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Immigration And Covid19 Restrictions On U.S. Travel and Entry

Immigration Lawyer Andy Gene Strickland discusses current COVID-19 travel to the U.S.

Read more about the current situation with seemingly ever-changing immigration issues resulting from COVID-19 and its mutations.

On October 25, 2021, President Biden issued a proclamation ending travel bans that restricted the entry of nonimmigrants present in China, Brazil, India, Iran, South Africa, Ireland, the United Kingdom, and the Schengen Area.

The proclamation also created a new rule, effective November 8, 2021, that requires all adult nonimmigrant travelers entering the United States via air travel to be fully vaccinated against COVID-19, with limited exceptions.

However, with a new variant of this virus (Omicron) appearing the President reinstated the South African travel ban as well as a ban from other African countries.

Similarly, non-essential travel for fully vaccinated individuals across land and ferry borders will be permitted as of November 8. Essential travel for unvaccinated individuals across land and ferry borders will be allowed until January 21, 2022, at which time the vaccine requirement will be imposed for all travelers.

What Does Fully Vaccinated Mean?

You must have received a vaccine approved or authorized by the Food and Drug Administration(FDA) or World Health Organization (WHO), which currently includes the following vaccines: Janssen/Johnson & Johnson (SingleDose), Pfizer-BioNTech, Moderna, AstraZeneca, Covishield, BIBP/Sinopharm, and Sinovac. You are considered fully vaccinated two weeks after receiving the last dose of a multi-dose, or the first dose of a single dose, approved vaccine. Receipt of doses from any two different approved vaccines is acceptable.

What Proof Is Required?

Before boarding a flight to the United States, adult nonimmigrant travelers must provide proof of vaccination via verifiable digital or paper records: This includes, but is not limited to, vaccination certificates or digital passes accessible via QR code (such as the UK NHS COVID Pass and the European Union Digital COVID Certificate).

Non-verifiable paper records: A paper vaccination record or a COVID-19vaccination certificate issued by a national or subnational level agency or by an authorized vaccine provide (such as the Centers for Disease Control and Prevention (CDC) vaccination card).

Non verifiable digital records: Digital photos of vaccination card or record, or a down loaded record or vaccination certificate from an official source(e.g.,public health agency, government agency, or other authorized vaccine provider),or a record shown on a mobile phone app without a QR code.

Airlines will verify that the form of proof includes a name and date of birth that matches other identification documents, is from an official source with in the country the vaccine was issued, and shows full vaccination. You must confirm with the airline if translation is required for documents not in English.

For land border and ferry crossings, CBP will require similar proof of vaccination and that the traveler attest to their reason for travel.

Immigration lawyer Andy Gene Strickland suggests you review the current U.S. policy in effect shortly before time of travel to the United States as this information changes often.

Asylum Law by Andy Gene Strickland

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Immigration Attorney Andy Gene Strickland blogs about the general framework of US Asylum law:

The Immigration and Nationality Act section 101(a)(42) states that: “The term “refugee” means (A) any person who is outside any country of such person’s nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…” Persecution is a broad term and it is not defined in the INA or the CFR. Therefore we must look to case law and persuasive resources in order to help us determine if the applicant has been persecuted for purposes of qualifying as a refugee and asylum.

In the landmark BIA Asylum case of Matter of Kasinga, Int. Dec. 3278 (BIA 1992)the BIA states: “While a number of descriptions of persecution have been formulated in our past decisions, we have recognized that persecution can consist of the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.” (emphasis added) The United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter handbook), page 51 states:

“There is no universally accepted definition of “persecution,” and various attempts to formulate such a definition have met with little success…[I]t may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always is persecution. Other serious violations of human rights- for the same reasons- would also constitute persecution.”

Andy Gene Strickland describes persecution to include threats to life, confinement, and torture. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997). One of the leading cases on U.S. Asylum law is INS v. Cardoza-Fonseca 480 U.S. 421 (1987). The burden is on the asylum applicant to show that it is “More Likely Than Not” the applicant will be persecuted if returned to their native country. The U.S. Supreme Court suggested that even LESS THAN a one-in-ten chance of suffering persecution would make an applicant’s fear well-founded to qualify for asylum. Id at 440. The persecution feared must be a reasonable possibility. Id

When an applicant has suffered past persecution, there is a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. 1208.13(b)(1). To overcome this presumption, the government must demonstrate, by a preponderance of evidence that, either:

(1) the respondent could avoid future persecution by relocating to another part of respondent’s country of nationality or

(2) since the time the persecution occurred, conditions in the Respondent’s country have changed to an extend that the Respondent no longer has a well-founded fear of persecution of he were to return to his country. See 8 C.F.R. 1208(b)(1).

