H-1B "cap" reached in 2023 (FY 2024)

On March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2024.

The USCIS announcement states:

“We randomly selected from among the registrations properly submitted to reach the cap, and have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration. Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

… H-1B cap-subject petitions for FY 2024, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2023, if based on a valid, selected registration. Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.”

In 2021 (FY 2022) a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. No additional selections took place in 2022 (FY 2023). USCIS has not yet announced whether and when an additional selection might take place in 2023 (FY 2024).

© Jewell Stewart & Pratt PC 2023

H-1B "cap" registration dates announced for 2023 (FY 2024)

On January 27, 2023, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years.

In its announcement USCIS stated that the registration period will open at 9:00am PT / 12:00pm ET on March 1, 2023 and will close at 9:00am PT / 12:00pm ET on March 17, 2023. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2023.

USCIS also stated that registrants will be able to create new accounts beginning at 9:00am PT / 12:00pm ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

© Jewell Stewart & Pratt PC 2023

USCIS Returns to Concurrently Processing H-4 and L-2 Dependent Applications

Pursuant to a recent settlement agreement, USCIS has agreed to resume its earlier practice of adjudicating I-539 status extensions and I-765 work permit applications at the same time that the principal’s I-129 is adjudicated - a.k.a. “bundling.” In recent years, dependents’ status extension and work permit applications would be adjudicated several months or even years later than the principal’s status extension filing. “Bundling” is only available for concurrently filed applications and will be applied to matters filed under regular or Premium Processing. The practice should be in effect for at least two years.

© Jewell Stewart & Pratt PC 2023

Negative COVID Test Required for all Travelers from China

March 15, 2023 update: CDC posted a notice in the Federal Register effective March 10, 2023, rescinding pre-flight testing requirement for persons traveling from China.

Original post:

Starting at 12:01 AM ET on January 5, all passengers originating from China, Hong Kong, and Macau will be required to provide a negative COVID test or documentation of recovery to board a flight to the United States. The requirement applies to all travelers regardless of nationality or vaccination status.

According to the CDC alert:

“[A]ll air passengers two years and older originating from the PRC will be required to get a test (such as a PCR test or an antigen self-test administered and monitored by a telehealth service or a licensed provider and authorized by the Food and Drug Administration or the relevant national authority) no more than 2 days before their departure from the PRC, Hong Kong, or Macau, and show a negative test result to the airline upon departure.

• The requirement applies to these air passengers regardless of nationality and vaccination status.

• This will also apply to persons traveling from the PRC via third country transit and to passengers connecting through the United States onward to further destinations.

• Along with applying this requirement to direct flights from the PRC, passengers transiting Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport on their way to the United States will be required to provide a negative COVID-19 test if they have been in the PRC in the last 10 days no more than 2 days before their departure to the United States. These three transit hubs cover the overwhelming majority of passengers with travel originating in the PRC and the Special Administrative Regions. We will continue to monitor travel patterns, adjust our approach as needed, and keep Americans informed in a timely manner.

• Passengers who tested positive more than 10 days before the flight can provide documentation of recovery from COVID-19 in lieu of a negative test result.

• Airlines must confirm the negative COVID-19 test result or documentation of recovery for all passengers before they board or deny boarding to the passenger.”

The U.S. Embassy in Beijing also provides further information regarding entry/exit requirements and testing/vaccine availability on its website. Not that the CDC’s order regarding proof of vaccination is still in effect. For additional information, the CDC’s COVID travel page is available here and includes a Travel Assessment Tool. Persons traveling in or visiting China should also be aware that many of the Embassy/Consular locations are not providing regular visa services due to COVID’s operational impacts.

© Jewell Stewart & Pratt PC 2023

Green Cards Extended for Naturalization Applicants

Effective December 12, 2022, USCIS updated its Policy Manual to automatically extend the validity of green cards for Lawful Permanent Residents who have applied for naturalization. Form N-400 receipt notices will include an automatic two-year extension of the green card. The receipt may be used along with the expired green card as proof of lawful permanent resident status. Given long agency processing times, this automatic extension will help applicants avoid a Form I-90 green card renewal filing. The new policy extends to all applicants who file a Form N-400 on or after December 12, 2022.

Relatedly, in September 2022, USCIS announced that applicants filing an I-90 green card renewal would receive a two-year extension printed on the receipt notice, which may be used as proof of lawful permanent resident status.

