UPDATE DECEMBER 31, 2020– The U.S. Department of Homeland Security again extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through January 21, 2020 and will likely be extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel. Information concerning the scope of the travel restrictions and exemptions is available here.
January 2021 Visa Bulletin Published – USCIS to use Final Action Dates
The Department of State released the January 2021 Visa Bulletin. In a departure from the last three months, USCIS has indicated that employment-based adjustment of status applicants must follow the Final Action Dates chart. Chinese and Indian nationals face more severe retrogression under Final Action Dates than under the Dates for Filing charts used from October through December.
EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR JANUARY FINAL ACTION DATES
EB-1, First Preference Category
- Worldwide (including El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam) is current in January.
- China and India: The cut-off date is September 1, 2019.
EB-2, Second Preference Category
- Worldwide remains current in January.
- China: The cut-off date is June 1, 2016.
- India: The cut-off date is October 8, 2009.
EB-3, Third Preference Category
- Worldwide, including EB-3 Worldwide Other Workers, remains current in January.
- EB-3 China’s cut-off date is December 15, 2017 and the cut-off date for EB-3 China Other Workers is March 1, 2009.
- EB-3 India and EB-3 India Other Workers’ cut-off date is March 22, 2010.
Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.
WHAT SHOULD EMPLOYERS DO NEXT?
Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in January pursuant to the Final Action Dates chart. Additionally, it will be particularly important to file adjustment of status applications in December for Chinese and Indian nationals who qualify to file under the December 2020 Visa Bulletin Dates for Filing Chart and who will lose eligibility to file under the January 2021 Final Action Dates.
For additional information, please contact your designated Gibney representative or email info@gibney.com.
DHS Again Extends Form I-9 Compliance Flexibility
The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements until January 31, 2021. The policy, initially announced in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic.
Who does the Policy Affect?
Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.
How Should Qualifying Employers Proceed?
Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.
Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.
DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.
The relaxed rules for qualifying employers with a total remote workforce will remain in place until January 31, 2021, and could be extended further.
Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.
Year-End IP Legislation
Shortly before midnight on December 21, 2020, Congress passed a 1.4 trillion omnibus spending package in order to avoid a federal government shut down. Included in the 5,593 page legislation were significant alterations to the intellectual property landscape.
Trademarks: 2020 Trademark Modernization Act
The Presumption of Irreparable Harm. A Lanham Act plaintiff seeking an injunction now has a rebuttable presumption of irreparable harm upon a finding of a violation or a likelihood of success on the merits, depending on what type of injunction is being sought. Prior to this amendment, brand owners were required to present evidence of irreparable harm which can be difficult at the preliminary injunction stage.
Fraudulent Trademarks. Through various amendments, the Act seeks to address fraudulent trademark registrations with updates to the examination process and ex parte proceedings. First, it allows for third parties to submit evidence during the examination of a mark regarding its registerability. Second, the Act also provides a new ground for cancellation and ex parte expungement where a mark has never been used in commerce on or in connection with some or all of the goods or services cited in the registration.
Copyright Law: The CASE Act
For copyright owners, Congress passed the Copyright Alternative in Small-Claims Enforcement (CASE) Act. This Act establishes a Copyright Claims Board within the Copyright Office. The Board will be staffed by “claims officers” that have the authority to adjudicate copyright infringement claims under $30,000.
Also included in Monday’s legislation was the Protecting Lawful Streaming Act. The Act would give the Department of Justice the authority to charge commercial, for-profit streaming services with felony copyright infringement. Prosecution under the Act includes fines and imprisonment up to 10 years if the infringement is found to be willful. The law does not apply to individuals as casual internet users.
Year-End Tax Planning: Steps to Take Now for 2021
During this election year, with the determination of the Senate seats not taking place until January 2021, taxpayers will be faced with uncertainty in their approach to planning. The outcome of the Senate will play a key role in whether the Biden Administration will move forward with several planned proposals. While it remains unclear whether there will be any significant tax changes next year, these are steps that taxpayers can take during the remainder of 2020 to be well-positioned for 2021 no matter who controls the Senate.
