US Citizens Able to Return to US on Expired Passports
US Customs and Border Protection and the US Department of State have announced that as of May 21, 2021, US citizens with expired passports may use those expired passports to return to the US through December 31, 2021.
To do this, they have to meet certain requirements: 1) the person must be a US citizen who is currently abroad and trying to return to the US; 2) their flight back to the US must be direct or with only a connecting flight through a foreign country; 3) the expired passport must have expired on or after January 1, 2020, and must have originally been valid for 10 years (unless the person was 15 years old or younger when it was issued); and finally 4) the person must have the expired and undamaged passport in their possession.
(CBP announcement link: https://www.cbp.gov/document/bulletins/travel-us-citizens-expired-passports)
(Department of State announcement link: https://www.state.gov/return-travel-on-recently-expired-u-s-passports/)
National Interest Exemption Updates
The Secretary of State has determined that the entry of the following travelers is in the national interest for purposes of exceptions to all four proclamations. The Secretary may revise these national interest determinations as circumstances warrant.
immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
fiancé(e)s of U.S. citizens and their dependents (K visas);
certain exchange visitors as detailed within this article;
students (F, M, and certain J visas) as described here. New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT);
academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
journalists (I visas);
travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains, as outlined at https://www.cisa.gov/critical-infrastructure-sectors;
travelers providing vital support or executive direction for significant economic activity in the United States
pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance;
those whose purpose of travel falls within one of these categories:
lifesaving medical treatment for the principal applicant and accompanying close family members;
public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research);
humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member;
medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States;
national security; and
derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.
The Department of State recommends that any individuals who are present in the 33 affected countries who do not fall under any of the categories currently listed check the website of the closest US embassy or consulate to find instructions on how to apply for an individual NIE.
Please consult your embassy for specific information and procedures if you need to apply for an NIE.
If you are in need of travel to the U.S. from one of the countries listed above and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.
Travel Bans Updates
There are now four presidential proclamations suspending entry into the US of noncitizens who were physically present in any of the 33 countries listed in the proclamations during the 14-day period immediately preceding their entry into the US.
They are:
Presidential Proclamation 9984 (China);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/
Presidential Proclamation 9992 (Iran);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus/
Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa);
and, most recently added;
Presidential Proclamation 10199 (India);
The exceptions to these proclamations, notably include (but are not limited to):
US citizens;
Lawful permanent residents;
Spouses and children of US citizens or lawful permanent residents;
Parents or legal guardians of a US citizen or lawful permanent resident unmarried minor child;
Siblings of a US citizen or lawful permanent resident child (as long as both are unmarried and under the age of 21);
Travelers for the purpose of the containment or mitigation of COVID-19; and
Those whose entry would be in the national interest.
IDC News
Iandoli, Desai and Cronin, P.C. is pleased to announce the addition of three new associate attorneys at our firm: Erin C. Murphy, Meghan Parker-Johnson, and Marissa A. Rosenberg. Attorneys Murphy, Parker-Johnson and Rosenberg join us with significant experience in the field. We welcome them to our firm.
Visa Bulletin Updates
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether 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 May 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 May, 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 June 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).
New I-90 Receipt Notices Can Serve as Evidence of Status and Work Authorization
U.S. Citizenship and Immigration Services (USCIS) has replaced the sticker that was currently issued to lawful permanent residents to extend the validity of their Form I-551, Permanent Resident Card (“Green Card”). The revised Form I-797 notice will serve as a receipt notice for the Form I-90. The notice will serve as evidence of identity and employment authorization when presented with an expired green card.
DOL Announces Additional Proposed Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
The Department of Labor announced a delay to the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for a period of eighteen months or until November 14, 2022. The DOL has also proposed corresponding delays to the rule’s transition dates. Under the law, an employer must pay an H-1B worker the actual wage or the prevailing wage, whichever is higher. The new rule will change how the DOL applies its four-level wage approach to prevailing wage determinations, resulting in considerably higher wage requirements for H-1B workers and PERM applicants.
AILA submitted a comment to the DOL on April 20, 2021, stating “Prevailing wages should not reflect political priorities or desires. Congress's role is to make or modify laws affecting the country’s approach to immigration preferences, not that of the federal agencies…The Wage Rule continues to be based upon the flawed presumption that the amount a worker is paid, and that element alone, determines the value that worker brings to the United States. To this end, the Wage Rule attempts to increase required wages for foreign national workers well above what science shows the market indicates, thus changing the prevailing wage calculation from a mathematical one to a political one.”
F-1 Students Seeking Optional Practical Training Can Now File Form I-765 Online
USCIS announced on April 12, 2021 that F-1 students seeking optional practical training (OPT) can file Form I-765, Application for Employment Authorization, online if they are filing under the following categories:
(c)(3)(A) Pre-Completion OPT
(c)(3)(B) Post-Completion OPT
(c)(3)(C) 24-Month STEM Extension
Online filing of Form I-765 is restricted solely to F-1 students filing Form I-765 for OPT. Any Form I-765 application that is filed for an ineligible employment category will be denied and the fee retained. Online filing allows students to check the status of their case and receive notices from USCIS online as opposed to waiting for a notice to arrive in the mail. Students must first crate a USCIS online account at myaccount.uscis.gov. The online version of Form I-765 can be found on the USCIS Forms Available to File Online page.
International students are encouraged to check with their international offices regarding the filing of their OPT applications.
SEVP will extend March 2020 Guidance on Distance Learning for the 2021-22 Academic Year
The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2021-22 academic year. This guidance enables schools and students to engage in remote learning that exceeds regulatory limits due to the ongoing public health concerns caused by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020 and are otherwise adhering to the terms of their nonimmigrant status.
Active F and M students will be permitted to temporarily count online classes towards a full course of study in excess of previous regulatory limits for the 2021-2022 academic year. Students who were actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside the country can re-enter the United States, even if their school continues to hold virtual classes. New or initial F and M student who were not previously enrolled in a program of study on March 9, 2020 will not be able to enter the U.S. for the 2021-2022 academic year if their academic courses will be solely online.
SEVP-certified schools do not need to submit a procedural plan detailing its alternative procedures for the 2021-2022 academic year if they have previously submitted a plan to SEVP and the school is not making substantive changes. Schools should submit a plan detailing substantive changes to SEVP within 10 business days of the decision to implement the change.
SEVP recently updated its frequently asked questions with information on the application of the March 2020 guidance to the 2021-22 academic year. It will continue to update stakeholders in the academic community through its communication channels, including Broadcast Messages, SEVP field representatives, Study in the States blog posts and social media.
Update on Immigrant Visa Processing at U.S. Consulates
The COVID-19 pandemic continues to affect the ability of embassies and consulates to be able to resume routine visa services. Constraints vary based on local conditions, including lockdowns, travel restrictions, and host country quarantine regulations. These restrictions, in addition to social distancing and other safety measures, have reduced appointment capacity at embassies and consulates, which has created a significant backlog of both immigrant and nonimmigrant visa applications.
The Department of State is using a tiered approach to triage immigrant visa applications based on the category of immigrant visa.
Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government).
Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas.
Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad.
Tier Four: All other immigrant visas, including employment preference and diversity visas.
This system instructs U.S. embassies and consulates to direct their limited resources to the prioritization of immediate relative and fiancé(e) immigrant visa applications. Visa applicants should expect to continue to face delays, particularly those in tiers three and four, but the DOS goal is to prevent the visa backlog from growing and, hopefully, to reduce it over time. Please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation if you have questions about an immigrant visa application.