© Jewell Stewart & Pratt PC 2022

Biden Administration's Public Charge Rule Takes Effect Dec. 23, 2022

As background, in a new rule issued September 29, 2022, the Biden Administration clarified and aligned the existing Public Charge rule with long-standing USCIS practice, which requires most “green card” applicants to show that they will not need to primarily rely on public assistance if they become a U.S. permanent resident.

The new rule requires additional disclosures from most applicants filing I-485 applications for Adjustment of Status. The additional information required on the revised Form I-485 includes the following for each applicant:

• Household size

• Household income

• Household assets

• Household liabilities

• Highest level of education

• Certifications, licenses, and educational certificates earned

• Whether the applicant has received Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or State, Tribal, territorial, or local, cash benefit programs for income maintenance (often called “General Assistance” in the State context)

• Whether the applicant has ever received long-term institutionalization at government expense

Note that unlike a previous version of the public charge rule, documentation of the above is not required in initial filings.  USCIS will issue a “Request for Evidence” if it requires further information to process your case.  As mentioned the Form I-485 has been updated to require this new information and the new form must be used for filings postmarked on or after the effective date of December 23, 2022.

 © Jewell Stewart & Pratt PC 2022

Entry for 2024 Diversity Visa Lottery Program Now Open

The U.S. Department of State’s instructions for the 2024 Diversity Immigrant Visa Program (DV-2024) are now available and entries must be submitted electronically by November 8, 2022 at 12PM ET.

Persons born in the following countries are NOT eligible to apply:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam.

Natives of Macau SAR and Taiwan are eligible.

Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.

The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2024, 55,000 diversity visas will be available.

© Jewell Stewart & Pratt PC 2022

H-1B "cap" reached for FY 2023

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2023. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

We have completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:

• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2023 H-1B cap. We will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2023, and the next registration period for FY 2024 will take place sometime in Q1 2023.

© Jewell Stewart & Pratt PC 2022

Seven JSP lawyers selected for inclusion in Super Lawyers® for 2022

Jewell Stewart & Pratt (JSP) is pleased to announce that seven of its lawyers have been selected for inclusion in Northern California Super Lawyers® in 2022. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas, including immigration, who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Founder & Principal Phyllis Jewell was named a Super Lawyer at the inception of the Northern California Super Lawyers list in 2004, and has been named to the list each year from 2004 to 2013, and 2015 to present. Principal & Managing Attorney Claire Pratt has been named to the Super Lawyers list from 2019 to present, having previously received Rising Stars designation since 2015. Principal Chris Beckerson was named to the Super Lawyer list for this first time this year, having received “Rising Stars” designation from 2015-2019. In addition, Of Counsel Wendy Stewart has been included in the Super Lawyers list from 2021 to present. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. 

Principal Jennifer Carr has been selected in Rising Stars from 2017 to present. In addition, Associate Attorneys Zdeni Amadio and Nicole Tahtouh have been selected as Rising Stars since 2020. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars.

With the firm’s seven selectees, JSP represents 8% of all Super Lawyers in the immigration practice area in Northern California, further solidifying JSP’s recognition within the legal community as an outstanding firm. Congratulations to Phyllis, Claire, Chris, Jennifer, Wendy, Zdeni, Nicole, as well as the entire JSP team!

© Jewell Stewart & Pratt PC 2022

CDC Eliminates COVID-19 Testing Requirement for Air Arrivals

 On Sunday, June 12, CDC rescinded the COVID-19 testing order for U.S. air arrivals. Note that the vaccine requirements for non-USCs/LPRs are still in place as follows:

• Air travel: https://www.cdc.gov/coronavirus/2019-ncov/travelers/proof-of-vaccination.html#faq

• Land border: https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals

Finally, a reminder that documented recovery or proof of antibodies cannot replace the vaccine requirement. Boosters are not currently required to meet the vaccine requirement. 

© Jewell Stewart & Pratt PC 2022

Four JSP Lawyers Recognized by Who’s Who Legal in Corporate Immigration for 2022

Jewell Stewart & Pratt is pleased to announce that lawyers Phyllis Jewell, Wendy Stewart, Claire Pratt, and Helga Carson have been selected by Who’s Who Legal (“WWL”) as Global Leaders in Corporate Immigration for 2022. Phyllis Jewell has additionally been recognized as a “Thought Leader” in the field. The firm’s WWL profile may be found here; and Claire Pratt’s biography, where she receives plaudits for “provides tremendous value for all parties involved” and her “unparalleled” knowledge of U.S. immigration may be found here.  