Potential Tax Proposals
There are several tax proposals to consider under the Biden Administration:
- Capital Gain Tax: Would raise the capital gain rate from 20% to 39.6% for taxpayers with income over $1 million.
- Charitable Donations: Itemized deductions would be capped at a 28% tax benefit compared to the current 37%, for those earning over $400,000, compared to 37% currently.
- Estate Tax: Would reduce the gift and estate tax exemption to $3.5 million from $11.58 million.
2021 Considerations: Ways to Plan Now
Taxpayers may consider the following actions now to prepare for 2021:
- For high-wealth clients, consider making larger gifts in December 2020 to utilize the current estate tax exemption
- For individuals in the highest tax bracket, make charitable donations in December 2020 to maximize donation deductions
- Move up any planned sales of assets to accelerate capital gains
We will continue to closely monitor updates in early January 2021 and will provide ongoing guidance on best practices to consider.
Judge Strikes Down Rules Restricting Visas for High-Skilled Foreign Workers
A federal judge in California struck down two Trump administration rules that substantially altered the H-1B visa program for temporary professional workers and increased wage obligations for businesses employing certain temporary workers.
The Department of Labor (DOL) rule took effect October 8, 2020, and imposed significantly higher wage requirements on businesses that employ H-1B, H-1B1 and E-3 workers, and businesses that file PERM labor certifications for foreign workers as part of permanent resident sponsorship.
The Department of Homeland Security (DHS) rule narrowed the definition of a specialty occupation to limit who qualifies for the visa, imposed restrictions on employers that place H-1B workers at end-client sites, and expanded USCIS site visit authority. The DHS rule was set to take effect on December 7, 2020. Additional information about the rules is available here.|
In striking down the rules, the court found that the Trump administration violated the Administrative Procedures Act (APA) by implementing the rules without following the APA’s public notice and comment procedures. The court rejected the administration’s argument that the impact of COVID-19 on domestic unemployment justified fast-tracking the rules, observing that the administration had been considering the rules since 2017.
What’s Next?
The court’s summary judgment order invalidating the rules is effective immediately. However, the administration may seek to expedite an appeal of the decision, leaving employers in some suspense as to the ultimate outcome.
It is not yet known how the ruling will impact prevailing wage determinations issued by DOL while its rule was in effect, nor whether DOL will immediately revert to the prevailing wage data utilized prior to issuance of the rule, now that the rule is invalidated. Gibney is closely monitoring the matter and working with employers to strategize cases in light of the decision.
The case is Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.
For additional information, please contact your designated Gibney representative or email info@gibney.com.
TRAVEL RESTRICTIONS AT U.S. LAND BORDERS EXTENDED THROUGH DECEMBER 21, 2020
UPDATE – The U.S. Department of Homeland Security further extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals. The travel restrictions will remain in place through December 21, 2020 and may extended further. The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel. Information concerning the scope of the travel restrictions and exemptions is available here.
For additional information, please contact your Gibney representative or email info@gibney.com.
DHS Extends Form I-9 Compliance Flexibility
The U.S. Department of Homeland Security (DHS) has extended two policies providing employers and employees with flexibility in meeting certain Form I-9 Employment Verification requirements.
DHS EXTENDS VALIDITY OF FORM I-797 FOR I-9 VERIFICATION DUE TO EAD PROCESSING DELAYS
DHS previously announced temporary relaxation of Form I-9 verification requirements pertaining to individuals utilizing an Employment Authorization Document (EAD) for employment, allowing employees to use a Form I-797, Notice of Action, in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility. DHS has extended the relaxed Form I-9/EAD verification requirements through February 1, 2021. To utilize the Form I-797 in lieu of the EAD, the Notice must indicate approval of an Application for Employment Authorization, and must have a Notice date from December 1, 2019 and through and including August 20, 2020. Additional information is available at Gibney’s insights.
