Between March 1 and March 20, 2020, 275,000 individuals were entered into USCIS’ new electronic pre-registration system to obtain an H-1B for the 2020-2021 fiscal year. This is a nearly 25% increase over last year’s filings.

While it is hard to judge what led to the apparent increase in demand, the change may be a reflection of the ease of entering into the lottery, and low unemployment during the first quarter. Employers no longer are required to complete and submit full H-1B filings, but rather simply enter the individuals they wish to sponsor into the system and pay a $10.00 fee per worker. This is an enormous benefit since filing full H petitions has become much more complex under the current Administration’s focus on enforcement. More documentation is needed to try to avoid the now ubiquitous Requests for Evidence (RFEs). Last year more than 60% of H-1B cases received RFEs.

USCIS required very little information about each applicant, but it collected such information as whether the individuals hold U.S. advanced degrees and the citizenship of each applicant. USCIS has announced that about 43% of this year’s pre-registrations were for individuals holding U.S. advanced degrees (Master’s Cap cases). Eighty-one percent of the pre-registrations were for Indian (68%) and Chinese (13%) nationals. The companion figures for the cases that “won” the lottery have not been released. But the lottery system generally favors those with advanced degrees. Last year, 63% of the selected petitions were for beneficiaries with U.S. Master’s degrees.

Many petitioners have been notified which of their cases were selected in the pre-registration lottery. Those cases must be filed over the next 90 days. USCIS explained that all submitted cases will remain in the system for possible selection until the end of the fiscal year (September 30, 2020). From now until then, more cases may be selected in the lottery. Whether or not this happens may depend upon the appetite of the employers whose cases have already been selected for filing. Will COVID-19 play a role in determining how many employers will move forward and file full Cap H-1B petitions?

Jackson Lewis attorneys will continue to follow and report on developments.

In the first bit of relief for individuals waiting for their I-765, Applications for Employment Authorization to be adjudicated and Employment Authorization Documents (EADs) to be issued, USCIS announced that it will start reusing previously submitted biometrics to process I-765 renewal requests, for now.

This is a temporary accommodation until the Application Support Centers (ASC) reopen. Applicants who had appointments scheduled with an ASC on or after the March 18, 2020 COVID-19-triggered closure of ASC offices, or who have already filed I-765 renewal requests, will have their applications processed with their “old” biometrics.

There are already long processing delays for EADs of three to six months or more.  And while some who timely file for EAD extensions such as refugees, TPS holders and those with pending Adjustment of Status applications can work for up to 180 days while their cases are pending, others such as L-2 dependents do not have that luxury. The inability to obtain biometrics was exacerbating the problem of extended delays.

Perhaps USCIS will eventually decide to reuse biometrics in general. But for now, this is a temporary workaround.

Jackson Lewis will provide updates as they become available.

DHS and CDC have announced a new travel restriction at the Southern and Northern borders due to the coronavirus (COVID-19) outbreak. According to the announcement, DHS will do what it can (including repatriation flights) to prevent the introduction of “affected individuals” into “congregate settings” at land ports of entries (POEs) or Border Patrol Stations at or near the Mexican and Canadian borders.

Basically, those “affected individuals” are undocumented individuals who end up remaining at POEs or Border Patrol Stations for hours and days or more. CDC is issuing this rule because the POEs and Border Patrol Stations simply do not have the medical equipment or facilities to deal with these large numbers of people safely during the pandemic.

The order does not apply to:

  • U.S. citizens, Lawful Permanent Residents, and their spouses and children;
  • Members of the U.S. armed forces, associated personnel, and their spouses and children;
  • Persons from foreign countries who hold valid travel documents;
  • Persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions; or
  • Persons DHS, in consultation with CDC, determines should be excepted based upon the totality of circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.

The order does not specifically address individuals appearing at the POE for in-person TN or L-1 applications. Although CDC probably did not intend to include this group of individuals as “covered aliens,” inconsistent interpretation by each individual POE is possible.

It was previously announced that individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until at least April 20, 2020. Non-essential purposes include travel for tourism, including, but not limited to, sightseeing, recreation, gambling, or attending cultural events.

