USCIS has announced that, due to an “unprecedented” increase in revenues, the source of which is unclear, it would not go forward with the furloughs previously scheduled for August 30, 2020 – at least not until the end of the fiscal year (October 1, 2020).

The USCIS Deputy Director for Policy, Joseph Edlow, stated this will come at a cost. USCIS will be cutting support activities, and anticipates that this will lead to longer wait times for case inquiries and longer processing times for adjustment of status and naturalization cases (a problematic issue in an election year). Average wait times for calls to USCIS to fix errors made by the agency have increased under the Trump administration.

The agency did note, however, that naturalization ceremonies will continue.

Since June 2020, USCIS has been threatening to furlough 13,000 employees (two-thirds of its workforce) due to a purported but unexplained budgetary shortfall for this fee-based agency.

The previous deadline for receipt of $1.2 billion from Congress to stave off the furloughs was August 30, 2020. The House had approved some emergency funding (including raising the cost of premium processing to $2,500 per case), but the Senate has yet to act.

Congress had wanted to avoid this magnitude of operational cuts. USCIS has reiterated that a return to “normal” operations cannot occur without the requested financial assistance. Keep in mind that even before these financial issues were raised, USCIS already had unprecedented delays and backlogs.

As the new October 1, 2020, deadline approaches, Jackson Lewis attorneys will continue to provide updates as they become available.

Due to the continuation of the COVID-19 national emergency, the Department of Homeland Security (DHS) has decided to continue its temporary loosening of H-2A rules to make it easier to employ temporary, seasonal agricultural workers.

Under the rule:

  • Employers can continue to petition to employ foreign workers who are already in the U.S. in H-2A status but who are working for a different employer;
  • Employees will be able to start working for the new employer once the petition has been received by USCIS (but no earlier than the start date on the petition); and
  • Employees will have work authorization for 45 days while the case is pending.

Previously, DHS also allowed workers to remain in the U.S. beyond the usual three-year limit, but that piece of flexibility has been eliminated from the rule extension.

For I-9 purposes, employees may present as List A documentation:

  • An unexpired I-94 showing H-2A status; and
  • An unexpired foreign passport.

In the Additional Information field, employers should indicate:

  • “45 Day Extension”; and
  • The date the I-129 was submitted.

Reverification will be required by the end of the 45-day period.

If you have any questions about H-2A employment or the new rules, Jackson Lewis attorneys are available to assist you.

USCIS is in the process of entering a Consent Order to produce, on a specific schedule, Employment Authorization Document (EAD) cards for those 75,000 foreign nationals who have approved employment authorization applications but have been waiting for inordinate amounts of time for the cards themselves.  Without the cards, these foreign nationals have not been able to complete the Form I-9 employment verification process and unable to work. In the meantime, so that they are not kept waiting any longer, USCIS has agreed to some interim relief.  See our legal update here.

A recent non-binding report by the Government Accountability Office (GAO) found the appointments of Kevin McAleenan and Chad Wolf (both as “acting” DHS Secretaries) and Ken Cuccinelli (senior official performing the duties of the deputy secretary) violated the governing federal and DHS succession rules because they were not eligible for the positions they occupy.

The GAO did not determine who should be in those roles or whether any actions taken by the current leadership are invalid. Those questions were referred to the DHS Office of Inspector General.

The rapidity and breadth of the Trump Administration’s changes to immigration policies, particularly in the past year, have felt a little like being in warp speed on a star cruiser. The rapid governmental changes to long-standing immigration policies, without legislative input or a regulatory process, have come under fire as opponents challenge the validity of these moves. The GAO has given additional ammunition to individual plaintiffs and advocacy groups who seek to argue that the policies are invalid.

In the meantime, in March 2020, a District Court in D.C. ruled that because Cuccinelli had been illegally appointed, the two policies he implemented, which further complicate the process of applying for asylum, were invalid. The Administration initially appealed the decision, but on August 14, 2020 – just as the GAO released its report – the appeal was withdrawn in a victory for the plaintiffs and asylum seekers.

It looks like another asylum-related policy also may be invalidated. The rule scheduled to take effect on August 25, 2020, would prevent asylum-seekers who do not enter the U.S. at designated ports of entry from obtaining work authorization while they wait for their asylum determinations, absent a special showing of “good cause.” Because asylum cases can take years to adjudicate, this proposed rule would financially cripple many asylum seekers and hinder their ability to support themselves or their families. The Maryland District Court judge in that case said the GAO report “aligns closely with her reading of the law and thinking on the plaintiffs’ argument that Wolf and his predecessor, Kevin McAleenan … were improperly appointed.”

