What's New in the World of Immigration?

11/01/2021 - COVID-19 Vaccine Requirements for Travelers to the United States

On October 25, 2021, President Biden issued Presidential Proclamation 10294 rescinding the geographic COVID-19 travel bans and adopting COVID-19 vaccination requirements for all international air travelers to the United States. It will be effective at 12:01 AM on November 8, 2021, which means that it applies to air passengers on planes that depart from their foreign destination at or after 12:01 AM Eastern Time on November 8.

The Proclamation governs the entry into the United States of nonimmigrants traveling to the United States by air. With limited exceptions, it suspends entry of noncitizen nonimmigrants who are not vaccinated and requires those individuals seeking an exception to follow health and safety requirements determined by the Director of the Center for Disease Control (CDC).

The White House and agencies such as the Department of State and the CDC have issued additional guidance concerning the implementation of the new travel requirements. AILA (American Immigration Lawyer's Association) applauds the Administration for following our recommendation to implement science-based processes for reopening international travel.

10/25/2021 - Add NoteBookmark Practice Alert: Biden Administration Plans to Rescind COVID-19 Travel Bans and Instead Require Proof of Vaccination

The White House issued a memo stating that the United States is moving away from country-by-country restrictions and adopting an air travel policy that relies primarily on vaccination.

The memo states:

This proclamation governs the entry into the United States of noncitizen nonimmigrants -- that is, noncitizens who are visiting the United States or otherwise being admitted temporarily -- traveling to the United States by air. It suspends the entry of unvaccinated noncitizen nonimmigrants, except in limited circumstances, and it ensures that the entry of unvaccinated noncitizen nonimmigrants is consistent with applicable health and safety determinations made by the Director of the CDC, including a requirement that, where appropriate, such individuals agree and arrange to become fully vaccinated against COVID-19 upon their arrival.

09/15/2021 - COVID-19 Vaccine Series Required for Immigration Medical Examinations

Effective Oct. 1, 2021, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record. This guidance applies prospectively to Form I-693 signed by civil surgeons on or after Oct. 1, 2021.

USCIS is updating its policy guidance in accordance with the Centers for Disease Control and Prevention’s Aug. 17 update to the Technical Instructions for Civil Surgeons. We are working on updating Form I-693 and the form instructions to incorporate this new requirement. Applicants must complete the COVID-19 vaccine series (one or two doses, depending on the vaccine) and provide documentation of vaccination to a USCIS-designated civil surgeon before completion of the immigration medical examination.

Background

In general, individuals applying to become a lawful permanent resident, and other applicants as deemed necessary, must undergo an immigration medical exam to show they are free from any conditions that would render them inadmissible under the health-related grounds. USCIS designates eligible physicians as civil surgeons to perform this immigration medical examination for applicants within the United States and to document the results of the immigration medical examination on Form I-693.

USCIS may grant a blanket waiver if a vaccine is:

--> Not age appropriate;

--> Contraindicated due to a medical condition;

--> Not routinely available in the state where the civil surgeon practices; or

--> Limited in supply and would cause significant delay for the applicant to receive the vaccination.

Individuals may also apply for waivers based on religious beliefs or moral convictions by submitting Form I-601, Application for Waiver of Grounds of Inadmissibility.

08/29/2021 - Advocates frustrated with administration as green cards poised to expire

The clock is running out on more than 100,000 employment-based green cards that the Biden administration could — but likely won't — issue before the end of the fiscal year.

The green cards, or permanent residency permits, are available for the administration to dole out to eligible immigrants but will expire on Sept. 30.

President Biden's pro-immigrant rhetoric has contrasted with former President Trump's restrictionist stance. But thus far, the administration has shown no signs that it will expend political capital to assign the expiring green cards, frustrating immigration advocates. "It's a question of willingness. Are you going to be willing to take the risk on someone trying to stop you in court or not? And obviously they're not willing to risk litigation on behalf of this population," said David Bier, an immigration researcher at the Cato Institute.

