Statutes of Liberty

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

The United States and the countries of the European Union are offering differing levels of protection to Ukrainians fleeing the war.

These differences reveal deeper characteristics of the immigration bureaucracies, and the political systems that operate them, in both sides of the Atlantic. In this (mildly editorializing) explainer, we will explain the differences between the European and American approaches, and provide our assessment, as practitioners, about the workability of the U.S. approach.

As always, we welcome comments and will reply to all that we can.

Europe: Temporary Status Now, Benefits in the Interim, Adjudication Later

Every single country in the European Union that borders Ukraine currently offers free entry to Ukrainian refugees. Although the European authorities ask that Ukrainian refugees carry valid travel and vaccination documents with them, failing to bring those documents will not prevent you from entering the EU. No visa is necessary to enter.

Once a Ukrainian refugee enters an EU border state, she can move at will throughout the Union. She is eligible for an immediate grant of temporary immigration status until March 4, 2023. (This temporary protection will not prevent her from applying for permanent protection via the asylum processes of each member state.) She is eligible for social welfare assistance, medical care, education for her children and eligible to work.

This one-year temporary status will be extended to a full three years if the war continues.

United States: Temporary Status for People Already Here, Promises of Future Resettlement, No Visas, Unpredictable Behavior at the Border

The United States has taken a broadly different approach to Ukrainian refugees, characterized mainly by a preference for pre-existing law.

• The United States announced (but has not implemented) Temporary Protected Status for Ukrainians present in the U.S. on March 1, 2022. We discussed this at length in our last Statutes of Liberty — read all about it.
• USCIS has announced special flexibility for Ukrainians who are looking for certain immigration benefits, including (1) changing visa status, (2) expedited processing of advance parole requests, (3) easier rules for obtaining off-campus employment for Ukrainian students, (4) faster decisions on petitions and applications, including work permit applications.
• President Biden promised to admit “up to” 100,000 refugees to the United States through the U.S. Refugee Admissions Program.
• CBP has begun to admit Ukrainian nationals at the US-Mexico border who are seeking asylum under slightly looser guidelines, providing exemptions from Title 42 restrictions. These applicants are being paroled into the United States, which allows them to live and work here for one year while seeking another immigration status.

What are the differences between the U.S. and European approaches?

The difference is legal formalities; the U.S. is insisting on them, and the European Union is not. That difference is a big one, and it is creating – as law always does — absurdities. For example:

• Ukrainians applying for visitor visas to enter the United States are being turned down right, left and center, because — as a matter of legal formality — applicants for a visitor visa must prove that they intend to return home within 90 days. That legal formality doesn’t apply at the border, so, predictably, Ukrainians are showing up at the border. This is a stupid combination of policies. (Dear Uncle Sam: If you intend to admit Ukrainians tout suite, don’t make them fly to Mexico first. If you don’t intend to admit them, don’t admit them.)
• The U.S. is working within its existing legal framework to provide protection for Ukrainians already here — even previous visa violators –– but is offering nothing but a promise of future resettlement to people who aren’t here already. That promise is probably empty, because the U.S. refugee resettlement bureaucracy can’t handle the promised flow.

It is hard to say why the United States is pursuing a formalist approach to managing refugee flows. Simple proximity is probably the most important reason; the Europeans have nearly a million refugees at their doorstep, and we don’t. But, as practitioners in this area, we think that another important limitation on the U.S. response is the unmanageability of the bureaucratic machinery.

Without Congressional action, the Biden administration can only operate within the formal structure of pre-existing law, and the immigration machinery, divided as it is between bureaucracies with differing remits and differing levels of competence, is neither nimble nor humane.

We have seen Congressional action before, in previous refugee crises, like the breakup of the Soviet Union and the collapse of the South Vietnamese government. If the U.S. is going to do its part to shelter those fleeing the conflict, Congress is going to have to get off its collective duff and pass a law.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

As the war in Ukraine continues, the United States government has taken steps to protect Ukrainians in the United States. On March 3, 2022, the Secretary of Homeland Security, Alejandro Mayorkas, announced that Ukraine has been designated for Temporary Protected Status, or TPS, for 18 months.

Our immigration laws allow the Secretary of Homeland Security to designate specific countries for TPS. The Secretary may designate an entire country or part of a country for TPS if (1) there is an ongoing conflict and returning nationals to that country would pose a threat to their personal safety; (2) if there has been a natural disaster and the country in question cannot handle an influx of returning nationals; or (3) there are existing extraordinary circumstances that prevents a country’s nationals from returning to the country safely.

