January 2021 Immigration Alert
President Biden’s Proclamation Rescinds the “Muslim Ban”
On his first day in office, President Joe Biden signed Proclamations 9645 and 9983, which immediately ended earlier executive orders and presidential proclamations that prevented certain individuals from entering the United States, mostly from Muslim countries, commonly referred to as the “Muslim Ban.” The ban suspended U.S. embassies from issuing both immigrant (i.e., U.S. permanent residency applications, also known as “green cards”) and nonimmigrant visas for nationals of Buran, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen. Those wishing to apply for visas may now do so at the appropriate U.S. consulate.
Biden Administration Immediately Freezes and Withdraws Several of President Trump’s Immigration Regulations Published in January 2021
Before leaving office, President Trump’s administration published several immigration-based regulations, which would have (1) increased the wage levels of the H-1B and PERM Labor Certification requirements (86 FR 3608, formerly 85 FR 63872) as of March 15, 2021; (2) modified the H-1B cap registration process to give first priority to those H-1B positions offered the highest wage level for their given occupation and area of employment (86 FR 1676), as of March 9, 2021; (3) implemented the Strengthening the H-1B Nonimmigrant Visa Classification Program final rule (“Final Rule”), which would have narrowed the definition of a “specialty occupation” (85 FR 63918); and (4) implemented Department of Labor (“DOL”) revisions requiring secondary common-law employers of H-1B workers to file a Labor Condition Application (“LCA”).
On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum that ordered the immediate withdrawal of all pending regulations submitted for publishing with the Federal Register and postponed for 60 days regulations that have been published but not taken effect, to permit review by the administration.
As a result, the modified version of the Final Rule, which was sent to the Federal Register on January 15 but not yet published, was withdrawn. The DOL’s revision regarding secondary common-law employers was also withdrawn. The regulations addressing wage levels, i.e., 85 FR 3608 and 86 FR 1676, were published, however, and have been postponed until March 21, 2021. During this time, the administration may open an additional 30-day period for public comments and consider petitions for reconsideration of the rule.
President Biden Reinstates DACA
On Inauguration Day, as one of his first acts, President Biden signed a memorandum titled “Preserving and Fortifying the Deferred Action for Childhood Arrivals (DACA),” fully reinstating the program. The memorandum was published in the Federal Register (at 86 FR 7053) on January 25, 2021.
President Biden Adds South Africa to the List of Countries Banned from Direct Entry into the United States and Implements Other Travel/Entry Restrictions Due to COVID-19
President Biden issued a proclamation adding South Africa to the list of countries that are currently banned from direct entry into the United States. The list currently includes the Schengen Area of Europe, the United Kingdom, Ireland, China, Iran, and Brazil. The proclamation bars non-U.S. citizens from entering the United States if they have been physically present in one of the banned countries in the immediate 14 days prior to their arrival. The travel ban does not apply to U.S. citizens or lawful permanent residents.
President Biden also issued an executive order, “Promoting COVID-19 Safety in Domestic and International Travel,” on January 23, 2021. The order directs the Secretary of Health and Human Services (“HHS”), in coordination with the Department of Homeland Security (“DHS”) and other agencies, to assess the Centers for Disease Control and Prevention’s (“CDC’s”) orders issued January 12, 2021, requiring air travelers to present proof of a negative COVID-19 test or documentation of recovery from COVID-19 before boarding a flight to the United States. If HHS implements the CDC’s requirement, all travelers, including U.S. citizens and lawful permanent residents, will need to present a negative COVID-19 test or documentation of recovery before being allowed entry into the United States.
Special Flexibility to Verify Forms I-9 Gets Another Extension to March 31, 2021
On March 20, 2020, Epstein Becker Green posted a Special Immigration Alert summarizing DHS’s decision to allow special flexibility to verify Form I-9 documents without viewing a new hire’s original documents, provided employers followed certain specified requirements. DHS has extended this special flexibility several times and, on January 28, 2021, did so again—this time to March 31, 2021. Unless extended again, as of April 1, 2021, all employers must revert to the pre-COVID-19 requirements for I-9 verification of new hires. We will provide an update, if this special flexibility is further extended.