News

New Rules for Travel Take Effect November 8

10.25.21

Today the White House announced the overarching details of the long-awaited lifting of the “travel ban.” Since the start of the COVID-19 pandemic, the White House has prohibited entry into the United States of individuals who had been present in a list of countries within 14 days of seeking admission into the United States, with certain exceptions. These countries include the United Kingdom, Ireland, countries of the Schengen region, China, Brazil, India, and South Africa. As of November 8, 2021, this ban will no longer be in place. Instead, the White House is requiring travelers to the United States to be fully vaccinated, unless they meet certain criteria. What “fully vaccinated” means, what vaccinations would suffice, and what proof would be acceptable will be announced later and presumably in advance of November 8, 2021.

As a general rule, nonimmigrants, i.e., visa holders, who are not fully vaccinated against COVID-19 may not enter the U.S. by air. Exceptions will include those who comply with “applicable public health precautions established by the Director of the CDC” which may include “vaccination [or promise to vaccinate within a certain period of time, such as 60 days of entry], testing, mask-wearing, self-quarantine, and self-isolation.” Examples of actions that the CDC may invoke include “proof of pre-departure testing for COVID-19,” “precautions during air travel to protect against the further introduction, transmission, and spread of COVID-19, including by wearing a face mask,” “proof of having arranged for post-arrival testing for COVID-19,” and “proof of having arranged to self-quarantine or self-isolate after arriving in the United States.” Further any “noncitizen who is a nonimmigrant, who is not fully vaccinated against COVID-19, and who … is permitted to enter the United States by air travel … must agree to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, within some other timeframe as determined by the Director of the CDC, or as soon as medically appropriate as determined by the Director of the CDC, and must provide proof of having arranged to become fully vaccinated against COVID-19 after arriving in the United States.” Exceptions exist for those entering the United States in certain government/diplomatic visa classifications, for humanitarian or emergency reasons, as crew members, in connection with COVID-19 clinical trials, in the national interest, and for whom legitimate medical reasons exist.

The above information has been provided for educational purposes only. The White House’s announcement contains more in-depth details regarding exceptions and requirements. Please contact your Clark Lau LLC attorney if you have any questions.

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White House to Change International Travel Rules in November

09.20.21

The White House just announced today that it will be taking an individualized approach, versus a categorical approach, to curb the spread of COVID-19 arising out of international travel.

Currently, individuals who have been in any of the restricted countries within 14 days of traveling to the U.S. are prohibited from entering unless they meet certain exceptions. Such countries include China, Brazil, South Africa, India, the U.K., Ireland, and the Schengen countries. The White House announced today that starting in early November these restrictions will be dropped. Instead, all adults traveling into the United States will need to provide proof of vaccination, be subject to certain testing requirements, and also participate in a contact tracing program. More details will be released as the White House works out the details; stay tuned!

This information has been provided for informational purposes only. Please check with your Clark Lau LLC attorney to see how this impacts your specific set of facts.

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Clark Lau LLC Announces Eric Lockwood as Partner

06.12.21

Clark Lau LLC is pleased to announce the promotion of Eric F. Lockwood as Partner. Eric has been practicing law since 2006 and joined Clark Lau LLC in 2014. Eric serves individuals, professionals, and employers in both employment-based and family-based immigration matters. He currently serves as one of the members of the AILA New England chapter US Customs and Border Protection Committee members. Find out more about Eric: https://www.clarklau.com/our-team/eric-f-lockwood.

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India Joins List of Countries with Travel Restrictions to the US

04.30.21

As of Tuesday, May 4, 12:01AM ET, India joins the list of countries with travel restrictions to the U.S.

Currently, anyone who has been in any of the restricted countries within the last 14 days cannot enter the U.S. These countries include the U.K., Ireland, the People’s Republic of China (excluding Hong Kong and Macau), Iran, Brazil, South Africa, and countries from the Schengen region (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).

Some of the exceptions to the travel restrictions include the following:

  • U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
  • Spouses of U.S. Citizens and Lawful Permanent Residents;
  • Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
  • Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
  • Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
  • Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
  • Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
  • Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
  • Individuals 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.

Clark Lau LLC is monitoring the above and related developments. The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

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What Travel and Visa Bans Remain?

03.31.21

At the beginning of the COVID-19 pandemic, the former administration issued a number of Presidential Proclamations that impacted both visa issuance and international travel.

