The Trump Administration has talked about reforming the F-1 Optional Practical Training (OPT) program for years. It first appeared on the 2017 DHS Regulatory Agenda as a proposed new rule. The stated purpose of the rule was to increase protections for U.S. workers through additional oversight and to reduce fraud and abuse of immigration programs. The rule has never been finalized.

With the unemployment rate at an historic high, the Administration is refocusing on “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” In the “Proclamation to Suspend Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” issued on April 22, 2020, President Donald Trump stated that within 30 days he would be reviewing non-immigrant programs to further the stated objectives.

Many expect new rules regarding non-immigrant visas and the OPT program would be forthcoming. Senator Charles Grassley (R-Iowa) has bolstered this expectation by expressing his continuing concerns regarding fraud and abuse in F-1 student visa programs. Grassley has been raising concerns about the program since 2018. On May 21, 2020, he sent a letter to Acting Secretary of the Department of Homeland Security, Chad Wolf, seeking answers to questions regarding DHS oversight of the OPT program. Particularly, he is concerned about “visa mills” masquerading as educational institutions that “serve as defacto employment agencies that provide the necessary approval for aliens who seek to enter the U.S. under F-1 visas and work in this country.” He is also concerned that these “mills” work with fake companies that ostensibly hire F-1 students to work through the F-1 OPT and STEM OPT programs.

Grassley is expecting responses regarding DHS insights, oversight, and enforcement actions for both large and small organizations and institutions. For example, he wants to know the steps DHS takes to validate companies involved in the OPT program, DHS policies regarding site visits, the steps DHS takes to investigate whether educational institutions are complicit in fraud, and how many companies have been identified as being engaged in fraud. The answers he receives may well color the Administration’s new rules and recommendations.

Colleges and universities worry about how limits on OPT could affect their programs, their bottom lines, and the economy in general. The Chronicle of Higher Education reports that the OPT program “drives year-to-year enrollment increases of students from foreign countries.” The F-1 OPT program has historically been an important incentive for foreign students to come to the U.S. (especially those in STEM programs). Given the current immigration landscape and the COVID-19 pandemic, anything that encourages foreign student enrollment is welcome. As the American Council on Education pointed out, “Part of the global leadership of U.S. higher education has involved attracting the best and the brightest.” It also said the OPT program is a substantial attraction. The Business Roundtable has found that cutting the OPT program would actually result in job losses for U.S. workers, and that “immigrants can help the United States achieve its full economic potential, to the benefit of all Americans.”

Jackson Lewis attorneys will continue to follow developments regarding possible restrictions on non-immigrant visas and the F-1 OPT program.

 

 

USCIS has entered into a broad settlement agreement that requires it to withdraw certain H-1B policies.

H-1B denials have skyrocketed since 2017, especially following enactment of the “Buy American, Hire American” Executive Order. In February 2018, USCIS issued further guidance specifically placing additional onerous documentation requirements for H-1B employees working at client sites, disproportionately affecting staffing and consulting companies. As a result, staffing and consulting companies have seen the highest H-1B denial rates.

In response, employers filed cases in federal courts alleging the USCIS denials were arbitrary, capricious, and in violation of the relevant statutes and regulations. After filing, some of those denials were reversed and approved by USCIS without extensive litigation. Those cases (and those that proceeded through litigation) affected specific employers – not USCIS policy.

Now, summary judgment decisions for the plaintiffs in the consolidated cases of ITServe Alliance v. Cissna and Serenity Info Tech v. Cuccinelli have led USCIS to enter into a broad settlement agreement with ITServe Alliance, an association of IT service organizations.

According to the terms of the settlement:

  • Within 90 days of the settlement, USCIS will withdraw its guidance known as the “Contract and Itinerary Memorandum” that required employers to provide an onerous amount of documentation to prove that beneficiaries would be employed in a specialty occupation throughout the requested period. The guidance required detailed documentation, including evidence of work assignments, copies of all contractual agreements, itineraries with specific dates and locations, and copies of detailed statements of work signed by the end-user client.
  • USCIS will broaden its interpretation of what constitutes an employer-employee relationship to conform with the Department of Labor definition, which states that an employer-employee relationship is “indicated by the fact that [the employer] may hire, pay, fire, supervise, or otherwise control the work of any such employee . . ..” [emphasis added]
  • USCIS will stop its practice of approving petitions for time periods shorter than those requested by the employer without at least a brief explanation of the legal justification.

