ABIL Immigration Insider • December 5, 2021

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In this issue:

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, following new travel bans imposed on several countries, the Biden administration announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021.

2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions – The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The bill includes several immigration measures.

3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers – After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling.

4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations – The Department of Labor is proposing revisions to the methodology used to determine the AEWRs for non-range agricultural occupations in the H-2A temporary visa program.

5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. Other countries imposed similar bans.

6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit – USCIS expects to issue refunds by March 22, 2022.

7. USCIS Incorporates General Adjudications Guidance Into Policy Manual – In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next – The House of Representatives passed the “Build Back Better” budget reconciliation bill. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and raising some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, $2.8 billion for the Department of Homeland Security to reduce processing backlogs, and recapturing unused green cards that would otherwise expire each year.

9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations – On November 19, 2021, USCIS selected additional registrations to reach the FY 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees – USCIS automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1,

11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December – The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories are “Current” for December.

12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment – U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications.

13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses – Following recent litigation, U.S. Citizenship and Immigration Services announced that certain H-4, E, or L dependent spouses will qualify for an automatic work permit extension if certain conditions are met.

14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States – The Department of Homeland Security will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021.

16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic – The Executive Office for Immigration Review announced that its website will now be “the principal method of communication with the public” regarding COVID-19 pandemic-related notices.

17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022 – In 2022, in addition to the new Illinois facility, USCIS plans more filing location changes.

18. ABIL Global: Canada – This article discusses recent developments in COVID-19-related border measures.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – December 2021

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant

Last week, in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who had been in any of eight countries in southern Africa for the prior 14 days would be barred from entry into the United States. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. Since then, the new variant has spread to at least 23 countries, including the United States, and more are likely, according to the World Health Organization. The Biden administration subsequently announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021. Fines for noncompliance with the mask requirement range from $500 for a first offense to $3,000 for repeat violations.

For the testing requirement, the CDC rules state that those who recently recovered from COVID-19 may instead travel with documentation of recovery (i.e., a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that the passenger was cleared to travel).

Regarding the one-day requirement for testing, the CDC explained:

The 1-day period is 1 day before the flight’s departure. The Order uses a 1-day time frame instead of 24 hours to provide more flexibility to the air passenger and aircraft operator. By using a 1-day window, test acceptability does not depend on the time of the flight or the time of day that the test sample was taken.

For example, if your flight is at 1 pm on a Friday, you could board with a negative test that was taken any time on the prior Thursday.

The Biden administration indicated that more countries could be added to the restricted list if warranted. As this is a rapidly developing, fluid situation, travelers should check the latest updates before departure.

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2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions

The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The House of Representatives passed the bill by a vote of 221-212, and the Senate passed it by a vote of 69-28. President Biden signed it into law on December 3.

The immigration provisions include:

  • $7 billion to support Operation Allies Welcome, including resettlement of Afghans who aided U.S. military operations in Afghanistan
  • $1.6 billion for services for unaccompanied minors crossing the U.S.-Mexico border who are under the care of the Department of Health and Human Services

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3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers

After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling in August 2021. President Biden previously called the policy “inhumane” because it forced tens of thousands of people to wait for months in conditions that included violent crimes perpetrated against them, among other risks.

Under the reinstated policy, at Mexico’s request, COVID-19 vaccinations will be provided, exemptions will be possible for reasons including physical and mental health issues, and the time spent in the program will be limited to six months per applicant. The Department of Homeland Security also said that the U.S. government is committed to reimplementing the program “in a way that enhances protection for individuals enrolled in the program.” Among the measures being taken are the provision of access to shelters in Mexico and “safe transit” to and from ports of entry to the shelters, to enable individuals to attend court hearings. Additionally, DHS said, the government of Mexico “has committed to ensuring that individuals enrolled in [the program] are provided temporary legal status in Mexico and will, as a result, be able to work and access services in Mexico.” DHS also said that family units would not be separated for purposes of enrollment in the program. DHS said it would observe “non-refoulement” principles and that no individual who demonstrates a “reasonable possibility of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” or a “reasonable possibility of torture in Mexico” will be returned to Mexico involuntarily.

