A temporary policy allowing employers to accept expired List B identity documents during Form I-9 Employment Eligibility Verification will come to an end May 1.

Key Points:

  • Beginning May 1, 2022, employers will only be permitted to accept List B documents that are not expired.
  • Employers can continue to accept expired List B documents from now through April 30, 2022.
  • Employers are required to update their I-9 forms by July 31, 2022, for any employees who presented an expired List B document between May 1, 2020, and April 30, 2022.
  • If still employed, employees who were verified under the temporary policy must provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document or a document from List A.
  • U.S. Citizenship and Immigration Services (USCIS) provides specific instructions for updating and annotating the Form I-9 on its website. Information about acceptable I-9 documents can be found here on the USCIS website.

Additional Information: The Department of Homeland Security (DHS) adopted the temporary policy in May 2020 in response to the challenges people were facing getting List B documents renewed during the COVID-19 pandemic. DHS announced in March that the policy would end May 1. For more information on the updated requirements, please see the table on this USCIS website.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The Biden administration has formally launched “Uniting for Ukraine,” a humanitarian parole program that is key to its efforts to welcome 100,000 displaced Ukrainians to the U.S.

Key Points:

  • In order to participate in the program, Ukrainians must have a supporter in the U.S. who agrees to provide them with financial support during their time in the country.
  • U.S.-based supporters must first file the Form I-134, Declaration of Financial Support, with U.S. Citizenship and Immigration Services (USCIS) on behalf of a Ukrainian beneficiary. The government will vet applicants to ensure they can meet their financial obligations. USCIS began accepting applications Monday. Detailed information on who can be a supporter is available here.
  • In order to become a beneficiary, an individual must be a Ukrainian citizen (or the immediate family member of a Ukrainian citizen), must have resided in Ukraine as of Feb. 11 and must have been displaced by the invasion. They must also pass biographic and biometric security checks. The full list of criteria is available here.
  • Beneficiaries will be considered for humanitarian parole for up to two years in the U.S. Once paroled into the U.S., they will be eligible to apply for work authorization. The program does not provide a direct pathway to permanent residence.
  • The administration announced the creation of “Uniting for Ukraine” last week, saying it would supplement existing legal pathways for coming to the U.S., including immigrant and nonimmigrant visas and refugee processing.

Additional Information: The U.S. has taken a number of steps in response to the invasion of Ukraine, including designating Ukraine for Temporary Protected Status (TPS), suspending some employment authorization requirements for certain students from Ukraine and exempting some individuals traveling from Ukraine from COVID-19 vaccination and testing requirements. The State Department pledged additional resources last week, including resources to process Ukrainian citizens for refugee resettlement under the Lautenberg Program, expand mechanisms for referrals to the U.S. Refugee Admissions Program (USRAP), and broaden access to nonimmigrant visa processing at U.S. embassies and consulates in Europe. BAL will continue to follow the administration’s response to the crisis in Ukraine and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The Centers for Diseases Control and Prevention (CDC) has announced that certain travelers departing from Shanghai, China, are exempt from the pre-departure COVID-19 testing requirement.

 Key Points:

  • The following individuals are temporarily not required to have proof of a negative pre-departure COVID-19 test or previous recovery from COVID-19 to enter the U.S. when departing from Shanghai, China.
    • U.S. citizens.
    • U.S. nationals.
    • Lawful permanent residents (LPRs).
    • Noncitizens who have a valid U.S. immigrant visa.
    • Noncitizen nonimmigrants who are traveling with a U.S. citizen or LPR and possess valid travel documents allowing them to travel to the U.S.
  • The CDC has waived the COVID-19 testing requirement for such individuals through at least May 11.

Additional Information: The CDC said it implemented the exemption at the request of the U.S. State Department and after it determined “that the current exigent circumstances in Shanghai, China may preclude individuals from meeting the requirements of CDC’s amended Testing Order.” The U.S. State Department recently ordered the departure of nonemergency employees and their family members from the Consulate General Shanghai district. The U.S. has advised against travel to Shanghai at this time due to “COVID-19-related restrictions, including the risk of parents and children being separated.”

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com. 

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

U.S. Immigration and Customs Enforcement (ICE) announced today that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic.

