COVID VACCINATIONS TO BE REQUIRED FOR GREEN CARD APPLICANTS

The CDC recently set forth new “Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Civil Surgeons.” Beginning October 1, 2021 persons applying for permanent residence will be required to provide proof that they have been vaccinated against the COVID-19 virus at the time of their medical exam or receive the vaccinations before the medical exam can be completed. The proof of vaccination will be part of the required medical examination. The addition of the COVID-19 vaccination is not surprising and joins a long list of other required vaccinations (tetanus, polio, measles, influenza, etc.). The COVID-19 vaccination requirement will differ from previous requirements in that the entire vaccine series (1 or 2 doses depending on formulation) must be completed. It is not specified which vaccines will be acceptable, however only an official vaccination record or a copy of a medical chart stating that the individual has received the full complement of doses will be accepted as proof.

There are exceptions to the COVID-19 vaccination requirement, the same as for the other required vaccines, including persons who are too young or have contraindications or other health based reasons to not receive the vaccine. There is also a waiver for individuals in countries with no or limited COVID-19 vaccine supplies.

We strongly recommend that anyone who is scheduling a medical exam to be sure they are fully vaccinated for COVID-19 before doing so and that they request the civil surgeon to acknowledge the COVID-19 vaccination in the medical record. While the CDC recommends that civil surgeons should accommodate applicants if they want to complete the remaining components of the exam after they are fully vaccinated against COVID-19, there is no guarantee that the physicians will agree to this accommodation. Additionally, it appears USCIS will require medical exams submitted after October 1 to contain the COVID-19 vaccination confirmation. Cases pending prior to that date should not be affected.

Pilot NIW Green Card Rumor

There appears to be a rumor that the U.S. government has made it easier for pilots to obtain a green card through the NIW process. As respected leaders in helping pilots obtain green cards, we have been getting several inquiries from pilots and even other immigration attorneys inquiring about how pilots can obtain a green card under the rumored new immigration initiative. We have not seen anything substantive from the U.S. government to indicate that the standards required for pilots to obtain a green card have changed. For a successful NIW pilot case, in addition to having an advanced degree or the equivalent (e.g., bachelor’s degree plus five years of progressive experience, or ten years of documented experience and meeting other strict requirements), it is helpful to have significant flight experience and a demonstrated background in accident investigation and/or flight testing and/or flight instruction.  If you feel you are qualified, please provide us with a detailed CV, and we will be happy to review your case. Please monitor our blog as we will update it when and if anything substantive changes related to pilot-based NIW green cards.

USCIS NIW Processing Times Improving

We are seeing improvement in NIW processing times. NIW cases at the Nebraska Service Center have not been too seriously affected by the pandemic. NIW cases are still being adjudicated at the NSC in approximately 8 months. The Texas Service Center was struggling before the pandemic and became even worse. The NIW processing times posted online for the TSC continue to vary greatly. A new Director was recently appointed to the TSC and we are seeing improvements. While many cases are still languishing, we are seeing NIW approvals on cases from Texas coming in recently that have been adjudicated in around 12 months. We are also seeing some older cases being transferred from Texas to Nebraska, which will hopefully speed up NIW processing times. The good news is that we are definitely seeing improvement in the Texas processing times, and Nebraska is staying consistent. 

At this point in time, we do not recommend contacting a member of congress to inquire about or request an expedite of your NIW case. While we understand the frustration of the thousands of people who have cases that have been pending for a very long time, there is very little that can be done to help you speed up your case. 

COVID-19 Travel Restrictions

Due to the COVID-19 pandemic, U.S. consulates and embassies in many countries around the world are still not operating at full capacity. 33 countries still require that non U.S. citizens or permanent residents obtain a National Interest Exception (NIE) before they can enter the U.S. from the affected countries. Embassy shopping has been pretty much shut down at this point as the consulates and embassies in each country are limiting appointments to citizens and residents of that country. Some countries are presently scheduling appointments out almost one year. Without an already approved NIE, pre-scheduled appointment, or the willingness to spend 14 consecutive days in a non-affected country, any travel to one of the 33 countries subject to the U.S. COVID travel ban should be avoided. (See below for a list of the 33 countries)

Countries subject to Presidential Proclamation COVID-19 restrictions:

The 33 restricted countries are:

  • Brazil.
  • China.
  • Countries in the Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland).
  • India.
  • Iran.
  • Ireland.
  • South Africa.
  • United Kingdom.

USCIS Issues Policy Guidance on Deference to Previous Decisions

USCIS in furtherance of President Biden’s executive order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” has issued a new policy guidance which restored the 2004 guidance giving USCIS officers deference. The 2004 guidance was rescinded in 2017 by the Trump Administration, in their efforts to curtail legal immigration. The reinstated 2004 guidance, allows USCIS officers to once again give deference to prior determinations when adjudicating extension requests involving the same parties and facts, unless there is a material change, or new material facts. This is another positive step taken by President Biden in streamlining and making the immigration process more efficient. You can read the Policy Guidance Here.

I-944 Public Charge Rule is Officially Ended

Effective immediately the I-944 is no longer required.

On March 10, USCIS posted an update to the Public Charge Rule. It sated that As of March 9, 2021, “applicants for for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485.” The USCIS statement went on to specify that they “will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on the Form I-944, evidence or documentation submitted with Form I-944.”