TPS grantees will benefit from not being physically removed from the United States while their TPS is current. Additionally, they can apply for work authorization and a social security number. In the case of Ukraine, Ukrainian nationals will be eligible for TPS if they were continuously residing in the United States since at least March 1, 2022 and do not have negative discretionary factors.

TPS applicants should be prepared to pay an estimated government filing fee of $545.00 if applying for both TPS and a work permit. Without a work permit, the estimated government filing fee is $135.00. Always check the instructions and USCIS webpage to ensure that you are submitting the correct government filing fee.

Unfortunately, the government has yet to issue an official notice with the Federal Register, which dictates any other specific rules or guidelines for Ukrainian TPS. Unless and until that happens, no one eligible for Ukrainian TPS should apply. Once the government is able to accept Ukrainian TPS applications, we will be here to help.

We also wish to use this opportunity to highlight a good cause that one of our clients brought to our attention.

The St. Andrew Ukrainian Orthodox Cathedral in Silver Spring, Maryland, is collecting monetary, medical, food and personal hygiene donations to aid Ukrainians in Ukraine. They have even created an Amazon list of items that are in high demand so you can donate without making a trip to drop off your donation in person. If you are interested in donating or helping via the church, here is a link to their webpage with all the relevant information.

As always, we welcome comments and will reply to all that we can.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If You Oppose the War in Ukraine, Apply for Asylum with Our Office, for Free

Like most Americans, we reacted to news of the Russian attack on Ukraine with horror.

There are a few things that we, as immigration lawyers, can do to help.

The first thing we can do is offer our advice and assistance to any Russian diplomats and government employees in Washington. Ordinary Russian citizens are protesting their government’s decision to invade Ukraine, at great risk to themselves and their families.

If you are a Russian diplomat or government employee in the Washington, D.C. area, and you oppose this invasion, and you fear that your opposition to your government’s policy will put you and your family in danger, our office will be glad to help you and your family apply for political asylum in the United States, for free. Feel free to contact us by whatever means you consider safest and most secure.

The second thing we can do is provide information to Ukrainians living in our area about how our immigration laws may be able to offer them some assistance. The U.S. government is considering offering temporary protection (“TPS”) to Ukrainians in the U.S., but that has not happened yet. Do not apply for that benefit until it is available. If you are here on a visitor visa, you might consider applying to extend your stay. We can help with that, and answer any other questions you have about how to remain safely in the United States.

In addition, we want to share information about departure from Ukraine for those who hold valid travel documents. Pre-departure COVID tests are no longer required. Of course, in the absence of civilian air travel in Ukraine, this information is likely to be more useful to Ukrainians who have already left Ukraine for other countries with functioning civil air transport.

The third thing we can do is provide information for Americans in Ukraine. The State Department has released guidance on how to leave Ukraine. Here it is. Please stay safe.

As always, we welcome comments and will reply to all that we can.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

This year, the first week of March is the biggest week of the year for business immigration: H-1B season.

The H-1B visa is a visa for foreign workers who will work in a specialty occupation in the United States on a temporary basis. This means that foreigners who have specialty degrees — software programmers, accountants, lawyers — can work in the United States as long as they have a U.S.-based employer willing and able to hire them. The theory here is that workers in specialty occupations contribute greatly to the U.S. economy. (We agree with this theory, with the possible exception of lawyers who don’t advertise on ARLnow.)

Demand greatly exceeds supply for these visas. Each fiscal year, there is a cap of 65,000 visas and a separate cap of 20,000 visas, known as the master’s cap, for foreign nationals with a U.S. master’s degree or higher, for a total of 85,000 available visas. Most employers submit applications for foreign workers under this program in the hope that foreign workers will start work at the beginning of the next fiscal year, on October 1, 2023.

For the upcoming H-1B cap season, USCIS will continue to use the electronic registration process. Between March 1 and March 18, 2022, all employers seeking to file cap-subject petitions, including advanced degree petitions, must electronically register and pay a $10.00 fee to USCIS for each petition they wish to file. USCIS will then select registrations at random, and only those registrations chosen will be eligible to file a full cap-subject petition.

Demand is indeed intense. Usually, the number of registrations exceed the annual cap of 85,000 visas so USCIS makes random selections from those candidates who have registered. Once a registration is selected by USCIS, the employer has 90 days from the day to notification to file the petition.

