Due to the global coronavirus (COVID-19) pandemic, land border travel between the United States and Canada has been restricted since March 21, 2020, and will likely continue through at least January 21, 2021. Individuals may not be admitted for tourism or other non-essential reasons. For the most part, work has been considered an essential activity. Until recently, however, the restrictions have not affected those flying between Canada and the U.S.

Starting January 7, 2021, due to the worsening of the COVID-19 pandemic, Canada’s new policy requires those flying to Canada to show a negative COVID-19 test. Passengers five and older will need to provide proof of a negative laboratory test result for COVID-19, taken within 72 hours of flight departure, prior to boarding a flight to Canada. Absent that documentation, individuals will be denied boarding. Once they have arrived in Canada, the travelers will be subject to Canada’s 14-day quarantine rules. Those showing indications of illness will be referred to the Public Health Agency of Canada for further assessment and screening. Canada aggressively enforces its quarantine rules and violations can result in possible jail time and up to $750,000 in fines.

Canada, like the United States, had banned travel from the United Kingdom based on the new strain of COVID-19 that was identified there. The U.S. Centers for Disease Control and Prevention (CDC) is expected to release a universal testing requirement like Canada’s by the end of January: all individuals flying in from abroad, including U.S. citizens, would have to present a negative COVID-19 test.

Other countries also have been strictly patrolling their borders due to the COVID-19 uptick. Following is a sample:

Travel restrictions are changing quickly to meet safety measures during the pandemic. Individuals should check relevant sources for travel updates prior to undertaking any travel, international or domestic, including embassy websites, Department of State travel pages, state COVID-19 websites, the CDC, and specific airline companies.

If you have questions regarding the panoply of travel and quarantine restrictions, Jackson Lewis attorneys are available to assist you.

U.S. Citizenship and Immigration Services (USCIS) announced that it is experiencing delays in issuing receipt notices for some applications and petitions filed at USCIS lockboxes that are located in Chicago, Illinois, Phoenix, Arizona, and Lewisville, Texas. This announcement does not come as a surprise to most filers, since delays have been experienced for some time and have become even longer since October 2020, when thousands of Form I-485 Adjustment of Status applications were filed.

Adjustments due to COVID-19 restrictions at USCIS are adding to the problems. Not only can it take more than two months for receipts to be issued, but filing fee checks (the cashing of which became a way to determine whether an application or petition was received) are not timely cashed. These delays also are seen with other cases filed at lockbox addresses, such as Form I-765 Applications for Employment Authorization and Form I-131 Applications for Travel Documents. The delays have been particularly long for students applying for EADs who, like others, are experiencing gaps in employment authorization.

USCIS confirmed that, despite any delay, once the receipt is issued, it will reflect that actual date of receipt. USCIS also maintains the delays will not result in payments going beyond their validity dates.

USCIS asks stakeholders to be patient and says it is working extra hours and redistributing workloads to deal with the backlogs.

In order to speed up the receipt-acknowledgment process, USCIS suggests that applicants complete and attach Form G-1145, E-Notification of Application/Petition Acceptance to their filings at lockboxes to request a text message or email upon receipt.

If you have questions about receipting delays, please reach out to your Jackson Lewis attorney.

USCIS has released its final rule on the modification of the H-1B cap selection process (“Modification Rule”) to prioritize petitions with the highest wage levels in the Federal Register.

Unless the Biden administration decides to delay or freeze the new rule, the rule will become effective on March 9, 2021 (60 days from publication), in time for this year’s H-1B Cap Registration process.

Since 2007, USCIS has conducted a lottery for the limited number of Cap H-1B available. The lottery selection was random, although skewed toward beneficiaries holding U.S. advanced degrees. The process allowed petitioners who held U.S. advanced degrees to compete first in the overall lottery and, if not selected, again in a special lottery only for those holding U.S. advanced degrees. While the Modification Rule will continue this dual lottery system, it will prioritize the selection of cases in each lottery based on the highest wage levels for the appropriate Standard Occupational Classification (SOC) code in the area of intended employment.

In 2020, the only substantive question that had to be answered as part of the electronic registration process was whether the beneficiary held a U.S. Master’s degree or higher. Now, if the rule goes into effect, there will be an additional question. The employer will have to determine and list the highest Occupational Employment Statistics (OES) prevailing wage level the proffered wage equals or exceeds for the relevant SOC code in the intended area of employment. The employer will not be asked to provide the SOC code or the proffered wage. The wage level alone will establish the ranking order – starting with Level IV and working down. Once a petition is selected for submission and is filed, USCIS will review the petition for possible inconsistencies.