Also of note, USCIS stated that if you received a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID) based on the I-944 or requesting information related tot he Public Charge rule, and your response is due on or after March 9, 2021, there is no need to respond. While there is no need to respond we recommend that any RFE or NOID be responded to including a copy of the USCIS statement as evidence that there is no requirement to provide the evidence requested. The USCIS announcement related to welcomed end of Trump’s Public Charge rule can be read here.

I-944 Public Charge Rule

On March 9, 2021, DHS issued a litigation statement announcing that it would no longer continue its attempts to enforce the public charge rule. Later in the day, DHS Secretary Alejandro Mayorkas issued a follow-up statement announcing that DHS had withdrawn from all public charge related litigation. The DHS has dismissed the appeals that were pending in the U.S. Supreme Court and the Federal Seventh Circuit and was in the process of dismissing the appeal pending in the Federal Fourth Circuit. As a result of the dismissal of the Seventh Circuit appeal, the final judgment vacating the public charge rule went into effect. This action is in line with President Biden’s Executive Order 14012, directing DHS to review the public charge rule. This means that effective immediately, the I-944 is no longer required. At this point, we would recommend waiting to file any adjustment of status until USCIS formally announces that the I-944 is no longer necessary. The DHS announcement can be found here.

President Biden Revokes Proclamation 10014 – Immigrant visas will now be issued overseas

On Wednesday February 24, 2021 President Biden revoked, with limited exceptions, the ban on immigrant visas, at consulates and embassies overseas. However, the ban on the issuance of nonimmigrant work visas such as H-1B, H-2B, L and certain J visas was not revoked. The nonimmigrant visa ban is set to expire on March 31, 2021 and unless the Whitehouse specifically revokes it before then, it appears there will not be any new H-1B visas issued overseas until after that date unless a national interest exemption applies. You can read President Biden’s Proclamation here. Proclamation 10014, which was Trump’s ban on immigrant visas that was revoked by President Biden, can be read here. Proclamation 10052, Trump’s ban on non-immigrant visas can be read here. Proclamation 10131 extending 10052 until March 31, 2021 is available here.

While the revocation of Proclamation 10014 is welcome news, we feel the White House came up short by not specifically removing the ban with respect to H-1B, J and L visas.

We will continue to monitor the situation as the Biden administration issues immigration policy pertinent to employment based immigrant and nonimmigrant visas.

President Biden sign Executive Order on the Public Charge Rule

Today, Wednesday February 2, 2021, President Biden signed an executive order titled “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”. In Section 4 of the Order, titled “Immediate Review of Agency Actions on Public Charge Inadmissibility,” President Biden is requiring the State Department, the Attorney General and the Department of Homeland Security to review the “public charge” policy implemented by the Trump Administration which resulted in the creation of the I-944 Public Charge Form. While we were hoping the Biden Administration would eliminate the need for the I-944, the executive order only calls for a review of the policy in line with the language of Section 1 of the order which states that the Federal Government should eliminate “sources of fear and other barriers that prevent immigrants from accessing government services available to them.” This language is directly aimed at the public charge review articulated in Section 4 of the order.

The agencies tasked with reviewing the public charge policy were given 60 days to submit their recommendations to the President.

We believe the I-944 requirement will be eliminated, at least for now it is still mandated and should be filed with every I-485 adjustment of status until further notice.

Given how slow Washington moves, and the fact that reports are not likely to even be submitted to the President for review for at least two more months, we see no reason to delay the filing of the adjustment of status, in hopes of avoiding the preparation of the I-944. There is a very strong probability that by the time an AOS filed now is adjudicated, the Public Charge Policy will no longer be effective and the I-944, although filed, will no longer be relevant to the adjudication process.

The text of the executive order can be found here: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-on-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/

President Biden Revokes Travel Ban

As mentioned in the prior blog, during his first day in office, President Biden revoked the Travel Ban instituted by the Trump Administration in February of 2017. The “Proclamation on Ending Discriminatory Bans on Entry to The United States” effective immediately revoked Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry Into the United States), Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), Proclamation 9723 of April 10, 2018 (Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and Proclamation 9983 of January 31, 2020 (Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats).  The Proclamation stated that “Our national security will be enhanced by revoking the Executive Order and Proclamations.”

The Proclamation directed the Secretary of State to direct all Embassies and Consulates to begin visa processing for those countries previously affected by the ban. The Secretary of State has 45 days to provide the President with a report that addresses: 1) a plan for expeditiously adjudicating visa applicants who were already being considered for a waiver under the now revoked Trump Proclamations. 2) A proposal to ensure the reconsideration of visa applications of previous applicants who had their visa rejected because of the Trump Proclamations, a plan to expedite the consideration of prior visa applications and whether an additional fee is appropriate. 3) Finally a plan to ensure that persons who previously had their visas denied because of the Trump Proclamations are not prejudiced by the prior denial.

This is great news for the millions of people affected by the now extinct ban! If you have a valid visa that allows for re-entry and there are no other constraints due to having filed an I-140, you are now (COVID-19 travel restrictions permitting) free to travel home and your family members can now apply for visas to visit the U.S.

We strongly urge our clients to check with us before travelling in the event there may be any issues related to international travel that apply to your case. Also, given the Biden administrations strong stance on fighting COVID-19, any international travel presently presents a very real risk of not being able to return to the U.S. because of potential COVID related travel restrictions.

You can read President Biden’s Proclamation here.