By Angelo A. Paparelli and Dawn Lurie

Globe-hoppers of the world, too long cabined and constrained by the pandemic, are exhilarated at the prospect of imminent foreign travel.  Many have received the vaccine and are poised to fly far away for business or pleasure.  The vaccinated among us, however, should not buy that airline ticket just yet – unless you know before you go how you will be treated at your foreign destination upon arrival, and upon departure.

Entry and Exit

Increasingly, as multiple variants of COVID-19 are identified, national governments worldwide have tightened entry protocols, and some have imposed exit restrictions.  France, for example, has announced new requirements when departing the country. See “[What is:] Can I leave France?”  – a Jeopardy-style question whose answer is: “You can only travel from France to a country outside the European space if you have pressing grounds for travel, or if you are travelling to your country of origin or residence.” Continue Reading Hey, Immigration Lawyer: Get Me a Coronavirus Passport

By Angelo A. Paparelli

The English nursery rhyme was wrong.  Not only do sticks and stones break our bones, but words can also hurt us.  A lot.  This is the lesson recently imparted by Tracy Renaud, the Acting Director of U.S. Citizenship and Immigration Services (USCIS).  In a recent internal memorandum, Renaud is insisting on a new set of descriptors for the foreign citizens whom her agency serves, banishing into exile the word, “alien,” and the phrase, “illegal alien.” Henceforth, USCIS will use more inclusive language such as “noncitizen,” “undocumented noncitizen,” or “undocumented individual.” See the reports in Axios and BuzzFeed News.

This is a welcome change.  For far too long, the exhausting and fearsome journey of U.S. immigration has been made more difficult by the hurtful taunt, “alien,” a word employed throughout the Immigration and Nationality Act (INA).  Reportedly, the Biden Administration in its comprehensive reform bill would likewise excise the offensive word, and substitute “noncitizen” at every point where  “alien” now appears in the INA, the U.S. Code, uncodified statutes, and all agency regulations and executive branch communications (something California did in 2015, while opting instead for “foreign national,” rather than “noncitizen”).  In addition, we understand that U.S. Immigration and Customs Enforcement officers have likewise received instructions to remove the word, “alien,” from its template notices to employers that, following a Form I-9 (Employment Eligibility Verification)  investigation, “unauthorized aliens” have been found on the employer’s payroll. Continue Reading Inclusive Immigration: USCIS Nixes “Alien” Terminology But Much More Must Be Done

By Tieranny Cutler and Dawn Lurie

Earlier this week, on January 26, 2021, the Student and Exchange Visitor Program (SEVP) rescinded its  intention, announced less than two weeks earlier, to develop an OPT Employment Compliance Unit. Immigration and Customs Enforcement’s (ICE) compliance-focused plan included close collaboration with other government agencies.

According to SEVP, following additional reviews of ICE’s current Optional Practical Training (OPT) compliance efforts, much of the work to be designated to the OPT Employment Compliance Unit is already being performed by SEVP and therefore they determined the additional unit is not needed.  While we are uncertain as to the internal discourse leading up to the quick rescission, it is likely that new administration team members reviewed the optics of the unit, the timing of the announcement (a week before the inauguration), and the potential impact on foreign students wanting to study in the U.S., before deciding to reconsider the rollout of the unit.  While humanitarian actions, including the focus on DACA and TPS have been the initial focus of the Biden administration, we are hopeful that they will turn to business and employer issues in an effort to keep the U.S. competitive globally. We expect an enforcement-minded, but practical approach; this early action should not be viewed as an indicator of anything otherwise. Continue Reading Compliance Whiplash: ICE Establishes, and then Rescinds, Plan to Create OPT Employment Compliance Unit

By Jason Burritt and Jake Campbell

Seyfarth Synopsis: The Office of Information and Regulatory Affairs within the Office of Management and Budget announced that the long-pending rule to rescind work authorization for certain H-4 holders has been withdrawn. The withdrawal means that H-4 holders whose spouses have reached certain steps within the employment-based green card process can continue to file for Employment Authorization Documents (EADs).

After a multiple-year undertaking to rescind work authorization for certain H-4 spouses, the United States Citizenship & Immigration Services (USCIS) confirmed on January 25, 2021 that it has officially withdrawn the proposed rule that sought to rescind this class of work authorization. The regulation promulgated in 2015 allows an H-4 holder to file for a work permit (EAD) if the H-1B spouse is the beneficiary of an approved I-140 petition and cannot adjust status due to per-country limitations or if the H-1B spouse has been granted a post-sixth year H-1B extension of status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000.