Of note, there was one Presidential Proclamation that prohibited the issuance of immigrant (green card) visas and another on the issuance of the H-1B, H-2B, L-1, and certain J-1 visas. Earlier this year the Biden Administration lifted the immigrant visa issuance ban. The visa issuance ban on H-1B, H-2B, L-1, and certain J-1 visas will also be sunsetting as of tonight, March 31, 2021. It is our understanding that the Biden Administration will not seek to renew this ban.

The international travel bans, however, remain. That is, currently, individuals are not able to travel directly to the United States if they are coming from any of the following countries. Please note that a layover in any of these countries will trigger the travel restrictions:

  • Any of the 26 Schengen countries
  • United Kingdom
  • Ireland
  • People’s Republic of China (excluding Hong Kong and Macau)
  • Iran
  • Brazil
  • South Africa

For those needing to travel directly to the United States from any of these countries, they may apply directly to the U.S. Consulate where they are located for a National Interest Exception (“NIE”). NIEs are available where individuals can prove that they are coming to the United States, among limited other reasons, to provide vital support to the critical infrastructure of the United States. Such NIEs are only valid for a single entry and must be used within 30 days of the issuance. At this time, there is no information as to when these travel restrictions will be lifted.

All of the above information has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to see how this impacts your specific circumstances.

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USCIS Completes H-1B Lottery for FY2022

03.30.21

USCIS just announced today that they completed its H-1B lottery selection process for FY2022. Attorneys across the country are reporting a yield of about 28%, a much lower rate than before.

One can only surmise that this means that the number of registrations were higher this year, which leads to the conclusion that more employers have the need for H-1B professional workers. The H-1B visa program offers employment authorization where an employer has a position that requires a degree in a specific field and where the individual has such a degree. An employer must also promise to pay a specific salary that is the higher of the US Department of Labor's prevailing wage or what the employer is paying other similarly situated US workers. H-1B workers are not cheap labor. The high demand is an ongoing indication of the need to have a system that keeps talent in America and to help our employers grow and stay competitive on the global scale.

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H-1B Registration Period March 9 -25

02.05.21

USCIS just announced that the initial registration period for the upcoming H-1B lottery will run from March 9, 2021 (noon) until March 25, 2021 (noon). Employers and attorneys will be able to register individuals needing an H-1B visa at any time during this period. Preference will not be given to those who register earlier. If by noon March 25, 2021 there are more registrants than available H-1B numbers, USCIS will conduct a random lottery afterwards. Please note that should a lottery be conducted, 20,000 numbers will be allocated to registrants with US Master’s degrees or higher first, and then another lottery will be conducted for the remaining 65,000 numbers.

The above has been provided for educational purposes only.

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Welcome Delay in Changing H-1B Registration and Selection Process

02.04.21

The White House just outlined its plans for immigration reform under the Biden Harris Administration this week: https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/02/fact-sheet-president-biden-outlines-steps-to-reform-our-immigration-system-by-keeping-families-together-addressing-the-root-causes-of-irregular-migration-and-streamlining-the-legal-immigration-syst/

While definitely a welcome, those involved with employment-based immigration are still waiting to see how this administration will be handling some of the “midnight” rules and proposals the former administration issued impacting the H-1B process.

One that has drawn a lot of attention is the proposal to allocate new H-1B visa numbers based on wage levels. When an employer files an H-1B petition, an employer promises to pay the foreign national the higher of either the actual wage rate paid to similarly occupied US workers or the prevailing wage for the offered position as determined by the US Department of Labor. Prevailing wages are based on occupational classification, area of employment, and the job requirements and responsibilities within that occupation. There are four wage levels per occupation. The proposed rule was going to allocate H-1B visa numbers based on the wage levels, with the highest wage level receiving preference. This new selection process was to take effect on March 9, 2021.

Today USCIS announced that it will need more time to “develop, test, and implement the modifications to the H-1B registration system and selection process” and therefore the rule will not take effect at least until December 31, 2021. What this means is that the H-1B registration and selection process will therefore not be based on wages. That said, the H-1B registration and selection process will continue as before and it is anticipated that the registration period will start in March 2021. If you have an interest in registering for an H-1B visa for your employees, please make sure you contact an immigration attorney as soon as possible before the registration period is over.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to see how the above impacts your circumstances.

