Immigrant Visas

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COVID-19-Related U.S. Travel Restrictions & Government Closures

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Updated May 29, 2020

Presidential Proclamation:

As noted in our blog post on April 22, the new Presidential Proclamation regarding immigration affects only consular processing immigrant visa cases, with certain exceptions. Nonimmigrant visas and statuses are unaffected; PERM, I-140, Adjustment of Status (I-485) and related filings are unaffected. See this post for a potential future issues for nonimmigrant visas.

USCIS Field Office Closures:

USCIS Field Offices remain closed through June 4, which means that in-person interviews like adjustment of status and naturalization interviews will be rescheduled for a later date. Some adjustment of status interviews may be waived. Naturalization oath ceremonies will be rescheduled or postponed. In the San Francisco Bay Area, future oath ceremonies will likely be smaller events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The local San Francisco office has also indicated that the oath may be administered at the conclusion of a naturalization interview going forward, where possible. Application Support Center appointments for biometrics will also be rescheduled or waived in some cases. USCIS Service Center operations continue, which means that regular filings are still being accepted. PPS continues to be suspended for all categories, and scanned signatures continue to be accepted.

https://www.uscis.gov/news/alerts/uscis-offices-preparing-reopen-june-4

Closure of Land Ports of Entry (Canada & Mexico):

On May 20, 2020, U.S. Customs & Border Protection extended the land border closure to 11:59 PM ET on June 22, 2020. Essential travel is excepted.

Canada: https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_us-canada-border.pdf

Mexico: https://www.dhs.gov/sites/default/files/publications/20_0519_as1_frn_us-mexico-border.pdf

Arrival Restrictions for Europe, China, Brazil:

Arrival restrictions for persons present in Europe (Schengen, U.K. Ireland) or China are continuing until cancelled or modified. Brazil was most recently added to the list, taking effect Tuesday, May 26, 2020 at 11:59PM ET. Brazil has been added to the list of various travel bans - the ban goes into effect at 11:59 PM eastern time today, Tuesday, May 26, 2020.

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

On May 29, 2020, the administration issued a Proclamation banning the entry of certain Chinese students and researchers on F or J visas. As there is currently already a travel ban on arrivals from China, it is unclear what additional effect this Proclamation will have.

Continued Embassy Closures:

Routine visa issuing operations at U.S. Embassies and Consulates worldwide continue to be suspended.

Satisfactory Departure for Visa Waiver Program (“VWP”) Visitors:

Satisfactory Departure is available for VWP visitors unable to depart within 90 days of admission because of COVID-19. Additional information is available in our blog post here.

Form I-9 Completion During COVID-19:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19. These changes are expected to last through at least mid-July, 2020.

I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19

Finally, DHS issued a new M-274 manual M-274, Handbook for Employers: Guidance for Completing Form I-9,  with expanded information on properly completing Form I-9, Employment Eligibility Verification, on April 28, 2020.

Disclaimer: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2020

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Presidential Proclamation Suspends Immigrant Visa Issuance for 60 Days

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On April 22, 2020, President Trump issued a Presidential Proclamation preventing entry to the U.S. by new immigrants by suspending the issuance of immigrant visas (green cards). This Proclamation does not suspend any existing visas or permanent residency applications that are in progress for applicants located in the United State.

Therefore, anyone with pre-existing green card processes such PERM labor certifications, I-140s, Adjustment of Status (I-485) applications, are not affected. The limitation only applies to applicants who are consular processing their immigrant visas (green cards) from outside the United States via an application at a U.S. Embassy or Consulate. Most U.S. Embassies and Consulates are currently closed and not accepting visa processing because of COVID-19.

There are numerous exceptions to the ban, which will not apply to spouses and minor children of U.S. citizens, certain medical workers, persons whose entry is in the national interest, members of the U.S. military, EB-5 investors, and anyone who is already a lawful permanent resident or who has already been issued an immigrant visa or other travel document.

The Proclamation takes effect on at 11:59 p.m. eastern daylight time on April 23, 2020 and is set to expire in 60 days.

© Jewell Stewart & Pratt PC 2020

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Update on Implementation of Public Charge Rule

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As previously posted, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the administration’s public charge rule, which cleared a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States starting on February 24, 2020.

The new rule drastically changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.), and affects not only family-based but also employment-based filings.

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Update on Expansion of Travel Ban 3.0

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On January 31, 2020, the Trump administration expanded the current Travel Ban (commonly referred to as “Travel Ban 3.0”), which has been deemed lawful by the U.S. Supreme Court, to include additional countries. As with prior versions of Travel Ban 3.0, the expansion suspends entry by preventing visa issuance to citizens and nationals of the listed countries. As the ban is a visa issuance restriction and not an entry restriction, nationals from the affected countries who already hold visas may continue to use those visas.   

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Travel Ban Expanded to Include Additional Countries

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On January 31, 2020, the Trump administration announced via Presidential Proclamation that, effective February 21, 2020 at 12:01 am eastern standard time, the travel ban will now apply to nationals from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

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Update on DHS and DOS Public Charge Rule

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Update:

USCIS announced on January 31, 2020 that it will implement the rule changes for filings received on or after February 24, 2020. New forms are to be released the week of February 3, 2020.

Original post:

As discussed in a prior post, the administration’s “public charge” rule changes the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.). While litigation has delayed the implementation of the rule, on Monday, January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against the rule, which clears a path for the Department of Homeland Security (“DHS”) to implement the public charge rule within the United States, except for Illinois, which has a statewide injunction that remains in place.

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Presidential Proclamation on Health Insurance for New Immigrants

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Update: This Presidential Proclamation is the subject of litigation. As of Saturday, November 2, 2019, there is a nationwide temporary restraining order against the enforcement of the Proclamation.

Original post:

On Friday, October 4, 2019, President Trump issued a Presidential Proclamation entitled Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, which imposes a health care insurance requirement on new immigrants. Specifically, it requires applicants for immigrant visas to show the ability to purchase unsubsidized commercial health insurance within 30 days of U.S. entry.

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DHS Publishes Final Rule Expanding Public Charge Ground of Inadmissibility

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Update: This regulation is the subject of litigation. As of Friday October 11, 2019, there is a nationwide injunction against the enforcement of this rule by DHS. The Department of State (“DOS”) version of the rule, however, went into effect on October 15, 2019, but as of October 15, 2019, the DOS has not yet implemented that rule.

Original post:

Effective October 15, 2019, unless halted by litigation, the standard by which a foreign national is determined to be “likely at any time to become a public charge” (and consequently inadmissible to the U.S.) will drastically change.

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Forms DS-160 and DS-260 now require disclosure of social media accounts

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On May 30, 2019, the U.S. Department of State added required questions about social media accounts or identifiers to the online nonimmigrant and immigrant visa application forms, the DS-160 and DS-260.  This means that anyone applying for a U.S. nonimmigrant visa (a temporary visa) or a U.S. immigrant visa (permanent residence, a green card) must disclose all social media accounts used in the last five years. Social media presumably will be reviewed by U.S. Consular personnel in the course of visa adjudications.

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New policy guidance drastically changes USCIS’s adjudications process, announces that denials will now result in removal (deportation) proceedings

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In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.