If there are not enough registrations, or if employers fail to file the petition for the selected candidate, USCIS may continue accepting submitted registrations or open a new registration period.

Last year, after the initial lottery and the subsequent 90 day filing deadline for selected petitions, USCIS determined that the cap had not been met, thus triggering a second lottery where it selected an additional 27,717 registrations. A third lottery was announced in November, with the selection of an additional 16,753 registrations.

Electronic filing has proven to be a useful and cost-saving tool for employers as they do not have to file the whole H-1B petition and wait to see if their applications have been selected. The process, is however complex, and given the short timeframe to apply once a selection has been notified it is important to consult with an experienced immigration lawyer who can help companies navigate this new process. We are here to help.

As always, we welcome comments and will reply to all that we can.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

We’ve written before about the backlog in the U.S. immigration courts. It’s bad — it’s really bad, and getting worse, and it’s getting worse in new and interesting ways.

The good folks at Syracuse University’s TRAC system, who usually cultivate the same authorial blandness as The New Bill James Historical Baseball Abstract, describe it as an “avalanche of cases” which is “accelerating at a breakneck pace.” When our firm founder began practicing in 2011, there were about 250,000 noncitizens awaiting trial. Now, there are 1.6 million, and the quarterly increase is up to 150,000.

Let’s consider a few intuitively reasonable (but false) explanations for why this is happening:

1. Trump did it.

No, he didn’t. The Trump Administration certainly put the pedal to the floor on immigration enforcement in all sorts of ways, but the peak quarterly number of cases sent to immigration court was in FY 2019 — 78,000. That’s roughly half of the current figure.

(We hasten to add that the backlog got much worse under Trump. The immigration courts started in January 2017 with a backlog of 542,411 and ended with 1.2M. But the numbers don’t lie — the Biden administration has added another 400,000 in one year; it took the Trump administration four years to exceed that number.)

2. COVID did it.

No, it didn’t. There are two important metrics for measuring the efficiency of an assembly line: the number of widgets that go in, and the number of widgets that go out. In immigration court, we call those “Case Initiations” and “Case Completions.” COVID lowered the case completion rate from 40,000 per month to about 6,000 per month in the worst stages of the pandemic, but case completion rates are back up to 22,000 per month. That drop — 18,000 per month, from peak efficiency to current efficiency — represents only about 20% of the quarterly increase in the backlog.

So, what’s the main cause? The answer is simple: The Department of Homeland Security is initiating many more cases. We don’t know the reason why, but, digging into the numbers, our suspicion is that these cases are starting at the border. The Trump Administration’s “adjudicate cases at the border and keep them out” approach failed, and, so far, the Biden administration’s “rapid, fair, and orderly” approach is failing, too.

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

In our federal system, states and localities have primary police power and the federal government has primary authority over immigration enforcement.

This leads to predictable conflicts over policing and immigration enforcement. For years, states have tried to control immigration through state law, and localities have tried to control immigration enforcement by ordinance. For its part, the federal government has tried to leverage local law enforcement to increase its own operational capacity.

You may recall that a few years ago, Arizona enacted SB 1070, which allowed state and local law enforcement to question, arrest and detain those who they suspected were undocumented. The law made its way to the Supreme Court, which stuck down all but one of the key provisions, citing federal preemption.

This power struggle has reappeared very recently in Texas. The Governor of Texas, Greg Abbott, instituted a border security initiative which includes filing a misdemeanor charge of trespassing against immigrants who cross the U.S.-Mexico border without proper papers. However, on January 13, a Travis County, Texas judge threw out the charges, finding that the initiative to arrest immigrants on state trespassing charges unconstitutional. The judge ruled that the U.S. Constitution’s Supremacy Clause, which states that the Constitution is the supreme law of the land, prohibits such a law because the federal government has the sole power to regulate and enforce immigration under the constitution.

So, what does the Constitution say about the federal government’s power to regulate and enforce immigration? While no specific section of the Constitution specifically says the federal government has the sole responsibility to regulate and enforce immigration, various sections in the Constitution notate powers that only the federal government has, and those together have been interpreted to imply the power to regulate immigration. Those sections include the power to declare war against foreign states, to regulate commerce with foreign states, and to establish rules regarding naturalization.