If the GAO’s report is upheld, it would mean that policies issued by DHS in the last year-and-a-half could be subject to challenge and potentially invalidated. According to the GAO, Kirstjen Nielsen, who resigned from her post in April 2019, was the last DHS Secretary to be properly appointed. President Donald, Trump, who is fond of “acting” officials because of the flexibility he has over their tenures, may yet have to submit nominees to Senate confirmation hearings.

Any actions taken by DHS or USCIS by McAleenan, Wolf, or Cuccinelli, or under their direction, could be challenged on this score, including: DHS’ failure to accept new DACA applications in defiance of the U.S. Supreme Court ruling, upcoming USCIS fee increases, the Public Charge rule, changes in the treatment of F-1 students, and policy changes around H-1B and L-1 nonimmigrant visas, among many others.

The Administration has responded that the GAO report is “baffling and baseless.” The GAO said it “stands by its decision.” Further litigation is expected on this topic, but, given the appeals process, there may not be any final decisions prior to the November election.

Jackson Lewis attorneys will provide updates as they become available.

 

USCIS may be close to negotiating an agreement that would mean EADs for thousands of foreign nationals with approved applications will finally start to be produced.

Yet, first-time EAD applicants who are in H-4 or L-2 status may still face impediments. In March, when the COVID-19 crisis began and USCIS offices closed, the Application Support Centers (ACS) had to reschedule biometrics appointments. The biometrics appointment is essential and a precondition to USCIS issuing a final determination. Although USCIS agreed to reuse previously submitted biometrics to expedite processing, first-time applicants (or applicants who were not previously required to submit biometrics) had no recourse but to wait.

When ASCs started to reopen in June, individuals with appointments were subject to COVID-19 precautions, including face coverings (which may be removed for identification or photographing purposes) and social distancing. These limitations have resulted in ASCs limiting the number of daily appointments. It appears that some individuals have been told that appointments will not be available until October.

It is reported that during a three-week period, starting in mid-July, ASCs completed approximately 74,000 biometrics appointments. But on an average day pre-COVID-19, 14,000 were photographed and fingerprinted across all the field offices and ASCs. So, the backlog continues and the possibility that USCIS may furlough two-thirds of its workforce by the end of August will only exacerbate the problem.

Those who do get appointments for biometrics, interviews, or naturalization ceremonies must remember to comply with the current USCIS Visitor Policy:

  • Wear face coverings;
  • Follow signage related to social distancing;
  • Be aware that USCIS is placing specific limits on those who can accompany applicants with scheduled appointments; and
  • Do not bring or invite guests to naturalization ceremonies.

Individuals will not be allowed to enter a USCIS office if they:

  • Are experiencing symptoms of COVID-19;
  • Have had close contact within the last 14 days with a person known or suspected to have COVID-19;
  • Have been instructed by a healthcare provider to public health authority to isolate or self-quarantine with the last 14 days; or
  • Refuse to wear a face covering in accordance with USCIS policy.

USCIS asks anyone who feels sick to reschedule their appointments.

If you have any questions regarding these regulations, please reach out to your Jackson Lewis attorney. We are available to assist you in interpreting the rules and advising on how to proceed.

ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 30 days, until September 19, 2020, due to continued precautions related to the COVID-19 pandemic.

Pursuant to the original guidelines for virtual verification, eligible employers may continue to inspect Section 2 documents without an actual in-person physical inspection (e.g., over video link, fax, or email). As before, the policy applies only to employers and workplaces that are in fact operating remotely. The latest announcement states that if any employees are physically present at the worksite, in-person physical inspection of the I-9 documentation must occur. In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. After all, can the employer do I-9s in person if Human Resources staff are not on site or if the new employees must work remotely because they are high risk for COVID-19? Of course, employers maintain the option of using agents or authorized representatives to review I-9 documentation at remote locations.

Importantly, all employees who were onboarded virtually must report within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

Jackson Lewis attorneys are available to assist you in creating “best practices” regarding I-9 compliance.

The “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” Executive Order directs federal departments and agencies to conduct audits of federal contracts awarded in Fiscal Years 2018 and 2019 to determine if U.S. job opportunities or the economy have been adversely affected by the use of temporary foreign workers in the U.S. or abroad.  See our full update here.

 

The Department of State (DOS) has provided more details to the Consulates on the national interest exemption under President Donald Trump’s June 22, 2020, executive order.

