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April 13, 2021

Many Americans, who value our democratic institutions and traditions, who value the rule of law, equality, and tolerance, were outraged at Trump’s and his supporters’ corrupt and violent attempts to cast aside valid election results that clearly elected Biden, breathed a sigh of relief, on January 20, 2021, as Donald Trump became a private citizen once again, while Joe Biden was sworn in as the 46th president of the United States of America.

President Biden got right down to business rescinding some of Trump’s most discriminatory and anti-immigrant executive actions. These include rescinding the following executive orders that banned immigration from the impacted countries:

  • Proclamation 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats
    • Countries impacted: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen
  • Proclamation 9723: Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
    • Countries impacted: Chad, Eritrea, Iran, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, Yemen.
    • Countries that subsequently qualified to be removed from the list: Chad
  • Proclamation 9983: Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry
    • Countries impacted: Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania

Unfortunately, President Biden did not rescind the COVID-based travel bans against Europe-Schengen Area, United Kingdom, Ireland, Brazil, China, and Iran, since those bans are in place on public health grounds rather than discrimination disguised as security concerns.

Also, unfortunately, Trump extended both his immigrant ban (click here to see my article on the details of this ban) and his non-immigrant visa ban (click here to see my article on the details of this ban) to March 31, 2021. Unfortunately, President Biden has not yet rescinded those bans, and so they remain in effect.

I am speculating that there is some political calculation in President Biden’s decision not to rescind the bans, namely that he does not want to antagonize those Americans, who believe that these measures are protecting them from competition for jobs, just as the COVID travel bans are designed to protect their health. There are probably also the political calculations behind this decision that most consulates will be closed for most of the time between now and then, and so those visas would not have been issued in the meantime, anyway. As a result, the negative impact is not so great, and then President Biden can just let the bans expire quietly without renewing them. This appears to be an indication that President Biden is trying to fulfill his promise to govern for the benefit of the American public at large, not just for the benefit of his core base of supporters. He has taken major steps to benefit immigrants, but now he is stepping back to address quietly the concerns of Americans who are concerned about the impact of immigration.

President Biden issued a memorandum instructing the Department of Homeland Security to reinstate the Deferred Action for Childhood Arrival program for young people who were brought to the U.S. as minors and have lived here without valid immigration status. (To view the original text, please click here.)

President Biden stopped funding on the border wall with Mexico based on Trump’s legally questionable reallocation of funding from the Department of Defense’s budget for the construction of the border wall with Mexico under an emergency declaration, in spite of Congress’ rejection of funding for the border wall. (To view the original text, please click here.)

At the same time that President Biden acted to undo Trump’s anti-immigrant immigration legacy, he submitted to Congress his proposal for how to reform the U.S. immigration system. The following is a summary of what was included in that proposal.

Biden’s immigration reform legislation

  • Would increase the availability of employment- and family-based immigrant visas through recapture of unused immigrant visas from past years, increasing the base-line quota number, and establishing a system for increasing the overall quota during times of economic growth, and reduce it during times of economic downturn.
  • Would eliminate the per-country immigrant visa quota limit.
  • Would create a 5-year path to permanent residence and a 3-year path to citizenship for illegal immigrants who pay taxes, pass certain background checks, and meet other requirements.
  • Would create a fast-track path to permanent residence and citizenship for those with DACA, TPS holders, and agricultural workers, as long as they work and/or attend school, pass a background check, and meet certain other requirements.
  • Would abolish the 3- and 10-year bars that disqualify many immigrants who were caught and sent back before successfully entering the U.S., or who were present in the U.S. without legal status and departed from the U.S.
  • Would work to clear the backlog of family-based immigration cases by recapturing unused immigrant visas from past years.
  • Would increase the number of immigrant visa available under the Diversity Visa Lottery from 55,000 to 80,000.
  • Would provide the spouses and children of H-1B visa holders with permission to work.
  • Would restrict the ability of future presidents to enact large-scale travel bans like Trump enacted.
  • Would increase funding for technology to detect illegal border crossers, improving roads along the border to improve CBP’s access to remote areas of the border, improving technology for scanning for illegal drugs and contraband, improving the infrastructure at the points of entry, increasing investigations of human and drug smuggling gangs, increasing investigation of and criminal penalties for human and drug smuggling gangs.

President Biden and the Democrats in Congress will probably find it challenging to pass the legislation, given the strong opposition to previous legislation offering illegal immigrants a path to legal immigration status. With a 50-50 split in the Senate, and even with Vice-President Harris being able to cast a tie-breaking vote, in the Senate, the rule that 60 senators must vote in favor of closing debate (the so-called “cloture rule”), leaves Republicans the possibility to block the legislation by filibuster. Undoubtedly, concessions and amendments will have to be made in order to pick up at least 10 Republican votes for the legislation. There might also be some parliamentarian tactics that can be employed to get around the cloture rule. Time will tell. However, the prospects for an immigrant-friendly reform of immigration look better than they have in years. We will update you as this legislation progresses through Congress.