According to reports, the policy is expected to be re-implemented on December 6, 2021.

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4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) is proposing revisions to the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A temporary visa program. DOL said the proposed methodology “will strike a reasonable balance between the statute’s competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.”

DOL proposes to determine AEWRs using wage data reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS) and DOL’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) survey. For the six occupations comprising the field and livestock worker (combined) category within the FLS, which DOL said constitute the majority of H-2A job opportunities, the agency proposes to set a single AEWR using the annual average hourly wage for field and livestock workers (combined) for the state or region, as determined by the FLS. For all other job opportunities, and in circumstances where the FLS does not report wage data for the field and livestock worker occupations, DOL proposes to use OEWS wage data to set the AEWR at the statewide annual average hourly wage for the occupational classification, or the national annual average hourly wage if statewide data is unavailable.

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5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant

In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. He said this was in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), which appears to be rapidly spreading in South Africa and present in other countries.

The Biden administration indicated that more countries could be added to the restricted list if warranted. Several other countries also issued similar travel bans and restrictions, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. The variant, which is being studied to determine its contagiousness, severity, and ability to circumvent immunity, has been detected in several countries in addition to Africa, including Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany.

Meanwhile, as of November 27, 2021, the Department of State issued a Level 4 Travel Health Notice for South Africa: “Do not travel to South Africa due to COVID-19.”

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6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit

U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2021, that it mistakenly rejected certain Forms I-765, Application for Employment Authorization, from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14, 2021, through September 29, 2021. USCIS said it also mistakenly accepted fees where certain petitioners for U nonimmigrant status unnecessarily submitted fees with their I-765 applications.

USCIS expects to issue refunds by March 22, 2022. Individuals who filed an initial bona-fide-determination-related Form I-765 under the (c)(14) eligibility category from June 14 through September 29, 2021, whose Form I-765 was rejected for lack of fee, and who have not refiled, may resubmit Form I-765 without a fee, USCIS said.

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7. USCIS Incorporates General Adjudications Guidance Into Policy Manual

U.S. Citizenship and Immigration Services (USCIS) announced on November 23, 2021, that it is incorporating existing guidance from the Adjudicator’s Field Manual (AFM) into the USCIS Policy Manual. In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

Among other things, USCIS said the update “explains how officers should handle cases involving unreliable evidence, including consulting the Department of State’s Reciprocity Table, providing information on voluntary DNA collection options, and referring certain cases for in-person interviews. The update also clarifies “that when a petitioner, beneficiary, or authorized representative requests a copy of a signed sworn statement taken during an interview, officers provide a copy of the statement to the affiant (the person making the statement) at the conclusion of the interview where the statement was taken.”

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8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next

The House of Representatives passed the $1.75 trillion “Build Back Better Act” budget reconciliation bill, 220-213, on November 19, 2021. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and increases in some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, and $2.8 billion for the Department of Homeland Security to reduce processing backlogs. The House bill would also recapture more than 200,000 unused green cards that would otherwise expire each year.

In addition, it would provide for diversity visas for those refused a visa, prevented from seeking admission, or denied admission to the United States solely because of certain executive orders and limitations on visa processing, visa issuance, travel and other effects associated with the COVID-19 pandemic.

The Senate will take up the bill next, likely in December. It remains to be seen whether the bill will become law in its current version or will be revised or defeated. Among various factors, Senate Parliamentarian Elizabeth MacDonough earlier rejected several previous immigration-related provisions in the draft bill, such as a path to citizenship for undocumented immigrants, but observers believe some provisions may survive her scrutiny, such as one that would recover roughly 400,000 currently unused green cards.

Below are selected highlights of the House-passed version of the “Build Back Better Act”:

Green Card Provisions for Immigrants Waiting in Backlogs

The House bill’s provisions would allow an employee waiting for more than two years in the backlog of approved legal immigration applications to pay a supplemental fee of $5,000 and file for adjustment of status without waiting for a priority date to become available. Those with approved green card applications awaiting visa availability could pay $1,500 to essentially jump the queue and file for adjustment.