Historically, based on the random lottery, about 31% of selected Cap H-1B petitions were Level I, 53% were Level II, 10% were Level III, and 4% were Level IV. Since no quotas will be set on wage levels, the new rule will increase the number of Level III and Level IV cases that are selected. This will make it more difficult for employers that wish to hire entry-level employees (such as talented recent U.S. college graduates), but it will provide more certainty to employers that hire employees at Level III and Level IV wages.

The Modification Rule was originally published in the Federal Register in November 2020. During the Comment Period, the Department of Homeland Security (DHS) received over 1,000 comments. There were many concerns, including about: the effects on universities, the economy in general, physician shortages (especially in rural areas), and off-shoring – not to mention questions about whether this new rule would be ultra vires or otherwise abused. DHS parried such criticisms and ultimately made no changes to the Modification Rule.

Jackson Lewis attorneys will continue to follow the course of this rule and others that may affect the Cap H-1B process this year. Please reach out to us with any questions you may have.

On December 31, 2020, just as it was about to expire, President Donald Trump extended the ban on immigrant and nonimmigrant visas until March 31, 2020. Initiated in April and June 2020, the bans were intended to block immigrants and nonimmigrants (with H, L and J visas) from coming to the United States due to economic concerns related to the COVID-19 pandemic.

The nonimmigrant ban which has created a great deal of uncertainty for employers was partially blocked by a federal judge who determined that it likely exceeded the authority of the Executive Branch. The injunction, however, was not nationwide and only applies only to members of the plaintiff organizations: National Association of Manufacturers, Chamber of Commerce of the United States, National Retail Federation, Technet and Intrax. Some national interest exemptions are available but the requirements vary from consulate to consulate. Moreover, just obtaining visa appointments at the consulates can be challenging due to reduced operations.

These are far from the only travel restrictions that are still in effect. Presidential Proclamations blocking the entry of individuals who have been in 30 different countries during the 14-day period prior to admission remain in effect and due to the new strain of COVID-19 identified in the United Kingdom, air passengers from the United Kingdom are not allowed to board flights to the United States unless they have proof of a negative COVID test within no more than three days prior to the flight. Passengers must provide an attestation regarding the testing. This restriction, unlike the others, applies not only to foreign nationals but to U.S. citizens and green card holders as well.

Jackson Lewis attorneys are available to assist you with questions regarding these restrictions as well as those COVID-related restrictions such as those at the Northern and Southern borders which have been extended until January 21, 2021.

The USCIS filing fee increases that were proposed last summer will not be implemented.

In August 2020, the Department of Homeland Security (DHS) published a new filing fee rule in the Federal Register that raised USCIS filing fees by a weighted average of 20%. Some popular business-related petitions were slated for larger increases, from 51% for TN and E petitions to 75% for L petitions to 85% for temporary, seasonal agricultural workers. DHS wanted to increase fees to reduce its projected $1 billion deficit. Critics complained that these increases would negatively affect immigrants, businesses, and the economy. The new fees were to go into effect on October 2, 2020. At the last moment, a federal judge in California enjoined the rule. Despite the government’s request, the judge refused to enter a stay of the injunction pending a decision on an appeal. On December 28, 2020, the day the government was to file its opening brief in the federal appellate court, the Department of Justice (DOJ) voluntarily moved to dismiss the appeal the Administration previously decided to pursue.

This signals the end of those fee increases – at least for now. In addition, the form and policy changes that were included in that fee-increase rule will not be implemented. This includes a proposed change in the premium processing timeline from 15 calendar days to 15 business days, up from two weeks to three weeks.

Jackson Lewis attorneys will provide updates as they become available.

On January 4, 2021, DHS announced that for I-9 purposes, Deferred Action for Childhood Arrivals (DACA) recipients may present an unexpired Employment Authorization Document (EAD) with Code C33 issued on or after July 28, 2020, along with an I-797 Extension Notice that shows an additional one-year extension. This new procedure is in response to a court order.

After the U.S. Supreme Court ruled the Administration had not properly terminated DACA, Acting Director of Homeland Security, Chad Wolf, issued a memo explaining that the Administration would be reviewing DACA and that until the review was concluded, DACA would be restricted. No new initial applications would be accepted, renewals (including renewals of EADs) would be limited to one year, and advance parole would be issued only for urgent humanitarian purposes, the memo stated. Then, in November 2020, a federal judge, Nicolas G. Garaufis, ruled that Acting Director Wolf had not been properly appointed and his rollback of DACA, therefore, was invalid.

