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COVID-19 Immigration News Summary

**UPDATE – July 2020.

As an update, we provide the following summary of recent developments in the immigration area:

        • This proclamation covers the following visa categories:  H-1Bs (“specialty occupation” or “professional” workers); H-2Bs (“temporary” or “seasonal” workers); L-1A/L-1Bs (“intracompany transferees”); certain J-1s (“exchange visitors”); and their respective spouse/dependent children.  Again, the proclamation only covers those individuals who are outside the U.S. on the effective date of the proclamation.
        • The proclamation does not impact foreign nationals already present in the U.S. on the effective date of the proclamation; foreign nationals seeking (and obtaining) a change of status to the H-1B category under the FY 2021 H-1B Cap program; individuals holding a valid visa, advance parole or other travel document on the effective date of the proclamation (even if outside the U.S.);  lawful permanent residents (“green card” holders); spouse or child of U.S. citizen;  certain other J-1 visa participants; and foreign nationals who will provide temporary labor or services essential to the U.S. food supply chain.
        • The proclamation also provides for waivers for individuals who may be in the national interest of the U.S., including those necessary for the immediate and continued economic recovery of the U.S.; those involved in health care or research related to COVID-19; and those critical to the defense, law enforcement, diplomacy or national security of the U.S.
          • Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa application appointment at the closest U.S. Embassy or Consulate and a decision will be made at the time of interview as to whether the traveler has established that he/she is eligible for a visa pursuant to an exception. Travelers are encouraged to refer to the U.S. Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.
        • At this time, all petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to U.S. Citizenship and Immigration Services (USCIS).  PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may also still be submitted to the respective government agency.
  • USCIS – Re-Opens Certain Offices.    In an effort to protect employees and communities, USCIS field offices, asylum offices, and Application Support Centers, have been closed.   This includes those offices providing for biometric/fingerprint appointments.  Effective June 4, 2020, certain USCIS offices have resumed non-emergency face-to-face services to the public.   For offices that have re-opened or will re-open, USCIS has also enacted certain precautions, including requiring facial coverings and health screening questions to be completed.  As noted earlier, all other petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to USCIS.  PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may also still be submitted to the respective government agency.
  • I-9 Compliance.  As background,  employers are required to complete and retain a Form I-9, Employment Eligibility Verification, for each individual hired in United States.  In light of the COVID 19 pandemic, Department of Homeland Security (DHS) has extended flexibility in certain requirements,  including permitting remote inspection of identity and employment authorization documents.  DHS guidelines will allow for remote physical inspection of Section 2 I-9 documents, with certain procedures and steps to be followed (such as indication of remote inspection due to COVID 19, and evidence of company telework policy in light of current circumstances).   If I-9 inspection is conducted remotely, employers must  follow-up with physical inspection when normal operations resume.

As a reminder, effective May 1, 2020, employers can only use the 10/21/2019 version of Form I-9.

  • USMCA – the “New NAFTA.”  As background, the TN (Trade NAFTA) category is designed for Canadian and Mexican citizens engaged in certain professional activities.  The TN category also allows the beneficiary’s (foreign worker) dependents to accompany the beneficiary to the U.S., but the dependent family members may not engage in employment in the U.S.  The TN category allows for entry into the U.S. for a period up to three years, with extensions of stay in three year increments available.  Effective July 1, 2020, the United States-Mexico-Canada Agreement, also known as the USMCA, replaced NAFTA.  The chapter relating to the TN category generally remains intact.  At this time, USCIS and U.S. Citizenship and Border Protection (USCBP) continue to adjudicate the TN category as before.

 

  • USCIS Filing Fee Increases/Adjustments.    DHS announced a final rule today to increase or adjust certain filing fees.  USCIS last updated its fee structure in December 2016.  For a full list of changes and complete table of final fees, please see the final rule. This final rule is effective October 2, 2020.  Any application, petition, or request postmarked on or after this date must include payment of the new fees established by this final rule.  Notably, the following government fees will increase/adjust:
  • Form I-129, Petition for Nonimmigrant Worker, for H-1B filings:  From $460 to $555 (note – other filing fees still apply);
  • Form I-129, Petition for Nonimmigrant Worker, for L-1A/L-1B filings:   From $460 to $805 (note – other filing fees still apply);
  • Form I-140, Immigrant Petition for Alien Worker:  From $700 to $555
  • Form I-485, Application to Adjust Status to Permanent Residence:  From $1,140 to $1,130 (note – other filing fees still apply).
  • Public Charge Rule and New USCIS/DOS Forms – the Tug of War Continues.    On August 14, 2019, DHS issued a regulation redefining the definition of “public charge” under the Immigration and Nationality Act. Subsequently, numerous lawsuits were filed challenging such revision.  Then, in early October 2019, USCIS indicated that, effective October 15, 2019, it would no longer accept the current version of certain forms, as the forms did not address the new definition of public charge for immigration purposes, but did not release updated forms.  USCIS further indicated that there would be no grace period for continuing to use the existing forms.