Laws like those in Texas and Arizona are almost bound to fail because of these federal powers. The federal government, through Congress, has already established a system for regulating immigration, including initiating deportation proceedings against a noncitizen. Congress has also established laws regarding the detention of noncitizens as well as the naturalization of noncitizens. The power from the Constitution, plus the federal law already established, bars the states from creating their own immigration laws and rules regarding naturalizing noncitizens.

Conversely, sanctuary city initiatives — in which local jurisdictions simply decline to cooperate with federal immigration authorities — have generally survived judicial scrutiny. It is worth noting that Arlington does not describe itself as a sanctuary jurisdiction. Arlington is quite welcoming to immigrants — indeed, Arlington has gone out of its way to fund legal defense for immigrants facing deportation — but Arlington does cooperate with federal immigration authorities in a limited number of cases.

We expect to see the Texas Governor Abbott’s initiative ultimately struck down, as these cases will more than likely make their way through the court system.

As always, we welcome your thoughts and questions and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Last month, we gave you our review of what 2021 brought to the wild world of immigration law. This month, we want to give you a peek into the crystal ball and tell you what we think 2022 will bring.

Fee Increases

We predict that DHS will succeed in increasing its fees, though not to the extent proposed during the Trump Administration. This fee increase will have two parts — increases to fees paid to the State Department for visa applications, like student visas and visitor visas — and increases to fees paid directly to USCIS for all sorts of immigration benefits, including green cards, work permits, naturalization and employment-based visas. It is quite possible that USCIS will expand the availability of Premium Processing for additional types of employment-based immigration benefits.

Whether USCIS needs the additional money is a tough question. It is beyond dispute that delays have skyrocketed. Whether additional money would solve the problem is a matter of dispute; we tend to think that USCIS’s problems are operational, not financial.

Immigration Courts Open for Business

The Immigration Courts — including our local court in Arlington — have opened and closed as the waves of COVID have swept through our area. At the moment, the Omicron variant has led the Arlington Immigration Court to stop holding crowded preliminary hearings, but trials (“individual hearings”) are continuing as normal.

Making predictions about the immigration courts means making predictions about COVID, which means making a fool of yourself in public. Fortunately, as Statutes of Liberty readers know, we’re more than willing to do that.

We predict that the Omicron variant will have little impact on the functioning of the immigration courts. Trials will continue. Perhaps the immigration court backlog will even begin to decline. Hope is the thing with feathers –/that perches in the soul…

Asylum Backlogs Will Get Worse

Several factors will combine to make U.S. asylum offices even more backlogged than they are now. First of all, the Remain in Mexico program will die. Litigation to preserve it cannot, in the long run, prevail against the Biden Administration’s deep unhappiness about being forced to continue it. Second, as COVID-related restraining measures slowly are repealed, the continued use of Title 42 will end, either voluntarily or by injunction. The end of those two programs will make it easier to come to the U.S. to seek asylum, and the incredibly tight labor market will increase the financial incentive to do so.

We respect our local asylum office and appreciate the work of asylum officers, but we have no confidence that DHS will staff up the asylum offices sufficiently to cope with any increase in applications.

Immigration Reform Won’t Happen

Congress last acted to reform U.S. immigration law, in a significant way, in 1965. That was a long time ago; the distance between 1965 and the present is the span between 1965 and the Roosevelt Administration (TR, not FDR).

Immigration reform came close to happening in Build Back Better. It came closer in 2004. It won’t happen this year. Legislative action to formalize DACA into a permanent status won’t happen either. We’ll continue to muddle through.

Do you have predictions about what will happen next year? Tell us in the comments. As always, we welcome your thoughts and questions and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

COVID-19

COVID-19 had systemic effects on the U.S. immigration system. We’ve had travel bans, travel bans reversed and new vaccination requirements for foreign nationals. We’ve also seen gigantic delays at U.S. Embassies abroad.

October brought the biggest changes when it comes to the intersection of immigration and COVID-19. First, beginning on October 1, immigrants applying for green cards either within the United States or at U.S. embassies abroad are required to be fully vaccinated against COVID-19. There are a few exceptions, and various vaccinations are acceptable apart from the “big three” we have in the United States. This vaccination requirement is an addition to the other vaccines that were previously required, like the influenza and chicken pox vaccines. We expect this requirement to stick around for the foreseeable future.

