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Employment for spouses gets major win today

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Today, fifteen nonimmigrant plaintiffs reached a settlement agreement with the Department of Homeland Security in a putative class action over long-delayed processing of H-4 and L-2  employment authorization documents (EADs).

 

The settlement agreement contains two key changes for H-4 and L-2 work authorization:

 

The first major victory is for automatic extension of EAD based on a timely filed extension. Qualifying H-4 nonimmigrants who timely file I-765 extension applications and will continue to have H-4 status beyond the expiration date of their EADs will now have their employment authorization automatically extended. The auto-extension of employment authorization will end once the nonimmigrant’s H-4 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, qualifying H-4 nonimmigrants may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

Within 120 days, U.S. Citizenship and Immigration Services (USCIS) will amend I-765 receipt notices to detail the EAD auto-extension eligibility for qualifying H-4 nonimmigrants.

 

The second major victory is that USCIS will issue guidance stating that L-2 spouses will have work authorization incident to status. Within 120 days, U.S. Customs and Border Protection (CBP) will change the Form I-94 to mention L-2 spouse where appropriate. Once CBP updates the Form I-94, it will be available for use as a List C document for I-9 purposes.

 

Further, L-2 spouses who timely file I-765 extension applications and will continue to have L-2 status beyond the expiration date of their EADs will have their employment authorization automatically extended. The auto-extension will end once the nonimmigrant’s L-2 status expires according to their Form I-94; once the I-765 application is approved or denied; or 180 days from the expiration date on the face of the EAD.

 

To complete the I-9, L-2 spouses may provide a combination of documents in lieu of an unexpired EAD, including an expired EAD, I-765 receipt notice evidencing timely filed application, and unexpired Form I-94.

 

USCIS will issue further guidance to employers and benefit granting agencies. Graham Adair will monitor the situation closely for developments. If you are an L-2 or H-4 spouse with a pending I-765 application and you have questions about the implications of the settlement agreement on your EAD processing, please reach out to the Graham Adair attorney handling your case.

 

Please contact your Graham Adair attorney with any specific questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories News & Updates

U.S. lifting entry restrictions for vaccinated travelers starting November 8

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The White House announced that the U.S. is lifting COVID-19 travel restrictions for fully vaccinated travelers starting November 8, 2021. The announcement applies to both land borders and air travel.

 

The U.S. will admit fully vaccinated foreign air travelers from the 26 Schengen countries in Europe, including France, Germany, Italy, Spain, Switzerland and Greece, as well as Britain, Ireland, China, India, South Africa, Iran and Brazil. These travelers will be required to present proof of vaccination and a negative COVID test taken no more than 72 hours prior to flying.

 

Beginning November 8, the U.S. will also admit fully vaccinated foreign land travelers crossing into the U.S. from Canada or Mexico. Essential land travelers who were never banned from traveling into the U.S. will be need to be fully vaccinated by January 2022. Land travelers will not need to show a negative COVID test.

 

The U.S. Centers for Disease Control and Prevention is in charge of determining which vaccines qualify. Currently, all FDA approved and authorized vaccines, as well as all vaccines recognized by the World Health Organization, will be accepted.

 

Please contact your Graham Adair attorney with any specific questions, or contact us at info@grahamadair.com; +1 408 715 7067.

Categories News & Updates

U.S. to reopen land borders to fully vaccinated travelers from Canada and Mexico

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In March 2020, the United States closed the land border to non-essential travel in an effort to help reduce the spread of COVID-19. On October 12, 2021, the Department of Homeland Security announced that the U.S. is lifting the COVID-19 restrictions starting in November 2021. The U.S. will allow travel for non-essential purposes, including to visit friends and family for tourism, via land and ferry. An exact date in November has not yet been announced. However, it is expected to be announced very soon.

 

Travelers entering the U.S. at the Mexico or Canada border will be questioned by Customs and Border Protection officers about their vaccination status before being allowed to enter. The officers will have the discretion to send travelers to a secondary screening for the vaccination documents to be checked. The U.S. Centers for Disease Control and Prevention is expected to give an update on what sort of proof of vaccination will be accepted.