April 13, 2021

Yesterday, February 24, 2021, President Biden revoked Former President Trump’s “Immigrant Ban”, pursuant to Proclamation 10014 from April 22, 2020, and its subsequent extensions in Proclamation 10052 from June 22, 2020, and Proclamation 10131 from December 31, 2020. Proclamation 10131, from December 31, 2020, was still in effect, extending the ban through March 31, 2021. President Biden’s revocation of the “Immigrant Ban” will help the following categories of immigrants, who are located outside of the U.S. and are currently awaiting an appointment for interview at a U.S. embassy or consulate abroad in connection with their immigrant visa application, to complete their immigration process:

  • parents of U.S. citizens;
  • siblings of U.S. citizens;
  • adult sons and daughters (unmarried or married), over 21 years of age, of U.S. citizens,
  • spouses and children (unmarried), under 21 years of age, of U.S. permanent residents;
  • adult sons and daughters (unmarried), over 21 years of age, of U.S. permanent residents;
  • employment-based immigrants in the EB-1 to EB-4 categories. (Immigrants in the EB-5 category were never impacted by the Immigrant Ban.); and
  • selectees in the Diversity Visa Lottery 2021, who were selected last year for receipt of an immigrant visa this year.

This is a wonderful development! However, it will take months, or even more than a year, for U.S. embassies and consulates, some of which are currently closed, some of which are open, but working with a limited capacity, to catch up their case load backlog. In any case, this is a step in the right direction as President Biden works to undo Former President Trump’s anti-immigrant legacy.

April 13, 2021

Last week, the Biden Administration restricted the qualifying justifications for approval of a National Interest Exception (“NIE”) to the COVID-based travel bans, to which countries in the Schengen Area, U.K., and Ireland are subject, to such a degree that very few applicants will now qualify. Moreover, the consular officers are under instructions not to approve the visa if the applicant does not also qualify for the NIE.

Just to recap, the Trump Administration imposed a COVID-based travel ban on the Schengen Area, (pursuant to Presidential Proclamation 9993) on March 11, 2020, and on the United Kingdom and Ireland (PP 9996) on March 14, 2020. Subsequently, on June 22, 2020, PP 10052 imposed an additional ban on H, L, and J-1 visas, and on June 29, 2020, PP 10052 was expanded to create the “National Interest Exception”, pursuant to which consular officers had the discretion to approve exceptions to the travel ban for a single entry to the U.S. within 30 days of approval, on the following grounds:

  • Public Health: Travel as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g. cancer or disease research).
  • Students: All students, and their dependents, traveling to the United States on an F or M visa to pursue a full course of study or on a J visa to participate in an exchange program as a bona fide student.
  • Academics: All exchange visitors and their dependents traveling to the United States on J visas in the following categories: Professors, Research Scholars, Short Term Scholars, or Specialists.
  • Investors: Travel in connection with investment or trade in the U.S. economy that generates a substantial economic impact, including investors and treaty-traders on E visas and the senior-level employees who provide strategic direction or expertise essential to the success of the investment, and their dependents.
  • Economic: Temporary travel that provides a substantial economic benefit to the U.S. economy, including:
    • Technical experts and specialists to install, service, maintain, or receive training for vessels, machinery and other specialized equipment used by U.S. and foreign firms with a substantial investment in the United States. Travel is temporary in nature and for a defined period of time.
    • Senior-level managers and executives, and their dependents, who provide strategic direction necessary for the success of the company or venture.
    • Professional athletes, dependents, and essential staff who enter the United States to participate in major sporting events, which bolster the U.S. economy.

The PP 10052 ban on H, L, and J-1 visas, and the “National Interest Exception” was in effect form June 22, 2020, to December 31, 2020, but then subsequently extended by President Trump from January 1, 2021, to March 31, 2021. Many applicants for new visas and people who already had valid visas succeeded in obtaining an NIE from a U.S. embassy or consulate in their home country.

Last week, on March 2, 2021, the State Department changed the criteria for qualifying for a National Interest Exception to only those people providing (click here to see the announcement on the State Department’s website):

(1) “vital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure linked supply chain” standard or a (2) “directly support the creation or retention of U.S. jobs” standard.

We received the following guidance from the U.S. Embassy in Paris on defining the two categories for qualifying and the standard of proof.

Vital Support of Critical Infrastructure

The designated critical infrastructure industries are, per the Department of Homeland

Security/Cybersecurity and Infrastructure Security Agency (DHS/CISA) list:

  • Chemical Sector
  • Commercial Facilities Sector
  • Communications Sector
  • Critical Manufacturing Sector
  • Dams Sector
  • Defense Industrial Base Sector
  • Emergency Services Sector
  • Energy Sector
  • Financial Services Sector
  • Food and Agriculture Sector
  • Government Facilities Sector
  • Healthcare and Public Health Sector
  • Information Technology Sector
  • Nuclear Reactors, Materials, and Waste Sector
  • Transportation Systems Sector
  • Water and Wastewater Systems Sector

The travel must be directly related to supporting the infrastructure. The examples given in Department guidance differentiate between those that would qualify – inspectors clearing deliveries or specialists who are completing essential components – and those that would not – senior executives traveling to observe operations or hold meetings. The applicant must be able to show why they cannot perform their work from outside of the United States.