October also marked the month when geographic travel bans were reversed and the Biden Administration issued a new proclamation requiring vaccination for travel to the United States. Previously, visitors and other temporary immigrants from the Schengen Area, Brazil, India and some other countries were not permitted to travel to the United States unless they had spent a specific amount of time in a third country without testing positive for COVID-19. Now, those geographic restrictions no longer apply and now temporary immigrants, including visitors, must show that they are vaccinated against COVID-19, with minor exceptions. Some exceptions include children under 18, diplomats and airline crew members.

DACA and DREAMers Remain in Limbo

Federal courts have made a confusing series of decisions regarding the Obama-era DACA program. Impact litigators on both sides have obtained competing orders for injunctive relief in different federal courts, and so, like everyone’s favorite throwback Facebook status, it’s complicated. The current status of the DACA program is as follows: those are who are eligible for DACA but never filed before can file their initial applications, but the immigration authorities are holding onto those applications until further notice; therefore, new applicants should not expect a decision on their initial applications any time soon. Those who previously had DACA before the federal court litigation may still file and renew their DACA for the time being.

Despite lots of hope from many about relief for DREAMers, we still have not seen any major changes come out of Congress for DREAMers. We also haven’t seen the DACA program come through a notice and comment period via the Administrative Procedures Act, so we expect this limbo to remain for the time being.

Still No Amnesty

As we predicted, Sen. Joe Manchin (D-WV) — Lord of the Black Hills, First of His Name — has torpedoed  the Build Back Better Act. Even if he hadn’t done so, our view was that the immigration provisions of BBB were toast, due to the complex requirements of the reconciliation procedure. Going forward, don’t expect significant immigration reform to come out of the current Congress. But don’t worry — things can still get worse! The CW is that Republicans will take back both the House and the Senate in 2022, which means divided government and, especially on hot-button questions like immigration, guaranteed gridlock.

As always, we welcome your thoughts and questions and will do our best to respond.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Is there a massive amnesty in Build Back Better? Yes. Will it happen? Probably not.

The Build Back Better Act (BBBA) is not about immigration, but it’s such an enormous bill that the even relatively minor parts of it which do concern immigration would, in toto, constitute the most consequential immigration legislation since 1986.

What are the most important provisions of BBBA for immigrants in the United States?

• Section 60001 — Parole in Place

This section would offer “parole” to approximately 6 million unauthorized immigrants in the United States. “Parole” has a technical meaning in U.S. immigration law — it has nothing to do with the concept of parole in criminal law. Instead, think of parole as permission to enter the United States.

People outside the United States are already able to apply for parole if, for some reason, our ordinary visa system is not well-suited to the situation. “Parole in place” is, therefore, a grant of parole to persons already inside the United States.

The real-world effect of Section 60001 would be the grant of work permits and travel permits to an estimated six million unauthorized immigrants who entered the U.S. before January 1, 2011. These benefits would be five years in length, renewable for another five years — until September 30, 2031.

Approximately six million people would be eligible for this benefit. Although these parolees would not be eligible for green cards, parolees would have the three most important elements of immigration status in the United States — the ability to work, the ability to travel and substantial protection against deportation.

• Section 60002 — Visa number recapture

This highly technical (but consequential) section concerns something called “visa number recapture,” in which the United States would make green cards slots available which were not used in prior years. Unlike earlier immigration reform proposals, the BBBA limits the number of slots recaptured to between 250,000 and 400,000.

• Section 60003 — Allowing early applications for adjustment of status

Under current law, you can’t apply for a green card if you’re waiting in line for a visa number to be available. Section 60003 changes that by allowing you to apply for a green card while you wait for a visa number to be available, which is a big deal because you can apply for a work and travel permit while the application for a green card is pending. Section 60003 would not create any new eligibility categories for green cards, but it would force-feed a large number of people into the system all at once, and make them eligible for work and travel permits until their green cards are adjudicated.

• Section 60004 — Minor fee increases

Section 60004 would allow for minor fee increases to items like green card renewals ($500), H-1B petitions ($500), applications to extend nonimmigrant status ($500 — see the pattern?) and certain work permit applications ($500).

Visitors and other non-immigrant entrants to the United States would be charged $19 upon arrival, which is a puzzling addition, but there you have it.

• Section 60005 — Payola

$2.8 billion would be appropriated to help USCIS adjudicate Section 60001 applications, reduce backlogs and improve efficiency. It’s hard to appreciate numbers like $2.8 billion outside of context, so here’s the context that matters: USCIS’s enacted budget for FY 2021 was $4.7 billion, so $2.8 billion is a pretty substantial injection of funds.

