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.

On May 11, 2020, the IRS issued guidance about how to return an Economic Impact Payment (EIP), also known as a COVID-19 stimulus payment. Ineligible individuals who receive EIPs are required to return them.

Resident and Nonresident Alien EIP Eligibility

The IRS guidance indicates that:

  • A person who is a nonresident alien in 2020 is not eligible for the EIP.
  • A person who is a qualifying resident alien with a valid SSN is eligible for the EIP only if the person is a qualifying resident alien in 2020 and could not be claimed as a dependent of another taxpayer for 2020.

Aliens who received an EIP, but are not eligible, should return the EIP to the IRS.

The IRS guidance in Q41 sets out details about how and where to return an erroneous payment depending on whether an individual received a paper check or direct deposit payment and where the individual lives.

One way a person can be a resident alien is if they satisfy the IRS substantial presence test. The substantial presence test is based on a calculation of the number of days that an individual has been physically present in the U.S. The calculation formula is very specific, but most nonimmigrants who have been in the United States for at least half of 2020 will be considered resident aliens in 2020 for tax purposes. However, there are individuals whose days in the U.S. in certain visa categories do not count toward the calculation. That includes some students on a F visa. Generally, foreign students on F visas in nonimmigrant status who have been in the United States fewer than five calendar years remain nonresident aliens and are exempt from social security/Medicare taxes.

While the above sets out general outlines regarding resident aliens, EIPs, and the IRS Code, the regulations are very detailed. Before taking any action, you should reach out to counsel to determine what, if any steps, should be taken.

 

The persistent problem of undocumented workers presenting plausible (but ultimately fraudulent) employment verification documents to employers has taken a new twist in the COVID-19 pandemic: a rise in imposter claims for unemployment insurance.

Imposter claims are a type of identity theft; someone uses someone else’s personal information, including Social Security numbers, to collect unemployment compensation. COVID-19 payments are higher than regular unemployment payments and presents more of an incentive for imposter fraud – and states are experiencing more of it. Rhode Island has reported 2,000 such claims. Oklahoma has seen a steep rise. And these are likely just the tip of the iceberg.

Imposter fraud can be discovered in several ways. Individuals who need to apply for unemployment find out that they cannot do so because someone else is already collecting under their Social Security number. Individuals might also be denied unemployment benefits because the state agency’s system sees that someone else is still working and being paid under that same Social Security number. Alternatively, employers may receive notices of claims for employees who have not been laid off. It is even possible that applicants denied unemployment could contact the employer of the imposter and thereby inform the employer of the fraud.

What should employers do if they become aware that an employee is a victim of imposter fraud?

But what if you receive information claiming that one of your employees is the “imposter”?

Employers are increasingly receiving phone calls and letters from individuals claiming that an employee is working with fraudulent documentation. Even so, employers should not take any precipitous action adversely affecting the employee’s job. The non-employee’s alarming claim may itself be false, mistaken, or part of a scam to get personal identifying information about one of your employees. Furthermore, the employee may not have intentionally provided incorrect information.

The best path before discussing the accusation with the employee is to first check the employment records.

  • Check the employee’s Form I-9 record. The Form I-9 may have errors on it that create a reason to ask the employee to update the documentation, which can then be checked. If the List A, B, or C documentation has been copied, legal counsel can assist you in examining the authenticity of the documentation.
  • Check payroll records and other company records to determine if there have been other complaints or indications that the claim has validity.

Ultimately, the decision about how to proceed will be based on all the specific facts and circumstances regarding the employee and your company’s history regarding employment verification issues. It is important to make an individualized decision and proceed cautiously to avoid violating document abuse or discrimination restrictions or creating a potential discrimination claim by the employee.

Jackson Lewis attorneys are available to help you determine the best course of action.

 

It has been five years since Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs challenged the Obama Administration’s authority to enact the H-4 EAD Rule. In the years since that filing, the case has gone back and forth between the D.C. District Court and the U.S. Court of Appeals for the D.C. Circuit. The Trump Administration (which did not really want to defend the rule) requested more than six “pauses” in the litigation based on its assertions (starting in 2017) that a new rule rescinding H-4 EADs would soon be published. That new rule has been stuck in the Office of Budget Management (OMB) review process for more than a year, but it remains on the DHS Regulatory Agenda with an expected spring 2020 publication date.

So, DHS’s opposition to a motion for an injunction that would have stopped the agency from issuing or renewing H-4 EADs appeared to be an about face. It is possible OMB is telling the Administration the Rule does not make sense from an economic standpoint – even during high unemployment and the Administration’s other ongoing efforts to limit immigration. But the Trump Administration may have something else in mind.

In its brief opposing the injunction, DHS argued the elements for granting an injunction had not been met. The brief stated:

  • There is no showing of irreparable harm because Save Jobs’ supporting affidavit says nothing about the present job market or threat of impending economic harm;
  • There is no showing of a likelihood of success on the merits because the court had indicated it “’would likely conclude that DHS’s interpretation of its authority under the INA is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority.’”
  • The balance of harms and public interest prongs are not met because “[i]njunctions to the enforcement of such regulations ‘severely undermine . . . USCIS’s authority to make regulatory determination about the issuance of [employment-based] visas’”; and
  • There is a negative consequence where the court is being asked to “substitute its judgment for that of the appropriate agency.”

In order to enact more restrictions on immigration and work authorization, the Administration may want to ultimately argue that:

  • The H-4 Rule is a valid exercise of rulemaking authority, because it wants its new rule (rescinding H-4 EADs) to be a valid exercise of rulemaking authority;
  • USCIS has the authority to make regulatory determinations about visas;
  • Courts should not substitute their judgment for that of the agency; and
  • In these times of COVID-19, the current economic picture must be kept in view.

The Trump Administration’s strategy remains to be seen, but Jackson Lewis will continue to follow this case and provide updates as they become available.