Work Permits

As noted above, the House bill would allow about seven million undocumented immigrants living in the United States since before 2011 to stay in the United States through parole, and to be eligible for work permits valid for five years (renewable once), authorization to travel, and driver’s licenses if they file an application and pay a fee. They could also apply for health insurance under the Affordable Care Act. They would need to pass background checks.

Fee Increases

Examples of supplemental immigration-related fees that would be imposed by the House bill, if passed, include:

  • $100 for certain family-sponsored immigrant visa petitions (Forms I-130)
  • $800 for each employment-based immigrant visa petition (Forms I-140)
  • $15,000 for each employment-based fifth preference petition (Forms I-526)

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9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced that on November 19, 2021, it selected additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

USCIS said the petition filing period will begin November 22, 2021, and close on February 23, 2022. Those with selected registrations will receive a selection notice in their myUSCIS accounts with details about when and where to file.

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10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees

Effective November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1, E-2, and E-3 nonimmigrants. USCIS also automatically extended work authorization for certain H-4 nonimmigrants who are dependent spouses of H-1B nonimmigrants.

Such individuals may receive automatic extensions of their employment authorization documents.

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11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December

The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories (i.e., “direct” EB-5 investors) are “Current” for December. Both the filing date and final action date are “Current,” meaning that in December, qualified Chinese EB-5 applicants in the visa phase can get green cards regardless of their priority date.

If China-mainland-born number use were to increase at a level that could potentially jeopardize visa availability under the overall FY 2022 employment-based fifth preference annual limit, it would then be necessary to once again impose a final action date, the bulletin says.

The bulletin also notes that:

  • Final action dates for the EB-5 (I5 and R5) regional center categories are “Unavailable” for December, but if legislative action extends this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • The non-minister special immigrant program expires on December 3, 2021. No SR green cards may be issued overseas or final action taken on related adjustment of status cases after that date. Visas issued before this date will have a validity date of December 2, 2021, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight, December 2, 2021. The final action date for this category is “Current” for December for all countries except for El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for fiscal year 2022, the final action date would immediately become “Unavailable” for December for all countries effective December 3, 2021.

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12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment

The Department of Homeland Security issued a 60-day notice and request for comments on revisions to the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program travelers. Specifically, U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications. ESTA applicants will be prompted to take a selfie or “live” photo “to conduct a ‘liveness’ test to determine if the ESTA application is interfacing with a physically present human being and not an inanimate object, or if it is a photo of someone other than the lawful passport holder.” Respondents will be able to scan their passport biographic page to submit biographic information, including passport photo.

CBP will also implement the ESTA mobile application for Visa Waiver Program travelers. The mobile app will collect biometric data.

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13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses

Following recent litigation, U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes, USCIS said.

In addition, USCIS will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, with a few exceptions.

USCIS is also rescinding the 2002 Immigration and Naturalization Service memorandum, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition.”

USCIS’ actions followed a settlement in Shergill v. Mayorkas. The settlement provided structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for work authorization applications. Also as a result of this settlement, as noted above, USCIS will now recognize that L-2 spouses are employment authorized incident to L-2 status. This means that spouses of transferred executives and managers no longer need to apply for work permits before working or starting a business in the United States.

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14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

The Secretary of Homeland Security, with the concurrence of the secretary of state, has decided to:

  • Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
  • No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. Moldova’s eligibility for the H-2A program remains effective until January 18, 2022.

Except for Moldova, the designations took effect November 10, 2021, and will remain in effect for one year, until November 10, 2022.

U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions for nationals of countries not on the list on a case-by-case basis if doing so is determined to be in the interest of the United States.

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15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States

The Department of Homeland Security (DHS) announced on November 8, 2021, that it will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021. DHS said these actions “will help facilitate their resettlement in the U.S. by streamlining the processing of requests for work authorization, Green Cards, and associated services.”

DHS is the lead federal agency coordinating Operation Allies Welcome, the ongoing all-of-government effort to resettle Afghans who fled their country following the Taliban takeover, including those who worked on behalf of the United States. Approximately 70,000 Afghans have arrived in the United States as part of Operation Allies Welcome, DHS said. Following the “biggest airlift in U.S. history,” DHS paroled many Afghan nationals, on a case-by-case basis, into the United States for urgent humanitarian reasons. DHS said that parolees may apply for work authorization using Form I-765, Application for Employment Authorization, on the basis of their parole. Afghan nationals can also apply for immigration benefits such as Afghan special immigrant status, lawful permanent residence, and asylum, the agency noted.