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Travel Bans at Intersection of Administrations

01.18.21

Since March 2020, due to COVID reasons, the Trump Administration imposed travel restrictions on individuals if these individuals were in the UK, Ireland, any of the Schengen countries, Iran, Brazil, and China within 14 days of entry into the United States. Certain exceptions, including National Interest Exceptions, existed.

Today, the Trump administration announced that it would be lifting this ban for individuals coming from the UK, Ireland, any of the Schengen countries, and Brazil with an effective date of January 26, 2021. The ban remains for those traveling from China and Iran. Travelers must comply with existing COVID testing requirements and local quarantine requirements.

No sooner had the announcement been made, the press secretary for President-Elect Biden announced that due to health reasons he would not lift the bans.

As with most immigration and travel news of late, much is fluid so please stay tuned! (The above has been provided for informational purposes only.)

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New Definition of Employer Broadens Requirements for H-1B Employers

01.18.21

The US Department of Homeland Security (DHS) released a new Final Rule (FR) on Friday afternoon that is to be published shortly. This FR is to take effect 180 days from the date of publication and is entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program.” In essence, it broadens the definition of an “employer-employee relationship” and could require end-users of H-1B professionals also to file H-1B petitions. Likewise, on the same day, the Office of Foreign Labor Certification (OFLC) of the US Department of Labor (DOL) and its enforcement branch the Wage and Hour Division (WHD) issued bulletins requiring the same newly defined “employers” also to file and comply with requirements of the Labor Condition Applications where they did not have to do so before.

Regulations require an H-1B professional to be sponsored by a U.S. employer and such employers are defined by “the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The FR changes the definition and broadens it to include those who may meet the common law test of an “employer-employee relationship.” Practically, those entities who have used the services of H-1B professionals may now need to file a separate H-1B petition for them.

The FR indicates that this is only a minor change and it issued to clarify the definition of a “US employer.” According to the proposed rules, there is a list of factors now to consider as to whether an entity is a “US employer” and a separate H-1B petition is required. The DOL followed suit and said that if the DHS is taking this stance on defining an employer-employee relationship, then it too can require these new employers to file corresponding Labor Condition Applications and comply with notice, wage, and benefits requirements that did not exist before. You decide whether this is “minor.”

The proposed regulatory language defining an “employer” follows:

(1) In cases where the H-1B beneficiary does not possess an ownership interest in the petitioning organization or entity, the factors that USCIS may consider to determine if a valid employment relationship will exist or continue to exist include, but are not limited to:

(i) Whether the petitioner supervises the beneficiary and, if so, where such supervision takes place;

(ii) Where the supervision is not at the petitioner’s worksite, how the petitioner maintains such supervision;

(iii) Whether the petitioner has the right to control the work of the beneficiary on a day-today basis and to assign projects;

(iv) Whether the petitioner provides the tools or instrumentalities needed for the beneficiary to perform the duties of employment;

(v) Whether the petitioner hires, pays, and has the ability to fire the beneficiary;

(vi) Whether the petitioner evaluates the work-product of the beneficiary;

(vii) Whether the petitioner claims the beneficiary as an employee for tax purposes;

(viii) Whether the petitioner provides the beneficiary any type of employee benefits;

(ix) Whether the beneficiary uses proprietary information of the petitioner in order to perform the duties of employment;

(x) Whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business; and

(xi) Whether the petitioner has the ability to control the manner and means in which the work product of the beneficiary is accomplished.

(2) In cases where the H-1B beneficiary possesses an ownership interest in the petitioning organization or entity, additional factors that USCIS may consider to determine if a valid employment relationship will exist or continue to exist include, but are not limited to:

(i) Whether the petitioning entity can hire or fire the beneficiary or set the rules and parameters of the beneficiary’s work;

(ii) Whether and, if so, to what extent the petitioner supervises the beneficiary’s work;

(iii) Whether the beneficiary reports to someone higher in the petitioning entity;

(iv) Whether and, if so, to what extent the beneficiary is able to influence the petitioning entity;

(v) Whether the parties intended that the beneficiary be an employee, as expressed in written agreements or contracts; and

(vi) Whether the beneficiary shares in the profits, losses, and liabilities of the organization or entity.

As with all of the rules that are being published and pushed out during the last days of this current administration, we will need to continue to monitor and see how the incoming Biden-Harris Administration will be handling these rules. It is our understanding that an announcement will be made by the new administration shortly after the inauguration that many of these new rules may be on hold before implementation. Stay tuned!

The above has been provided for educational information only.

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