Nearly 90 percent of the immigrants who would be eligible for the expiring tranche of green cards are Indian nationals currently on temporary work visas. They face decades-long wait times to receive permanent residency.

Those wait times are essentially baked into the immigration system, as country caps established in statute have combined with high demand for green cards from Indian nationals, many of whom are already in the United States under work visas such as the H-1B.

Advocates are growing increasingly frustrated with the slow pace of adjudication and want United States Citizenship and Immigration Services (USCIS) — the agency that grants visas, permanent residency permits and naturalizations — to fast-track applications, making use of green cards that were left unclaimed because of the pandemic and Trump administration policies.

"There's two reasons there's far more green cards available this year for employment-based immigrants than in prior years, because so few family-based green cards were used last year, and any unused family-based green cards get added to the employment-based limit for the following year," said Bier.

"The second reason is that the government did almost nothing to increase the speed of adjudications in order to meet the increased demand," he added.

Under Biden, USCIS has made a series of changes to speed up and simplify green card applications, particularly for foreign nationals who seek to change their status from a work visa.

In practical terms, one of the most significant changes has been extending the validity of a medical examination from two to four years, a measure that especially helps Indian nationals stuck in the green card queue who must resubmit their visa and green card applications yearly.

USCIS also has new leadership under Ur Jaddou, who was confirmed by the Senate as director in early August.

Jaddou, in contrast to her predecessors under the Trump administration, has specific USCIS experience: She was the agency's chief counsel in the Obama administration and worked as a pro-immigrant advocate during the Trump years.

Still, USCIS is primarily fee-funded, and it's still recovering from a drop in receipts caused by fewer applications submitted during the pandemic, which, in turn, caused a hiring freeze that further slowed visa and green card processing.

The slowdowns have opened USCIS and other Biden immigration officials to criticism from defenders of various immigrant groups as frustration grows over visas and green cards that advocates say could be released.

"We have several cases that have continued against the Biden administration regarding unused visas," said Marisa Limón Garza, deputy director of Hope Border Institute.

Limón said that the Biden administration has continued Trump-era litigation and has been slow to issue visas under the Diversity Visa Program.

The Diversity Visa Program grants immigration benefits to citizens of countries that have historically low levels of immigration to the United States.

The Trump administration tried to draw down the program, which in large part benefits migrants from majority-Muslim and majority-Black countries. The move was broadly criticized by Democrats and immigrant advocates.

Limón said advocates won a court victory against the administration to issue more than 9,000 additional visas, including 921 for Afghan citizens, but the administration has yet to issue the documents.

"There is no reason why this administration who, number one, has promoted that they will take the steps that are necessary to make sure that our Afghan allies and refugees and asylum-seekers are evacuated from Afghanistan and, two, that they promote the diversity visa program should continue to stand in the way of a court order that would finally allow for some relief," said Limón.

04/08/2021 - Walled Off: How USCIS Has Closed Its Doors on Customers and Strayed from Its Statutory Customer Service Mission

Over the past four years, there has been a well-documented shift in USCIS’s priorities. While Congress established the agency through the Homeland Security Act of 2002 to focus on the effective and efficient administration of immigration benefits, it has in recent years sought to distance itself from its customer-oriented origins.

This shift in priority is evident in several changes that the agency has made to its services both on a national and local level, and in several policies enacted during the last four years that appear to have been designed to make it harder for USCIS customers to obtain benefits.

In making these changes, the agency effectively walled itself off from its customers, creating barriers to immigration benefits and timely and efficient customer service. This invisible wall has resulted in a significant decrease in customers’ ability to access meaningful assistance and informational updates from the agency. It has also reduced customers’ ability to provide much-needed feedback to USCIS regarding problematic case issues and other trends.

As the agency transitions to work under a new administration, agency officials must take active measures to reduce and eliminate inefficient processes and policies and increase transparency at both the national and local levels.