Andy Gene Strickland states that in order to demonstrate a well-founded fear of return, an asylum applicant must establish that he has both a subjective and objective fear of returning to his country of origin. The subjective component requires that the applicant demonstrates a genuine fear of persecution. “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” The United Nations High Commissioner of Refugees states that “an evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions.” Although not binding law on U.S. asylum applications, the Handbook is persuasive authority.

The test for the objective component is whether a reasonable person in the applicant’s circumstances would fear persecution. The objective element requires credible, direct, and specific evidence that supports a reasonable fear of persecution. A ten percent chance of persecution may result in a well-founded fear sufficient for asylum. As long as the objective component is established by the evidence, it need not be shown that the situation will probably result in persecution. It “is enough that persecution is a reasonable possibility.” The United States Supreme Court has held that a risk of 10% or more of persecution if the asylum applicant is returned to his country is sufficient to warrant a grant of asylum .

UN Convention Against Torture as Described by Andy Gene Strickland

Nonrefoulment under the United Nations Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits that government of the United States from removing an individual who establishes that it is more likely than not that a person would suffer torture at the hands of the government of the country of nationality or last habitual residence. Article III of the convention protects all individuals from a specific type of violation-torture.

According to 8 C.F.R. 208(b) the standard of relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment differs from that for a grant asylum or for withholding of removal, in that the alien NEED NOT PROVE reason for the torture, nor that he or she has a well-founded fear of it, but only that it is more likely than not he or she will be tortured if returned to a proposed country.

According to Andy Gene Strickland Article I or the Convention defines torture as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.”

Immigration Attorney Andy Gene Strickland invites you to review the actual text of the UN Convention Against Torture: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx

What Is Form I-130? – Andy Gene Strickland

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What is form I-130? By Andy Gene Strickland

Form I-130 is a relative petition used to sponsor a qualifying relative to the United States. Form I-130 is based upon familial “priority” and the date associated with it. Andy Gene Strickland has filed hundreds of I-130 forms over the last twenty years: Form I-130 is used for family immigration and broken down into the following categories:

Immediate Relatives (IR): Husbands and wife’s of the US Citizens, Children of US Citizens, Parents of US citizens. This category does not have a priority date because the numbers in this category are always available.

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

I-130s petitions that fall into preference numbers 1-4 can have waiting periods because the number of visas available in each of these categories is limited. Andy Gene Strickland is often asked if he can speed up this process. The answer is we can’t. Do not believe someone if they tell you the opposite. In most I-130 categories the demand is greater than the supply and therefore a back log is created. For example, the I-130 priority waiting period for the fourth preference is about 12-13 years usually.

And I-130 requires specific detailed information and need to be filled out properly and correctly. Only an attorney or authorized DHS representative can give advise on these forms. The I-130 forms the basis and building block for many different forms of immigration benefits and relief. Do not allow someone who could be violating the law by providing you unlawful advice. Retained the serviced of Andy Gene Strickland or another qualified individual to assist you. The I-130 form has grown from just two pages to 12 pages. Furthermore, form I-130A must be included with some petitions.

What is form I-130?

Check out this info from the USCIS: https://www.uscis.gov/i-130

Immigration Law Andy G. Strickland

National Interest Waiver by Andy Gene Strickland

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What is a National Interest Waiver?

If you wish to apply for an employment based immigration category (EB-2) and waive the job offer and labor certification requirements, a National Interest Waiver might be for you. In order to file this type of application we need to show you are a professional with an advanced degree, that you are of exceptional ability, substantially benefit the US (by showing you have substantially benefited your native country).

To prepare this type of petition requires us to substantiate every criteria with solid evidence typically in the form of:

1) documenting your degree

2) Reference letters from people who know you professionally

3) Employment verification letters

4) Publication that you might have published

5) Other evidence, such as government funded projects you were involved with.

Procedurally, we can file the petition and pay an additional fee for premium processing. The USCIS would take about 15 working days to decide the petition unless they sent an RFE (Request for Evidence). Then this period would be extended. I don’t recommend filing greencard applications with the petition because of time line issues that will extend your current authorized stay.