 

Additionally, beginning in January 2022, the United States will require essential travelers, including commercial drivers, students, and healthcare workers, to show proof of vaccination when crossing land borders.

 

The decision to open the U.S. land border and to require proof of vaccination coincides with the U.S. reopening for foreign air travelers. The White House announced on September 20, 2021 that the U.S. will lift travel restrictions in early November for air travelers from 33 countries including, China, India, Brazil and most of Europe. All non-U.S. air travelers will need to show proof of vaccination and a negative COVID test to enter the U.S. By contrast, land and ferry travelers will not need to provide a negative COVID test result.

 

The U.S. Centers for Disease Control and Prevention said the U.S. will accept COVID-19 vaccines from visitors who received vaccines authorized by U.S. regulators or the World Health Organization. Currently, this includes two doses of the Pfizer-BioNTech, Moderna or Oxford-AstraZeneca/Covishield, Sinopharm or Sinovac vaccines, or a single dose of the Johnson & Johnson vaccine. A remaining question is whether travelers who received mixed doses will be considered fully vaccinated.

 

Please contact your Graham Adair attorney with any questions, or email us at info@grahamadair.com.

Categories Department of Labor Department of State News & Updates USCIS

Looming government shutdown’s anticipated impact on immigration

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The Senate failed on Monday to pass a key procedural FY 2022 federal budget vote to advance the House-passed short-term government funding bill. If lawmakers fail to reach an agreement, U.S. government funding could expire and lead to a full federal government closure on 12:01 am on October 1, 2021.

What impact does this have on immigration processing? Each federal agency would have its own shutdown plan, which will coordinated by the Office of Management and Budget. However, based on prior shutdowns in previous years, the following should be expected:

Immigration operations that should remain in operation:

  • Customs and Border Protection (CBP): CBP is likely to continue processing immigration applications at the border and performing inspection functions.
  • Immigration and Customs Enforcement: ICE enforcement activities and operations of the Student and Exchange Visitor Information System (SEVIS) should continue.
  • SAVE System (USCIS database used by government agencies such as state motor vehicle departments to verify an applicant’s immigration status when processing applications for benefits).

Immigration operations that will likely be suspended:

  • Department of Labor (DOL): As the DOL would likely be categorized as a non-essential function, DOL immigration functions will likely be suspended. No PERM applications, labor condition applications (LCAs), prevailing wage determinations (PWDs) or applications for temporary labor certification would be processed. The agency would not accept PERM applications or audit responses, LCAs or prevailing wage requests either online or by mail.
  • E-Verify: Employers should expect to be unable to initiate E-Verify queries or resolve tentative non-confirmations, and would not be expected to meet the usual E-Verify deadlines until the program is reauthorized. Please note, employers should not take any adverse action against any employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. All employers will remain subject to Form I-9 obligations and deadlines as usual.
  • Conrad 30 Program

Immigration operations that will be potentially experience further processing delays:

  • U.S. Citizenship and Immigration Services (USCIS): The USCIS should continue to process applications but processing delays, already widespread, would continue or worsen. Appointments at USCIS local offices and Application Support Centers should not be affected by the shutdown, though COVID-19 precautions are still in place.
  • Department of State: Some passport offices may be affected if they are located in federal buildings that are closed due to the shutdown, but if not, should continue operations. Although the State Department’s visa processing and U.S. citizenship document functions are not expected to be suspended, they may be further affected by reduced staffing and other effects of the COVID-19 pandemic.

We will continue to monitor the situation and provide updates as they become available. In the meantime, please contact your Graham Adair attorney with any questions.

Categories News & Updates

Biden Administration Announces Plans to Remove Regional Travel Bans

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Yesterday, the Biden Administration announced that it plans to rescind the current geographic COVID-19 related travel bans implemented for foreign nationals traveling from China, Iran, the Schengen Area, U.K., Ireland, Brazil, South Africa, and India and will instead implement a requirement that foreign nationals be fully vaccinated against COVID-19 to enter the U.S. While at this time the administration did not provide an exact date of implementation, officials did state that they anticipate this will be in place in early November. We also expect to have further details on what proof will be required and what vaccines will be accepted in early November. If you have any questions, please contact your Graham Adair attorney.

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