- Travel Ban for Countries to be Lifted November 8, 2021
- Why is My Case Taking So Long to Process?
- DHS Issues Worksite Enforcement Memo to Improve Working Conditions of Undocumented Workers
- Facebook Makes Immigration News: Agrees to Settlement of Millions of Dollars for Allegedly Discriminating Against US Workers in Connection with the PERM Process
- USCIS Extends Time on I-751 and I-829 Receipt Notices
- Proof of COVID-19 Vaccine Requirement Effective October 1, 2021
- DV Lottery Registration Open Until 11/9/2021 at 12 Noon ET
- News in Brief: DHS Automatically Extending Syrian TPS Applicants’ EADs; Croatian Nationals Now Eligible for ESTA; Sanctions Imposed on Human Rights Violators in Ethiopia; DOJ Ends Use of Case Quotas for Immigration Judges
Travel Ban for Countries to be Lifted November 8, 2021
On September 20, 2021, the President announced that beginning November 8, the United States will lift the travel ban for certain countries (China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, and India) and instead require proof of vaccination for all foreign travelers.
Unlike the old rule that restricted international travelers from specific countries, the new rule applies the same rules to every country. Foreign travelers from anywhere around the world must show proof of full vaccination and a negative test three days before traveling. Foreign travelers will also no longer be required to quarantine for 14 days once they arrive in the U.S. Instead, the Biden Administration plans to improve contract-tracing efforts to ensure that travelers exposed to COVID-19 are notified.
The new three-day timeframe gives travelers more flexibility than the 72-hour rule because the validity of the test does not depend on the time of the flight or the time of the day the test was provided. Accepted tests must be a viral test that could either be an antigen test or a nucleic acid amplification test; a rapid test may be accepted if it is a viral test pursuant to the Order. Accepted vaccines include FDA approved or authorized or WHO Emergency Use Listing vaccines.
As for American travelers who have traveled abroad and who are not fully vaccinated, they will need to provide proof of a negative COVID-19 test taken within one day of their departure.
Why is My Case Taking So Long to Process?
Nationwide, millions of families, businesses, and individuals applying for immigration benefits are waiting longer for USCIS to process and approve applications and petitions. Based on previously available USCIS data, in 2014, an average case took about five months to process. In 2020, an average case took more than nine months. Those extra months of waiting halt business operations, keep families separated, and jeopardize lives.
Many factors can slow down a case, including inefficient processing, understaffing, and changes in policy due to the COVID-19 pandemic. During the last administration, USCIS implemented many new policies designed to restrict legal immigration and delay processing. For example, one policy required USCIS officers to conduct duplicate reviews of past decisions, adding unnecessary work to each case. Another example was the imposition of a fingerprinting requirement for certain I-539 applicants. While the current administration has made some helpful changes, the pandemic has contributed to continued slowdowns. For example, from March through July 2020, USCIS closed its offices for interviews and biometrics appointments, creating a backlog, especially for biometrics appointments. Many applications, like I-765 applications for Employment Authorization Documents (EADs), cannot be adjudicated before biometrics are taken.
Between FY2017 and FY2019, USCIS’s processing times for all petitions and application form types rose more than 37 percent. The dramatic increase in processing times occurred despite a 10 percent drop in cases received by USCIS from the end of FY2017 to FY2019. USCIS processing times have continued to rise since the start of the pandemic.
Processing times for common form types illustrate just how dire the situation is: all I-539 applications increased 250 percent (from about three months to 10 months) in the last four years; family-based I-485 adjustment of status applications increased 67 percent and N-400 naturalization cases increased 47 percent. I-765 employment authorization documents until recently took about four to six months to be approved. Now they take nine to 10 months and special expedited requests are near impossible to obtain because USCIS is strictly enforcing its expedite criteria.
While there is little that an applicant or an immigration attorney can do to speed up the processing of a case, applicants can sue the government to act through the mandamus process. But litigation is of course timely and can be expensive.
DHS Issues Worksite Enforcement Memo to Improve Working Conditions of Undocumented Workers
DHS recently called for improved working conditions of the American worksite with undocumented workers in mind. In its Worksite Enforcement Memo, DHS highlighted the unsafe and unfair working conditions to which undocumented immigrants are often subject. These include getting paid substandard wages, unsafe working conditions, and fear of employer retaliation.