This is on top of previously issued travel suspensions issued by President Donald Trump for individuals seeking entry from:

  • China (excluding Hong Kong and Macau);
  • Iran;
  • The 26 Schengen Zone Countries; and
  • The United Kingdom and Ireland.

There are still certain individuals from the following countries who cannot enter the U.S. due to Travel Ban 3.0:

  • Iran (again);
  • Libya;
  • Yemen;
  • Syria;
  • North Korea;
  • Somalia; and
  • Venezuela.

If you have questions about the various restrictions and bans, please reach out to a Jackson Lewis attorney. We will continue to provide updates on U.S. travel restrictions as they become available.

E-Verify has modified its policies temporarily due to COVID-19 as follows:

  • Employers must still create cases in E-Verify within three business days from the date of hire.
  • Employers should use the hire date from the employee’s Form I-9 Employment Eligibility Verification.
  • Delays in E-Verify case creations are documented in the usual way by selecting “Other” from the drop-down list. If the reason for the delay is COVID-19, then employers should enter “COVID-19” as the specific reason for the delay.

In addition, E-Verify will extend the timeframe for resolving Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) because of SSA Office closures. E-Verify will do the same for Department of Homeland Security (DHS) TNCs, but only when the employee is unable to resolve the issue because of public or private office closures.

Employers are still required to:

  • Notify the employee about the TNC as soon as possible
  • Notify E-Verify of the employee’s decision once the employee has acknowledged their decision as to whether to take action to resolve the issue on the Further Action Notice

E-Verify’s action is a good first step, but there is much that still needs to be resolved, such as:

  • How long will the extensions last?
  • When and how will employees/employers be notified about re-opening of SSA Offices?
  • Will the eight-day rule apply if the DHS call center remains open?

Given the uncertainty, employers should not take any adverse action against an employee while the employee’s E-Verify case is in any sort of interim case status.

Jackson Lewis attorneys will provide updates on new guidance as they become available.

 

Due to COVID-19, USCIS announced that as of March 20, 2020, it is immediately suspending premium processing service for all Form I-129 and I-140 petitions until further notice. USCIS also said that petitioners that have already filed a form requesting premium processing will receive refunds if their cases are not acted on within the 15 calendar-day period. This may well indicate the agency does not expect that it will be able to meet those deadlines – even for petitions filed prior to March 20th.

This suspension will apply to Form I-129 petitions filed for E, H, L, O, P, Q, R, and TN status and to Form I-140 petitions for EB-1, EB-2, and EB-3 categories. It also encompasses all H-1B cap cases including all H-1B petitions that are exempt from the cap. USCIS previously announced a more limited suspension applying only to cap cases but the March 20th announcement supersedes that.

At the same time, USCIS announced that it will loosen its original signature requirements including those for Form I-129 during the national emergency. Original signed documents must be retained.

Jackson Lewis will continue to provide updates on changes in processes and guidance as they become available during the COVID-19 crisis.

The Department of Homeland Security (DHS) announced flexibility regarding Employment Verification (Form I-9) regulations due to COVID-19.

Recognizing that companies and organizations are having to temporarily shift to a remote working basis, DHS is allowing employers to inspect Section 2 documents remotely (e.g., over video link, fax or email, and so on) and to obtain, inspect, and retain copies (rather than originals) of those documents until normal business operations resume. This policy will remain in effect for 60 days, until May 18, 2020, or until three business days after termination of the National Emergency, whichever comes first. This timeframe could be extended by the government in a future announcement, if necessary.

Eligibility

  • Only applies to employers and workplaces operating remotely.
  • If HR is remote or inaccessible to employees, physical proximity restrictions apply, or newly hired employees or existing employees are subject to quarantine or lockdowns, this option may be available on a case-by-case basis.
  • Employers may still rely on using authorized representatives to act on their behalf to complete Section 2. The authorized representative may be any person. Employers must keep in mind they remain liable for any violations committed by an authorized representative.

