Immigration Update: May 2021

The State Department has expanded eligibility for national interest exceptions (NIE) to the regional COVID-19 travel bans in place for Brazil, China, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom.  Foreign nationals entering on an immigrant or fiancé(e) visa will qualify for national interest exceptions under the new policy. Certain exchange program visitors may also qualify, including certain J-1 au pairs, interns, trainees, and specialized teachers, among others. The new policy became effective immediately. However, many consulates worldwide are still operating at reduced capacity and facing steep application backlogs, so appointment delays are to be expected.^[1]

[1] Updates to National Interest Exceptions for Regional COVID Proclamations, released on April 8, 2021, can be found here.

Beginning May 4, 2021, the United States restricted travel from India due to the unprecedented outbreak of COVID-19 cases in India, with certain exceptions including travelling allowed for an individual who has a valid U.S. visa, should plan to return to the United States before May 4, 2021, must present a negative COVID-19 test, taken within three (3) calendar days of departure​, or proof of recovery from the virus within the last 90 days. Visa appointments through May 13, 2021, have been cancelled by U.S. consulates in India. Applicants should not appear at the document drop-off locations, as they will be turned away if the appointment has been cancelled. If emergency travel to the United States is required and an individual does not have a valid visa, some consulates may be accepting emergency appointments on a limited basis.^[2]

[2] Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019, issued by the Executive Office of the President on May 6, 2021, can be found here.

On April 29, 2021, the United States Supreme Court ruled that the Department of Homeland Security failed to properly notify an immigrant regarding his obligation to appear for a hearing in removal proceedings. In a 6-3 decision, the Court held that federal law mandates that enforcement authorities include all statutorily required information – including the charges against them, where and when they must appear in court – in a single document, entitled a “notice to appear,” rather than in multiple documents spread out over days, months, or even years. The Court held that the government must serve a single document that includes all the required information for the notice to appear to trigger the IIRIRA’s stop-time rule. Justice Neil Gorsuch wrote “the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him.”^[3]

The ruling will affect thousands of immigrants facing deportation across the United States. For many years, immigrants were denied relief due to the issuance of this notice, even if it omitted certain critical information, such as the time, date, and location of the hearing.

[3] Niz-Chavez v. Garland, Docket No.19-863 (April 28, 2021), can be found here.

On April 23, 2021, the United States Supreme Court heard oral arguments on whether individuals who initially entered the United States without permission and subsequently granted Temporary Protected Status (TPS) are eligible to adjust to lawful-permanent-resident status without leaving the United States. If the individuals must leave the United States, they become subject to three or 10 year bars to admission to the United States. During the oral arguments, the Justices seemed skeptical of whether immigrants who were granted TPS in the United States would become eligible to apply for a green card to remain in the United States permanently.

Generally, for someone to be sponsored for permanent residence by a family member while residing in the United States, the immigrant must have been lawfully inspected and admitted into the country at a port of entry, such as at an airport, on a ship, or at designated points on the U.S. land borders with Mexico and Canada. The individuals who brought the lawsuit currently pending before the Court – two El Salvador citizens who have New Jersey residents for over 20 years – were granted TPS in the United States following the 2001 earthquakes in Central America that devastated millions of lives. They argued that in granting their applications for TPS, the Department of Homeland Security had “admitted” them into the country, thus making them eligible for green cards.

Six of the Justices were skeptical of the immigrants’ arguments, concerned that permitting TPS holders to apply for a green card would subvert the meaning of the term “admission.” Conversely, Justice Sotomayor agreed that a grant of TPS would constitute an admission, although she appeared to be alone in this opinion.^[4]

[4] Sanchez v. Mayorkas, No. 20-315, can be found here.

On April 27, DHS Secretary Alejandro Mayorkas stated that, in an effort to balance the need for immigration enforcement efforts with the need for a safe and supportive judicial system that can provide adequate justice, authorities will substantially limit immigration arrests in or near courthouses across the United States.

The new move will reverse a Trump administration policy that expanded immigration arrests in and near courthouses. Mayorkas stated that the “expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement.” Under the new policy, an immigration arrest in or near a courthouse would only be permitted if the case involved national security, someone’s life or public safety was in danger, or if there was an imminent risk of destruction of evidence in a criminal matter.^[5]

[5] DHS Announces New Guidance to Limit ICE and CBP Civil Enforcement Actions In or Near Courthouse, issued on April 27, 2021, can be found here.

On April 1, 2021, ICE announced that I-9 flexibility will be continued for another 60 days, until May 31, 2021.  With this extension, ICE specifically noted that employees hired on or after April 1, 2021 who work exclusively in a remote setting due to COVID-19 related precautions will be exempt from the I-9 physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis or until the flexibility policy is terminated which is earlier.”^[6]

[6] ICE announces extension, new employee guidance to I-9 compliance flexibility, issued on March 31, 2021, can be found here.

On April 22, 2021, The Department of Homeland Security announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. The additional visas will be made available in the coming months via a temporary final rule in the Federal Register. ^[7]

[7] DHS to Make Additional 22,000 Temporary, Non-Agricultural Worker Visas Available, released on April 20, 2021, can be found here.

On June 24, 2020,  proclamation set forth by the Trump Administration restricted the U.S. Consulates from issuing the nonimmigrant work visas along with dependent spouses and children, which finally expired on March 31, 2021.^[8] The Biden Administration has announced that it will not extend the proclamation. However, future visa appointment availability remains limited due to reduced U. S. consular operations in these countries. Regional COVID travel restrictions for Brazil, China, Iran, South Africa, the Schengen Area, Ireland and the United Kingdom remain in place. A negative COVID test or evidence of recent COVID recovery is also required for air travel to the United States.

[8] Presidential Revocation Order 10149 of February 25, 2021 {Federal Register Vol. 86, No. 38 Monday, March 1, 2021}, can be found here.

USCIS announced on April 28, 2021, that it will reinstate its original policy established in 2004, of deferring to prior determinations of eligibility, which was rescinded by the Trump Administration. This means that prior determinations made by USCIS will receive deference unless “there was a material error, material change in circumstances or in eligibility, or new material information” that would have an adverse impact on eligibility. This change is a result of  President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.^[9]  The return of the deference policy would restore a degree of consistency that is necessary for family security, the smooth flow of business, and continuing economic growth.

Under the reinstated policy, if an officer does not defer to prior approval, the officer must: Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny); Articulate the reason for the lack of deference; Provide the petitioner or applicant an opportunity to respond to any new information; and Importantly, obtain supervisory approval before deviating from prior approval. If the problem is one of inadmissibility or of failure to maintain status, it will be up to a consulate to make the final determination. The executive order directed the secretaries of State and Homeland Security, as well as the attorney general, to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers.” According to USCIS, giving deference to prior adjudicated approvals involving the same parties (e.g., same petitioning employer and beneficiary employee in an extension of status continuing the same employment) “promotes efficient and fair adjudication of immigration benefits.”

[9] Executive Order on “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”, signed on February 2, 2021, can be found here;  This order was meant to break down barriers to fair and efficient USCIS adjudications, among other things.

As of May 1, 2021, New Jersey residents are eligible to apply for driver’s license in the state of New Jersey regardless of an undocumented immigration status.

Applications for the driver’s license require applicants to show proof of age, identity, and residence to start the process of applying for a license. The state requires any documentation in a foreign language to be translated into English by a professional. A list of acceptable documents can be found on the state’s website.