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16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is discontinuing issuance of formal documents reporting COVID-19 pandemic-related adjustments and protocols, and that its website will now be “the principal method of communication with the public” regarding such updates.

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17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022

U.S. Citizenship and Immigration Services (USCIS) plans to open a new lockbox facility in Elgin, Illinois, next year. The agency also has consolidated filing locations for certain employment-based forms to a single lockbox location. In 2022, USCIS plans more filing location changes, including moving the lockbox facility in Arizona from Phoenix to Tempe.

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18. ABIL Global: Canada

This article discusses recent developments in COVID-19-related border measures.

The government of Canada announced on November 26, 2021, that as a precautionary measure due to concerns about the new “Omicron” variant of concern, until January 31, 2022, Canada is implementing enhanced border measures for certain travelers.

Also, on November 19, 2021, the government of Canada announced upcoming adjustments to Canada’s border measures. In a press release, the government of Canada indicated that it will continue to prioritize the health and safety of Canadians. As vaccination levels, case counts, and hospitalization rates evolve, Canada will continue to consider further targeted measures at the borders—and when to lift or adjust them—to keep Canadians safe. As the pandemic situation remains fluid, travelers should check for the latest requirements before traveling.

According to the November 19 announcement, as of November 30, 2021, fully vaccinated Canadian travelers will no longer be subject to testing requirements for trips outside of the country for less than 72 hours; the list of accepted vaccines will expand to include Sinopharm, Sinovac, and COVAXIN; and vaccination will be required for travel within and out of Canada.

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada.

Below is a summary of developments:

What is changing now?

As noted above, due to concerns about the new variant, additional restrictions are being imposed on certain travelers. According to the November 26 press release, until January 31, 2022, Canada is implementing enhanced border measures for all travelers who have been in the Southern Africa region—including South Africa, Eswatini, Lesotho, Botswana, Zimbabwe, Mozambique, and Namibia—within the last 14 days before arriving in Canada. Foreign nationals who have traveled in any of these countries within the previous 14 days will not be permitted entry into Canada. They will be directed to be tested and to quarantine while they await their test results.

Canadian citizens, permanent residents, and people with status under the Indian Act, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, who have been in these countries in the previous 14 days will be subject to enhanced testing, screening, and quarantine measures. These individuals will be required to obtain, within 72 hours of departure, a valid negative COVID-19 molecular test in a third country before continuing their journey to Canada. Upon arrival to Canada, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, they will subject to immediate arrival testing. All travelers will also be required to complete a test on day 8 after arrival and quarantine for 14 days. They must also have a suitable quarantine plan.

Short Trips

Effective November 30, 2021, full vaccinated individuals with right of entry to Canada who depart and re-enter the country within 72 hours of leaving Canada do not need to present a pre-entry molecular test. This exemption is only for trips originating in Canada taken by fully vaccinated Canadian citizens, permanent residents, or individuals registered under the Indian Act, who depart and re-enter by land or by air and can demonstrate that they have been away from Canada for less than 72 hours. This exemption extends to accompanying children under 12 and individuals with medical contraindications to vaccination.

For fully vaccinated travelers with right of entry into Canada who are traveling by air, the 72-hour period runs from the initially scheduled departure time for their flight leaving Canada to the scheduled departure time for their return flight to Canada. Travelers are responsible for maintaining proof of the 72-hour period to show airline/rail companies and border officials as required (e.g., boarding pass, travel itinerary).

Vaccination Status

Previously, to be considered fully vaccinated, travelers must have received two doses or a combination of the Pfizer, Moderna, or AstraZeneca/COVISHIELD vaccines, or a single dose of the Janssen (Johnson & Johnson) vaccine, at least 14 days before their entry to Canada. As of November 30, 2021, Canada expanded the list of COVID-19 vaccines that travelers can receive to be considered fully vaccinated for the purpose of travel to Canada. The list now includes Sinopharm, Sinovac, and COVAXIN, matching the World Health Organization Emergency Use Listing.