Key Points:

  • ICE extended the temporary measures until Oct. 31, 2022. The guidance had been scheduled to expire April 30.
  • The guidance temporarily allows employers operating remotely due to COVID-19 to conduct verification of employee documents virtually, e.g., by using fax, email or video link, for the purpose of Form I-9 employment eligibility verification procedures. Employers that follow the virtual procedures must comply with certain guidelines when “normal operations” resume, including conducting physical inspection of documents that were viewed remotely within three business days.
  • The agency will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. The guidance temporarily exempts these employees from physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis” or until the extension of I-9 flexibilities ends, whichever is earlier.
  • Employers should consult the original March 2020 ICE guidance along with today’s announcement for eligibility requirements and information on how to obtain, remotely inspect and retain copies of identity and employment eligibility documents. U.S. Citizenship and Immigration Services (USCIS) has also provided guidance on how to properly complete and annotate the Form I-9.
  • Employers should monitor the Department of Homeland Security (DHS) and ICE websites for additional information about when the extensions will be terminated and normal operations will resume.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in December. DHS has indicated it is working toward proposing a permanent optional alternative to physical examination for certain employers in the coming months. The agency is currently accepting comments on a revised Form I-9, in anticipation of the current form’s Oct. 31 expiration date. BAL will provide updates as new information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

A rule that would temporarily increase the automatic extension period for employment authorization and documentation for certain renewal applicants has cleared White House Office of Management and Budget (OMB) review.

Key Points:

  • The text of the rule is not yet available. OMB review is the last step in the rulemaking process before U.S. Citizenship and Immigration Services (USCIS) can publish the rule in the Federal Register.
  • USCIS will post the text for public inspection at least a day before the rule is officially published.
  • The rule is classified as a “major rule.” Such rules generally require a 60-day implementation delay from the date of publication.

Background: The COVID-19 pandemic and related funding and staffing issues have exacerbated backlogs across visa categories, and USCIS officials have said reducing wait times is one of the agency’s top priorities. This rule is part of a package of initiatives USCIS announced in March to address processing delays. The agency is also working to expand premium processing, hiring more staff and taking steps to improve case processing technology. More information is available here.

BAL Analysis: The temporary rule could help provide much-needed relief to employers and employees affected by USCIS processing delays. However, information about the scope and the effective date will not be available until the text of the rule is published. BAL will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The Department of Homeland Security (DHS) announced today that it would extend the COVID-19 vaccination requirement on non-U.S. travelers entering the U.S. through land ports of entry and ferry terminals.

Key Points:

  • DHS will continue to require travelers who are not U.S. citizens, nationals or lawful permanent residents entering the U.S. by land or ferry to be fully vaccinated against COVID-19.
  • With limited exceptions, individuals who have not been fully vaccinated against COVID-19 or do not have proof that they are fully vaccinated will not be able to travel by land or ferry from Canada or Mexico.
  • The policy will remain in place until further notice.
  • COVID-19 testing is not required to enter the U.S. through land ports of entry or ferry terminals.

Additional Information: The COVID-19 vaccination requirements have been in place for nonessential travelers since November 2021 and for essential travelers since January 2022. Employers and employees should continue to consult their BAL professional before planning any international travel.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

President Joe Biden announced Thursday the creation of a new humanitarian parole program for Ukrainians fleeing their country because of Russia’s invasion.

Key Points:

  • The program, called Uniting for Ukraine, will go live April 25, 2022.
  • Beginning on that date, U.S. individuals and entities will be able to apply to the Department of Homeland Security (DHS) to sponsor Ukrainian citizens who have been displaced because of the invasion.
  • In order to be eligible for the program, Ukrainians must have been residents of Ukraine as of Feb. 11, 2022, have a U.S.-based sponsor, complete vaccinations and other public health requirements and pass applicable screening and security checks.
  • Eligible Ukrainians will be considered on a case-by-case basis for humanitarian parole for up to two years in the U.S. Once paroled, they will be eligible for work authorization.
  • The administration stressed that Ukrainians will not be processed for the program at land borders. Beginning April 25, Ukrainians who are present at U.S. ports of entry without a valid visa or pre-authorization to travel to the U.S. will be denied entry and referred to apply through Uniting for Ukraine.

Additional Information: Uniting for Ukraine will be administered by DHS and will supplement existing legal pathways for coming to the U.S., including immigrant visas and refugee processing. In a statement, DHS said the U.S. “strongly encourages Ukrainians seeking refuge in the United States who do not have and are not eligible for a visa to seek entry via Uniting for Ukraine from Europe, this will be the safest and most efficient way to pursue temporary refuge in the United States.”

The State Department has also pledged additional resources, including resources to process Ukrainian citizens for refugee resettlement under the Lautenberg Program. It will also expand mechanisms for referrals to the U.S. Refugee Admissions Program (USRAP) and broaden access, where possible, to nonimmigrant visa processing at U.S. embassies and consulates in Europe. Consular sections will ensure individuals with humanitarian, medical or other extraordinary circumstances have access to expedited visa appointments.

