The Department of Homeland Security has temporarily eased certain regulatory requirements for some F-1 students from Hong Kong.

Key Points:

  • Hong Kong residents who are F-1 nonimmigrant students and are “experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong” can now:
    • Request employment authorization from Nov. 26, 2021, through Feb. 5, 2023.
    • Work an increased number of hours while in school is in session.
    • Reduce their course load while continuing to maintain their F-1 student status.
  • To be eligible, individuals must have been lawfully present in the United States in an F-1 nonimmigrant status on Nov. 26, 2021.
  • 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:
    • An undergraduate student is registered for a minimum of six semester or quarter hours per academic term.
    • A graduate level student is registered for a minimum of three semester or quarter hours per academic term.

Background: In August, President Biden issued a memorandum to defer the removal of certain Hong Kong residents who are in the U.S. for 18 months because of the current circumstances in Hong Kong. DHS has now taken action to help F-1 nonimmigrant students who are Hong Kong residents facing economic hardships, regardless of their country of birth. 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 © 2021 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. Citizenship and Immigration Services (USCIS) announced Thursday that it would temporarily waive a requirement that civil surgeons sign a mandatory medical report no more than 60 days before applicants submit adjustment of status applications.

Key Points:

  • USCIS will accept applications for an underlying immigration benefit even if the civil surgeon signed the Form I-693, Report of Medical Examination and Vaccination Record more than 60 days earlier, including the Form I-485, Application to Register Permanent Residence or Adjust Status.
  • This waiver will remain in place until Sept. 30, 2022.
  • USCIS said the waiver would help applicants who have been impacted by the COVID-19 pandemic and related processing delays. The agency said the waiver would benefit a number of applicants, including Afghan nationals who were evacuated from Afghanistan and completed medical examinations but were not able to apply for adjustment of status within 60 days.

Additional Information: USCIS’s policy alert on this change is available here.

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

Copyright © 2021 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. Citizenship and Immigration Services (USCIS) has sent a rule that will expand premium processing to additional benefit request types to the Office of Management and Budget (OMB) for review. The text of the rule is not yet available.

Key Points:

  • OMB review is the last step in the rulemaking process before the agency can publish the rule.
  • USCIS will post the text for public inspection at least a day before officially publishing the rule in the Federal Register.
  • The rule is classified as a “Final Rule,” which means a full notice-and-comment period is not expected. It is not yet known when the rule will take effect.

Background: In October 2020, Congress passed a funding bill that contained changes to premium processing, including increasing fees and giving USCIS authority to expand premium processing to additional petition types designated in the law. BAL will continue monitoring the USCIS rule and will provide updated information as it becomes available.

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

Copyright © 2021 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 U.S. Senate voted 50-47 to confirm former Tucson Police Chief Chris Magnus to be the commissioner of U.S. Customs and Border Protection (CBP).

Key Points:

  • Magnus will be CBP’s first Senate-confirmed commissioner since April of 2019.
  • Over the course of a career in law enforcement, Magnus served in various ranks in the Lansing Police Department in Lansing, Mich., before serving as police chief in Fargo, N.D., Richmond, Calif., and then Tucson, Ariz.
  • When President Joe Biden announced Magnus’ nomination, the White House said that Magnus had a “reputation as a progressive police leader who focused on relationship-building between the police and community, implementing evidence-based best practices, promoting reform, and insisting on police accountability.”

Additional Information: The Senate has now confirmed four of Biden’s appointments to key immigration posts: Magnus; Alejandro Mayorkas as Secretary of Homeland Security, Ur Mendoza Jaddou as director of U.S. Citizenship and Immigration Services (USCIS); and Rena Bitter as Assistant Secretary of State, Consular Affairs. The Senate is expected to vote on Biden’s pick for director of U.S. Immigration and Customs Enforcement (ICE), Ed Gonzalez, soon.

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

Copyright © 2021 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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of Nov. 30, the department was adjudicating applications filed in June and earlier, conducting audit reviews on applications filed in February and earlier, and reviewing appeals for reconsideration filed in June and earlier.

Average PERM processing times:

  • Adjudication – 158 days.
  • Audit review – 310 days.