To ensure a safer and more dignified labor market in the U.S., DHS will no longer conduct mass worksite operations (i.e., raids) that may result in simultaneous arrests of hundreds of workers. The memo also asks DHS agencies to propose recommendations to protect foreign victims and witnesses who report certain unlawful practices or those who choose to patriciate in investigations or prosecutions. Furthermore, DHS seeks to reduce the demand for illegal employment by implementing more severe consequences for “exploitative employers and their agents.” Finally, the memo calls for an improved and more comprehensive coordination between DHS, the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.
The above principles are part of the Biden Administration’s ongoing efforts to improve policies impacting undocumented workers.
Facebook Makes Immigration News: Agrees to Settlement of Millions of Dollars for Allegedly Discriminating Against U.S. Workers in Connection with the PERM Process
In a recent settlement agreement, Facebook agreed to pay a civil penalty of $4.75 million to the United States, and pay up to $9.5 million to eligible victims in response to a complaint filed by the Department of Justice alleging that it intentionally discriminated against U.S. citizen workers by designing a recruitment process that deters U.S. workers from applying, by not considering U.S. workers, and by hiring only temporary visa holders. Facebook also agreed to train its employees on the anti-discrimination requirements of the immigration law, and the company will be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic résumés or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices.
In its lawsuit, the DOJ alleged that in 2018 and through much of 2019, Facebook employed tactics that discriminated against U.S. workers and routinely preferred temporary visa holders (including H-1B visa holders) for jobs in connection with the PERM process. Rather than conducting a genuine search for qualified and available U.S. workers for permanent positions sought by these temporary visa holders, Facebook reserved the positions for temporary visa holders because of their immigration status, according to the complaint. It did so, the DOJ alleged, by failing to advertise those vacancies on its careers website, by requiring applicants to apply by physical mail only, and by refusing to consider any U.S. workers who applied for those positions in contrast to its usual hiring process — which relies on recruitment methods designed to encourage applications by advertising positions on its careers website, accepting electronic applications, and not pre-selecting candidates to be hired based on a candidate’s immigration status.
In its investigation, DOJ concluded that during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.
Proof of COVID-19 Vaccine Requirement Effective October 1, 2021
USCIS announced that, effective October 1, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign Form I-693 (Report of Medical Examination and Vaccination Record). This update is in accordance with the CDC’s August 2021 update to the Technical Instructions for Civil Surgeons, which requires applicants subject to the immigration medical examination to complete the COVID-19 vaccine series (one or two doses, depending on the vaccine) and provide documentation of vaccination to the civil surgeon before completion of the immigration medical examination. The requirement applies prospectively to all Forms I-693 signed by the civil surgeons on or after October 1.
USCIS may grant blanket waivers if 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.
Individuals may also apply for individual waivers based on religious beliefs or moral convictions.
The Department of State also announced that all immigrant visa applicants must receive a full COVID-19 vaccine series as part of their medical exam before being issued a visa at a consulate abroad. Lower age limits for the vaccine will depend on the formulation available to applicants in their country.
USCIS Extends Time on I-751 and I-829 Receipt Notices
As of September 4, 2021, USCIS is extending the time that receipt notices can be used to show evidence of status from 18 months to 24 months for petitioners who properly file Form I-751 (Petition to Remove Conditions on Residence), or Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status). USCIS is making the change from 18 to 24 months to accommodate current processing times for Form I-751 and Form I-829, which have increased over the past year.
Conditional permanent residents who properly file Form I-751 or Form I-829 will receive a receipt notice that can be presented with their Form I-551 (Permanent Resident Card, also known as a Green Card), as evidence of continued status for up to 24 months past the expiration date on their Green Card, while their case remains pending with USCIS.
Additionally, USCIS will issue new receipt notices to eligible conditional permanent residents who properly filed their Form I-751 or Form I-829 before September 4 and whose cases are still pending. Those receipt notices will also serve as evidence of continued status for 24 months past the expiration date on their Green Card.
DV Lottery Registration Open Until November 9 at Noon EST
The 2023 Diversity Visa (DV) Lottery program began on October 6 and is open until November 9 at 12 noon EST. The DV Lottery permits natives of low immigration countries to apply for the immigrant visa (Green Card) program, a program that was designed to help diversify the pool of immigrants coming to the U.S. each year. There are some 55,000 visas allotted to the program each year. Visas become available in October 2022 and must be issued by September 30, 2023. Most foreign nationals are eligible to apply except for those from high-immigrating countries. This year, foreign nationals of the following 19 countries are excluded from entering the DV-2023 Lottery program:
- China (Including Hong Kong SAR)
- Dominican Republic
- El Salvador
- South Korea
- United Kingdom (except Northern Ireland)
Note that United Kingdom includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos Islands. Northern Ireland, however, does qualify.