Travelers can receive their vaccines in any country, and must upload their proof of vaccination in English or French into ArriveCAN when traveling to Canada. If the proof of vaccination is not in English or French, travelers must provide a certified translation in English or French.

Travel Within and Out of Canada

Starting November 30, 2021, vaccination is required for travel via air or rail within and out of Canada. A valid COVID-19 molecular test is no longer accepted as an alternative to vaccination unless travelers are eligible for one of the limited exemptions, such as a medical inability to be vaccinated. Travelers should contact their airline or railway company to obtain the necessary form and submit it in accordance with their carrier’s approval process.

While Canadian citizens, permanent residents, and persons registered under the Indian Act can still enter Canada if they are unvaccinated or partially vaccinated, they are not permitted to travel beyond their point of entry within Canada on a connecting flight or by rail. These travelers should plan their return accordingly by selecting a Canadian airport that is closest to their final destination, and expect to be subject to testing and quarantine.

New ArriveCAN Requirements for Essential Travelers

As of November 30, 2021, all exempt essential service providers must identify their vaccination status in ArriveCAN, regardless of whether or not they are allowed to enter as unvaccinated.

If an exempt essential traveler previously created a reusable ArriveCAN receipt, they must either download the latest version of the free ArriveCAN mobile app or sign in to the web version, and re-submit all of their information, including the newly required information on proof of vaccination, to get a new exempt reusable ArriveCAN receipt. Once an exempt traveler creates a new reusable receipt, the receipt can be used for subsequent trips.

What will change on January 15, 2022?

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada. These groups include:

  • Individuals traveling to reunite with family (unvaccinated children under 18 years of age will retain exemption if traveling to reunite with an immediate or extended family member who is a Canadian, permanent resident, or person registered under the Indian Act);
  • International students who are 18 years old and older;
  • Professional and amateur athletes;
  • Individuals with a valid work permit, including temporary foreign workers (outside of those in agriculture and food processing); and
  • Essential service providers, including truck drivers.

After January 15, 2022, unvaccinated or partially vaccinated foreign nationals will only be allowed to enter Canada if they meet the criteria for limited exceptions, which apply to certain groups such as agricultural and food processing workers, marine crew members, those entering on compassionate grounds, new permanent residents, resettling refugees, and some children under the age of 18. Exempt unvaccinated travelers will continue to be subject to testing, quarantine, and other entry requirements. Non-exempt unvaccinated or partially vaccinated foreign nationals will be prohibited entry into Canada.

What requirements are still in place?

For trips out of the country longer than 72 hours, all travelers eligible to enter Canada must complete the mandatory pre-entry molecular COVID-19 test. Antigen tests are not accepted. Travelers who have already had COVID-19 and recovered can provide proof of a positive COVID-19 molecular test taken at least 14 days and no more than 180 days before the initial scheduled departure time of their aircraft, or their entry into Canada by water or land. If arriving by air, they must provide proof of their test result to the airline before boarding their flight to Canada.

As has been the case since August 9, 2021, fully vaccinated travelers do not need to take a test on arrival unless they are randomly selected to complete a day 1 COVID-19 molecular test. All travelers who are randomly selected for the border testing surveillance program must complete the mandatory arrival test. However, they do not have to quarantine while awaiting the result.

Fully vaccinated travelers must also be asymptomatic, have a paper or digital copy of their vaccination documentation in English or French (or certified translation, along with the original), and provide COVID-19-related information electronically through the ArriveCAN app before arrival in Canada. They must still present a suitable quarantine plan, and must be prepared to quarantine in case it is determined at the border that they do not meet all of the conditions required to be exempt from quarantine. As with all other exempt travelers, they must follow public health measures in place, such as wearing a mask when in public, keeping a copy of their vaccine and test results, and keeping a list of close contacts for 14 days after entry to Canada.