Directly Support the Creation or Retention of U.S. Jobs

The second standard is still not fully detailed in our guidance. What we can convey is that we at the Embassy cannot approve exceptions based on the “directly support the creation or retention of U.S. jobs” standard. These cases must be referred further to the Department of State for approval by the Assistant Secretary of Consular Affairs. Based on this, we expect these exceptions to be very rare and the criteria to be very stringent.

While this change in policy did leave intact any NIEs that had already been approved pursuant to the previous rules, this change in policy, with setting the standard so much higher and stripping consular officers of the authority to issue NIEs, will have a devastating impact on businesses owned and managed by holders of E-2 investor, E-1 trader, and L-1A transfer visas, as well as those businesses that rely on the knowledge, skills, and talent of managers and specialists under L-1A, L-1B, H-1B, and O-1 visas. Similarly, professional sports in the U.S. will lose the benefit of any professional athletes who are back home in Europe and do not have a currently valid P visa and NIE. Among others, this change in policy will have the following consequences:

  • Practically no owners, managers, or specialists of small- or medium-sized businesses, who are from the Schengen Area, U.K., or Ireland, will be able to obtain a first-time E, L, H, or O visa or renew such a visa, or will be able obtain an NIE to travel with a currently valid visa of these types, in their home country or anywhere else in the Schengen Area, U.K., or Ireland.
  • The businesses that depend on these key personnel will suffer in their absence. Particularly, small- and medium-sized businesses that depend on the leadership and drive of their owner-manager might fail.
  • Professional team and individual sports will lose the benefit of top athletes from the Schengen Area, U.K., and Ireland, if they are not already in the U.S. or do not already have a P visa.
  • Investors, from the Schengen Area, U.K., or Ireland, who would be interested and willing to invest in the U.S. during the pandemic, when the U.S. desperately needs investment and job creation, would be deterred from contributing to the U.S. economy through investment and job creation.

This is a very short-sighted and misguided policy! Why would the State Department not be willing to settle for E, L, H, O, and P visa applicants submitting to a test before entering the U.S. and committing to obtaining the COVID vaccination within a stipulated period of time, allowing for some flexibility if the vaccine does not become available in the area they settle in the U.S.? This is also disappointing when you consider that there are other categories of people, who continue to be able to enter the U.S. without an NIE:

  • Students under F and M visas,
  • Journalists,
  • Tourists who spend 14 days in a third country outside of the Schengen Area, U.K., and Ireland, and
  • Asylum seekers on the border with Mexico, who were previously required to await a decision on their application outside the U.S. under the “Remain in Mexico” program.

These categories of people have generally not invested in the U.S. or taken steps to create new jobs or retain existing jobs in the U.S.

The following categories of travelers from the Schengen Area, U.K., and Ireland will continue to qualify for exemption from the COVID Travel Ban without an NIE:

  • I. any lawful permanent resident of the United States;
  • II. any alien who is the spouse of a U.S. citizen or lawful permanent resident;
  • III. any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  • IV. any alien who is the sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  • V. any alien who is the child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • VI. any alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  • VII. any alien traveling as a nonimmigrant pursuant to a C-1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
  • VIII. any alien
    • A. seeking entry into or transiting the United States pursuant to one of the following visas: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories); or
    • B. whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  • IX. any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee;
  • X. any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
  • XI. any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees; or
  • XII. members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.

If you do not qualify for any of the above-mentioned exceptions, but you do already have a valid non-immigrant visa or ESTA registration, you can still take advantage of the loophole, whereby you spend 2 weeks in a third country outside of the Schengen Area, U.K., or Ireland, undergo a PCR COVID test that yields a negative result within 72 hours of your entry. This loophole remains available for those who already have a valid non-immigrant visa or ESTA registration.

The change in the NIE policy impacts only those, who do not yet have a visa or ESTA registration. Nevertheless, there might be a solution also for those, who do not yet have their visa. There is the possibility to apply at a U.S. consulate in a country outside of the Schengen Area, U.K., or Ireland, that is willing to process the visa applications of people visiting, but not living long-term in their consular jurisdiction. However, under this scenario, the visa applicant (and any dependent family members, who are applying for a visa as a dependent) would have to submit to a two-week quarantine prior to the visa interview in order no longer to be subject to the travel ban at the time of the visa interview. On this basis, the consular officer would be able to approve the visa without an NIE.

In the end, there is a potential solution to this conundrum, but the travel, lodging, and living expenses for spending 2 weeks in a country outside of the Schengen Area, U.K., or Ireland could make this solution prohibitively expensive for some applicants.

Please contact us with you would like assistance in navigating this minefield.