In December 2017, the Trump administration announced in its regulatory agenda that it sought to withdraw the regulation promulgated in 2015 under the Obama administration. In February 2019, the Trump administration published a rule to rescind the H-4 EAD regulation. The regulation has remained pending with the Office of Management and Budget, which reviews proposed rules for impact on the economy (among other reasons), and was never issued as a final regulation.

New or initial H-4 EAD applications can be concurrently filed with an H-4 nonimmigrant change of status or extension of stay application or, alternatively, as an individual application, provided eligibility requirements are met. H-4 EAD renewal applications can be filed up to six months before the EAD expiration.

Continue Reading The Cloud over H-4 EADs Has Finally Been Lifted

By Tieranny L. Cutler and Jason E. Burritt

Seyfarth Synopsis:  The President’s order, which reinstates and expands travel restrictions imposed by the prior administration, will continue to have a significant impact on international travel for foreign nationals, as well as impact the transfer of global talent by U.S. corporations from these regions.  The travel restriction does not apply to U.S. citizens, lawful permanent residents, or individuals with certain relationships to U.S. citizens or lawful permanent residents.

On Monday, January 25, 2021, President Biden issued a proclamation to prohibit the entry into the U.S. by all foreign nationals, immigrant or nonimmigrant, who were physically present within the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa during the 14-day period preceding their entry or attempted entry into the U.S.

As detailed in earlier Seyfarth announcements, this is not the first travel restriction to be implemented as a result of the novel coronavirus referred to as “COVID-19.”  Nearly a year ago, on January 31, 2020, former President Trump implemented a similar travel restriction for foreign nationals traveling from China, and an additional restriction on February 29, 2020, limiting travel from Iran.  Both of these travel restrictions remain active.  On March 11, 2020, the former president issued a proclamation to suspend travel to the U.S. by all foreign nationals traveling to the U.S. who were present in the Schengen Area within the 14-day period prior to their attempted arrival.  Immediately prior to his departure from office, former President Trump terminated his prior orders prohibiting travel from Europe and Brazil, which termination was set to take effect on January 26.  Through the present proclamation, the Biden administration reinstates the travel restrictions for the Schengen Area, Brazil, Ireland, and United Kingdom, and expands the list to include South Africa.

Certain foreign nationals will not be subject to the most recent set of travel restrictions.  Notable exceptions include:

  • Lawful permanent residents (“Green Card” holders);
  • Spouses of U.S. citizens or lawful permanent residents;
  • Parents or guardians of U.S. citizens or lawful permanent residents who are unmarried and under twenty-one years old;
  • Siblings of U.S. citizens or lawful permanent residents, provided that both individuals are unmarried and under twenty-one years old; and
  • U.S. military personnel, along with their spouses and children.

Similar to the order imposed by his predecessor, President Biden’s proclamation has also reserved an exception for any foreign national who has received an invitation from the U.S. government to enter the United States for a cause related to the containment or mitigation of the virus.  Further exceptions are detailed in the proclamation itself.

Following its implementation at 12:01 a.m. EST on Tuesday, January 26, 2021, this travel restriction will remain in effect until terminated by the President.

Seyfarth will issue subsequent alerts as the situation continues to develop.  Should you have any questions, please contact one of the authors or your Seyfarth contact.

Continue Reading Previous Travel Restrictions Reinstated and Expanded As a Result of COVID-19

Update to our previous Blog Post:

Readers will be pleased to learn that the DHS did not submit its scaled-back “H-1B Strengthening” rule by the expiration of the deadline for final rules issued by the Trump Administration.  As a result, the H-1B Strengthening rule is subject to a comprehensive freeze on Trump-era late-filed and unfiled regulations issued or to be ordered by the Biden Administration. Without formal action by the Biden Administration, the Strengthening rule will not take effect. The same fate is likely for the DOL guidance documents described in this post. Thus, the July 14, 2021 effective date of the Strengthening rule is off the table for now.  Phew!

Please review our recent update regarding the content of this blog post.

By Angelo A. Paparelli and Gabriel Mozes

In its waning hours, the Trump Administration announced comprehensive, burdensome changes to H-1B visa requirements for multiple firms across virtually all industries.  Fortunately, however, the changes are set to detonate on a long fuse, i.e., by July 14, 2021, unless the Biden Administration, Congress or the Courts sooner intervene.  The effects of these changes will be felt by every company that allows H-1B workers to perform services in specialty occupations at its worksite through a contractor, staffing company, or professional employer organization (PEO).