DHS EXTENDS FORM I-9 COMPlIANCE FLEXIBILITY DUE TO COVID-19
In March 2020, DHS implemented a policy relaxing the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. DHS has extended Form I-9 compliance flexibility for qualifying employers until December 31, 2020.
Who does the Policy Affect?
Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.
How Should Qualifying Employers Proceed?
Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.
Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.
DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.
The relaxed rules for qualifying employers with a total remote workforce will remain in place until December 31, 2020, and could be extended further.
Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.
December 2020 Visa Bulletin Published – USCIS Again Honors Dates of Filing
The Department of State released the December 2020 Visa Bulletin and USCIS confirmed that it will follow the dates for filing chart. Cut-off dates for filing in the employment-based first preference category advanced for Chinese and Indian nationals, but retrogressed in the third-preference categories for Indian nationals.
EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY for dates of filing
EB-1, First Preference Category
- Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
- India and China: The cut-off date for filing is November 1, 2020.
EB-2 Second Preference Category
- Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current in December.
- China: The cut-off date for filing held steady at October 1, 2016.
- India: The cut-off date for filing held steady at May 15, 2011.
EB-3, Third Preference Category
- Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) (including EB-3 Other Workers) remains current in November.
- EB-3 China’s cut-off date for filing held steady at June 1, 2018 and the cut-off date for EB-3 China Other Workers’ remains May 1, 2009.
- EB-3 India’s (and EB-3 India Other Workers) cut-off date for filing retrogressed from January 1, 2015 to a new cut-off date of January 1, 2014.
Individuals with a priority date that is either “current” or before the published cut-off date may file an adjustment of status application based on the dates outlined above.
Employment-Based Final Action Dates
While an individual may file an adjustment of status application using the dates for filing summarized above, an individual’s green card application may not be approved until the priority date is available under the final action dates, also posted on the Visa Bulletin. The final action dates may differ significantly from the dates for filing, depending on the preference category and country of birth. The December 2020 Visa Bulletin showed modest advancements in almost all of the employment-based categories final action dates.
WHAT SHOULD EMPLOYERS EXPECT?
Employers should work with immigration counsel to identify foreign nationals who are eligible to file adjustment of status applications in December. Additionally, it will be particularly important to file adjustment of status applications in November for Indian nationals qualifying in the third-preference category with 2014 priority dates, as those with 2014 priority dates will lose their eligibility to file in December with the retrogression of priority dates from January 1, 2015 to January 1, 2014.
For additional information, please contact your designated Gibney representative or email info@gibney.com.
USCIS Introduces Revised Naturalization Civics Test
U.S. Citizenship and Immigration Services (USCIS) is introducing a revised version of the naturalization civics test. The oral civics test is administered to all applicants for U.S. citizenship. The 2020 test increases the number of questions that applicants will be asked. Applicants who apply for naturalization on or after Dec. 1, 2020 will be required to take the 2020 test. Applicants with a filing date before Dec. 1, 2020 will take the 2008 version of the test currently utilized.
What Applicants Can Expect
- The number of civic test questions that will be covered has increased from 100 to 128 possible questions
- USCIS will not change the 60% passing score but will require that applicants answer 12 questions out of 20 possible questions correctly, instead of the previously required 6 out of 10 questions
- Interviewing officers will now ask all 20 questions instead of stopping once the applicant reaches the required minimum of correct responses
65/20 Special Consideration & Exemptions
Applicants who are 65 years old or older and have held lawful permanent resident status for at least 20 years will need to study 20 questions. They will be asked 10 questions and must answer a minimum of 6 questions correctly to pass. Learn more about special considerations and other exceptions here.
Test Resources
Test items and study guides can be found on the Citizenship Resource Center on the USCIS website.
For more information on naturalization eligibility and requirements please contact your designated Gibney representative.