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.

Recognizing that current travel restrictions and the closure of consulates and embassies abroad has made it nearly impossible to bring new H-2A workers to the United States, the Department of Homeland Security (DHS) is expected to release a rule in the Federal Register on April 20 to address this problem. The unpublished draft of the rule states that:

  • Employers will be able to petition to employ foreign workers who are already in the United States in H-2A status but working for another employer who no longer needs their services;
  • Such workers will be able to start working for a new employer upon the new employer’s filing of a petition with USCIS;
  • Immediate work authorization will last for 45 days from the date of the receipt notice while the case is still pending; and
  • H-2A workers will be able to remain in the United States beyond the current three-year limit.

The H-2A visa process has long been essential to agriculture in the United States. The program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor services of a temporary or seasonal nature.

During the COVID-19 national emergency, maintaining agricultural workers is particularly important as the country endeavors to avoid disruptions in the food supply chain.

While there is no numerical limit on the number of H-2A visas available annually, obtaining H-2A visas is a complex regulatory process with three major steps:

  • The employer must file a labor certification with the Department of Labor (DOL) to prove there are not sufficient able, willing, and qualified U.S. workers to perform the work;
  • The employer must file a petition with USCIS; and
  • The prospective employee must apply for a visa at an embassy or consulate abroad.

Recognizing the importance of having enough H-2A workers, the Administration has taken steps to simplify the process, including:

  • Waiver of certain regulatory timeframes;
  • Employers may have workers perform duties not specifically listed on the work orders;
  • Employers may move workers to different worksites; and
  • Flexibility with start dates and deadlines.

DOL also has made it easier to change the housing provided for H-2A workers when that flexibility is needed to protect the workers from COVID-19.

The new temporary rule is expected to remain in effect for 120 days following publication in the Federal Register (August 18, 2020). DHS will announce later if the temporary rule will be extended.

If you have any questions about the new flexibility regarding H-2A visas, please reach out to a Jackson Lewis attorney. We will provide updates as they become available.

 

On the same day that the Department of Homeland Security (DHS) recapitulated its usual policies and procedures for dealing with delays in processing extensions and changes of status due to COVID-19, 100 Democrats in the House of Representatives joined the Congressional Hispanic Caucus to urge the Trump Administration to automatically extend work authorization for all immigrants with Employment Authorization Documents (EADs) that expire soon. This would include DACA and TPS (Temporary Protected Status) beneficiaries, as well as others with EADs, such as those in L-2, H-4 and F-1 OPT/STEM OPT statuses.

The Congressmen noted that this would help in the country’s economic recovery and help those under “stay at home” orders who “cannot leave their homes to collect supporting documents, print and prepare, and mail their applications.”

DHS already grants 180-day automatic extensions of work authorization for individuals in certain categories who timely file extensions. The Agency also routinely grants automatic extensions to EADs when TPS is extended in recognition of the fact that EADs could not be processed quickly enough to avoid gaps in employment authorization. Moreover, recognizing that the closing of Application Support Centers (ASCs) meant those applying for extensions of EADs could not process the necessary biometrics, USCIS recently announced it would continue processing EAD renewals with the applicants previously submitted biometrics. In the COVID-19 crisis, Congress is asking DHS to take one more step and grant automatic extensions because the usual filing timelines may be impossible to meet.

Many of those seeking extensions are DACA and TPS beneficiaries who work in healthcare or food services. They are doctors, nurses, EMTs, physician assistants, and food production and food delivery workers who are all essential, especially during this pandemic. The legislators said the focus should be on making sure that they can work and that there are no gaps in their employment authorization. DHS must balance this against the concern for improving the “employment opportunities of U.S. workers.”

Jackson Lewis attorneys will continue to monitor this situation and provide updates as they become available.

COVID-19 has created a multitude of unprecedented challenges for visa applicants, employers, and the government employees that process visa petitions and applications.

Employers face daily challenges balancing long-term strategies to maintain a complete workforce with short-term strategies to manage payroll and cash flow. While the government has issued certain temporary solutions to provide flexibility with I-9 processes, biometrics appointments, and other minor issues, it has largely declined to institute more significant policy changes. As a result, USCIS processing times are beginning to grow, and likely will continue this way for some time.

