DOS Final Rule Replacing Reference to NAFTA with USMCA

The Department of State announced on November 5, 2021 a final rule which replaces the North American Free Trade Agreement (NAFTA) with the United States Mexico-Canada Agreement (USMCA), which will go into effect on December 6, 2021. The visa classification of “TN” and “TD” will remain the same but will now read as “TN USMCA Professional” and “TD Spouse or Child of a USMCA Professional.” This new rule does not change the visa status of foreign nationals in TN or TD status.

Practice Pointer for the Lawful Presence Requirement to Obtain a Massachusetts Driver’s License

The Massachusetts Registry of Motor Vehicles (RMV) has revised its normal operating procedures for issuing driver’s licenses and identification documents as a result of the COVID-19 pandemic. This includes limiting the number of in-person interviews and automatically extending licenses/ID in a limited number of circumstances.

The Commonwealth of Massachusetts requires that all foreign nationals be lawfully present in the United States to receive a state-issued driver’s license. The definition of “lawfully present” for this purpose can be found in the RMV Motor Vehicle Regulations. The RMV must verify a person’s lawful status through SAVE (Systematic Alien Verification for Entitlements). Not every foreign national who is lawfully present in the United States for immigration purposes is eligible for a driver’s license. For example, foreign nationals who have an extension of status petition in process or a visa status validity of less than 12 months may not be able to apply for/renew their driver’s license. Additionally, certain foreign nationals may be issued a driver’s license that is valid until the expiration of their current status as opposed to the standard five years.

Prior to applying for or renewing a driver’s license, foreign nationals should confirm that they are considered lawfully present in the United States based on the Massachusetts RMV regulations. Information about the SAVE system are on the USCIS website. Foreign nationals who are already in SAVE but have not been fully verified by the system can check the status of their case here. Please note that the RMV cannot correct errors in SAVE.

Department of Homeland Security Announces Plan to Lift Restrictions for Vaccinated Individuals to Enter the U.S. at Land and Ferry Ports of Entry from Canada and Mexico

On October 29, 2021, the Department of Homeland Security (DHS) announced that foreign nationals who are fully vaccinated for COVID-19 may enter the United States from Canada or Mexico for non-essential travel via land ports of entry and ferry terminals beginning November 8, 2021. This replaces the restriction on non-essential travel, which has been suspended at land and ferry ports of entry since March 2020. Beginning November 8, 2021, all foreign nationals entering the U.S. via land or ferry ports of entry for “non-essential” travel must provide proof of COVID-19 vaccination consistent with the Centers for Disease Control’s travel guidance.

Beginning in January 2022, DHS will require all foreign nationals entering the U.S. from Canada and Mexico via land or ferry ports of entry – whether for essential or non-essential reasons – to be fully vaccinated for COVID-19 and provide proof of vaccination. This policy diverges from the Presidential Proclamation on air travel released by the White House in October.

Please contact Iandoli, Desai & Cronin (info@iandoli.com) if you have questions about travel to the U.S. from Canada and Mexico.

Biden Administration Rescinds Travel Bans and Releases Additional Details on New COVID-19 Vaccination and Testing Requirements for International Air Travel

On October 25, 2021, the Biden Administration published a fact sheet on the White House website detailing the implementation of its new international air travel policy requiring foreign national travelers to the United States to be fully vaccinated. This new policy will replace current Presidential Proclamations restricting travel from certain countries/areas. Beginning on November 8th, all nonimmigrant foreign national travelers, with few exceptions, must be fully vaccinated against COVID-19 and provide proof of vaccination to fly to the United States. U.S. Citizens, lawful permanent residents, and certain nonimmigrant foreign nationals are exempt from the vaccination requirement but must take a COVID-19 test within one day of departure.

Children under the age of 18 are exempt from the COVID-19 vaccination requirement, but unvaccinated children between the ages of 2 and 17 are required to take a COVID-19 test prior to departure. Unvaccinated children travelling with a fully vaccinated adult can take a test within 3 days of departure, but unvaccinated children traveling alone or with an unvaccinated adult will have to take a COVID test within one day of departure. Only a very limited number of adult foreign nationals will be exempt from the vaccination requirement.

Please see our news blast on November 1, 2021, for additional information on this new policy.

BREAKING NEWS!

On October 25, 2021, the Biden Administration published a fact sheet on the White House website detailing the implementation of its new international air travel policy requiring foreign national travelers to the United States to be fully vaccinated. This new policy will replace current Presidential Proclamations restricting travel from certain countries/areas. Beginning on November 8th, all nonimmigrant foreign national travelers, with few exceptions, must be fully vaccinated against COVID-19 and provide proof of vaccination to fly to the United States. U.S. Citizens, lawful permanent residents, and certain nonimmigrant foreign nationals are exempt from the vaccination requirement but must take a COVID-19 test within one day of departure.

The Centers for Disease Control and Prevention (CDC) considers a person to be fully vaccinated 2 weeks after their second dose in a 2-dose series, such as the Pfizer-BioNTech or Moderna vaccines; or 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine. The CDC states that “This guidance applies to COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen COVID-19 vaccines) and can be applied to COVID-19 vaccines that have been listed for emergency use by the World Health Organization (such as AstraZeneca/Oxford).” The U.S. will not accept all COVID-19 vaccines. Please refer to the WHO for a list of approved COVID-19 vaccines prior to traveling to the United States.

