Immigration Quick Takes — November 2021

Current Status of Travel Restrictions and Vaccine Requirements

On October 25, President Biden issued A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic. Effective as of November 8th, the Proclamation revokes the country-by-country restrictions implemented early in the COVID-19 pandemic, replacing them with new policies aiming to limit the risk of COVID-19 variants being introduced and spread throughout the United States. With the revocation of the country-by-country restrictions, National Interest Exceptions (NIEs) are no longer required for foreign nationals traveling from formerly-restricted countries and regions including China, India, and the Schengen Area, among others. 

travel proclamation

The new Proclamation restricts travel for certain individuals who are not fully vaccinated against COVID-19. In limiting the restrictions in this way, the Proclamation also establishes that fully vaccinated individuals can resume travel to the United States in accordance with Centers for Disease Control (CDC) guidelines. Under the current guidelines, to travel to the U.S. by plane, an individual must be fully vaccinated, must show a negative COVID-19 test result or documentation of recovery from COVID-19, and must wear a mask during transit, with limited exceptions. Testing requirements may vary depending on age and vaccination status. 

Under the Proclamation, the CDC is also responsible for implementation and enforcement of the new travel restrictions, including defining and specifying accepted COVID-19 vaccines. As of today, accepted COVID-19 vaccines include:

  • FDA Authorized/Approved: Moderna, Johnson & Johnson and Pfizer-BioNTech
  • WHO Approved: Johnson & Johnson, Pfizer-BioNTech, Moderna, AstraZeneca, Covaxin,  Covishield, BIBP/Sinopharm, Sinovac

The CDC is regularly publishing up to date information regarding travel requirements and recommendations on their website and has developed an online tool to guide individuals through the requirements for air travel and entry to the U.S., which is available here.  

H-4 and L-2 Work Authorization Settlement

The American Immigration Lawyers Association (AILA) and litigation partners reached a settlement with USCIS after suing the agency over the long-delayed processing times for L-2 and H-4 dependent EADs (Shergill, et al. v. Mayorkas, 11/10/21). The settlement establishes that H-4 and L-2 spouses with EADs will receive an automatic extension of employment authorization for 180 days while an EAD renewal is pending with USCIS provided that the underlying H-4 or L-2 status continues to be valid based on an unexpired I-94. In addition, USCIS has agreed to provide L-2 spouses work authorization incident to status, meaning that EADs will not be required for the spouses of L-1 intracompany transferees.

Note that the 180-day automatic extension will, in practice, be of limited value to H-4 spouses as it requires that they be maintaining  H-4 status authorized by an unexpired I-94 to be eligible for the extension of work authorization. Commonly, an H-4 EAD extension is filed together with an H-4 extension of status application. While a timely-filed extension of status application allows the applicant to remain in the U.S., it does not provide valid H-4 status until approved. This means that when the H-4 spouse’s I-94 expires, even with an extension of status application pending, their 180-day automatic extension of work authorization will expire at the same time. While the same rule applies to L-2 spouses, the policy change providing L-2 spouses with work authorization incident to status will eliminate the need for an L-2 spouse to have a valid EAD and will make the 180-day automatic extension rule irrelevant to L-2 spouses.

These significant policy changes will come into effect within 120 days of the November 2021 Effective Date of the settlement. Further guidance from USCIS is updating policy to address I-9 requirements and to confirm that spouses in E-2 status will also be work authorized incident to status.  

DOL Requests Employer Input on Remote I-9 Flexibility

In March 2020,  the Department of Homeland Security (DHS) announced flexibility in complying with I-9 requirements due to the COVID-19 pandemic, allowing employers to defer physical presence requirements and authorize remote examination of documents. DHS is now seeking public input on employer and employee experiences with the remote I-9 process to assess the costs and benefits of continuing and/or making permanent remote examination of documents. This is an opportunity for individuals to provide feedback that could encourage DHS to make remote I-9 completion a permanent option for employers and employees. DHS is accepting comments until December 27, 2021. 

Individuals can submit comments online here.

Posted in Immigration Law

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