Details:

ArriveCAN, https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

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New Publications and Items of Interest

Webinar on H-2B filing. The Department of Labor’s Office of Foreign Labor Certification (OFLC) invites stakeholders to a webinar on best practices and helpful tips for preparing the H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices). Topics will include regulatory timeframes and filing requirements for H-2B applications with a start date of need of April 1, 2022, or later; procedures OFLC uses to randomly select H-2B applications for review and processing; recent enhancements to the Foreign Labor Application Gateway (FLAG) system; and helpful hints and reminders to avoid deficiencies during the application process. The webinar will be held Tuesday, December 7, 2021, from 2 to 3 p.m. ET. Announcement (scroll down to November 29, 2021):
https://www.dol.gov/agencies/eta/foreign-labor;
Meeting link: https://usdol.webex.com/webappng/sites/usdol/meeting/download/7aa105bc26df442d8eb30c56b4e0174f?siteurl=usdol&MTID=m799336e30be63f0c7567f2d5bd7ef01a

Information for Afghans. U.S. Citizenship and Immigration Services has released a webpage with links to information for Afghan nationals, including Afghan parolees working in the United States, information for Afghans relocated to the United States, special immigrant visas, asylum, changes of address, finding legal services, humanitarian parole, refugees, family-based immigration petitions, information sheets for Afghan parolees departing safe havens, Afghan parolee vaccination status attestation, and additional information. The information notes that for all Afghan parolees seeking to work, USCIS must approve their Form I-765, Application for Employment Authorization, before they can work legally in the United States. https://www.uscis.gov/humanitarian/information-for-afghans

Agency Twitter accounts:

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

News from Foster LLP:·         Avalyn Langemeier presented “U.S. Immigration: Recap of 2021 and Strategic Planning for 2022,” at the HR Houston November General Meeting on November 18, 2021. She discussed immigration issues in 2021 during the pandemic, including challenges related to travel, remote work, work authorization, government processing delays, and Form I-9 compliance. Based on lessons learned, this session helped the audience identify potential immigration issues affecting their businesses so they can prepare an immigration plan and strategy for 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1560064&group= ·         Brenda Hicks and Cody Wallace will discuss ongoing developments in global immigration laws and procedures on a worldwide scale and the effects they may have on the relocation of employees. The webinar will be held Wednesday, December 1, 2021. Click here to register: https://register.gotowebinar.com/register/916151990262688016 ·         Helene Dang will present “Managing Immigration Status Over the Long Haul Under Pandemic Restrictions” in a webinar with Worldwide ERC on December 2, 2021. She will discuss some immigration-related changes and effects of our collective pandemic experience and considerations for employers and employees to manage and maintain legal immigration work status in the long term. https://www.worldwideerc.org/webinar/managing-immigration-status-over-the-long-haul-under-pandemic-restrictions

Avalyn Langemeier and Liliana Kottwitz of Foster LLP presented a webinar, “Thinking Outside the Box: O-1 and P Visas, TPS and DACA,” on November 10, 2021. The webinar provided human resources professionals an overview of the O-1 visa category for individuals of extraordinary ability and P visas for entertainers and athletes. HR professionals also gained insight into Temporary Protected Status and Deferred Action for Childhood Arrivals for eligible individuals.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) authored “Action Needed in Ga. and Congress on Immigration Relief,” published by the Atlanta Journal-Constitution.

Cyrus Mehta and Kaitlyn Box‘s blog, “The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers,” was praised by LexBlog, which said they “make a convincing case” against recent travel bans, “expertly lay out the numerous flaws and hypocrisies inherent to these types of travel bans and illustrate the ways in which they defy scientific reality.” LexBlog said the blog is “an incredibly well-constructed takedown of these ill-conceived travel bans and I cannot commend Mehta and Box enough for their thoroughness.” LexBlog’s comments are at https://www.lexblog.com/2021/12/03/best-of-law-blogging-omicron-more-omicron-and-e-scooters/. The blog is at .

