Beginning 11:59 p.m. on May 26, 2020, travelers from Brazil will be restricted from entering the U.S. under President Donald Trump’s “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Novel Coronavirus.”

President Trump added Brazil to the list of countries subject to his previous ban because COVID-19 cases have been spiking in that country. Brazil joins the list of 30 other countries that includes the U.K., Ireland, China, Iran, and the 26 Schengen area countries. Foreign nationals who have been in these countries during the preceding 14 days will not be allowed to enter the U.S., unless they are exempted.

The list of exemptions is long. It includes:

  • Lawful permanent residents (LPRs), a.k.a. “Green Card Holders”
  • Spouses of U.S. citizens and LPRs
  • Parents or legal guardians of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Siblings of a U.S. citizen or LPR who is unmarried and under the age of 21
  • Child, foster child, or ward or a U.S. citizen or LPR, or a prospective adoptee seeking to enter the U.S. in IR-4 or IH-4 classifications
  • Aliens traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the coronavirus
  • Aliens traveling as a nonimmigrant pursuant to crew member status (C-1, D, or C-1/D) or any alien otherwise traveling to the U.S. as air or sea crew
  • Aliens seeking entry or transiting in the following statuses: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 [as an employee of TECRO or TECO (Taipei Economic or Cultural Representative Office) or the employee’s immediate family members], G-1, G-2, G-3, G-4, NATO-1 through NATP-4, or NATO-6 status
  • Aliens whose travel falls within Section 11 of the United Nationals Headquarters Agreement
  • Members of the U.S. Armed Forces and their spouses and children
  • Any alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the coronavirus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee
  • Any alien whose entry would further important U.S. law enforcement objectives, as determined by the Secretaries of State or Homeland Security or their respective designees, based on a recommendation of the Attorney General or his designee
  • Any alien whose entry would be in the national interest, as determined by the Secretaries of State or Homeland Security or their designees

The ban also does not affect eligibility for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

While these bans have been advertised as temporary, none of them have been terminated to date.

If you have questions about the restrictions and exemptions or the COVID-19 travel restrictions at the Northern and Southern borders, please reach out to your Jackson Lewis attorney. We will continue to provide updates as they become available.

 

USCIS has announced that, due to the COVID-19 pandemic, it has suffered a steep decrease in revenue and, without assistance, might run out of funding this summer. The agency has asked Congress for $1.2 billion in emergency relief (as a loan) along with a 10% COVID-19 surcharge (to repay the loan) on top of a proposed, but not yet implemented, fee increase.

USCIS is 96% fee funded. Its last major fee increase was in FY 2017. By late-2019, USCIS proposed another fee increase, stating that without it, the agency would be underfunded by approximately $1.3 billion per year.

The 2019 proposal called for a 21% weighted average increase. Some petitions or applications would see a fee decrease, but others (such as Form I-129 petitions and naturalization petitions) would see substantial increases. For instance, the filing fee alone for an H-1B petition would go from $460 to $560 (a 22% increase). An O petition would increase by 55%, to $715, and an L petition would increase by 77%, to $815. Naturalization application fees would increase by 83%, to $1,170, and, for the first time, DACA renewals and asylum application fees would be imposed. Due to the comments and objections USCIS has received, the proposed increase has remained pending – perhaps until now.

In addition, all of the Trump Administration’s policies enacted to increase the scrutiny given to immigration applications and, ultimately, reduce the level of immigration and naturalization appear to be working. It is reported that there has been a “precipitous drop in applications for green cards, citizenship and other programs ….” Everything from the skyrocketing number of Requests for Evidence (RFEs) and denials, to the furor over the changes in the Public Charge rule, to a 45% rise in processing delays may have convinced some individuals and employers the new uncertainties make it pointless to apply at this time. On top of that, the heightened scrutiny and additional requirements (such as more in-person green card interviews) have forced USCIS to hire more employees that it now is having trouble supporting. In addition, USCIS temporarily suspended all premium processing, thus eliminating a $1,440 fee per petition that must usually provide a good revenue stream.

Jackson Lewis will continue to follow Congress’ reaction and provide updates as they become available. Please contact a Jackson Lewis attorney with any questions.

 

 

As businesses begin to reopen after shutdowns to help stop the spread of the COVID-19 pandemic, employers should anticipate heightened scrutiny by USCIS, ICE, and the Departments of Labor and Justice regarding wage and hour and immigration requirements.

The current surge in worksite enforcement is expected to result in as many as 10,000 I-9 audits in fiscal year 2020. In addition, civil audits are on the upswing, leading to criminal investigations and criminal arrests for employing undocumented workers. Moreover, high unemployment and mounting political tensions due to the COVID-19 pandemic likely will lead to even greater government focus on employers’ hiring practices.

Regardless of whether your company employs foreign nationals, all employers should audit their I-9s now. Basic steps include:

  • Determining if you need to do new I-9s for employees who have been furloughed or terminated.
  • Reviewing documents initially presented and update I-9s within three business days if your company reviewed I-9s remotely during the shutdown.
  • Checking if some returning workers need to have their I-9s reverified.
  • If your company is in the midst of an audit, readying for ICE to move quickly despite COVID-19 extensions.