On October 7, 2019, the American Immigration Lawyers Association (AILA) filed a lawsuit requesting immediate injunctive relief to suspend USCIS from such action.  On October 9, 2019, USCIS posted new versions of certain forms.  On October 11, 2019, a federal court (New York) issued a nationwide injunction blocking DHS from implementing or enforcing the new public charge regulation.  In connection with same, DHS was barred from requiring the use of the new forms.   Immediately thereafter, USCIS removed its new versions of certain forms.   Accordingly, employers continued to use the existing forms which do not address the new definition of public charge.

 

On January 27, 2020, the U.S. Supreme Court ruled that DHS may implement the new definition of public charge while ongoing litigation challenging such regulation continues.  While the Supreme Court did not address the merits of the regulation, USCIS has released updated forms, effective February 24, 2020, and it has posted additional guidance on the definition of public charge.

 

On February 21, 2020, Department of State DOS published a new Form DS-5540, Public Charge Questionnaire, with an effective date of February 24, 2020. Also, on February 24, 2020, USCIS implemented the new definition of public charge by requiring the submission of Form I-944 with certain “Green Card” Applications.

 

On July 29, 2020, the U.S. District Court for the Southern District of New York issued an order enjoining the new public charge rule and enjoining the government from enforcing, applying, implementing, or treating as effective the rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.  Although the USCIS website reflects this update, employers should be prepared that this is subject to change.

 

As additional details become available regarding the above, we will provide regular updates.

 

**

 

We provide the following summary of recent developments related to COVID-19  in the immigration area:

All other petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to U.S. Citizenship and Immigration Services (USCIS).  PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may still be submitted to USCIS.  Note, the Executive Order indicates that within 30 days, the government will review “nonimmigrant programs” (which includes H-1B/L-1A/L-1B/TN/E-3, and other visa categories)  and possibly recommend “other appropriate measures.”  This Executive Order, along with any future Executive Orders that may be issued, will most likely be challenged in court.

 

 

  • H-1B Visaholders 
    • Working From Home.   As background, the H-1B category is designed for foreign professional workers holding a university degree, and it authorizes the foreign professional to work in the United States in a “specialty occupation.”   As part of the H-1B visa program, the Department of Labor (DOL) requires all employers to post a copy of the Labor Condition Application (LCA) for a specified period in at least two conspicuous places at the location where the foreign national employee will be employed.  The purpose of this posting is to place the “public” on notice that the employer is considering hiring (a) foreign national(s).  In addition, H-1B employers must attest to certain issues regarding wages, working conditions, strikes, and notice to employees or their representatives relating to the LCA.  While DOL has provided some flexibility and guidance related to office closures and/or working remotely in light of the COVID-19 pandemic, employers permitting H-1B visaholders to work remotely from home must still post such notice at the new work (“home”) location.  Accordingly, employers with H-1B visaholders working remotely from home should reach out to immigration counsel to determine what steps, if any, may be required.   Note that such steps may apply to other visa categories which also require a LCA, including E-3 and H-1B1 visaholders.
    • LCA Posting.   In lieu of hard copy notice posting, employers may post the LCA via electronic notice for the requisite period of time (10 days).  For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, then notification is only required once and does not have to be provided for the requisite 10 days.

 

  • USCIS Premium Processing – Temporary Suspension.  As a reminder, for an additional government filing fee, USCIS will review certain petitions within 15 days under its Premium Processing service program.  Effective March 20, 2020, USCIS temporarily suspended its Premium Processing program due to the COVID 19 pandemic.  Petitions may still be submitted to USCIS, but it will not accept Premium Processing requests.    At this point, USCIS standard processing timeframes will govern, until Premium Processing resumes.

 

  • USCIS – Temporary Closure of Certain Offices.    In an effort to protect employees and communities, USCIS field offices, asylum offices, and Application Support Centers, will remain closed until June 3, 2020.   This includes those offices providing for biometric/fingerprint appointments.  As noted above, all other petitions, including H-1B/L-1A/L-1B/TN/E-3, and other visa categories, may still be submitted to USCIS.  PERM Applications (Permanent Labor Certifications), Form I-140/Immigrant Petitions and Form I-485/Applications to Adjust Status to Permanent Residence (“Green Card” Applications) may also still be submitted to USCIS.

 

  • USCIS Flexibility in Submitted Required Signatures.  Effective March 21, 2020,  for forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for a temporary period of time.  Generally, this means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature.  In such instances, employers should retain such original documents;  USCIS may, at a later date, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

 

  • I-9 Compliance.  As background,  employers are required to complete and retain a Form I-9, Employment Eligibility Verification, for each individual hired in United States.  In light of the COVID 19 pandemic, Department of Homeland Security (DHS) has announced flexibility in certain requirements,  including permitting remote inspection of identity and employment authorization documents.  DHS guidelines will allow for remote physical inspection of Section 2 I-9 documents, with certain procedures and steps to be followed (such as indication of remote inspection due to COVID 19, and evidence of company telework policy in light of current circumstances).   If I-9 inspection is conducted remotely, employers must  follow-up with physical inspection when normal operations resume.

 

As additional details become available regarding the above, we will provide regular updates.