PWD Processing: As of Nov. 30, the National Prevailing Wage Center was processing PWD requests filed in May and earlier for H-1B (OES) cases, March and earlier for H-1B (non-OES) cases, April and earlier for PERM (OES) cases and February and earlier for PERM (non-OES) cases, according to the Labor Department. Redeterminations were being considered on appeals filed November and earlier for H-1B cases and October and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in November and earlier.

BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in June and earlier and is starting to see PWDs for requests filed in May and earlier for H-1B (OES) cases, March and earlier for H-1B (non-OES) cases, April and earlier for PERM (OES) cases and February and earlier for PERM (non-OES) cases.

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

Copyright © 2021 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 U.S.’ new pre-departure COVID-19 testing protocols for inbound international air travelers will take effect on Monday, Dec. 6.

Key Points:

  • Beginning Dec. 6 at 12:01 a.m. EST, travelers entering the U.S. by air will be required to show a negative COVID-19 viral test result taken no more than one day before travel or documentation of having recovered from COVID-19 in the past 90 days, before they board their flight.
  • Air passengers will also be required to attest that the information they present is true.
  • The requirement will apply to anyone ages 2 and older traveling to the U.S. by air, including U.S. citizens, regardless of vaccination status.
  • The requirement will not apply to individuals crossing land borders or arriving at seaports.
  • The testing requirements are in addition to the vaccination requirements for nonimmigrant foreign nationals that took effect Nov. 8.
  • Additional information is available here on the Centers for Disease Control and Prevention (CDC) website.

Background: President Joe Biden announced the new testing requirement Thursday as part of a broader strategy to fight COVID-19 and mitigate the spread of the Omicron variant. Earlier this week, the U.S implemented new restrictions on travel from South Africa and seven other countries following the emergence of the new variant. The White House also said Thursday it would extend a requirement that individuals wear a mask on airplanes, trains and public transportation and at indoor transportation hubs, including airports.

BAL Analysis: The Biden administration took steps this week to tighten travel protocols following the emergence of the Omicron variant of the COVID-19 virus. Anyone traveling internationally should arrange to be tested within one day of returning to the United States, and should anticipate the possibility that travel protocols may change with little notice. Employers and employees should continue to consult their BAL professional before planning international travel.

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

Copyright © 2021 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 U.S. business community continues to show strong support for Deferred Action for Childhood Arrivals (DACA), with companies and trade organizations urging the Biden administration and Congress to take action to protect the program.

In September, the Department of Homeland Security published a proposal that would “preserve and fortify” DACA through notice-and-comment rulemaking. The proposal drew more than 16,000 comments in a 60-day period that ended this week.

“The DACA program has produced tremendous benefits—for DACA beneficiaries, for businesses, and for the entire U.S. economy,” said the Coalition for the American Dream, in a comment signed by more than 30 companies and trade organizations, including BAL.

The Presidents’ Alliance on Higher Education and Immigration said DACA “has opened the door for hundreds of thousands of recipients to more easily access higher education at both the undergraduate and graduate levels.” The Business Roundtable, an association of chief executive officers of America’s leading companies, noted that 49 percent of the Dreamer population works in essential industries, including thousands involved in the response to the COVID-19 pandemic.

“Despite their integral roles in our communities, Dreamers continue to live with the uncertainty of ongoing litigation,” the Business Roundtable said. “As we work to reinvigorate the U.S. economy, we need their continued contributions and urge the agency to finalize this regulation.”

DACA remains under threat in court. In July, a federal judge in Texas ruled that DHS did not follow proper procedures when it created the program in 2012. The U.S. appealed the ruling in September. Secretary of Homeland Security Alejandro N. Mayorkas has said that while regulatory action is an important step in protecting DACA recipients, only Congress can provide Dreamers full protection and a path to citizenship.

“We believe that protecting the DACA program and its 800,000 recipients isn’t just the right thing to do, it also provides sustainable long-term benefits to the U.S. economy,” said a group of leading tech companies in a joint comment. “While we know this rulemaking will provide certainty to DACA recipients, we will continue to support efforts in Congress to pass legislation to permanently protect DACA recipients.”

BAL Analysis: DHS will now review the comments before publishing a final regulation. Anticipated legal challenges could affect implementation. At this time, DHS continues to adjudicate only renewal applications for existing DACA recipients. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.