Nominees for WWL are selected based upon a comprehensive, independent survey of both general counsel and private practice lawyers worldwide. Only specialists who have met stringent independent research criteria are listed. The publication features leading corporate immigration attorneys who come highly regarded for their experience in assisting corporate entities navigate the increasingly complex regulatory environments in jurisdictions around the world through sophisticated immigration planning and counseling advice. Congratulations to Phyllis, Wendy, Claire, and Helga!

© Jewell Stewart & Pratt PC 2022

H-1B "cap" reached for FY 2023

On March 29, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2023. 

The USCIS announcement states:

“We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration. Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, rejected, disputed, or cancelled after submission

… H-1B cap-subject petitions for FY 2023, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2022, if based on a valid, selected registration. Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2023, and only for the beneficiary named in the applicable selected registration notice.”

In the 2021 (FY 2022) season, a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. USCIS has not yet announced when such a selection might take place in 2022 (FY 2023).

© Jewell Stewart & Pratt PC 2022

Update on E and L Spouse Work Authorization

July 18, 2022 update:

The M-274 Handbook for Employers was updated with guidance on how to verify work authorization for E-2 and L-2 spouses.

May 18, 2022 update:

Effective May 4, 2022, the automatic extension period is now 540 days for eligible spouses, not to exceed I-94 validity. The USCIS had announced in November 2021 that eligible spouses could receive 180-day extensions.

March 21, 2022 update:

On March 18, 2022, USCIS provided additional guidance on E-3 and L-2 spouse work authorization. Specifically and as noted below, an I-94 with the “E-3S” or “L-2S” class of admission is a List C document only, and so those seeking to document their work authorization will also need a List B document such as a state issued identification card or driver’s license to complete an I-9 process with an employer. USCIS also indicated that it will be re-issuing older approval notices to reflect the new classes of admission for applicants already in the United States who have an I-94 issued by USCIS.  Further info: https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

Original post:

Pursuant to a historical settlement agreement announced in November 2021, U.S. Customs & Border Protection (“CBP”) headquarters has confirmed that it is issuing new classes of admission for E and L spouses, including E-1S, E-2S, E-3S, and L-2S. These new classes of admission are being printed on I-94s issued by CBP for entries to the U.S. on or after January 31, 2022, and are also being printed on USCIS approval notices for E and L spouse status extension approvals on/after January 31, 2022. Pursuant to the November 12, 2021 USCIS policy alert, the new I-94 with E-1S, E-2S, E-3S, or L-2S class of admission is considered a List C document for employment verification (I-9) purposes, i.e., persons with these new classes printed on their I-94s are now authorized to work incident to status and without taking further steps such as applying for a work permit. That said, we are awaiting conforming I-9 guidance from USCIS in USCIS’s M-274 Handbook for Employers, which has not, as of this writing, been updated with the new classes of admission.

© Jewell Stewart & Pratt PC 2022

H-1B "cap" registration dates announced for 2022 (FY 2023)

On January 28, 2022, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years. (USCIS has abandoned its plans for a wage-based selection process.)

In its announcement USCIS stated that registrants will be able to create new accounts beginning at 9AM PT / 12 PM ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

USCIS also stated that the registration period will open at 9AM PT / 12 PM ET on March 1 and close at 9AM PT / 12 PM ET on March 18. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2022.

© Jewell Stewart & Pratt PC 2022

Celebrating 25 Years of JSP

December 2021 marks JSP’s 25th anniversary, having been founded by Phyllis Jewell in 1996! Big kudos to Phyllis for her vision in founding and building the firm, creating opportunities for thousands of clients over the past 25 years. The partners, lawyers, and professional staff of JSP all look forward to the next 25 years of serving our clients in their U.S. immigration matters.

© Jewell Stewart & Pratt PC 2021

New Travel Ban Issued for Southern African Countries

12/28/2021 update:

On December 24, 2021, the Biden Administration stated that it would lift the Southern African travel ban at midnight on December 31, 2021.

Original post 11/29/2021:

On November 26, 2021, the Biden Administration issued a new geographic travel ban due to the emerging Omicron COVID-19 variant. The ban goes into effect today, November 29, 2021, and suspends entry for anyone present in the listed countries for the 14 days preceding entry. The countries include: Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.  Many of the same exceptions apply as with previous bans, such as Lawful Permanent Residents, parents of minor U.S. citizens, and spouses of U.S citizens.  As of this writing, DHS has not announced implementation details except via an announcement to air carriers which instructs that previously granted National Interest Exception (NIE) waivers are void as to this ban, and that this ban does not affect the vaccine and testing requirements for U.S. entry that are currently in place. The Department of State has a short summary of the new ban here.

