April 27, 2020

Reopening of USCIS Offices Postponed to at least June 4

Due to the impact of COVID-19, USCIS temporarily suspended all in-person services, including interviews and biometrics collection, at its field and asylum offices and application support centers on March 18, 2020. USCIS announced that it is now preparing to reopen its offices on or after June 4. While offices are temporarily closed, USCIS continues to provide limited emergency in-person services which must be coordinated through the USCIS Contact Center.

What This Means for Employers and Foreign Nationals

  • Field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies
  • Asylum offices will send interview cancellation notices and automatically reschedule asylum interviews; applicants will receive a new interview notice with the new time, date and location
  • Application Support Center (ASC) appointments, including biometrics appointments, will be automatically rescheduled when in-person services resume and individuals will receive new appointment letters in the mail
  • Individuals with InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public

Ongoing Updates

USCIS continues to posts updates at USCIS.gov. For assistance with emergency appointments, you may  contact the USCIS Contact Center. For the latest information on the status of an office, visit https://www.uscis.gov/about-us/uscis-office-closings. For additional information, please contact your Gibney legal team or email info@gibney.com.

April 27, 2020

New Version of Form I-9 is Required on May 1, 2020

REMINDER: Employers must use the new version of Form I-9 new version of Form I-9 (version dated 10/21/2019) starting Friday, May 1, 2020. Due to the coronavirus pandemic, DHS has temporarily relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule.

Form and Instruction Changes

  • Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North (change is only visible on the online form)
  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

In-Person Requirements Relaxed

DHS relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule. All other Form I-9 process rules remain in effect, meaning that remote-working employers must still complete Form I-9 within three (3) business days following an employee’s first day of work. You may review the official announcement on the DHS website. Please  visit our alert reviewing instructions for the remote completion of Forms I-9 due to the COVID-19 pandemic.

If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

April 23, 2020

President Restricts Entry for Limited Group of Immigrants

President Trump issued a Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. The proclamation is effective 11:59 pm EDT on April 23, 2020 for an initial period of 60 days, and is subject to extension.

The proclamation temporarily suspends the entry of select classes of immigrants currently outside the U.S. seeking to enter the U.S. as permanent residents with a new immigrant visa. Due to consulate closures and COVID-19 travel restrictions already in place, as well as broad categories of exempted immigrants, the immediate impact of the order is limited in scope.

Initially the president intended a more sweeping ban that would have also barred individuals from obtaining temporary work visas, but that proposal was met with fierce resistance from the business community. With respect to temporary workers, the proclamation has no immediate impact but does direct the Department of Labor (DOL) and Department of Homeland Security (DHS) to review nonimmigrant programs in the next 30 days and recommend “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

Who is impacted by the admission restrictions?

The proclamation only applies to immigrants seeking to enter the U.S. as permanent residents who:

  • are outside the United States on the effective date;
  • do not have an immigrant visa that is valid on the effective date; and
  • do not have another valid official travel document other than an immigrant visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document).

The proclamation does not apply to:

  • lawful permanent residents of the United States;
  • essential workers and qualifying immediate family members who are determined by the government to be essential to the U.S. COVID-19 response, including: physicians, nurses, health care professionals, researchers and others who perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak;
  • foreign nationals applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
  • any foreign national who is the spouse of a United States citizen;
  • qualifying children of a U.S. citizen under 21 or qualifying prospective adoptees;
  • any foreign national whose entry would further important United States law enforcement objectives, as determined by government and based on the recommendation of the Attorney General’s office;
  • members of the United States Armed Forces and their spouses and children;
  • qualifying Special Immigrant Visa holders in the SI or SQ classification and their spouses and children;
  • individuals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The proclamation also does not apply to immigrants seeking asylum or entry on certain humanitarian grounds.  Consular officers have discretion to determine who qualifies for an exemption from the order.  For additional details regarding qualifying exemptions, please see the full text of the Proclamation.

What is the impact on employers?

As indicated above, the immediate impact of the proclamation is limited by the relatively narrow scope of the covered individuals and travel restrictions already in place due to COVID-19. If the proclamation is extended or expanded, there may be broader impacts and delays in processing of immigrant visas (i.e., green card applications) for foreign national employees applying for permanent residence.

With respect to temporary foreign workers, e.g. nonimmigrants, the proclamation directs DOL and DHS to recommend further measures to “ensure the prioritization, hiring, and employment of United States workers.” The Trump Administration has long sought to limit legal immigration, H-1B visas and other temporary worker programs, in line with its earlier “Buy American, Hire American” executive order and its ensuing highly restrictive policies. Many such proposals face strong resistance from Congress, employers, business groups, universities, and immigration advocates as detrimental to the economy and outside the authority of the President. Executive actions that lack statutory authority or a sufficient nexus to national security are likely to face significant legal challenges. Nonetheless,  employers should expect the Administration to advance additional restrictive measures impacting other visa types in the weeks ahead.

