The day before his previous Proclamation on immigrant visas was to expire, President Donald Trump signed the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” to extend his previous immigrant visa restrictions and suspend issuance of certain nonimmigrant, temporary work visas until at least the end of 2020. Read our analysis here,

The Department of State (DOS) has been collecting (and maintaining) information on social media use from all visa applicants (immigrant and non-immigrant) since June 2019. The DOS’s collection and maintenance of this information is the subject of a lawsuit. Read our analysis of these issues here.

In a 5-4 decision written by Chief Justice John Roberts, the U.S. Supreme Court has ruled that the Administration acted improperly under the Administrative Procedures Act (APA) in terminating the Deferred Action for Childhood Arrivals (DACA) program, thus allowing the program to continue. See our analysis here.

The Department of Homeland Security (DHS) once again is extending its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days until July 19, 2020, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must provide written documentation of their remote onboarding and telework policy for each covered employee.

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

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

Previously, employers that were served notices of inspection (NOIs) during the month of March 2020 (and had not yet responded) were granted an automatic 60-day extension from the effective date to respond. ICE is now granting an additional 30-day extension, but notes that this will be the final extension.

DHS will continue to monitor the COVID-19 national emergency and provide updates as needed. Employers should monitor the DHS and ICE websites for updates regarding extensions and the termination of those extension.

Jackson Lewis attorneys will provide updates as they become available.

Reportedly, USCIS will soon announce the temporary furlough of the majority of its employees – 15,000 employees, or three-fourths of its workforce.

The furloughs will begin in August 2020 if the agency does not receive additional fiscal support.

While being called temporary, the head of the American Federation of Government Employees is concerned the reduction-in-force may become permanent and result in a USCIS “brain drain.” In recent months, USCIS has experienced a dramatic decline in revenue because fewer immigrant and non-immigrant petitions are being filed due to the COVID-19 pandemic, related travel restrictions, the uptick in Requests for Evidence (RFEs) on filed petitions, and recent Administration restrictions on legal immigration.

The agency has asked the Administration and Congress for relief: a $1.2 billion loan and an average 21% increase in fees to shore up their budget shortfall. [

As of now, neither has been instituted. USCIS had partly re-instituted premium processing, which collects an additional $1,440 fee per case. However, this apparently will not help enough.

Because USCIS is self-funded, any decrease in filed petitions and applications directly reduces its revenues. In FY 2018, there was a 17% decrease in petitions filed. Despite this, delays and backlogs continue to grow. Much of this is attributed to the same “extreme vetting” that may be continuing to reduce the number of cases filed, including more focus on small technical errors, the complex new public charge rule, and more RFEs. Beyond that, a hiring freeze has been in effect since February 2020 on most positions other than asylum staff, who are there to push cases through the process.

Jackson Lewis attorneys will continue to provide updates as the negotiations continue.

 

Additional restrictions on entry into the U.S. may be expected soon. Initial indications are that the Administration is considering barring H-1B, H-2B, L-1, and J-1 status among other non-immigrant visa categories.

On April 22, 2020, President Donald Trump issued the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak.”

Business and advocacy groups continue to argue that these measures will harm, rather than help, the economy. Like all of the other COVID-related restrictions, indications are that there will be a number of exceptions, including exceptions for healthcare workers and those involved in the food supply chain. However, it is unclear how the exceptions would be implemented.

Jackson Lewis attorneys will continue to follow this issue and provide updates as soon as they become available. In the meantime, if you have employees who are abroad with currently valid non-immigrant visas, consider bringing them back to the United States sooner rather than later. Please contact a Jackson Lewis attorney with any questions.

Journalists and airlines are the two latest groups affected by the deterioration in the relationship between China and the United States.

Since the “tariff wars” and the onset of COVID-19, the relationship between China and the United States has become ever more complicated.

In early May, the Trump Administration changed the I visa rules for Chinese journalists working in the United States for non-U.S. media outlets. I visas are specifically for members of the foreign media. In the past, these visas were open-ended in terms of the time frame. Now, for Chinese journalists, they will be limited to 90 days, with the possibility of 90-day extensions. This change was in part a response to China’s expulsion in March of American journalists from major U.S. newspapers. That expulsion came after the State Department cut the number of Chinese citizens who could be in the United States working for Chinese state-controlled news agencies from 160 to 100. Prior to that, China had been granting shorter duration visas to resident foreign journalists.

In early June, the Trump Administration announced that as of June 16 (and possibly sooner), it would block Chinese airlines from flying into the U.S. because China has essentially prohibited U.S. airlines from flying to China. The dispute started in March, when China limited the number of flights available to foreign airlines based on their flight schedules from earlier in the month. Because U.S. carriers had stopped flying to China at that time due to COVID-19, they were cut out of the market. In the meantime, four Chinese airlines have been operating on the China-to-U.S. route. Two U.S. carriers hoped to restart China flights on June 1, 2020, and appealed to the Chinese Civil Aviation Authority for relief. They did not receive a response at that time. After the U.S. Administration announced its ban, the Chinese Civil Aviation Authority said it would allow U.S. carriers back on a limited schedule. While the Administration attempts to negotiate a way for China and the U.S. to “exercise their bilateral rights,” they agreed to a reciprocal approach. Chinese carriers will be able to have as many flights to the U.S. as U.S. carriers have flights to China.

Reacting to China’s newly announced controls over Hong Kong, President Donald Trump has issued a Presidential Proclamation banning the entry of Chinese nationals on F or J visas who wish to do graduate study or post-graduate research that would advance China’s military capabilities as security risks. He also has stated that “he would revoke Hong Kong’s preferential treatment as a separate customs and travel territory from China.”

Jackson Lewis will continue to follow these issues and provide updates as they become available.

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.