BAL Analysis: Thursday’s announcement came after President Biden pledged on March 24 to welcome up to 100,000 individuals fleeing the Russian invasion of Ukraine. The U.S. has taken a number of steps to help Ukrainian nationals, including designating Ukraine for Temporary Protected Status (TPS), suspending some employment authorization requirements for certain students from Ukraine and exempting some individuals traveling from Ukraine from COVID-19 vaccination and testing requirements. BAL will continue to follow the administration’s response to the crisis in Ukraine and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

U.S. Immigration and Customs Enforcement (ICE) announced this week that it would continue to follow COVID-related guidance that allows some international students to take more online classes than normal.

Key Points:

  • ICE extended its guidance, originally issued in March 2020, without modification. ICE’s Student and Exchange Visitor Program (SEVP) will continue to follow the guidance for the 2022-23 academic year.
  • Under the guidance, continuing F and M nonimmigrant students may remain in the U.S. and take a fully online program of study if they have not otherwise violated the terms of their nonimmigrant status.
  • Students in new or initial status who are outside the U.S. may not enter the country if their program of study is 100% online. To be eligible to enter the U.S. in initial status, the student’s program of study must be an in-person program or a hybrid program that includes some in-person learning.

Background: ICE put the guidance in place in March 2020 as universities and colleges moved classes online because of the COVID-19 pandemic. ICE extended the policy last year and again this week. More information is available in this FAQ.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The Department of Homeland Security (DHS) announced that registration for Temporary Protected Status (TPS) for Ukraine would be open from Tuesday, April 19, through Oct. 19, 2023. DHS also announced it would temporarily suspend employment authorization requirements for certain F-1 students from Ukraine.

Key Points:

  • To be eligible for TPS, Ukrainian nationals (or those without a nationality who last resided in Ukraine) must demonstrate they have resided in the U.S. continuously since April 11, 2022, and have been continuously physically present in the U.S. since April 19.
  • Previously, DHS had said the residence cutoff date would be March 1; the agency subsequently moved the date to April 11.
  • Applicants have until Oct. 19, 2023, to register and complete Form I-821, Application for Temporary Protected Status. They may also request an Employment Authorization Document by submitting Form I-765.
  • Those who traveled to the U.S. after April 11 will not be eligible for TPS.
  • Ukrainian nationals (or those without a nationality who last resided in Ukraine) who are nonimmigrant F-1 students and are “experiencing severe economic hardship as a direct result of the current crisis in Ukraine” can now:
    • Request employment authorization from April 19, 2022, through Oct. 19, 2023.
    • Work an increased number of hours while school is in session.
    • Reduce their course load while continuing to maintain their F-1 nonimmigrant status.
  • DHS will consider F-1 nonimmigrant students who gain employment authorization engaged in a “full course of study” for the duration of their employment authorization if the nonimmigrant student satisfies the minimum course load requirement described here.

Additional Information: The decision to add Ukraine under TPS was made due to Russia’s military invasion, the country’s destroyed infrastructure and the scarcity of resources, among other reasons. DHS cited similar reasons in its decision to provide relief for nonimmigrant F-1 students. More information can be found here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.

The Department of Homeland Security (DHS) announced that registration for Temporary Protected Status (TPS) for Sudan would be open from Tuesday, April 19, through Oct. 19, 2023. DHS also announced it would temporarily suspend employment authorization requirements for certain F-1 students from Sudan.

Key Points:

  • To be eligible for TPS, Sudanese nationals (or those without a nationality who last resided in Sudan) must demonstrate they have resided in the U.S. continuously since March 1, 2022, and have been continuously physically present in the U.S. since April 19.
  • Applicants have 18 months, from April 19, 2022, through Oct. 19, 2023, to register and complete Form I-821, Application for Temporary Protected Status. They may also request an Employment Authorization Document by submitting Form I-765.
  • Those who traveled to the U.S. after March 1 will not be eligible for TPS.
  • Sudanese nationals (or those without a nationality who last resided in Sudan) who are nonimmigrant F-1 students and are “experiencing severe economic hardship as a direct result of the current crisis in Sudan” can now:
    • Request employment authorization from April 19, 2022, through Oct. 19, 2023.
    • Work an increased number of hours while school is in session.
    • Reduce their course load while continuing to maintain their F-1 nonimmigrant status.
  • DHS will consider F-1 nonimmigrant students who gain employment authorization engaged in a “full course of study” for the duration of their employment authorization if the nonimmigrant student satisfies the minimum course load requirement described here.

Additional Information: The decision to add Sudan under TPS was made due to the recent military takeover of Sudan’s government, political instability and ongoing humanitarian crisis. DHS cited similar reasons in its decision to provide relief for nonimmigrant F-1 students. More information can be found here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2022 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.