What is the Current Standard to Determine an EB2 NIW (National Interest Waiver)Case?

The decision Matter of Dhanasar (released on 12/27/2016) established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an EB2 NIW:

Foreign national’s proposed endeavor is of substantial merit and national importance
Foreign national is well-positioned to advance the proposed work, and
On balance it would be beneficial to waive the job requirement for the foreign national

Substantial Merit:

In the precedent case Matter of Dhanasar, the AAO stated that endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education
Evidence to establish that the beneficiary’s proposed endeavor has substantial merit consists of, but is not limited to, the following:

A detailed description of the proposed endeavor and why it is of substantial merit; and
Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s merit

How is an Endeavor to “National Importance” Defined in this Case?

In determining whether the proposed endeavor has “national importance”, the immigration officers consider its potential prospective impact.

Evidence to establish that the beneficiary’s proposed endeavor has national importance consists of, but is not limited to, the following:

A detailed description of the proposed endeavor and why it is of national importance
Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s national importance. Such evidence must demonstrate the endeavor’s prospective impact, and may consist of, but is not limited to, evidence that shows the proposed endeavor:
Has National or even global implications within a particular field
Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area: a)Will broadly enhance societal welfare or cultural or artistic enrichment b) Impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.

Please view the USCIS website for further details: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2

National Interest Waiver by Andy Gene Strickland

Applying for Asylum by Andy Gene Strickland

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People fleeing from persecution are entitled to apply for asylum if they are already physically present in the United States. Usually this is done, shortly after arrival in the United States or within reasonable time of experiencing changed personal our country conditions that led to the need to apply for asylum. While persecution is not clearly defined, it usually means one must have a well founded fear that you more likely than not have been or will be persecuted based upon certain reasons like political opinion, national origin, religion, race, or some other characteristic that you are unwilling or unable to change. Furthermore, the persecution must involve some government action or failure to act.

It is very important that an application for asylum be submitted within one year of entering the United States. Failure to apply within one year could result in one’s inability to receive asylum. The application for asylum is filed on USCIS Form I-589 and filled out and submitted with supporting evidence and a statement. I suggest an attorney or other legally qualified professional review the statement and other issues stemming from filing an application. Spouses and child can be included in this application if they are currently present in the United States.

The Asylum statement is one of the most valuable pieces of evidence. It is important that the issues be discussed in the asylum statement and these issues support the elements necessary in asylum law. Evidence is also important. While a statement alone can be enough for the USCIS or Immigration judge to grant relief, evidence that supports your claim would make the asylum case stronger. Birth certificates, marriage certificates, copies of every page in the passport are also included in the filing packet.

Asylum relief might be an option for those who are unwilling or unable to return home. Every case is different and special. This post does not replace any legal advice necessary and specific to the reader’s specific legal issues, asylum or otherwise.

This link from the American Immigration Council discusses the asylum process:

https://www.americanimmigrationcouncil.org/research/asylum-united-states

Is a Motion to Reopen Possible? by Andy Gene Strickland

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If an immigration judge has ordered an immigrant removed, it might be possible to file a motion with the immigration judge or the Board of Immigration Appeals (BIA). I have filed many successful motions to reopen. There are many factors to consider when preparing a motion to reopen.

Depending on when the immigrant was placed in removal proceedings, when the order was issued, and which immigration court and judge issued the order. Another factor to consider is whether the immigrant was issued an order of removal “in absentia”, meaning, in their absence. It is important to get as much information about the underlying proceedings as possible before filing. This can be done by filing a freedom of information act request (FOIA) with the Department of Justice or Department of Homeland Security.

Furthermore, it is important to see if there has been a change in case law or the facts of the underlying case. In regards to an in absentia order, it is important to get as much information and evidence from the immigrant as to why they failed to attend the hearing. Many times, lack of notice is an issue or improper warnings given by the Department of Homeland Security.

The notice to appear or “charging document” is very important in terms for formulating an argument for a motion to reopen. The document should detail when the immigrant’s hearing will be and the charges the immigrant is facing as well as the legal justification for the factual allegations of the charges. The United State Supreme Court issued a very important decision the end of April, 2021 regarding the government’s (DHS’s) requirements of notice and that this notice cannot be used to deny the immigrant an opportunity to accrue the required time in the United States to apply for a form of relief called cancellation of removal.

I suggest you check out this blog to review the decision:

Court rules against government on technical question of notice requirement in immigration law