As part of the Judge’s ruling, USCIS was ordered to post notices informing the public of how the court’s order would be implemented. That notice can be found on the USCIS website along with instructions on how to apply for DACA. In compliance with the court order, USCIS notified the public it would do the following under the terms of the DACA policy in effect prior to its termination by President Donald Trump on September 5, 2017:

  • Accept first-time requests for deferred action;
  • Accept renewal requests for deferred action;
  • Accept applications for advance parole documents;
  • Extend one-year grants for deferred action to two years; and
  • Extend one-year employment authorization documents to two years.

USCIS also agreed to take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization to those who were issued such documentation on or after July 28, 2020, with only a one-year validity period. As it turns out, that evidence will be in the form of an I-797 Extension Notice.

DHS plans to comply with the above while the Judge’s ruling remains in effect, “but DHS may seek relief from the order.” DHS has not yet appealed the order. Although President-elect Joe Biden has said he would protect DACA, another case threatening the program is pending in federal court in Texas.

Jackson Lewis attorneys will continue to provide updates as they become available.

U.S. Citizenship and Immigration Services (USCIS) has issued an alert on delays in processing receipt notices due to the surges in petition filings at lockbox facilities because of the COVID-19 pandemic and the agency’s “flexibility” in response.

Due to the COVID-19 pandemic, many foreign nationals continue to be stuck and unable to leave the United States at the conclusion of their approved stays – either because of their home country travel restrictions, flight restrictions, or the rising COVID-19 cases abroad.  USCIS has suggested that those who unexpectedly have to remain in the United States beyond their authorized stay apply for an extension or change of status on a Form I-539 application. Individuals who timely file (prior to their expiration date) will not accrue unlawful presence. For many, just preparing a filing could be delayed because of lockdowns, illness, and other circumstances related to remote work. USCIS has excused delays that are due to extraordinary circumstances beyond the applicant’s control, including some caused by COVID-19. USCIS may use its discretion to excuse a delay on a case-by-case basis if the request is accompanied by credible evidence that the delay was beyond the applicant’s control and that it was commensurate with the circumstances.

Given the continuation of the pandemic and USCIS’ “flexibility,” it is not surprising that requests for extensions of stay have been soaring during the pandemic. In May 2020 alone, USCIS received 67,000 Form I-539 requests – four times the usual monthly average, with the B-2 Visitor category leading the way. There was a 500% increase in May 2020 compared to May 2019. May 2020 also saw a 100% increase in change of status requests from the previous year – from 4,000 to 8,000. Similarly, online filings increased as individuals struggled to avoid paper filings that would require services that might not be readily available – paper supplies, printing, and mailing.

In the meantime, the increase in filings may have exacerbated the “crisis level” delays and backlogs at USCIS. Between 2014 and 2019, overall case processing time rose by almost 100%. Currently, extension of stay and change of status requests can take from 4 months to 22 months to process. USCIS has been given the authority to institute premium processing for Form I-539 applications (as well as other petitions and applications), but that has yet to be implemented.

The way out of this situation, immigration advocacy groups have suggested, is more Congressional oversight and termination of new policies that are creating delays.

If you have any questions or need assistance regarding new rule changes or USCIS flexibility, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have allowed some flexibility due to the COVID-19 pandemic. Here are some of the changes in effect:

  • Virtual Inspection

Since March 2020, employers may inspect Section 2 documents virtually, e.g., over video link, by fax, or by email. This policy applies only to employers with workplaces that are operating remotely and if employees are not physically present at the workplace. Employees who are onboarded virtually must report for in-person verification once the employer’s normal operation resume or the employee is physically present at the work location, whichever is earlier. This policy has been extended until December 31, 2020 – but may be extended further.

  • EAD Approval Notices

Although an employee always may choose which documentation to produce, individuals whose sole work authorization document is an Employment Authorization Document (EAD) must present an unexpired EAD card for I-9 purposes. However, due to the USCIS backlog in  producing the EAD cards and subsequent litigation forcing the government’s hand, certain new employees and those needing to reverify their employment authorization may present Form I-797 approval notices instead of EAD cards if: the Form I-797 Approval Notice Date is between December 1, 2019, and August 20, 2020, and the employee can present (or has previously presented) an acceptable List B identity document. This will be in effect until February 1, 2021. Then the employee will need to present either a List A (such as an EAD card) or a new List C document.

