The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.

 

Just before midnight on April 23, 2020, President Donald Trump’s “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” went into effect. The proclamation’s purpose was to temporarily suspend the entry of new immigrants (green card holders) into the United States for 60 days, until June 23, 2020. Because U.S. Embassies and Consulates abroad have been closed for routine visa processing since March 20, 2020, the proclamation did not immediately change the current situation. Unlike the consular closures, the April 23rd proclamation was not issued to prevent the spread of COVID-19; it was issued to restrict immigration because of high unemployment in the United States due to states’ stay-at-home orders.

The 60-day mark is far from the only important date in the proclamation. By the 30-day mark, May 22, 2020, the President will decide whether to take “other measures” regarding nonimmigrant visas to stimulate the economy and prioritize the hiring of U.S. workers. By the 50-day mark, a decision will be made about whether to continue the immigrant visa suspension beyond 60 days. It is the specter of these unknown “other measures” that has created concern on the part of employers and temporary visa holders themselves.

On May 7, 2020, four senators, Tom Cotton (R-Ark.), Ted Cruz (R-Tex.), Charles Grassley (R-Iowa), and John Hawley (R-Mo.) fleshed out the possibilities in a letter to President Trump urging him to “suspend all new guest worker visas for sixty days, and to suspend certain categories of new guest worker visas for at least the next year, or until unemployment has returned to normal levels.” The categories the senators would like to see suspended for a year include H-2B visas for nonagricultural seasonal workers, H-1B visas for specialty occupation workers, and the Optional Practical Training Program (OPT) used by foreign students after graduation. Their stated purpose is to “limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”

But many disagree with the senators’ assumption that limiting immigration will help the economy and U.S. workers. Indeed, there is some contrary economic theory, data, and statistics, including the following:

Given the current climate, these issues will undoubtedly remain hotly contested as the May 22, 2020, 30-day mark approaches. Jackson Lewis attorneys will provide updates as they become available.

On April 20, 2020, Chad Wolf, Acting Secretary of the Department of Homeland Security (DHS), announced that the previously announced travel restrictions on the Northern and Southern U.S. borders would be continued for another 30 days until May 20, 2020. In March, DHS had announced that due to the COVID-19 crisis, individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until April 20, 2020.

For more information on these restrictions, please click here.

COVID-19 has changed U.S. passport renewal.  In the past, U.S. citizens could renew a passport by mail if their current passport was issued on or after their sixteenth birthday and within the last 15 years, or apply for an initial passport or renew in person at a Passport Acceptance Facility (including many local post offices) and expect to receive their new passports within six to eight weeks.  There were even ways to expedite the processing if the passport was needed more quickly.

But now, passport operations are extremely limited and if you apply or renew (or if you applied prior to March 19, 2020) you will likely experience significant delays of several months before you receive your U.S. passport and have your citizenship evidence documents returned (even if you requested expedited processing).  It is not even possible to check on the status or your previously filed application as that information is not being updated until regular passport services resume.

The passport service is asking that individuals wait to apply for passports until normal operations are resumed, unless there is a life-or-death emergency.  If that is the case, below are the steps to take.

  • You must need to travel within 72 hours due to a life-or-death emergency which is a serious illness, injury, or death in your immediate family, including parents, children, spouses, siblings, aunts, uncles, etc.
  • You must provide a passport application with supporting documents including proof of the life-or-death emergency such as a death certificate, mortuary statement, or signed letter from a medical facility.
  • Proof of life-or-death emergency documents must be in English or translated into English.
  • Proof of international travel for the emergency is also required.  This includes documentation such as a reservation, ticket or itinerary.
  • To make an appointment for an emergency passport, the you must call the National Passport Information Center at 1-877-487-2778 (1-888-874-7793 TDD/TTY), Monday through Friday, 8:00 am to 5:00 pm Eastern Time. Outside of those hours, call 202-647-4000.  At this time, some passport agencies are completely closed to the public.

If you are considering international travel, keep in mind that some countries require that you have a passport that is valid for six months beyond the proposed travel dates and may also require that you have several blank pages left in your passport.  It is also recommended to check the Department of State and Center for Disease Control websites for travel advisories.  You should also plan to check on travel restrictions that may have been instituted in the country or countries you are hoping to visit.

The updated M-274, Handbook for Employers: Guidance for Completing Form I-9, from USCIS offers some interesting substantive clarifications and developments.