Mr. Mehta authored a new blog post, “The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged.” http://blog.cyrusmehta.com/2021/11/the-legal-basis-underpinning-the-new-automatic-extension-of-work-authorization-for-h-4-l-2-and-e-2-spouses-and-why-it-must-still-be-challenged.html

Mr. Mehta was quoted by the Economic Times on the 9% drop in H-1B holders in the United States. He said the drop was “clearly attributed to the Covid travel bans and the inability of nonimmigrants to get visas and come to the U.S. under approved H-1B petitions.” He said another way of looking at it is that “many in the U.S. who have been in H-1B status may have adjusted to permanent residence over the past year. Also, many who have pending adjustment applications, and have not yet received the green card, may have decided to remain in the U.S. as pending adjustment applicants with work permits rather than remain in H-1B status. Pending adjustment applicants find it easier to remain without an H-1B and have only a work permit as they can exercise job portability more easily.” https://economictimes.indiatimes.com/nri/migrate/9-drop-in-h-1b-visa-holders-in-the-us-highest-in-a-decade/articleshow/88050668.cms

Mr. Mehta was quoted by India West in “USCIS Reaches Settlement With H-4 Workers, Allowing Automatic Renewal of Employment Authorization for Some.” He tweeted, “USCIS needs to be sued again. H-4s who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date, but most existing EADs end with the current I-94 date.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “What Doees the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?”; “Immigration Update”; “Good News: USCIS Announces Plans to Ease Work Authorization Process for Certain E, L, and H-4 Spouses”; “White Paper: Making Travel Plans? Here’s the Short-Term Outlook”; “Success Story: EB-1A Approved in Just a Few Days!”; and “Direct EB-5 Due Diligence: Buyer Beware (and Immigration Attorneys Be Cautious). https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in two articles:

  • “Democrats Get Ready to Deliver Their ‘Plan C’ With a Third Immigration Proposal to a Key Senate Figure,” Nov. 29, 2021. Mr. Yale-Loehr said the social spending budget bill approved by the House of Representatives “includes a series of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States. The bill would also give the Department of Homeland Security $ 2.8 billion to help process immigration applications and reduce backlogs in case processing…and would recapture employment- and family-based green cards that have not been used and that otherwise would expire at the end of each year.” https://www.univision.com/noticias/inmigracion/democratas-senado-se-alistan-entregar-plan-c-de-inmigracion-a-parlamentarian (Spanish, with English translation available)
  • “The Deadline to Comment on the New Regulation for DACA Published by the Government is Over,” Nov. 29, 2021. Mr. Yale-Loehr said, “The proposed rule would not make major changes to the existing deferred action program for children. Instead, the 205-page rule is an effort to bulletproof the existing program from litigation.” He recalled that in July, “a federal district judge in Texas ruled that the DACA program, initiated in 2012 by then-President Obama through executive action, violated the Administrative Procedure Act (APA).” He noted that the Department of Homeland Security’s (DHS) proposed rule “becomes more important now that the Senate parliamentarian has twice ruled that legalization provisions for DACA recipients cannot be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path of legalization for Dreamers, the proposed rule could be a temporary safety net if the legislation fails.” After the deadline for public comment, DHS will need to review them and issue a final rule. “The process could take several months before this rule takes effect,” he said. https://www.univision.com/noticias/inmigracion/finaliza-plazo-comentar-nuevo-reglamento-daca-publicado-por-gobierno (Spanish, with English translation available)

Mr. Yale-Loehr authored a new blog post, “Breaking Down the Build Back Better Act,” published by Global Detroit. https://globaldetroitmi.org/prof-stephen-yale-loehr-breaking-down-the-build-back-better-act/

Mr. Yale-Loehr was interviewed on National Public Radio’s The World about the immigration provisions in the social spending bill. The interview is at https://theworld.org/media/2021-11-11/latest-immigration-plan-congress-falling-short

Mr. Yale-Loehr was quoted by Univision in “Temporary Residence and Travel Permits: Immigration Measures Approved in Biden’s Social Plan in the House.” He said that “[t]he 2,135-page budget bill includes a number of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States The bill would also give the Department of Homeland Security $2.8 billion to help process immigration applications and reduce backlogs in case processing … and would recover employment-based and family-sponsored green cards that have not been used and that otherwise would expire at the end of each year. If enacted as is, the House bill would not offer a path to legalization for the roughly 10 million noncitizens who lack immigration status. However, the immigration provisions of the House bill would still constitute the most significant immigration changes in decades and would provide a beginning to fix our broken immigration system.” https://www.univision.com/noticias/inmigracion/residencia-temporal-permisos-de-viaje-claves-plan-migratorio-aprobado-camara-representantes-presupuesto (Spanish, with English translation available)

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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