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Volume XI, Number 268


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July 2021 Immigration Alert

National Interest Exceptions Issued for U.S. Entry from COVID-19 Restricted Countries/Regions Are Now Valid for One Year and for Multiple Entries

In our May 2021 Immigration Alert, we reported that India was added to the list of COVID-19 restricted countries and regions, preventing nonimmigrant visa holders (e.g., B1/B2, H-1B, L-1, O-1, etc.) and those with Electronic System of Travel Authorization (“ESTA”) from traveling directly to the United States unless they first go to a third country not subject to COVID-19 restrictions and quarantine there for at least 14 days before entering the United States. The other countries and regions on the list include Brazil, China, Iran, Ireland, the Schengen Region, South Africa, and the United Kingdom. There is an exception, however, that allows direct U.S. entry, if a U.S. consulate or embassy located in the restricted country or region grants a National Interest Exception (“NIE”) waiver to the nonimmigrant visa holder. Initially, NIE waivers were valid for only 30 days from the date granted and for only one U.S. entry.

On July 6, 2021, the U.S. Department of State announced that new and previously issued NIE waivers are now valid (i) for 12 months from the NIE waiver’s approval date and (ii)  for multiple U.S. entries, even if the waiver states that it can only be used for one-time entry.

A visa holder who received an NIE waiver through a U.S. consulate’s or embassy’s email should print that email waiver and present it with their unexpired visa and passport when entering or re-entering the United States. Those who had their NIE waiver stamped in their passport with their visa need only show their unexpired visa and their passport to return to the United States.

Please note that NIE waivers can be used only for the purpose for which they were granted. Thus, for example, a person who receives ESTA NIE waiver and who tries to use it to enter as an H-1B employee will not be allowed entry into the United States from COVID-19 restricted countries or regions because that waiver was for ESTA entries only. Therefore, the person would need to apply for a new NIE waiver for the H-1B visa.

Federal Judge in Texas Rules That DACA Violated the APA, Preventing Approval of New DACA Applications

U.S. District Court Judge Andrew Hanen ruled on July 16, 2021, that the U.S. Department of Homeland Security (“DHS”) violated the Administrative Procedure Act (“APA”) when it implemented the Deferred Action for Childhood Arrivals (“DACA”) program in 2012.

Judge Hanen found that DHS exceeded its power by not going through the APA’s required notice-and-comment rulemaking period. The court’s ruling allows DHS to continue to process DACA renewals and to accept new DACA applications; however, it prohibits the DHS from approving new applications.

On July 17, 2021, the Biden administration announced that it will appeal the decision and that it plans to issue proposed rules to bring DACA into conformance with the APA. Three days later, Tracy Renaud, Acting Director of U.S. Citizenship and Immigration Services (“USCIS”), stated that all individuals whose DACA requests were granted before July 16, 2021, “will continue to have and be eligible to renew DACA, and to request and receive advance parole.”

In summary, Judge Hanen’s decision affects only those individuals who have not applied for DACA and those whose applications remained undecided as of July 16, 2021.

EB-5 Regional Center Program Expired on June 30, 2021

On June 30, 2021, the EB-5 Regional Center Program expired, and Congress has yet to re-extend it. The EB-5 Regional Center Program allowed overseas investors to receive U.S. permanent residency if they had invested at least $500,000 in any Regional Center that would create at least 10 full-time U.S. workers in any Targeted Employment Area (“TEA”). In short, a TEA is a USCIS-designated area that has experienced unemployment at a level significantly above the national average. Unless Congress extends the EB-5 program, USCIS will (i) reject Forms I-924 and I-526 received on or after July 1, 2021, related to the Regional Center Program; (ii) not act on any pending petition or application on these forms; (iii) continue to accept and review the Form I-829, including those filed on or after July 1, 2021; and (iv) begin rejecting all Form I-485 Adjustment of Status applications and their associated EAD work permit (Form I-765) and Advance Parole travel permit (Form I-131) based on an approved Regional Center Form I-526. These forms are available here.

ICE Withdraws Proposed Regulations Intended to Fix Time Periods for F, J, and Certain I Nonimmigrants

On July 6, 2021, U.S. Immigration and Customs Enforcement (“ICE”) withdrew its notice of proposed rulemaking published on September 25, 2020, that would have put fixed time periods on F, J, and certain I nonimmigrants, instead of the current “Duration of Status” designation.

DHS Announces Employment Authorization for Yemini F-1 Students

On July 9, 2021, DHS announced that due to severe economic hardship, it would grant employment authorization for Yemeni F-1 students. This DHS policy becomes effective on September 4, 2021, and will remain in effect through March 3, 2023.

TPS Extended for Somalia Nationals

DHS announced an 18-month extension and redesignation of Somalia for Temporary Protected Status (“TPS”), which will be effective beginning September 18, 2021, through March 17, 2023. During this period, Somalis given TPS status will have legal authorization to stay and work in the United States.

USCIS Extends Flexibility for Responding to RFE and NOID Requests

On June 24, 2021, USCIS announced that, due to the COVID-19 pandemic, the deadline for responses to any of the following requests for further information issued from March 1, 2020, through to September 30, 2021, would be extended 60 days from the due date shown on the notice:

  • Requests for Evidence (“RFE”);

  • Continuations to Request Evidence (N-14);

  • Notices of Intent to Deny (“NOID”);

  • Notices of Intent to Revoke;

  • Notices of Intent to Rescind;

  • Notices of Intent to Terminate regional centers; and

  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 210

About this Author

Jang Hyuk Im, epstein becker green, labor, employment

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...

Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...