© Jewell Stewart & Pratt PC 2021

USCIS Runs Third H-1B Lottery on 2021 (FY 2022) Registrations

On November 19, 2021, USCIS announced that it ran a third H-1B lottery on 2021 (FY 2022) registrations. The petition filing period based on the new selected registrations will be from November 22, 2021 to February 23, 2022. We will be notifying clients of additional selections and next steps for filing ASAP. Thank you for your patience!

© Jewell Stewart & Pratt PC 2021

Historic Changes for L-2, H-4, & E Spouse Work Authorization

11/12/2021 Update: On November 12, 2021, USCIS released a confirming policy memo and corresponding policy manual changes that, in addition to the H-4 and L-2 changes discussed below, also includes automatic extensions of work authorization for E spouses (including E-1, E-2, and E-3 dependent spouses).

Original post:

On November 10, 2021, the American Immigration Lawyers Association and its litigation partners announced that it has reached a settlement that “provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization.”

Under the settlement agreement, the U.S. Citizenship and Immigration Service (USCIS) will reverse its policy that prohibited H-4 spouses from benefiting from an automatic extension of their employment authorization during the pendency of certain employment authorization document (EAD) applications. It will also reverse its policy that L-2 spouses must apply for employment authorization prior to working in the United States.

H-4 dependent spouses covered by the Settlement Agreement are those who:

1. Properly filed an application to renew their H-4 based EAD before it expired.

2. Have an unexpired Form I-94 showing their status as an H-4 nonimmigrant.

3. Will continue to have H-4 status beyond the expiration date of their EAD.

Under the Settlement Agreement, USCIS will treat H-4 nonimmigrants who timely file their I-765 EAD renewal applications, and continue to have H-4 status beyond the expiration date of their EAD, as qualifying for an automatic extension of their employment authorization. Such an automatic extension will terminate on the earlier of: the end date of the individual’s H-4 status on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.

USCIS is expected to issue guidance shortly; and within 120 days of 11/10/2021, USCIS will amend the receipt notice currently issued to H-4 EAD applicants to describe EAD auto-extension eligibility.

Summary of changes for L-2 Spouses:

• All L-2 spouses are covered by the terms of the settlement agreement.

• USCIS will issue policy guidance within 120 days that states that all L-2 spouses are work authorized incident to status (i.e., they do not require an EAD or “work permit”). USCIS will also work with CBP to start issuing I-94s for L-2 spouses that indicate that they may be used as a List C document for I-9 purposes.

• L-2 spouses with timely-filed pending EAD renewals who are still in L-2 status now qualify for an automatic 180-day extension to their EADs, not to exceed their L-2 status (I-94) expiry. USCIS will also issue guidance for how employers can re-verify work authorization for those with pending EADs by using the facially expired EAD, the receipt notice showing timely filing, and an unexpired I-94.

• “Until the Form I-94 is changed to identify that the bearer is an L-2 spouse, for I-9 purposes, it will not be sufficient evidence of employment authorization acceptable under List C of Form I-9. L-2 spouses with pending renewal EAD applications may, however, receive automatic extensions of their EADs and present the combination of documents described above to their employers to satisfy Form I-9 requirements.”

© Jewell Stewart & Pratt PC 2021

U.S. Travel Bans Now Lifted; Vaccine Requirements in Effect

Starting today, November 8, 2021, the COVID-related travel bans are now lifted and the new vaccine and testing requirements are in effect for air travel to the U.S. For all the details on these new requirements for U.S. citizens, Lawful Permanent Residents, and nonimmigrant visa holders, please refer to our previous post.

The U.S./Canada and Mexico land borders (including ferries) are now also open to non-essential travel. There is a vaccine requirement in effect, but no testing requirement for land border travel. There are exceptions for U.S. citizens, Lawful Permanent Residents, children under 18, and those traveling for “essential” reasons. Starting on January 21, 2022, vaccines will be required for foreign nationals regardless of the reason for land border travel. DHS provided a Fact Sheet and FAQs for further information.

© Jewell Stewart & Pratt PC 2021

Biden Administration Issues Proclamation Suspending Entry for Unvaccinated Nonimmigrants

12/03/2021 update:

On December 2, 2021, the CDC amended its order regarding testing requirements for all air passengers 2 years of age or older to require a negative test within 1 day of boarding a flight to the U.S. The new requirement goes into effect for flights departing to the U.S. from a foreign country at or after 12:01 AM EST (5:01a AM GMT) on December 6, 2021.