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

Copyright © 2021 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 said Thursday that the U.S. would toughen pre-departure COVID-19 testing protocols for inbound international travelers.

Key Points:

  • Under the plan, the U.S. will require inbound international travelers to test negative for COVID-19 within one day of departure for the U.S., regardless of their vaccination status or nationality.
  • Until the new rule takes effect, the one-day time frame only applies to inbound air travelers who are not fully vaccinated. Fully vaccinated travelers are currently required to test negative for COVID-19 within three days of departure.

Additional Information: Biden announced the new testing requirement as part of a broader strategy to fight COVID-19 this winter and mitigate the spread of the Omicron variant. Earlier this week, the U.S. implemented new entry restrictions on travel from South Africa and seven other countries following the emergence of the new variant. The White House also said that it would extend a requirement that individuals wear a mask on airplanes, trains and public transportation and at indoor transportation hubs, including airports. The White House fact sheet indicates the stricter testing requirement will take effect “early next week,” but as of 5 p.m. EST, the White House had yet to announce an implementation date.

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

Copyright © 2021 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.

IMPACT – HIGH

The U.S. and other countries around the world have imposed new entry and travel restrictions amid an outbreak of a new variant of the COVID-19 virus. Among those that have added new restrictions are:

  • United States. Under a White House proclamation that took effect today, the U.S. is barring entry to most foreign nationals who have been physically present in the past 14 days in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa or Zimbabwe. Read BAL’s full news alert here.
  • Australia. Australia has barred entry to foreign nationals who have been in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, Seychelles or Zimbabwe in the past 14 days. Australian citizens, permanent residents and their immediate family are permitted to enter Australia but must enter a supervised quarantine for 14 days, irrespective of vaccination status. More information is available here.
  • Canada. Foreign nationals who have been in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa or Zimbabwe in the previous 14 days are not permitted entry into Canada. Canadian citizens, permanent residents and individuals with status under the Indian Act who have been in these countries will be subject to enhanced screening, testing and quarantine measures. More information is available here.
  • European Union. EU member states agreed to impose temporary restrictions on travel into the EU by suspending passenger flights from Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa and Zimbabwe. Exact entry and travel policies will differ from country to country.
    • France. France suspended entry from Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa and Zimbabwe until at least Dec. 1 and added the seven countries to its “red list.” More information on France’s COVID-19 entry policies is available here.
    • Germany. Germany listed Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe as “virus variant” areas and temporarily halted all flights from the eight countries except for those carrying only German nationals. More information is available here. Information regarding individual exceptions can be found here.
    • Ireland. As of Nov. 26, passport holders from Botswana, Eswatini, Lesotho, Namibia and South Africa are required to apply for an entry visa, or transit visa, as appropriate, before traveling to Ireland. Further, Ireland has imposed new testing and quarantine requirements on anyone traveling from Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa or Zimbabwe (regardless of vaccination status). Travelers from these countries, including Irish citizens, must take a PCR test before departing and must complete a 10-day home quarantine upon arriving. They must complete two additional tests during the quarantine and must test negative in order for the quarantine to end. Officials have also urged Irish nationals in the seven countries to return home. More information is available here.
    • Spain. Spain categorized Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa and Zimbabwe as high-risk countries. Travelers from high-risk countries are now required to quarantine for 10 days upon arrival and meet entry requirements listed here.
  • Israel. Israel banned the entry of foreign nationals for two weeks. Foreign nationals with a valid B-1 work visa and a multiple-entry visa will be able to enter the country, provided they adhere to health protocols, are eligible for an Israeli “green pass” and receive authorization to travel after completing an entry statement 48 hours before their flight. More information on entry requirements is available here.
  • Japan. Japan stopped accepting applications and issuing screening certificates until at least Dec. 31. Entry is limited to Japanese nationals and permanent residents, foreign nationals who hold reentry permits and foreign nationals who have special exceptional circumstances, subject to fulfilling all requirements. More information is available here.
  • New Zealand. New Zealand has barred entry to foreign nationals who have been in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, Seychelles, South Africa or Zimbabwe in the past 14 days. Foreign nationals traveling from Papua New Guinea are still barred entry as well. New Zealand citizens who have been in these countries are permitted to enter but must undergo testing and stay in managed isolation for 14 days (when traveling from the listed African countries) or seven days (when traveling from Papua New Guinea). More information is available here.
  • Philippines. The Philippines suspended inbound international flights from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa and Zimbabwe until Dec. 15. Passengers who are coming from or who have been to the aforementioned countries within the last 14 days before arrival are barred from entering the country. Travelers who are currently in the Philippines and have been in one of the countries listed above within seven days of the temporary entry suspension must quarantine for 14 days in a designated facility and undergo PCR testing. More information is available here.
  • Qatar. Qatar added Botswana, Eswatini, Lesotho, Namibia, South Africa and Zimbabwe to its “Exceptional Red List.” More information is available here.
  • Singapore. Long-term pass holders and short-term visitors who have been in Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa or Zimbabwe in the past 14 days are not permitted to enter or transit through Singapore. This restriction applies to those who have obtained prior approval to enter Singapore and to those who have not. Singaporean citizens and permanent residents will be permitted to return but will be subjected to a 10-day stay-home notice (SHN) at a dedicated SHN dedicated facility (SDF). More information is available here.
  • Switzerland. Switzerland suspended all direct flights from Botswana, Eswatini, Lesotho, Mozambique, Namibia, South Africa and Zimbabwe. Swiss nationals and residence permit holders will be able to return home from these countries on a “private basis,” meaning the government will not provide official repatriation flights. All travelers arriving from the seven African countries, Belgium, Hong Kong or Israel must provide a negative test result and quarantine for 10 days upon arrival. More information is available here.
  • United Kingdom. England temporarily halted flights from Botswana, Eswatini, Lesotho, Namibia, South Africa and Zimbabwe. England also added these six countries and Angola, Malawi, Mozambique and Zambia to its COVID-19 “red list.” Updated guidance states that from 4 a.m. on Nov. 30 fully vaccinated travelers must take a PCR test before the end of day two of arrival and self-isolate until a negative result is received. More information is available here.