Persons born in the Gaza Strip are chargeable to Egypt for the DV 2023 Lottery. Persons born in Macau SAR and Taiwan are also eligible to enter the Lottery.
Foreign nationals from all other countries may register for the DV 2023 Lottery. However, applicants who were born in a nonqualifying DV Lottery country may still qualify based on the country of birth of his or her parents or spouse. For example, if you were born in a country whose natives are ineligible to enter the lottery, but your spouse was born in a country whose natives are eligible to enter the lottery, you can claim your spouse’s country of birth as your country of eligibility. In other words, you may claim chargeability to the country where your derivative spouse was born, provided that both you and your spouse are on the selected lottery application, but you will not be issued a diversity visa Green Card unless your spouse is also eligible for and issued a diversity visa Green Card, and both of you must enter the United States together with the diversity visa Green Cards. (Example: If you were born in Canada, whose natives are ineligible to enter the lottery, but your spouse was born in Spain, whose natives are eligible to enter the lottery, you can claim your spouse’s country of birth (Spain) as your country of eligibility as long as you include your spouse on your lottery application.) In a similar manner, a minor dependent child can be “charged” to a parent’s country of birth.
Finally, if you were born in a country not eligible to participate in this year’s DV program, you can be “charged” to the country of birth of either of your parents as long as neither parent was a resident of your country of birth at the time of your birth. For example, your parents might have lived temporarily in the ineligible country because of their jobs. In general, people are not considered residents of a country in which they were not born or legally naturalized if they are only visiting the country, studying in the country temporarily, or stationed in the country for business or professional reasons on behalf of a company or government.
If you claim alternate chargeability, you must indicate such information on the Diversity Lottery entry form that you must complete after you have registered successfully, under country of eligibility. Be aware that listing an incorrect country of eligibility or chargeability (i.e., one to which you cannot establish a valid claim) may disqualify your entry.
The DV Lottery Program requires the principal DV applicant to have a high school education, or its equivalent, or two years of qualifying work experience as defined under provisions of U.S. law. Applicants who do not have either the required education or qualifying work experience are not eligible for a diversity visa. (Only the principal applicant, must meet this requirement; spouses and children do not have to meet this requirement.) A high school education means successful completion of a formal course of elementary and secondary education comparable to a 12-year course in the United States. Only formal courses of study meet this requirement; equivalency certificates (such as the G.E.D.) are not acceptable. To qualify with work experience, the applicant must have two years of experience in the last five years, in an occupation which, by U.S. Department of Labor definitions, requires at least two years of training or experience that is designated as such.
Individuals who submit more than one entry during registration are disqualified; however, spouses can each apply individually.
Filing a registration has no consequences on a subsequent visa application, as it is merely a registration and does not demonstrate immigrant intent. DV Lottery applicants will be selected in May 2022 for visas that become available in October 2022.
News in Brief
DHS Automatically Extending Syrian TPS Applicants’ EADs: DHS announced it is automatically extending the validity of certain EADs with a category code of A12 or C19 issued under TPS for Syria through 3/28/22. For Form I-9, TPS Syria beneficiaries may present qualifying EADs along with an individual notice issued by USCIS that indicates extension of EAD.
Croatian Nationals Now Eligible for ESTA: Citizens of the Republic of Croatia are now able to apply to travel to the U.S. for tourism or business purposes for up to 90 days without obtaining a U.S. visa. Croatia is the 40th member of the Visa Waiver Program (VWP). Under the VWP, citizens of Croatia will be able to apply online for authorization to travel to the U.S. through the Electronic System for Travel Authorization (ESTA). The ESTA authorization is valid for two years, or until the passport expires, whichever comes first. Travelers with valid B1/B2 visas should continue to use their visa for travel to the United States. The ESTA website will begin accepting applications from Croatian citizens soon, but no later than December 1, 2021.
Sanctions Imposed on Human Rights Violators in Ethiopia: In September, President Biden signed an Executive Order imposing sanctions on persons determined to be responsible for humanitarian and human rights violations in Ethiopia, including suspending the immigrant and nonimmigrant entry into the United States of such persons.
DOJ Ends Use of Case Quotas for Immigration Judges: The Justice Department is ending the use of case quotas for immigration judges that became a point of contention during the Trump Administration for undercutting judges’ authority and discretion, according to an email obtained by CNN.