Children under the age of 18 are exempt from the COVID-19 vaccination requirement, but unvaccinated children between the ages of 2 and 17 are required to take a COVID-19 test prior to departure. Unvaccinated children travelling with a fully vaccinated adult can take a test within 3 days of departure, but unvaccinated children traveling alone or with an unvaccinated adult will have to take a COVID test within one day of departure.

Only a limited number of foreign nationals will be exempt from the vaccination requirement, including children under 18, certain COVID-19 vaccine clinical trial participants, people with certain medical conditions, emergency or humanitarian travel, and other very narrow categories. Foreign nationals who receive a vaccine exemption to fly to the U.S. may be required to get vaccinated in the U.S. if they stay for more than 60 days or to make other public health attestations.

In addition, the CDC will be issuing a Contact Tracing Order requiring all airlines flying to the United States to provide passenger contact information to the CDC in the event that passengers need to be notified about potential COVID-19 exposure on a flight to the U.S.

Although travel from certain countries/regions will no longer be restricted, appointment backlogs at U.S. embassies and consulates continue to be an issue for foreign nationals who need visas. Any international travel that will require a visa to return to the U.S. should be carefully considered.

Please contact Iandoli, Desai & Cronin P.C. if you have questions about international travel or the new U.S. air travel policy.

October Visa Bulletin

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 October 2021, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” 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]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.

In October, 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 October.

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 Department of State’s Visa Bulletin for October 2021 includes information on potential movement in visa availability through January 2022:

Employment First (EB-1):

Worldwide: Current
China: Current
India: Current

Employment Second (EB-2):

Worldwide: Current
China: Up to several months
India: Up to several months

Employment Third (EB-3):

Worldwide: A final action date could be imposed as early as November
China: A retrogression of this date could occur as early as November
India: A retrogression of this date could occur as early as November
Mexico: A final action date could be imposed as early as November
Philippines: A final action date could be imposed as early as November

Employment Fourth (EB-4): Current for most countries

El Salvador, Guatemala, and Honduras: Limited, if any, movement expected
Mexico: Limited, if any, movement expected

Employment Fifth (EB-5): Current for most countries

China: No forward movement

The bulletin also includes a reminder absent any legislative action, two employment categories will expire on September 30, 2021. These two visa categories are the non-minister special immigrant and I5 and the R5 regional center.

For more information, please visit: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-october-2021.html

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).

U.S. District Court of Northern California Vacates Final Rule Regarding Wage-Based H-1B Selection

On September 15, 2021, the U.S. District Court of Northern California vacated the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” which would have prioritized H-1B visa selection based on wages.The ruling indicated this was because Chad Wolf had not been lawfully appointed as Acting Secretary of the Department of Homeland Security when the final rule was approved.

To read the decision, please visit: https://www.courthousenews.com/wp-content/uploads/2021/09/H1B-visa-ruling.pdf

USCIS Announces Extension of the TimeReceipt Notices for Forms I-751 and I-829 can be Used to Show Evidence of Lawful Permanent Resident Status from 18 Months to 24 Months

Effective September 4, 2021, USCIS has extended the length of time that receipt notices for Forms I-751 and I-829 can be used to show evidence of lawful permanent resident status from 18 months to 24 months. This change is due to the fact that processing times for these applications have exceeded one to two years at certain service centers. Those cases filed on September 4, 2021, or later will receive a receipt notice showing the new 24-month extension of status. Those cases filed prior to September 4, 2021, that remain pending, will receive a new receipt notice reflecting the 24-month extension of status.

This change has implications for the documents that new hires and existing employees are allowed to present to employers as evidence of their work authorization. As laid out in the American Immigration Lawyer’s Association Verification and Documentation Liaison Committee’s practice advisory about this change, new hires who present an expired permanent resident green card, with a receipt notice showing only an 18-month extension of status that has since expired, can still be hired by showing a List B identity document and a List C document, like an unrestricted social security card. Employees would not need to wait for a new receipt notice showing a 24-month extension of status. In addition, existing employees with pending applications to remove conditions should not be terminated for failing to present a new green card once the 18-month extension period expires. The unrestricted social security card can also be used for Section 3 reverification. Permanent residents who have not yet applied to the Social Security Administration to remove the restrictions on their social security card can be advised to take that action as an option.

For more information please visit: https://www.uscis.gov/newsroom/alerts/uscis-extends-evidence-of-status-for-conditional-permanent-residents-to-24-months-with-pending-form#:~:text=Starting%20Sept.,Conditions%20on%20Permanent%20Resident%20Status.

Department of State Opens FY2023 Diversity Visa Program Enrollment on October 6, 2021

The Department of State has announced that online registration for the Diversity Visa (DV)-2023 program will begin on 10/6/21 at 12:00 pm (ET) and end on 11/9/21 at 12:00 pm (ET).

For more information and instructions on how to apply, please visit: https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html

US Designates Croatia as new Participant in the Visa Waiver Program

On September 28, 2021, Secretary of Homeland Security Alejandro Mayorkas, along with Secretary of State Antony Blinken, designated Croatia as a new participant in the Visa Waiver Program. Starting at the latest by December 1, 2021, the Electronic System for Travel Authorization (ESTA)will be updated to allow citizens and nationals of Croatia to apply to travel to the U.S. for tourism or business for up to 90 days without obtaining a U.S. visa.

For more information, please visit:https://www.dhs.gov/news/2021/09/28/secretary-mayorkas-announces-designation-croatia-new-participant-visa-waiver-program