USCIS will start reopening and readjudicating approximately 200 cases involved in the consolidated case, and, importantly, will not use these overly restrictive standards.

USCIS has not yet issued any specific guidance regarding the ITServe Alliance settlement and how it might be used by other employers with previously denied cases.

Jackson Lewis attorneys are available to assist you in determining how the change will affect your employment plans, including H-1B petitions, extensions, or past denials.

 

 

Premium processing will resume in stages according to USCIS. Cap-subject H-1B petitions will be included only in the last phase.

June 1, 2020: USCIS will accept requests for premium processing for all eligible Form I-140 Immigrant Visa Petitions.  EB1-C Multi-National Manager or Executive and EB2 National Interest Waiver petitions are not eligible for premium processing.

June 8, 2020: USCIS will accept upgrades to premium processing for all I-129 petitions filed before June 8, 2020 except for cap subject H-1B petitions.

June 15, 2020: USCIS will accept concurrent premium processing filings and upgrades to premium processing for cap-exempt H-1B petitions (including Conrad and Interested Government Agency Waivers) filed on or after June 8, 2020.

June 22, 2020: USCIS will resume premium processing for all other Form I-129 petitions (upgrades and concurrent filings) including all cap-subject petitions.

USCIS is attempting to gradually reintroduce premium processing. Even so, the schedule is subject to change. The $1,440 fee for each premium processed case may help USCIS with its current budget shortfall.

Premium processing was suspended on March 20, 2020 due to COVID-19. Petitioners who filed Form I-140 and Form I-129 petitions requesting premium processing before that date but received no action and a refund, may refile their Forms I-907 consistent with the above timeline, barring any changes.

Jackson Lewis attorneys will continue to monitor this timeline.

In addition to the  COVID-19-related travel restrictions and consular closures, Chinese graduate students and post-doctoral researchers will now face another hurdle in coming to the U.S. As of noon (EDT) on June 1, 2020, President Donald Trump’s “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China” became effective.

The Proclamation bans the entry on F or J visas of PRC nationals who wish to study or conduct research if they receive funding from, are currently employed or study at or have in the past conducted research on behalf of an entity in the PRC “that implements or supports the PRC’s ‘military-civil fusion strategy.’” This is defined as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities,” i.e., military ties.

The ban expressly exempts Chinese undergraduate students and provides other exemptions, including for spouses of U.S. citizens and legal permanent residents and members of the U.S. Armed Forces and their immediate family members.

It is not clear how broadly the new ban will be interpreted, but the Proclamation states that the covered individuals will be identified by the Department of State based upon recommendations from the Attorney General and the Secretary of Homeland Security.

The Proclamation also calls upon the Secretary of State to consider whether Chinese nationals currently in the U.S. on F or J visas should have those visas revoked to “mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”

Reportedly, just days before issuance of the Proclamation, Secretary of State Mike Pompeo was speaking to President Trump about cancelling the visas of some Chinese nationals with ties to China’s military currently in the U.S..

In Congress, Senators Tom Cotton (R-Ark.) and Marsha Blackburn (R-Tenn.) unveiled legislation (SECURE CAMPUS Act) that would codify the Proclamation. Companion legislation will be introduced in the House of Representatives by Congressman David Kustoff (R-Tenn.). The bill, aimed at safeguarding the nation’s security, would prohibit issuance of visas to Chinese nationals who want to do graduate or post-graduate study or research in the U.S. in any STEM fields. It does not include prospective students from Hong Kong or Taiwan.

Colleges and universities are concerned about the effects on international cooperation in education and research, as well as university finances. According to Reuters, “Some 360,000 Chinese nationals who attend U.S. schools annually generate economic activity of about $14 billion, largely from tuitions and other fees.”