We’re happy to provide you with our analysis, but we also encourage readers to read alternative views. The CBO provides a useful summary here; for analyses from competing sources, see this analysis from the American Immigration Lawyers Association (pro) and the Center for Immigration Studies (contra).

Will the Immigration Provisions of BBBA Withstand the Byrd Bath?

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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Traveling to the U.S. for the holidays? Here’s the info on new COVID-19 requirements!

Citizens! Readers! Fellow disease vectors! We are approaching that time of the year when we travel to be with loved ones, eat overrated food and consider throwing a turkey drumstick at Uncle Billy. Last year, very few people traveled, but this year has looked a bit more “normal” according to the TSA checkpoint travel numbers.

What does the new normal look like for those traveling to the U.S.?

On October 25, 2021, President Biden issued Presidential Proclamation 10294 rescinding the geographic COVID-19 travel bans which restricted travel for those from China, Iran, the Schengen Area, UK and Ireland, Brazil, South Africa and India, and adopted COVID-19 vaccination requirements for all international air travelers to the United States (with few exceptions).

According to the new Presidential Proclamation, all international air travelers must be fully vaccinated to enter the United States. Air travelers are now required to provide proof of vaccination before boarding a plane to the United States; but beware, not all vaccines are accepted. The CDC has published a list of vaccines that are approved or authorized by the FDA or on the World Health Organization emergency use list. The following vaccines are accepted:

• Janssen/Johnson & Johnson (Single Dose)
• Pfizer-BioNTech
• Moderna
• AstraZeneca
• Covishield
• BIBP/Sinopharm
• Sinovac
• Covaxin

The Proclamation provides some exceptions to the vaccine requirement (spoiler alert: no religious or moral convictions exceptions are included). These are as follows:

• Children under the age of 18
• Those who have participated in clinical trials for covid-19 vaccination
• Those for whom covid-19 vaccines are medically contraindicated
• Those who are granted humanitarian and emergency exceptions by the Director of the CDC
• Those citizens of a country with less than 10% of the population vaccinated
• Members of the U.S. armed forces and their spouses and children
• National interest exceptions
• Diplomats or persons on official government travel
• United Nations travel
• Sea crew members
• Airline crew members

It is important to note that anyone subject to these exceptions will have rigorous testing requirements upon arrival, and will have to self-quarantine for 7 days (even if the test results are negative), or self-isolate (in the case of a positive result). Moreover, if these individuals intend to stay for longer than 60 days, they may be required to become fully vaccinated within 60 days of arrival or as soon as medically appropriate.

For more detailed information about the requirements for proof of COVID-19 vaccination for air passengers, please visit this link.

As always, we are happy to answer any questions from our readers. Happy and healthy Thanksgiving!

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

If you are a loyal reader of our columns, you know that there are always new federal lawsuits popping up against various federal government agencies. Well, this week is no exception.

On November, 8, 2021, the American Immigration Lawyers Association, along with four other attorneys in private practice, filed a class action lawsuit in the U.S. District Court for the District of Columbia. There are 49 plaintiffs and four defendants: the Department of Homeland Security (“DHS”), Alejandro Mayorkas, the Secretary of DHS, U.S. Citizenship and Immigration Services (“USCIS”), and Ur Jaddou, the Director of USCIS.

The lawsuit alleges that USCIS, a sub-agency within DHS, is failing to meet its obligation to issue employment authorization documents (AKA work permits) for certain immigrants who are entitled to them. In particular, the lawsuit alleges that USCIS is processing two categories of work permit applications too slowly: applications based on pending green card applications, and applications for immigrant investors known as E-2 non-immigrants. Notably, many applicants pay a processing fee to the government when they file their applications.

Previously, USCIS was required by regulation to adjudicate work permit applications within 90 days; if the agency took longer than 90 days, it was required to provide an interim employment authorization document valid for no longer than 240 days. In 2015, however, DHS published a new rule for public comment that proposed to eliminate the 90-day processing rule.

Many commenters suggested to DHS that the elimination of the 90-day processing timeline would result in lackadaisical processing of work permit applications and a large backlog. DHS publicly responded to these comments by stating that eliminating the 90-day rule would not lead to inflated processing times except in rare circumstances. The rule eliminating the 90-day processing requirement became final in 2017.

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