Changes to match the most recent Form I-9 revisions include:

  1. Section 2.0 clarifies that any person can serve as an authorized representative of the employer to complete, update, or make corrections to Section 2 or Section 3 of the Form I-9, but that the employer will remain liable for any violations. This clarification is particularly timely given the number of companies that are working remotely due to the COVID-19 pandemic and the stay-at-home orders in response. Outside of the M-274 context, ICE had temporarily given companies the flexibility to conduct the I-9 process to accommodate work-from-home or remote-work situations.
  2. Section 12.0 explains that the List B “ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address” is not the same as a List B driver’s license.
  3. Section 12.0 clarifies that List C employment authorization documents issued by the Department of Homeland Security are not the same as the List A Form I-766, Employment Authorization Document, that demonstrates both identity and work authorization.

Changes in the Guidance include:

  1. Sections 4.4 and 6.4.2 clarify that employers should enter automatic extensions of documents in the “Additional Information” field in Section 2, instead of crossing out and initialing the date listed in the “Alien authorized to work until” field of Section 1. USCIS believes this will be a more legible way of handling the issue for audit purposes.
  2. Section 6.4.2 notes that for cap-gap extension situations, employers should enter the receipt number from the Form I-797C, Notice of Action, as the Document Number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required.

The USCIS new explanations include:

  1. Section 4.4 explains how to complete Form I-9 with EADs automatically extended by Federal Register notices, such as TPS automatic extensions.
  2. Section 6.2 supplies guidance regarding Native Americans born in Canada.
  3. Section 7.1 explains specific rules that apply when an employee is referred from a state employment agency or a state workforce agency.

Other clarifications include:

  1. Section 3.0 explains how to complete the Preparer/Translator Supplement whether using the paper form or a computerized form.
  2. Section 6.4.2 explains what is required and how to fill in the “Alien authorized to work until” expiration date in Section 1 for a cap-gap employee. The date in Section 1 should be September 30 of the year the change of status was filed.
  3. Sections 9.0-9.2 clarify retention and electronic Form I-9 requirements.
  4. Section 10 reviews prohibited practices and penalties.

Jackson Lewis attorneys are available to assist you with any I-9, E-Verify, or other compliance issues, including temporary policy changes related to COVID-19.

 

Due to COVID-19, USCIS field offices have been closed for in-person services since March 18, 2020.  The closure will continue until on or about June 4, 2020 when USCIS hopes to re-open to the public.  In preparation for re-opening:

  • USCIS will send notices to applicants and petitioners with naturalization ceremonies or scheduled appointments that are affected by the temporary closure;
  • Asylum offices will send cancellation notices, automatically reschedule interviews and send new interview notices;
  • Once in-person operations resume, USCIS will automatically reschedule by mail cancelled Application Service Center (ASC) appointments such as biometrics appointments; and
  • Those with cancelled InfoPass or other appointments at the field offices must proactively reschedule those appointments through the USCIS Contact Center once the offices re-open.

USCIS has suggested that before calling the USCIS Contact Center, applicants or petitioners should check whether their local office has re-opened by visiting www.uscis.gov/about-us/uscis-office-closings.

On April 23, 2020, at 11:59 p.m., President Donald Trump’s new proclamation limiting immigrant visa applications from foreign nationals living abroad became effective. That proclamation is hardly the only way the Administration is limiting immigration. Other restrictions on individuals include travel bans, the suspension of visa services, enhanced scrutiny of nonimmigrant visa petitions, and continued increased enforcement by ICE. New visa sanctions on particular countries are yet another way the Administration is limiting immigration during the pandemic.

President Trump has directed the Secretaries of State and Homeland Security to implement a plan that would penalize countries that “deny or unreasonably delay” the repatriation of their citizens, subjects, nationals, or residents who are subject to removal orders during the ongoing pandemic . . ..” Pointing to the “unacceptable health risks for Americans” caused by repatriation delays, Secretary of State Mike Pompeo must act expeditiously to “discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents” of any recalcitrant country.