BAL Analysis: The Omicron variant of the COVID-19 virus will make travel to and from a number of countries in Southern Africa more difficult in the days and weeks ahead. BAL will continue to monitor implementation of the new restrictions and will provide updates as information becomes available. BAL continues to urge foreign nationals to consult their BAL professional before planning international travel as travel restrictions may change with little notice.

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

Copyright © 2021 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 U.S. will impose new travel restrictions Monday on South Africa and seven other African countries following the emergence of a new variant of the COVID-19 virus.

Key Points:

  • Under a White House proclamation that will take effect at 12:01 a.m. EST on Monday, Nov. 29, the U.S. will bar entry to most foreign nationals who have been physically present in the past 14 days in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa or Zimbabwe.
  • The proclamation will apply to both immigrant and nonimmigrant foreign nationals.
  • The previous COVID-19 regional bans restricted both entry and visa issuance. The Nov. 26 proclamation makes the Department of State (DOS) responsible for implementation “as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish.” The agencies have not yet issued guidance confirming the process will be the same.
  • The proclamation will not apply to U.S. citizens, lawful permanent residents, spouses and close family members of U.S. citizens or lawful permanent residents, those traveling at the invitation of the U.S. government to help mitigate the COVID-19 virus, air and sea crew, noncitizens whose entry is deemed in the national interest, and a limited number of others. The full list is available here.

Additional Information: Under rules that took effect Nov. 8, foreign nationals are generally permitted to enter the U.S. if they are fully vaccinated against COVID-19. The restrictions on travel from the eight countries in Southern Africa will apply regardless of vaccination status, however. President Joe Biden said in a statement Thursday that the restrictions were imposed “as a precautionary measure until we have more information” about the Omicron variant.

BAL Analysis: The immigration agencies are expected to issue additional guidance on how they will implement the proclamation, including the “national interest” exception standard. BAL will continue to monitor implementation of the new restrictions and will provide updates as information becomes available. BAL continues to urge foreign nationals to consult their BAL professional before planning international travel as travel restrictions may change with little notice and could affect the ability of travelers to re-enter the U.S.

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

Copyright © 2021 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.