Updated 12/07/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
Deferred Action for Childhood Arrivals (DACA): On Friday, December 4, a federal judge ordered the administration to fully re-implement the DACA program. The DACA program was upheld by the U.S. Supreme Court in June 2020.
Visa Bulletin: The Department of State’s December Visa Bulletin is now available, and USCIS is accepting Dates for Filing for employment-based cases.
Visa Ban: As detailed in our earlier blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of October 1, 2020, court decisions affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. At this time, Department of State guidance requires that visa applicants have a relationship to one of the plaintiff organizations, such as the Chamber of Commerce. However, there does not appear to be a worldwide or standardized practice at visa-issuing posts; scheduling and issuances remain Embassy-by-Embassy. The ban is set to expire on 12/31 but may be extended.
COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that due to Embassy closures and differences in how Embassies are interpreting the bans, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, U.K., Ireland, China and Brazil remain in place.
Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least December 21, 2020.
Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.
NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.
USCIS and DOL Updates:
Premium Processing Service: USCIS raised the PPS filing fee to $2,500 for cases received on or after October 19, 2020. For an update on potential future changes to PPS, see our post here.
Public Charge: As of November 5, 2020, USCIS is once again permitted to enforce its public charge rule, e.g. the “wealth test.”
Fee Changes: USCIS filing fee and form changes were enjoined by a District Court as of September 29, 2020.
H-1B Rule: The administration is pushing forward with new rules on H-1Bs. The changes to prevailing wages went into effect on October 8 and was put on hold by a District Court on December 1. The restriction of the definition of “specialty occupation” is also now on hold by a District Court. On October 28, the administration released a proposed rule changing the H-1B registration from a random lottery selection to a wage-based selection process.
H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.
Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
Deadline Flexibility: In response to the COVID-19, USCIS will consider a response to an RFE, NOID, NOIR, and other requests and notices received up to 60 calendar days after the due date before taking any action. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive. See full announcement here.
Service center operations remain mostly unchanged.
U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html
Form I-9 Completion During COVID-19: See our August post for further information. The I-9 flexibility provisions have been extended to December 31, 2020.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020