Visa sanctions came into the news in January 2017, when President Trump issued his Enhancing Public Safety in the Interior of the United States Executive Order (EO). That EO focused on immigration enforcement and directed the imposition of visa sanctions and made the acceptance of foreign nationals who were subject to removal from the U.S. a prior condition for diplomatic negotiations, among other things. Since 2017, a handful of countries have been subject to these specific visa sanctions: Burma, Cambodia, Eritrea, Ghana, Guinea, Laos, Pakistan, and Sierra Leone. The sanctions generally prevented certain government officials (and their families, in some cases) from obtaining B visas. Some restrictions were lifted when the countries cooperated with repatriation. These sanctions are above and beyond the sanctions imposed by President Trump’s travel bans on countries that were not in compliance with identity management practices and information-sharing on national security and public threats.

ICE maintains lists of recalcitrant or uncooperative 10 countries and 23 countries at risk of non-compliance. At least in the past, visa sanctions were considered a last step to encourage compliance because they can backfire and lead to reciprocal sanctions and other forms of retaliation. In addition, visa sanctions are not very effective if the country itself restricts the mobility of its citizens. If imposing sanctions fails in forcing a resolution, there may be a call to withhold aid or other funding.

Although the recent Memorandum does not mention any specific countries, it comes on the heels of the CDC’s order suspending entry of certain person from countries where a communicable disease exists. In its order, CDC stated that due to COVID-19, CBP could not keep large numbers of aliens in congregant settings at ports of entry or border posts on the northern or southern borders and that repatriation needed to be as fast as possible.

Jackson Lewis attorneys are available to assist you if you have questions about these sanctions or other travel restrictions into the United States.

A temporary suspension of entry by certain employment-based, family-based, and other immigrants has been enacted. For an analysis of the presidential proclamation suspending that immigration to the United States, please see our full publication here.

The administration appears to be close to issuing an executive order to broadly and temporarily suspend all immigration to the United States.

On the evening of April 20, 2020, President Donald Trump tweeted:

In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!

While the details remain unclear, initial indications are that the focus will be on restricting issuance of new visas for individuals abroad.

While the new executive order is potentially far broader in scope, immigration to the U.S. has been declining and the many temporary limitations on immigration the administration has adopted include:

At the same time, noting concerns of possible food shortages and the need for healthcare workers, the administration recently eased restrictions on H-2A agricultural workers.

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

Some registrants and their attorneys are complaining that some H-1B registrations submitted under the new, electronic process were denied as duplicates were not duplicates at all.

When the Department of Homeland Security (DHS) introduced H-1B Cap electronic registration, there were concerns that some employers might abuse the system. DHS decided to impose a small registration fee and said it would be taking other steps “to prevent speculative or frivolous registrations.” Their focus was on preventing duplicate registrations.

The issue of duplicate H-1B Cap filings has been around for more than a decade. In 2008, to ensure the fair distribution of H-1B visas, DHS introduced a rule prohibiting employers from filing multiple H-1B Cap petitions for the same employee. That rule included a prohibition on related employers, such as parent companies or subsidiaries, from filing petitions for the same employee, unless the employer could show a business need. By March 2018, U.S. Citizenship and Immigration Services (USCIS) had adopted new policy guidance explaining that the “related entities” prohibition extended to petitioners that file cap-subject H-1B petitions for the same beneficiary for substantially the same job, regardless of whether the companies were related through corporate ownership and control or not. In other words, contractors and staffing agencies, along with their clients, could not “stuff the ballot box.” Absent a legitimate business need, such duplicative petitions would be denied or, if previously approved, revoked.

With the start of electronic registration, DHS believed it could stop duplicate registrations. If the agency discovered duplicate registrations during the registration process, all registrations filed by the same entity or related entities for the same employee would be denied.

When the results of this year’s new electronic registration process started coming in, registrants and their attorneys complained that some registrations that were denied as duplicates were not duplicates at all. Indeed, by April 9, 2020, the American Immigration Lawyers Association (AILA) received reports from 61 attorneys complaining that about at least 170 registrations that were wrongly denied as duplicates.

The registrants and attorneys involved believed the denials were due to technical glitches in the system, possibly around making changes to registrations during the submission process, and that duplicate registrations were not evident on their client’s or their own registration pages.

USCIS stated that approximately 900 out of 275,000 registrations were rejected as duplicates. Advocates have noted that given the severe penalty – denial and even possible debarment – it is unlikely that registrants or lawyers submitted 900 duplicate registrations on purpose.

USCIS has refused to recognize any technical problems with the system. The agency has provided a blanket response, suggesting that registrants and their attorneys both submitted cases, rather than specifically addressing individual inquiries.

Please contact a Jackson Lewis attorney with any questions about H-1B visas or other issues.