthouse
The Department of Homeland Security announced that federal agents will no longer be permitted to arrest people in or near a courthouse for most immigration violations. Previous policy in effect since 2018 authorized ICE to enter any courthouse to arrest people who were there for reasons unrelated to their immigration status. A civil enforcement action in or near a courthouse may only be taken in limited circumstances, including national security matters and threats to public safety.
“Ensuring that individuals have access to the courts advances the fair administration of justice, promotes safety for crime victims, and helps to guarantee equal protection under the law,” said Secretary Mayorkas. “The expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement. Today’s guidance is the latest step in our efforts to focus our civil immigration enforcement resources on threats to homeland security and public safety.”
DHS Postpones REAL ID Deadline to May 2023
Secretary of Homeland Security Alejandro Mayorkas announced that the Department of Homeland Security is extending REAL ID requirements to May 3, 2023 as a result of the COVID-19 pandemic. The REAL ID Act establishes minimum security standards for license issuance and prohibits federal agencies from accepting state-issued driver’s licenses and identification cards that do not meet the Act’s minimum standards. The purposes covered by the Act include accessing federal buildings and boarding federally regulated commercial aircraft.
Beginning May 3, 2023, every air traveler 18 years of age and older will need a REAL ID-compliant driver’s license or identification card to board a domestic commercial flight. Other TSA-compliant identification documents such as an active passport will still be acceptable.
USCIS Reinstates Policy Instructing Officers to give Deference to Prior Determinations in Extension Requests
On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance instructing officers to give deference to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts. Deference to prior determinations will not apply where there is a material error or material change in circumstances or eligibility. This guidance affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies.
This guidance largely restores USCIS’s 2004 deference policy, which was rescinded in 2017. This policy directed officers to defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application.
Affording deference to prior approvals involving the same parties promotes effective and fair adjudication of immigration benefits in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.
USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021
It is being reported that due to ongoing litigation (Edakunni et al v. Mayorkas, 2:21-cv-00393-RAJ (W.D. Wash.)) U.S. Citizenship and Immigration Services (USCIS) will be suspending biometrics on some EAD applications for the next 2 years …. We are waiting for a formal announcement from USCIS and will keep you posted as developments occur and how this affects any cases in process and to be filed.
Biden Administration Bans Most Travel from India to Limit the Spread of COVID-19
On April 30, 2021, President Biden issued an Executive Order banning the entry of nonimmigrants and non-U.S. citizens who were physically present in India during the 14-day period preceding their entry or attempted entry into the United States. This proclamation is effective May 4, 2021 and will remain in effect until it is terminated by the President. This proclamation does not apply to:
o U.S. citizens or lawful permanent residents
o Noncitizen nationals of the U.S.
o Noncitizen spouses of U.S. citizens
o Noncitizen parents or legal guardians of an unmarried U.S. citizen or lawful permanent resident under the age of 21
o Noncitizen sibling of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is under the age of 21.
o Any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Homeland Security, or their designees.
o For a full list of exceptions, please refer to the Executive Order.
Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about India-related travel.
IDC News
Announcement - Iandoli Desai & Cronin P.C. is very pleased to announce that Mary E. Walsh has become a Shareholder. Mary will continue to represent immigrant families as well as colleges, universities, medical facilities, other businesses and their international employees and families. Mary has practiced U.S. immigration law for 14 years and is currently the co-chair of the BBA’s Immigration Committee.
Visa Bulletin Updates
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For April 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].
In April, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in April.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The Visa Bulletin for May 2021 has not yet been released.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
DHS announces continued flexibility in requirements related to Form I-9 compliance
On April 1, 2021, the Department of Homeland Security (DHS) announced an extension to the agency’s March 20, 2020 announcement regarding flexibilities in I-9 form completion while employees are operating with COVID-19 precautions in place. These flexibilities, which were set to expire on March 31, 2021, have now been extended through May 30, 2021. According to these announcements, employees are currently only required to physically inspect Form I-9 identity and employment verification documents in person for employees who are working on site on a “…regular, consistent, or predicable basis.” Employees who are working completely remotely due to COVID-19 policies are temporarily exempt from the physical inspection requirements for their I-9 forms under 274A of the INA until they return to working on-site “on a regular, consistent, or predictable basis”, or the DHS flexibilities are terminated, whichever comes first.
Employers may perform in-person inspection of employees’ I-9 documents, “in their discretion” for employees hired on or after DHS’s March 20, 2020 announcement and provided their identification documents “for remote inspection” based on the March 20, 2020 announcement’s guidance.
Further guidance from DHS regarding the completion of I-9 Forms and these flexibilities will be announced as DHS and other agencies monitor the ongoing national emergency.