The “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” bars holders of certain visas from entering the U.S. not due to concerns about contagion, but ostensibly as a way to preserve jobs for Americans. The order restricts the entry of certain H-1B, H-2B, L-1, and J-1 nonimmigrants, along with their dependents until the end of 2020.

Unemployment has increased dramatically in the United States, from a low of 3.2% in February 2020, to a high of over 14% two months later. Unemployment has continued to decline in the following months as companies bring back employees to get their businesses moving again. Many businesses have been hampered in their efforts to return to full operations by the inability of critical employees, many with very specialized skills and training who are not citizens of the U.S., to enter the country for work.

Several exceptions were listed in the proclamation, but interpretations as to how to qualify varied. DOS has provided the Consulates details on the national interest exceptions for H and L visas. The details are focused on healthcare and medical research needs (both COVID-19 and non-COVID-19), including whether the applicant was facilitating continued economic recovery and doing essential work in critical infrastructure. Longevity with the employer and whether denial of the visa would cause economic hardship for the company also will be considered.

DOS also has provided a non-exclusive list of examples, leaving open more possibilities. Following are some examples of exceptions for H-1B employees (comparable examples apply to H-2B and L-1 visas):

  • Healthcare professionals working on COVID-19 or in other important medical areas, such as cancer or communicable diseases.
  • Healthcare professionals working in areas that have been adversely affected by COVID-19 – perhaps providing medical services that have had to be curtailed due to COVID-19, such as providing rehabilitation services or other services deemed “non-essential” due to COVID-19.
  • Applicants seeking to resume ongoing employment in the same position, in the same visa classification, with the same employer because having to replace such an individual might cause the company financial hardship.
  • Travel by technical specialists, senior level managers, and others whose travel is necessary to the economic recovery of the U.S. by showing two of five factors:
    • The continuing need for the employee, including a showing that the essential functions cannot be accomplished remotely
    • The employee will provide unique contributions in critical infrastructure sectors: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems
    • The employees’ wage exceeds the prevailing wage by at least 15%
    • The employee has unusual expertise demonstrated by their background
    • Denial of the visa will cause financial hardship to the company, as shown by:
      • Employer will not be able to meet financial or contractual obligations
      • Employer will not be able to continue its business
      • Employer will not be able to return to pre-COVID-19 level of operation

As to J-1 visas, there are exceptions for au pairs for children with special needs or whose parents do COVID-19-related work.

The initial hurdle to convincing a Consulate to grant a waiver is getting an appointment, which may itself require proving national interest.

Jackson Lewis attorneys are available to assist employers navigate this process. We are helping U.S. businesses get back to full operation by evaluating and developing arguments for employees in H, L, and J status who may qualify for an exception to the employment-based visa restrictions, as well as the Schengen and other COVID-19-related travel restrictions.

 

With a breakdown in talks on the latest COVID-19 stimulus package and with most senators and representatives out of town (though the House has been recalled from vacation to address the U.S. Postal Service crisis), USCIS has not received the $1.2 billion that it wants and says it needs to avoid furloughing two-thirds of its workforce. Unless talks pick up again, USCIS plans to furlough 13,400 of its 20,000 workers as of August 30, 2020.

The agency, which is already plagued by long processing delays and ever-increasing backlogs, would be severely hampered, if not effectively shut down, by the furlough.

In the background, Congressional staffers have indicated that, at this point, there is “no Plan B,” but that a break may come in terms of appropriations when Congress gathers again in September.

In the meantime, the hope is that USCIS will again push the furlough down the road. This should be possible since it was discovered that, in July, USCIS actually had a surplus of approximately $121 million and that it needs the bailout for FY 2021, which does not begin until October 1, 2020.

Not only would the furlough devastate USCIS and possibly irreparably harm foreign nationals and the businesses that rely on its services, but it would also harm local economies and create even more unemployment during the COVID-19 national crisis.

Jackson Lewis attorneys will continue to follow the progress of any negotiations and provide updates as they become available.

There have been rumors floating that USCIS might be selecting more H-1B cap registrations for the FY 2021 cap.  Those rumors appear to be true.  As of August 14, 2020, registrants have received emails with notifications of further selections.  A USCIS spokesperson said, “that full visa petitions for those selected in the second round this month will be due between August 17, 2020 and November 16, 2020.”  It is possible that the COVID-19 crisis, which has occasioned high unemployment and business closures, is at least in part responsible for a shortage of H-1B petitions having been filed to date.

We do not have any additional information at this time about how many more will be selected or how long this new selection process may or is expected to continue.  As soon as more details become available, we will provide updates.  In the meantime, if you were a registrant, check your email for any notifications of additional selections.