Original post, last updated 11/08/2021:

On October 25, 2021, the Biden Administration issued a Proclamation concerning the ongoing COVID-related travel bans. This executive action, A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic, revokes the geographic-related COVID bans issued in 2020-2021 in response to the COVID-19 pandemic. It also creates a new global travel ban for unvaccinated nonimmigrant travelers, with certain exceptions. The new travel ban applies only to unvaccinated air travelers to the United States and does not affect visa issuance.

Frequently Asked Questions:

When will the geographic travel bans be lifted? The bans will be lifted and the new vaccine requirement will take effect for flights to the U.S. departing on/after November 8, 2021 at 12:01 AM ET.

Which vaccines will qualify? FDA Authorized/Approved and WHO Approved vaccines will qualify, specifically: Moderna, Johnson & Johnson, Pfizer-BioNTech, Oxford-AstraZeneca/Covishield, Sinopharm, and Sinovac. (Sputnik V will not qualify.) Mix-and-match vaccines will be accepted. The CDC considers someone as fully-vaccinated 14 days following the second of a two-dose series or 14 days after a single-dose. See the CDC website for further details.

Will a negative COVID test still be required? Yes. A negative test must be taken within 3 days of the flight for fully-vaccinated individuals. Children under two-years old and persons with documentation of recovery from COVID in the last 90 days do not need to test.

How will vaccine status be verified? Airlines will verify vaccine status as part of the boarding process. For acceptable forms of proof, refer to the CDC website.

Will there be any exceptions to the vaccine requirement? The limited exceptions include the following:

• Persons on diplomatic or official foreign government travel

• Children under 18 years of age

• Persons with documented medical contraindications to receiving a COVID-19 vaccine

• Participants in certain COVID-19 vaccine trials

• Persons issued a humanitarian or emergency exception

• Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability

• Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)

• Sea crew members traveling with a C-1 or D nonimmigrant visa

• Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

How will vaccine exceptions be administered? Airlines will be primarily responsible for verifying that an exception is met. For the humanitarian, emergency, or national interest exceptions, a paper or digital letter confirming approval may be issued by a U.S. Embassy or Consulate. See the CDC technical instructions for further details.

What are the requirements to travel to the U.S. for unvaccinated persons who meet one of the above exceptions?

Per the CDC website:

If you travel by air to the United States under one of these exceptions, you will be required to attest that you are excepted from the requirement to present Proof of Being Fully Vaccinated Against COVID-19 based on one of the exceptions listed above.

You must also have a negative COVID-19 test result taken no more than 1 day before travel.

Based on the category of the exception, you may have further requirements, such as attesting to the following:

1. You will be tested with a COVID-19 viral test 3–5 days after arrival in the United States, unless you have documentation of having recovered from COVID-19 in the past 90 days;

2. You will self-quarantine for a full 7 days, even if the test result to the post-arrival viral test is negative, unless you have documentation of having recovered from COVID-19 in the past 90 days; and

3. You will self-isolate if the result of the post-arrival test is positive or if you develop COVID-19 symptoms.

Based on the category of the exception, if you intend to stay in the United States for longer than 60 days you may additionally be required to attest that:

• You agree to be vaccinated against COVID-19; and

• You have arranged to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, or as soon thereafter as is medically appropriate, unless (for children) you are too young to be vaccinated.

What does this mean for existing visa holders or ESTA travelers? On/after November 8, 2021 at 12:01 AM ET, existing visas and/or approved ESTAs for fully-vaccinated individuals may be used for travel without need of a National Interest Exception.

What does this mean for my upcoming visa appointment? We are awaiting guidance from the Department of State (“DOS”) on the full resumption of consular services and availability of visa appointments following months of COVID-related closures. An October 25, 2021 update to the DOS website states" “[p]lease note that the rescission of these [Proclamations] does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews.” However, “[DOS] can process visa applications for individuals physically present in the [previously banned] countries.”

Are there any travel requirements for U.S. citizens, Lawful Permanent Residents, or immigrant visa holders returning to the United States? Yes. U.S. citizens, Lawful Permanent Residents, and immigrant visa holders boarding a flight to the United States are required to show one of the following:

• If you are fully vaccinated: Proof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.

• If you are NOT fully vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old do not need to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days.

Are the Canada/Mexico land borders still closed? On October 12, DHS announced that the Canada/Mexico land borders will re-open for vaccinated travelers in November. A negative COVID test will not be required for land border travel. For updates on land border travel, please refer to this post.

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

© Jewell Stewart & Pratt PC 2021