USCIS Data Entry, Receipt Notice Delays for H-1B Cap Cases

On April 13, 2020, USCIS announced that there will be a delay in data entry and receipt notice generation for the fiscal year (FY) 2021 H-1B cap-subject petitions. As petitions are filed with USCIS, they will be stamped with the date on which they are received by the service center. However, data entry will not begin on those filings until at least May 1, 2020, “due to the impacts of the coronavirus (COVID-19).”

Once data entry begins, cases will be receipted on a first-come, first-served basis and retain the receipt date that was stamped on the petition when it arrived at the service center. USCIS noted that the delay in receipt notices also will delay the processing of the petitions. Last year, data processing on H-1B cap-subject petitions was completed by May 17, 2019. This year, processing of receipts is likely to extend much later than May 17, 2020.

Ongoing Suspension of Premium Processing

Suspension of premium processing service on USCIS petitions remains in place until at least the end of May. Thus, the projected processing delays may exacerbate issues for those with sensitive expiration dates (such as cap-gap petitioners). To address that issue, USCIS has stated it will be “mindful” of those petitions. Additionally, to enhance efficiencies, USCIS will be transferring petitions among different service centers to create a balanced workload.

Potential Office Closures, Additional Delays

On April 10, 2020, the Vermont Service Center appeared to be temporarily closed due to a possible COVID-19 exposure. However, as of April 13, the Center was reopened. While there have been no notices regarding changes in work schedules at the USCIS Service Centers, employers and visa applicants should anticipate the possibility of future USCIS office closures, or USCIS workforce reductions, which could result in further processing delays. H-1B cap cases may be the first casualty, but other delays in processing times likely are forthcoming.

Given the frequency of USCIS updates, it is critical that employers remain diligent in monitoring and considering their foreign national workforce amidst rolling government updates on processing times and delays. Employers should be prepared to submit essential filings at the earliest possible date to avoid potential complications and delays.

 

International companies rely on L visas to transfer managers, executives, and specialized knowledge employees to the United States. But the Department of State is changing the standards it uses to adjudicate those visas, making transfers more difficult.

L-1 visas are available to a company with a parent/subsidiary, affiliate, or branch office overseas that wishes to transfer an employee to a parent/subsidiary, affiliate, or branch office in the United States. The L-1A is for qualified executives and managers. The L-1B is for transfers of individuals with “specialized knowledge.”

Generally, applying for an L-1 is a two-step process involving filing a petition with USCIS and then, upon approval, an application for the L-1 visa at a U.S. Embassy or Consulate abroad.

With current USCIS processing times, ranging from two to nine months, and the suspension of premium processing, transferring an employee from abroad can take some time. Steadily climbing Requests for Information (RFEs) and denial rates constitute further hurdles.

Qualifying multinational organizations have been able to skip the preliminary petition process with USCIS under the Blanket L visa procedure. Those organizations must establish to USCIS’ satisfaction that they have the required intracompany relationship in advance. To do that, the organizations must prove that they:

  • Are engaged in commercial trade or services;
  • Have an office in the U.S. that has been doing business for at least one year;
  • Have at least three domestic and foreign branches, subsidiaries, and/or affiliates; and
  • Have transferred at least 10 individuals in L-1 status during the 12 months before filing or have subsidiaries or affiliates with combined annual sales of at least $25 million or have a U.S. workforce of at least 1,000 employees.

Blanket L beneficiaries apply for L-1 visas directly at a consulate abroad without any prior filing or approval from USCIS. Companies use the blanket process, if they qualify, because it is more efficient, less expensive, and the beneficiaries have a brief opportunity to argue their case if the Consular Officer has questions. The approval rates have tended, anecdotally, to be higher than the approval rates at USCIS.

But that has changed. In October 2019, the Department of State (DOS) launched a “test balloon” by heightening the adjudication standard for L visas. DOS changed the standard of review in the Foreign Affairs Manual (FAM) from “the preponderance of the evidence” to a “clear and convincing” standard. But that apparently hit a glitch and the change was removed, without any fanfare, the next month. Nevertheless, the standard appears to be getting tougher. Denials from the Consulates are more frequent – especially in India.