Specifics

  • The three-day rule still applies — employers must conduct the remote inspections within three business days of the start date and retain the documentation provided.
  • Employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field.
  • Employers using E-Verify should submit cases within three business days of the remote inspection.
  • Once normal business operations resume, employees onboarded remotely must report within three business days for in-person verification.
  • Once documents have been physically inspected, employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field or to Section 3, as appropriate. If the original certifier is not available for the physical re-examination, a new Section 2 should be completed and signed by the employer.
  • Employers who use the remote option must provide written documentation of their remote onboarding and telework policy for each employee. The burden is on the employer to document that the remote option was necessary.
  • Employees will have a choice as to documentation presented under List A, B, and C for the in-person re-verification — it does not need to be the same documentation that was provided virtually.
  • Employees with documentation that expires prior to the physical re-examination will need to provide unexpired documentation that would be re-verified in Section 3.

Jackson Lewis attorneys are available to assist you during this time in implementing new strategies and policies regarding I-9 compliance and dealing with other evolving immigration concerns. We will continue to provide updates as they become available.

 

 

Several Presidential Proclamations suspending travel to the U.S. from abroad due to the outbreak of the Coronavirus (COVID-19) have been issued since January 31, 2020, each building upon the last. Now, restrictions on those traveling from the United Kingdom and Ireland have been added, according to the most recent proclamation, which outlines the short history of these proclamations and expands the restrictions.

By midnight EDT on March 16, 2020 (4:00 a.m. GMT on March 17), foreign nationals who are not yet in the air who have been in the United Kingdom or Ireland during the preceding 14 days will not be allowed to enter the U.S. The United Kingdom and Ireland joins the list of other restricted countries: China, Iran, and the 26 countries Schengen area countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

The goal is to prevent all excluded individuals from boarding aircraft, but covered individuals who arrive in the U.S. will be turned back. This includes individuals travelling under the visa waiver program pursuant to ESTA. Anyone subject to the proclamations who attempts to travel with ESTA will have their ESTA cancelled. Anyone who fraudulently or willfully attempts to circumvent these restrictions will be subject to removal. Air carriers also may be subject to fines for each banned individual they bring to the U.S.

These proclamations do not prevent U.S. citizens, legal permanent residents (“Green Card” holders), or close family members of U.S. citizens or legal permanent residents from entering the United States. Other exempted individuals include air or sea crew members, members of the U.S. Armed Forces and their family members, and certain types of foreign government officials. There are also some general exemptions for those whose entry would be in the national interest or whose entry does not pose a significant risk of spreading the virus. Individuals who enter under these exemptions will be subject to enhanced screening at 13 currently designated airports.

These restrictions will prevent:

  • Newly hired foreign nationals living abroad from coming to the U.S. to start employment; and
  • Foreign nationals living and working in the U.S. from travelling abroad and returning – even in emergency situations or to consular process.

We do not know how long these circumstances will last. The restrictions will remain in effect “until terminated” by President Donald Trump. To discuss questions regarding current hiring strategies and travel issues, please reach out to your Jackson Lewis attorney.

 

As employers respond to workplace issues pertaining to COVID-19 (Coronavirus), it is important not to forget about foreign nationals working pursuant to temporary non-immigrant visas. Employers must avoid discriminatory policies and remember that there are additional rules and regulations that apply to employees on visas.

Here are a few things to keep in mind:

