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C.D.C. Expands Requirement for Travel into the U.S.

Posted January 15, 2021Articles

Starting January 26th, 2021, The Centers for Disease Control and Prevention is expanding the requirement for a negative COVID-19 test or proof of recovery to all air passengers entering the United States. This order applies to U.S. Citizens and foreign travelers. This rule is expanding upon the policy that was implemented in late December, which requires travelers from Britain to show proof of the negative test result.

What this means for travelers

Passengers are required to take a viral test (a test for current infection) within three days of their flight to the U.S., and they must also provide proof of the laboratory test result to the airline. Alternatively, if you have proof from a licensed health care provider or official that you recovered from COVID-19 in the past 3 months, you can bypass the test requirement.

Please note that evidence of taking the COVID-19 vaccine will not exempt from these requirements, as the vaccine has been shown to prevent serious illness and may still be able to transmit the virus.

Airlines must confirm that each passenger has tested negative or recovered from COVID-19 before boarding. If a passenger does not comply with these requirements, they must be denied boarding to the passenger. Those who do not comply with the requirement or falsifies information are subject to criminal fines and imprisonment.

In addition, the C.D.C. currently recommends that all air travelers should get tested one to three days before travel, even domestically, and again three to five days after the trip is complete.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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USCIS to Replace Green Card Extension Stickers with Form I-797 Notice

Posted January 13, 2021Articles

Starting in January, USCIS will begin replacing stickers that are issued to lawful permanent residents (LPRs) based on a pending Form I-90 with a Form I-797, Notice of Action. The Form I-90, Application to Replace Permanent Resident Card, is filed when an LPR’s green card is close to, or has, expired. Historically, extension stickers were issued during biometric appointments to applicants who had a pending Form I-90. The Form I-797 notice will now serve as a receipt for the pending Form I-90.

What this means for Legal Permanent Residents

For LPRs, presenting the green card along with the revised Form I-797 notice will extend the green card’s validity for 12 months from the date on the front of the green card and will serve as temporary proof of the permanent resident’s status. This change also ensures LPRs with a recently expired green card will have documentation of identity, employment authorization, and authorization to return to the U.S. after temporary international travel. Applicants who file the Form I-90 to replace an expiring green card will now receive the revised Form I-797 notice in the mail approximately 7-10 days after USCIS accepts their application.

Under this new process, applicants will no longer have to wait for a biometrics appointment at an application support center (ASC) to obtain temporary evidence of LPR status. Current applicants who have already been scheduled for a biometrics appointment will not receive the revised Form I-797 notice and will instead still be issued an extension sticker at the time of their appointment.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Presidential Proclamations Suspending Certain Immigration Benefits Extended

Posted January 4, 2021Stephanie Wedel - Sr. AssociateArticles

On December 31, 2020, President Trump extended the Presidential Proclamations restricting the processing of consular issued green cards and the entry of certain nonimmigrant visa holders until March 31, 2021.

These proclamations, originally set to expire on December 31, 2020, impact green card applications directly at the consulate, as well as the ability of nonimmigrant visa holders in H-1B, H-2B, L-1, and J-1 status, and their dependents (H-4, L-2, J-2 visa holders), to travel internationally.

These proclamations do not affect individuals who:

  • Were inside the U.S. June 24th.
  • Have a valid nonimmigrant visa, advance parole or other U.S. travel document as of the date of this proclamation
  • Are lawful permanent residents of the U.S.
  • Are the spouse or child (under the age of 21) of a a U.S. Citizen
  • Are seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain
  • Medical workers (including spouse and children) seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other health care professional to perform essential COVID-19 related work
  • Intending immigrants entering pursuant to the EB-5 immigrant investor visa program
  • Individuals whose entry would be in the national interest

The previously established exceptions remain in place including:

 

  • Children who will turn 21 and age out of their current immigrant visa classification before the presidential proclamation expires or within two weeks thereafter.
  • Certain H and J visa applicants who are traveling to work in support of a critical U.S. foreign policy object (such as COVID-19 response) and/or traveling at the request of the U.S. government.
  • Spouses and children of H, J, and L visa holders who are already excepted from or not subject to the proclamation. If the primary visa holder is excepted because there were in the U.S. at the time of the proclamation, or already had a valid visa stamp at the time of the proclamation, the dependent spouse and children will also receive the exception.
  • Members of the plaintiff group in NAM v. DHS, which include the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, Technet, and Intrax.

As the Biden Administration takes office January 20, 2021, this extension could be shortened through a new presidential proclamation.

Meltzer Hellrung will continue to provide updates a s more information is available. Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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DHS Extends Form I-9 Requirement Flexibility through January 2021

Posted December 28, 2020Stephanie Wedel - Sr. AssociateArticles

 

U.S. Immigration and Customs Enforcement (ICE) again announced the extension of flexibility surrounding Form I-9 compliance rules that were established earlier this year due to COVID-19. ICE has extended this policy for through January 31, 2021.

This provision only applies to employers and workplaces that are operating exclusively remotely. This provision does not apply where there is an in-office presence. Companies with employees working remotely due to the pandemic do not need to review the documents with the employee physically present, but instead must review the documents remotely within three days of the employees start date. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

Please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

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Avoiding National Origin and Citizenship Status Discrimination in the Hiring Process

Posted December 23, 2020Articles

The Immigration and Nationality Act provides two distinct protections against discrimination:

  • Discrimination based on national origin
  • Discrimination based on citizenship status.

Violations of these protections can open an employer up to liability, with consequences ranging from civil penalties, attorney’s fees, compensatory damages, punitive damages, and other costs. The most expensive liability can be in public perception, as these violations are often well publicized.

Discrimination Based on National Origin

This protection applies to all work-authorized individuals and prohibits discrimination based on country of origin, accent, appearance, and similar features.  Examples of discrimination based on national origin include refusing to hire an applicant because of their accent or requiring specific proof of work authorization from Asians and Latino employees, but not white employees.

Discrimination Based on Citizenship Status

This protection only applies to U.S. Citizens and Nationals, Refugees, Asylees, and Recent Lawful Permanent Residents. Examples of discrimination based on citizenship status include restricting certain positions to U.S. Citizens only and effusing to hire an individual because they are a permanent resident or refugee.

Avoiding Discrimination During the Hiring Process

Paper/Application Stage

Given guidance from the Department of Justice, Meltzer Hellrung recommends asking only 2 questions of all applicants:

  • Are you authorized to work lawfully in the United States?
  • Do you now, or will you in the future, require sponsorship to work in the United States?

Employers are not required nor obligated to sponsor an applicant or employee for work authorization or permanent residency Employers are permitted to reject candidates based on a ”no” response to the first question and/or a “yes” response to the second question.  Employers who ask additional questions subject themselves to liability but are not required to ask these questions at all.

During the Interview

It is important that interviewers ask the same questions of each applicant.

Additional information about avoiding discrimination in the hiring process can be found here, including examples of the acceptable follow up questions in response to the questions above. 

Candidates will often provide information that is needed regarding their visa and immigration status when prompted. Employers can only request proof of authorization only after extending an offer. Up until the offer is made, employers must take the applicants at their words. Please note that employers cannot demand specific documents for the I-9 completion. 

To answer any questions or have your hiring materials reviewed, please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

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