H-1B Cap Season, Mandatory COVID-19 Testing for All International Air Travelers to the US, and I-90 Receipt Rule

Kramer Levin Naftalis & Frankel LLP

We anticipate that in March 2021, U.S. Citizenship and Immigration Services (USCIS) will open the electronic registration process for the fiscal year 2022 H-1B cap for professional positions. Please review your employment needs now to determine whether you wish to sponsor any of your current or prospective employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training (OPT), F-1 Curricular Practical Training (CPT), E-1, E-2, E-3, H-1B1, J-1, L-1B, O-1 or TN status; any employees in dependent statuses (e.g., L-2, E-3D) working pursuant to EAD cards; and any individuals you may wish to bring on board on or after Oct. 1, 2021.

In addition, on Jan. 12, 2021, the U.S. Centers for Disease Control and Prevention (CDC) announced that effective Jan. 26, all travelers flying into the United States will be required to get a COVID-19 viral test (a test for current infection) within three days before their flight to the United States departs, and provide written documentation of their laboratory test result (paper or electronic copy) to the airline or provide documentation of having recovered from COVID-19. Airlines will be required to confirm the negative test result for all passengers or documentation of recovery before they board. If a passenger does not provide documentation of a negative test or recovery, or chooses not to take a test, the airline must deny boarding to the passenger. The CDC issued this order to slow the spread of surging COVID-19 cases in the United States. Please see the CDC’s announcement.  

Also, starting in January 2021, USCIS will stop issuing the sticker that is currently issued to lawful permanent residents (i.e., green card holders) who apply to extend their green cards by filing a Form I-90, Application to Replace Permanent Resident Card. Moving forward, USCIS will issue a revised Form I-797, Notice of Action, that will serve as a receipt notice for the Form I-90. When presented together with the green card, the revised Form I-797 notice will extend the green card’s validity for 12 months from the expiration date on the front of the green card and will serve as temporary proof of lawful permanent resident status. This change ensures that lawful permanent residents with expiring or recently expired green cards will have documentation of identity, employment authorization and authorization to return to the United States following temporary foreign travel. Please see the USCIS alert.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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