  • Working Remotely – If a foreign national on an H-1B visa starts working remotely, the remote location was not on the original H-1B visa, and the remote work will continue for more than 30 days, a Labor Condition Application (LCA) posting or a new LCA and an amended petition may be required.
  • Material Changes in Terms and Conditions of Employment – Generally, foreign nationals working on temporary visas are expected to be working in the geographic locations in their visa petitions. Whether USCIS should be notified about a change in location depends on the type of visa and whether the change would be considered a “material” change in the terms and conditions of employment.
  • Changes in Pay – Other “material” changes that might have to be reported could include changes in pay,e., as triggered by moving from full-time to part-time employment. This would be particularly significant for those in H-1B status. If H-1B workers are not being paid the salary in the LCA filed with their H-1B petitions, employers can be found liable and be obligated to provide back pay.
  • Out of Status – Individuals on nonimmigrant visas (including students on OPT or STEM OPT) can find themselves “out of status” if there is a company shutdown and they are not working and not being paid. If a foreign national is out of status, the individual must change to another status or leave the country. For personal reasons or due to the COVID-19 outbreak, it may not be feasible or safe for them to return to their home countries.
  • Students and Exchange Visitors – Students on F-1 visas can fall out of status if they are taking all “online” courses during a campus shutdown. DHS has reported that it is prepared to be flexible. The Department of State has indicated that it is prepared to be flexible with individuals working in J-1 status as exchange visitors who cannot leave the United States at the conclusion of their programs.
  • Form I-9 and E-Verify – All employers must decide how they will handle Form I-9 and E-Verify obligations during a company shutdown or when individuals are working remotely. Under USCIS and ICE policies, this may mean establishing a process and designating “agents” to review forms and fill in Section 2 of the Form I-9.
  • COVID-19 Travel Bans – For now, because foreign nationals from many countries are banned from entering the United States, employers may want to reconsider hiring approaches. The banned countries include China, Iran, and the 26 Schengen countries – Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. On March 13, 2020, President Donald Trump noted that other countries, such as the United Kingdom, may be added to this list and some countries already on the list may be removed.
  • Cancellation of Consular Operations – There have been recent reports and news of various U.S. Consulates closing and/or cancelling immigrant and nonimmigrant visa appointments, and that trend may well continue. Employers and employees should be mindful of the availability of visa services at consular locations, check consular websites frequently, and plan accordingly.

Jackson Lewis has a COVID-19 Task Force and we are ready to assist you in developing plans and strategies for your workplaces, including policies related to foreign national employees working on temporary visas.

On the same day the Public Charge Rule went into effect (February 24, 2020), immigrant advocates held a teach-in at Boston City Hall to try to lessen the uncertainty and fear that has been spreading through immigrant communities.

The Administration has stated that the Public Charge “[R]ule will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-sufficient and not dependent on the largess of United States taxpayers.” However, immigration advocates view the rule as “penalizing poverty” and taking the chance to become self-sufficient away from immigrants, a group of individuals who historically has been an important part of our country and our economy.

Previously, this rule primarily affected those who accepted cash welfare benefits. However, the new rule makes admission to the U.S. more difficult for low-income immigrants and non-immigrants who use other, non-cash welfare benefits. The Department of Homeland Security (DHS) has said that the public charge rule is meant to determine whether a person is likely to use of certain government benefits in the future. To make that determination, officers will review the totality of the circumstances, including an applicant’s income, age, health, family status, assets, credit scores, liabilities, education, and skills (including English language), visa classification sought, and receipt of public benefits. Some factors serve as “negative” factors, others as “positive” factors.

Receipt of certain public benefits for more than 12 months within any 36-month period (following February 24, 2020) definitely is a negative factor (unless the individual was in the military at the time of receipt or is a U.S. citizen child of an applicant). These public benefits include:

  • Supplementary Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state, or local cash benefit programs for income maintenance
  • Supplemental Nutrition Assistance Program (SNAP, a.k.a., “food stamps”)
  • Housing Choice Voucher Program (Section 8)
  • Project-Based Rental Assistance
  • Medicaid (with certain exceptions, including for emergency medical conditions, for aliens under 21, or women during pregnancy)
  • Subsidized Public Housing (Section 9)

Other heavily weighted negative factors include:

  • Applicant is not a full-time student and, despite work authorization, has no current employment, recent employment history, or reasonable prospect of employment;
  • Applicant has a diagnosed medical condition that likely will require extensive medical treatment or institutionalization and has no financial resources to pay for this; or
  • Applicant previously was found inadmissible on public charge grounds.

Heavily weighted positive factors include:

  • Household income, assets, resources, or support from a sponsor of at least 250 percent of the Federal Poverty Guidelines ($65,500 for a family of four);
  • History of employment in the U.S. with an annual income of at least 250 percent of the Federal Poverty Guidelines; or
  • Applicant has private health insurance for use in the U.S. that will cover the period the applicant is expected to remain in the U.S.

If subject to the public charge test, applicants for adjustment of status or others applying for immigrant or nonimmigrant visas may need to provide a significant amount of financial data on either Form I-944, Declaration of Self Sufficiency, or Form DS-5540, Public Charge Questionnaire.

These groups of individuals will not be subject to the public charge test:

Jackson Lewis attorneys are prepared to assist in navigating the new rule, determining whether these forms must be completed, and how best to present your case.