Finally, on March 30, 2020, the FAM was updated again. This time, it sets out an even more stringent standard for Blanket L petitions – if the Consular Officer has “any doubt,” the application must be denied.

The FAM advises officers, among other things, that they must:

  • Be particularly careful because the Blanket L interview “is the only time in the petition and visa process during which a U.S. government representative will interact with the applicant”;
  • Watch out for exaggerations and misrepresentations regarding qualifications; and
  • Be aware that if questions cannot be quickly resolved at the interview, denial is proper.

During the current COVID-19 crisis, U.S. Consulates abroad are not open for routine visa processing. But this may be a time to prepare by gathering documentation necessary to meet the new standards and to possibly apply for Blanket L certification. Jackson Lewis attorneys are available to assist you in developing strategies to deal with the new level of scrutiny.

Extra H-2B visas have been put “on hold” and would not be released “until further notice,” the Department of Homeland Security (DHS) has announced.

Shortfalls of H-2B visas have been a perennial problem. Used for temporary, seasonal, non-agricultural workers, these visas are relied on heavily by the tourist, hospitality, landscaping, and constructions industries. The statutory limit on the number of H-2B visas available each year is 66,000: 33,000 for the spring/summer period (which starts on April 1 of each year) and another 33,000 for the winter season. Once the visas run out, based on Congressional authorization, DHS can decide to make more visas available if it determines there are not enough willing, qualified, and available U.S. workers.

This year the 33,000 H-2B spring/summer cap was reached in mid-February. On March 5, 2020, DHS announced it would release an additional 35,000 visas, with 10,000 specifically reserved for nationals from Guatemala, El Salvador, and Honduras for their cooperation in stemming the flow of undocumented workers. Along with the extra visas came some reform measures, including:

  • Increasing Department of Labor employer site visits; and
  • Limiting the additional visas to returning workers with good records of immigration law compliance.

At that time, the unemployment rate and the consequent claims for unemployment compensation were very low – about 4%. Now, in the face of COVID-19, those claims are skyrocketing. In light of about 10 million initial unemployment claims, DHS reported that to support U.S. workers, the promised additional H-2B visas were on hold and would not be released “until further notice.” Petitions for individuals exempt from the yearly caps will still be processed. Current H-2B visa holders who are seeking extensions fall within these exemptions. Whether there is still a need for these H-2B workers remains to be seen.

If you have questions about the status of any H-2B petitions or applications, Jackson Lewis attorneys are available to assist you.

 

Between March 1 and March 20, 2020, 275,000 individuals were entered into USCIS’ new electronic pre-registration system to obtain an H-1B for the 2020-2021 fiscal year. This is a nearly 25% increase over last year’s filings.

While it is hard to judge what led to the apparent increase in demand, the change may be a reflection of the ease of entering into the lottery, and low unemployment during the first quarter. Employers no longer are required to complete and submit full H-1B filings, but rather simply enter the individuals they wish to sponsor into the system and pay a $10.00 fee per worker. This is an enormous benefit since filing full H petitions has become much more complex under the current Administration’s focus on enforcement. More documentation is needed to try to avoid the now ubiquitous Requests for Evidence (RFEs). Last year more than 60% of H-1B cases received RFEs.

USCIS required very little information about each applicant, but it collected such information as whether the individuals hold U.S. advanced degrees and the citizenship of each applicant. USCIS has announced that about 43% of this year’s pre-registrations were for individuals holding U.S. advanced degrees (Master’s Cap cases). Eighty-one percent of the pre-registrations were for Indian (68%) and Chinese (13%) nationals. The companion figures for the cases that “won” the lottery have not been released. But the lottery system generally favors those with advanced degrees. Last year, 63% of the selected petitions were for beneficiaries with U.S. Master’s degrees.

Many petitioners have been notified which of their cases were selected in the pre-registration lottery. Those cases must be filed over the next 90 days. USCIS explained that all submitted cases will remain in the system for possible selection until the end of the fiscal year (September 30, 2020). From now until then, more cases may be selected in the lottery. Whether or not this happens may depend upon the appetite of the employers whose cases have already been selected for filing. Will COVID-19 play a role in determining how many employers will move forward and file full Cap H-1B petitions?

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