Presently, the obligation of compliance with H-1B requirements affecting required wages, working conditions, benefits and other labor protections under the Immigration and Nationality Act (INA) is imposed solely on the entity directly employing and paying the noncitizen worker and submitting an H-1B visa petition with U.S. Citizenship and Immigration Services (USCIS). Continue Reading Trump Administration Midnight H-1B Changes Purport to Impose New Burdens on Staffing Firms, Service Providers, and Their Corporate Customers

By: Angelo A. Paparelli  

Microscopic view of Coronavirus, a pathogen that attacks the respiratory tract. Analysis and test, experimentation. Sars. 3d render

With the COVID-19 pandemic still in full force, nonimmigrants traveling to the United States should expect no lifting of visa and entry bans as the Biden Administration comes to power – notwithstanding late-breaking changes announced by the outgoing Trump Administration.

In a surprise move, on January 18, 2021, President Trump issued a proclamation lifting COVID-19 visa and entry bans for certain nonimmigrant entrants arriving in the U.S. from the United Kingdom, the Republic of Ireland, Brazil and the Schengen Area countries of Europe.  This followed a  January 12, 2021 order by the Centers for Disease Control and Prevention (CDC) requiring proof of a negative COVID-19 viral test (taken three days before departure), or documentation of having recovered from COVID-19, for all international air passengers arriving in the United States.  Both changes were set to take effect on January 26, 2021.

Hopes for the lifting of COVID-19 visa and entry bans were soon dashed, however, by incoming White House Press Secretary Jen Psaki. She posted back-to-back tweets making it clear that there would be no relaxation of the bans for Europe and Brazil in the short term:

On the advice of our medical team, the Administration does not intend to lift these restrictions on 1/26. In fact, we plan to strengthen public health measures around international travel in order to further mitigate the spread of COVID-19.

With the pandemic worsening, and more contagious variants emerging around the world, this is not the time to be lifting restrictions on international travel.

Nonetheless, according to the Washington Post, incoming President Biden will rescind the existing Trump administration (non-COVID) travel ban affecting predominantly Muslim countries by executive order on his first day in office.

* * *

For advice on immigration-related policy advocacy, litigation, or benefits compliance relating to these developments, Seyfarth invites employers to reach out to the lawyers in the firm’s Business Immigration Group.

By  Dawn Lurie and Tieranny L. Cutler

Likely triggered by complications resulting from the COVID-19 pandemic[1] and increases in processing times to replace permanent resident cards, United States Citizenship and Immigration Services (USCIS) announced on January 12 that the agency will issue a revised Form I-797, Notice of Action, for all Form I-90[2] applications filed beginning in January 2021. This I-797 notice will serve as a receipt notice for the I-90, as well as extend the validity of a Permanent Resident Card (“PRC” or “Green Card”) for 12 months from the “Card Expires” date on the front of the card. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification, as well as for travel and identity purposes.

This seemingly small change has more complicated implications for employers than appears at first blush. Continue Reading Another Day, Another Rule to Remember: USCIS Adds New I-9 List A Document Combo

By Dawn Lurie

With a new Administration moving into Washington D.C. amidst tension and confusion, immigration compliance remains top of mind for employers.  I know that because I hear from H.R. leadership, General Counsel’s offices, administrators running small family businesses, and shift managers at local pizza places across the country.  Some companies tell me they continue to “work from home,” some never left the workplace, and others are operating in a hybrid model.  Whatever the industry, wherever the location, and no matter the size, we are witnessing a significant shift in the onboarding process to produce outcomes similar to those achieved in-person; how we complete the Form I-9 is no exception.

The COVID-19 pandemic continues to disrupt technological barriers that prevented remote work in the past. In doing so, it is forcing changes to the onboarding process while simultaneously addressing health and safety concerns. Employers facing these vexing Form I-9 compliance issues and ongoing confusion are hungry for more explicit directives from the government, and in turn, the government is trying to keep pace.  I am hopeful that the new administration, along with the hardworking career government corps, will recognize these challenges and partner with companies as they create effective and safe processes that meet the challenges of 2021, including those hurdles presented in 2020.

Below, we travel back into 2020 in order to flag concerns and frame various I-9 issues for employers, including a slightly updated set of Form I-9 Examples Related to Temporary COVID -19 Policies posted on I-9 Central’s Temporary Policies Related to COVID-19 page, as well as an October 2020 update to the M-775, E-Verify User Manual, concerning Tentative Non Confirmation (TNC) practices. Continue Reading What’s New in the New Year? Initial I-9 Musings & Treasures from 2020