Jackson Lewis attorneys are available to assist you with questions about this and other travel restrictions and bans.

To support the Trump Administration’s COVID-19 reopening policies, Chad F. Wolf, the Acting Secretary of Homeland Security, signed an order exempting some foreign professional athletes (and their staff and dependents) who compete in certain leagues, from the COVID-19 travel restrictions that are in place for 30 countries: China, Iran, Ireland, the U.K, and the 26 Schengen Zone countries.

The Acting Secretary stated, “In today’s environment, Americans need their sports. It is time to reopen the economy and it’s time we get our professional athletes back to work.”

The leagues identified include Major League Baseball, the National Basketball Association, the Women’s National Basketball Association, the Professional Golfers’ Association Tour, the Ladies Professional Golf Association Tour, the National Hockey League, the Association of Tennis Professionals, and the Women’s Tennis Association. DHS will work with those leagues to identify individuals who will be covered under this exemption.

This action falls under the “national interest” exemption found in all of the travel restriction proclamations exempting “any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security or their designees.” Individuals may be added or removed from the exemption based on “assessments of national interest, including the plans of the relevant professional sporting groups to support sporting events in the United States that do not cause an unnecessary risk to the public health.”

This order will not exempt the designated professional athletes from CBP inspection or other immigration requirements. However, it represents the first example of how the “national interest” exemption may be used. There are two other general exemptions found in all the travel restriction proclamations: one for individuals whose entry would further important U.S. law enforcement objectives, the other for aliens whose entry would not pose a significant risk of introducing, transmitting, or spreading the coronavirus.

If you need additional information or guidance regarding the exemption for professional athletes or any other COVID-19 travel restrictions, Jackson Lewis attorneys are available to assist.

 

 

A bi-partisan group has introduced a new bill in both the House and the Senate that would make additional immigrant visas (green cards) available to doctors and nurses. The Healthcare Workforce Resilience Act (HWRA) would ease the long wait lines for green cards that make the U.S. a less attractive alternative to other countries that are more open to immigration.

The shortage of healthcare workers in the U.S. is not a new problem – particularly in rural areas of the country. One in four healthcare workers in the U.S. was born in another country.

Foreign-born doctors often work in rural areas and fill posts that would go unfilled without them. But the ability of those doctors to continue work in the United States and to help during the COVID-19 pandemic (which has made the shortage a much starker reality) is limited by restrictions on their work visas.

For instance, physicians in H-1B status may not be able to move to an area of the country where cases are spiking, because their visas have geographic restrictions. Others in H-1B status who have received waivers may put their immigration status at risk by providing telehealth services outside of their local area during the COVID-19 National Emergency. Foreign-born nurses are subject to similar restrictions.

USCIS has lifted a few restrictions to accommodate foreign physicians who wish to provide telehealth services and the Department of State is making it easier for healthcare workers from abroad who wish to fight COVID-19 to come to the U.S. Geographic restrictions and the long green card backlog have not been addressed.

The answer may be to make more green cards available to physicians and nurses so that they are no longer subject to the geographic restrictions. And Congress wants to help. The HWRA would make 40,000 immigrant visas available to doctors (15,000) and nurses (25,000). The visas would be issued without regard to per-country restrictions and the Departments of Homeland Security and State would be required to process the petitions and applications quickly.

The congressional representatives have pointed out that these 40,000 new visas would not increase the limited number of immigrant visas, because the legislation would simply call for recapturing visas from previous years that went unused. In addition, employers who sponsor nurses for these recaptured visas would have to attest that they have not displaced any U.S. workers through the new hires and will not do so.

The President of the American Medical Association in support of the bill said, “‘Physicians fighting COVID-19 are eager to hear these words: Reinforcements are on the way.’” One Congressman pointed out that, even if the bill passes later, it will still help and “‘would be one of the most important interventions to rebuilding the country in the long term.’”

If you have questions about the HWRA, please reach out to your Jackson Lewis attorney.

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.