Employers with non-immigrant workers have other concerns as well. It is a good time to:

  • Audit H-1B Public Access Files to ensure you have included proper notifications regarding worksite changes.
  • Check on any changes in salary to ensure you are still meeting prevailing wage and actual wage requirements.
  • Check if any amendments to petitions are required because of post-COVID-19 decisions regarding the terms and conditions of employment.
  • If any employees on H-1B visas are being terminated, make sure to follow regulations regarding withdrawing petitions and repatriation.
  • Prepare for possible worksite visits from USCIS.
  • Strategize on how to bring foreign nationals into the country or back into the country in light of travel and entry bans, as well as consular closings.
  • Review current green card sponsorship to determine whether cases are still viable given unemployment numbers in your industry.
  • Refine green card sponsorship policies and agreements in light of the new normal.

Please contact a Jackson Lewis attorney with any questions about workplace issues.

ICE has announced that its flexibility regarding the physical presence requirements for I-9 inspection will be extended for another 30 days, until June 18, 2020 due to continued COVID-19 precautions. The terms and details of this flexibility remain the same.

Basically, eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email). Once normal operations resume, all employees who were onboarded remotely must report to their employer within three business days for in-person verification.

This flexibility applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is being implemented. ICE has said, however, that DHS will evaluate on a case-by-case basis situations where newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols. Where the new flexibility may not apply, employers may continue to designate authorized representatives to act on their behalf to review documents in person.

ICE is also granting an additional 30 days to the original 60-day extension of time to respond to Notices of Inspection (NOIs) that were issued in March 2020.

ICE notes that employers are required to monitor DHS and ICE websites for additional updates on when extensions will terminate and normal operations resume.

If you have any questions about Form I-9 Employment Verification and E-Verify requirements, especially changes during the COVID-19 pandemic, Jackson Lewis attorneys are available to assist.

On May 11, 2020, the IRS issued guidance about how to return an Economic Impact Payment (EIP), also known as a COVID-19 stimulus payment. Ineligible individuals who receive EIPs are required to return them.

Resident and Nonresident Alien EIP Eligibility

The IRS guidance indicates that:

  • A person who is a nonresident alien in 2020 is not eligible for the EIP.
  • A person who is a qualifying resident alien with a valid SSN is eligible for the EIP only if the person is a qualifying resident alien in 2020 and could not be claimed as a dependent of another taxpayer for 2020.

Aliens who received an EIP, but are not eligible, should return the EIP to the IRS.

The IRS guidance in Q41 sets out details about how and where to return an erroneous payment depending on whether an individual received a paper check or direct deposit payment and where the individual lives.

One way a person can be a resident alien is if they satisfy the IRS substantial presence test. The substantial presence test is based on a calculation of the number of days that an individual has been physically present in the U.S. The calculation formula is very specific, but most nonimmigrants who have been in the United States for at least half of 2020 will be considered resident aliens in 2020 for tax purposes. However, there are individuals whose days in the U.S. in certain visa categories do not count toward the calculation. That includes some students on a F visa. Generally, foreign students on F visas in nonimmigrant status who have been in the United States fewer than five calendar years remain nonresident aliens and are exempt from social security/Medicare taxes.

While the above sets out general outlines regarding resident aliens, EIPs, and the IRS Code, the regulations are very detailed. Before taking any action, you should reach out to counsel to determine what, if any steps, should be taken.

 

The persistent problem of undocumented workers presenting plausible (but ultimately fraudulent) employment verification documents to employers has taken a new twist in the COVID-19 pandemic: a rise in imposter claims for unemployment insurance.

Imposter claims are a type of identity theft; someone uses someone else’s personal information, including Social Security numbers, to collect unemployment compensation. COVID-19 payments are higher than regular unemployment payments and presents more of an incentive for imposter fraud – and states are experiencing more of it. Rhode Island has reported 2,000 such claims. Oklahoma has seen a steep rise. And these are likely just the tip of the iceberg.

Imposter fraud can be discovered in several ways. Individuals who need to apply for unemployment find out that they cannot do so because someone else is already collecting under their Social Security number. Individuals might also be denied unemployment benefits because the state agency’s system sees that someone else is still working and being paid under that same Social Security number. Alternatively, employers may receive notices of claims for employees who have not been laid off. It is even possible that applicants denied unemployment could contact the employer of the imposter and thereby inform the employer of the fraud.

What should employers do if they become aware that an employee is a victim of imposter fraud?

But what if you receive information claiming that one of your employees is the “imposter”?

Employers are increasingly receiving phone calls and letters from individuals claiming that an employee is working with fraudulent documentation. Even so, employers should not take any precipitous action adversely affecting the employee’s job. The non-employee’s alarming claim may itself be false, mistaken, or part of a scam to get personal identifying information about one of your employees. Furthermore, the employee may not have intentionally provided incorrect information.

The best path before discussing the accusation with the employee is to first check the employment records.