  • TPS Beneficiaries

The DHS has announced automatic extension of work authorization until October 4, 2021, for certain Temporary Protected Status (TPS) beneficiaries due to pending litigation. Beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who are covered will need to present their expired EAD card along with the Federal Register notice announcing the automatic extension. For employees whose work authorization must be renewed, Section 2 should be updated. Reverification will not be required until October 5, 2021.

  • Deferred Action for Childhood Arrivals (DACA)

The termination of DACA has been set aside, but DHS did not return to the “status quo ante.” For a brief time, DHS refused to issue EAD cards to DACA beneficiaries for more than one year at a time, instead of the usual two years. Now, due to a court order, DHS must issue two-year renewals. USCIS has stated it will take appropriate steps to provide evidence of the full two-year employment authorization under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.

  • Expired List B Documents

Because of stay-at-home orders and restrictions on some document renewal services, starting on May 1, 2020, USCIS announced that List B identity documents set to expire on or after March 1, 2020, could be treated the same as if the employee presented a valid receipt for an acceptable document for I-9 purposes. There will be a 90-day grace period once this flexibility terminates.

  • H-2B Flexibility

Non-E-Verify employers with properly filed H-2A extension of stay petitions for H-2A workers currently employed by a different company may start employing those employees beginning on or after the date USCIS receives the extension of stay petition, but no earlier than the start date of employment listed on the petition. The extension petition must be filed on or after August 19, 2020, and no later than December 17, 2020. The employee’s unexpired I-94 indicating H-2A status along with their foreign passport qualify as a List A document.

Jackson Lewis attorneys are available to assist in navigating these and other new flexibilities, reviewing I-9 documentation, and helping employers to prepare for post-COVID-19 audits.

 

The Optional Practical Training Program for F-1 students (OPT) is not illegal, a federal judge has ruled in a case brought by Washington Alliance of Technology Workers (Washtech), a union representing workers in science, technology, mathematics, and engineering.

Criticism of OPT; Increased Scrutiny

Despite evidence that OPT is good for the economy and does not limit job opportunities for U.S. workers, opponents have questioned the program for years. In 2012, Senator Charles Grassley (R-IA) asked the Government Accountability Office (GAO) to investigate whether the program might undermine U.S. workers. Similarly, the Trump Administration has talked about reforming the OPT program since 2017, when a new proposed rule “intended to reduce fraud and abuse” appeared on the 2017 DHS Regulatory Agenda. While no large-scale reforms have materialized, the Department of Homeland Security (DHS) has increased scrutiny of the programs, announcing increased compliance inspections at worksites and talking about targeting Designated Student Officials (DSOs) at universities who approve OPT.

Litigation

Washtech has battled OPT through litigation since 2014 in the federal district court for the District of D.C. Washtech asked to have OPT declared illegal. DHS has been in the position of defending a program that the Administration did not favor.

In 2019, intervenors joined the case to vigorously defend the program. The intervenors included the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council. Amicus briefs also were filed in favor of OPT by public and private universities and colleges.

On November 30, 2020, Judge Reggie B. Walton denied Washtech’s claim that OPT was illegal. He is expected to issue a full memorandum and decision by the end of January 2021. Because the November 30 decision is not a final order, it is not yet subject to appeal. This means that OPT likely will outlive the current Administration. Immigration advocates are hopeful.

OPT draws students from all over the world to American universities and colleges. Given that these institutions recently have seen a 43% drop in foreign student enrollment, Judge Walton’s decision could not be more timely.

Jackson Lewis attorneys will continue to follow this case and provide updates as they become available.

Temporary Protected Status (TPS) for South Sudan has been extended again until May 2, 2022. The instructions for beneficiaries have been published in the Federal Register. Through January 4, 2021, TPS beneficiaries who have not already done so should re-register and apply to renew their Employment Authorization Documents (EADs). Those with EADs that expired on November 2, 2020 are entitled to a 180-day automatic extension of work authorization until May 1, 2021. Once the extension requests are adjudicated, those who are eligible will have their EADs extended until May 2, 2022.

In the meantime, despite the Trump Administration’s attempt to terminate TPS for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, they have all had their statuses extended until October 4, 2021 in light of ongoing litigation.

Jackson Lewis attorneys are available to advise you regarding these extensions and terminations and how to proceed with Form I-9 employment authorization.