  • Check the employee’s Form I-9 record. The Form I-9 may have errors on it that create a reason to ask the employee to update the documentation, which can then be checked. If the List A, B, or C documentation has been copied, legal counsel can assist you in examining the authenticity of the documentation.
  • Check payroll records and other company records to determine if there have been other complaints or indications that the claim has validity.

Ultimately, the decision about how to proceed will be based on all the specific facts and circumstances regarding the employee and your company’s history regarding employment verification issues. It is important to make an individualized decision and proceed cautiously to avoid violating document abuse or discrimination restrictions or creating a potential discrimination claim by the employee.

Jackson Lewis attorneys are available to help you determine the best course of action.

 

It has been five years since Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs challenged the Obama Administration’s authority to enact the H-4 EAD Rule. In the years since that filing, the case has gone back and forth between the D.C. District Court and the U.S. Court of Appeals for the D.C. Circuit. The Trump Administration (which did not really want to defend the rule) requested more than six “pauses” in the litigation based on its assertions (starting in 2017) that a new rule rescinding H-4 EADs would soon be published. That new rule has been stuck in the Office of Budget Management (OMB) review process for more than a year, but it remains on the DHS Regulatory Agenda with an expected spring 2020 publication date.

So, DHS’s opposition to a motion for an injunction that would have stopped the agency from issuing or renewing H-4 EADs appeared to be an about face. It is possible OMB is telling the Administration the Rule does not make sense from an economic standpoint – even during high unemployment and the Administration’s other ongoing efforts to limit immigration. But the Trump Administration may have something else in mind.

In its brief opposing the injunction, DHS argued the elements for granting an injunction had not been met. The brief stated:

  • There is no showing of irreparable harm because Save Jobs’ supporting affidavit says nothing about the present job market or threat of impending economic harm;
  • There is no showing of a likelihood of success on the merits because the court had indicated it “’would likely conclude that DHS’s interpretation of its authority under the INA is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority.’”
  • The balance of harms and public interest prongs are not met because “[i]njunctions to the enforcement of such regulations ‘severely undermine . . . USCIS’s authority to make regulatory determination about the issuance of [employment-based] visas’”; and
  • There is a negative consequence where the court is being asked to “substitute its judgment for that of the appropriate agency.”

In order to enact more restrictions on immigration and work authorization, the Administration may want to ultimately argue that:

  • The H-4 Rule is a valid exercise of rulemaking authority, because it wants its new rule (rescinding H-4 EADs) to be a valid exercise of rulemaking authority;
  • USCIS has the authority to make regulatory determinations about visas;
  • Courts should not substitute their judgment for that of the agency; and
  • In these times of COVID-19, the current economic picture must be kept in view.

The Trump Administration’s strategy remains to be seen, but Jackson Lewis will continue to follow this case and provide updates as they become available.

The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.

 

Just before midnight on April 23, 2020, President Donald Trump’s “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” went into effect. The proclamation’s purpose was to temporarily suspend the entry of new immigrants (green card holders) into the United States for 60 days, until June 23, 2020. Because U.S. Embassies and Consulates abroad have been closed for routine visa processing since March 20, 2020, the proclamation did not immediately change the current situation. Unlike the consular closures, the April 23rd proclamation was not issued to prevent the spread of COVID-19; it was issued to restrict immigration because of high unemployment in the United States due to states’ stay-at-home orders.

The 60-day mark is far from the only important date in the proclamation. By the 30-day mark, May 22, 2020, the President will decide whether to take “other measures” regarding nonimmigrant visas to stimulate the economy and prioritize the hiring of U.S. workers. By the 50-day mark, a decision will be made about whether to continue the immigrant visa suspension beyond 60 days. It is the specter of these unknown “other measures” that has created concern on the part of employers and temporary visa holders themselves.

On May 7, 2020, four senators, Tom Cotton (R-Ark.), Ted Cruz (R-Tex.), Charles Grassley (R-Iowa), and John Hawley (R-Mo.) fleshed out the possibilities in a letter to President Trump urging him to “suspend all new guest worker visas for sixty days, and to suspend certain categories of new guest worker visas for at least the next year, or until unemployment has returned to normal levels.” The categories the senators would like to see suspended for a year include H-2B visas for nonagricultural seasonal workers, H-1B visas for specialty occupation workers, and the Optional Practical Training Program (OPT) used by foreign students after graduation. Their stated purpose is to “limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”

But many disagree with the senators’ assumption that limiting immigration will help the economy and U.S. workers. Indeed, there is some contrary economic theory, data, and statistics, including the following:

Given the current climate, these issues will undoubtedly remain hotly contested as the May 22, 2020, 30-day mark approaches. Jackson Lewis attorneys will provide updates as they become available.

On April 20, 2020, Chad Wolf, Acting Secretary of the Department of Homeland Security (DHS), announced that the previously announced travel restrictions on the Northern and Southern U.S. borders would be continued for another 30 days until May 20, 2020. In March, DHS had announced that due to the COVID-19 crisis, individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until April 20, 2020.

For more information on these restrictions, please click here.