Gibney will continue to monitor developments and provide updates as they become available.  If you have questions or need specific legal advice, please contact your Gibney representative.

April 21, 2020

President Trump Announces Intent to Suspend Immigration to U.S.

Last evening, President Trump  announced his intent to  issue an executive order  suspending all immigration to the United States. The announcement was made via Twitter, and offered few details.  President Trump cited “the Invisible Enemy” – presumably, the coronavirus – and  the need to protect jobs for U.S. citizens. While the U.S. Supreme Court has upheld the president’s broad authority to restrict admission of foreign nationals to the U.S. on national security and public health related grounds, as evidenced by recent travel bans and restrictions, his authority to suspend immigration due to economic considerations is less clear.

The Trump Administration has long sought to reduce immigration to the U.S., and to date, has primarily focused on asylum seekers, refugees, family-based immigrants, and the undocumented. This latest announcement takes aim at employment-based immigration. It is not yet not known whether the order will seek to suspend the admission of foreign nationals for a period of time, or whether individuals already in the U.S. with valid work visas will also be impacted.  Insofar as the U.S. immigration scheme derives from a statute enacted by Congress, attempts by the Executive branch to vacate the statute  should be met with legal challenges.

Gibney is closely monitoring this development and will provide updates as additional information becomes available.

April 20, 2020

Updated EEOC Guidance on COVID-19, the ADA and Other EEO Laws: What Employers Need to Know

On Friday April 17, 2020 the United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about Covid-19, the American with Disabilities Act (ADA) and other EEO laws.

The EEOC update contains important clarifications for employers on issues ranging from temperature testing employees, retention and proper storage of Covid-19 related medical records, to reasonable accommodations of disabled workers who may be at greater risk from Covid-19 as well as steps employers can take to reduce the risk of pandemic related harassment due to national origin, race, or other protected characteristics.

While employers would benefit from reading the entire update, the following 10 answers given by the EEOC to employer questions are particularly helpful:

  1. When screening employees entering the workplace, employers may ask employees about symptoms of Covid-19 identified by the CDC, other public health officials, and/or reputable medical sources.
  2. As the ADA already requires that employers store all medical information about an employee separately from the employee’s personnel file, employers may store medical information related to Covid-19 in existing medical files for employees and need not create separately stored files solely for Covid-19.
  3. An employer may maintain a log of daily temperature checks of employees provided it maintains the confidentiality of the information.
  4. Employers may disclose the names of employees it learns have Covid-19 to public health officials. Similarly, a staffing agency or contractor who places an employee in an employer’s workplace may notify the employer if it learns the employee has Covid-19 so that the employer can determine if the employee had contact with anyone in the workplace.
  5. Employers may not unilaterally postpone start dates or withdraw job offers to individuals over 65 years old or who are pregnant, despite the fact that the CDC has identified them as being at higher risk of Covid-19. Employers may choose to allow telework or discuss whether the individuals would like to postpone their start date.
  6. For jobs that may only be performed in the workplace, there may be reasonable accommodations that employers may provide to employees who, due to a pre-existing disability, are at higher risk of Covid-19. This may include low cost accommodations to increase distance between the employee and others, temporary job restructuring, or modifying scheduled or shift assignments.
  7. Employees already receiving accommodation for a disability may be entitled to additional or altered accommodations that do not impose undue hardship on employers.
  8. The employer’s current circumstances arising from the pandemic is relevant in determining whether a requested accommodation would impose an undue hardship. For example, it may be more difficult to conduct a needs assessment, acquire specific items, or provide temporary assignments or remove marginal functions. Also, the sudden loss of significant revenue by the employer, and the lack of discretionary funds, may cause an otherwise reasonable accommodation request to pose an undue hardship to the employer.
  9. The EEOC recommends that when an employer reopens its workplace they should remind employees that it is against federal EEO laws to harass or otherwise discriminate against co-workers based on race, national origin, color, sex, religion, age, disability or genetic information.
  10. When an employer requires returning employees to wear protective gear, an employee with a disability may need a reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for those who communicate with employees using lip reading, or gowns for individuals who use wheelchairs. Similarly, an employee may request a religious accommodation under Title VII (e.g., modified equipment due to religious garb).  In these instances, employers must discuss the request and provide the modification or an alternative if feasible if it does not impose an undue hardship on the employer’s operation.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days.  As always, we encourage employers to consult with counsel with their specific questions and concerns related to Covid-19.

 

April 15, 2020

COVID-19:  USCIS Guidance for Extending/Changing Status During Pandemic

The coronavirus pandemic presents unique challenges for foreign nationals in the U.S. who have status expiration dates approaching. Many of these individuals are unable to depart the U.S. due to travel restrictions and health concerns, while others may face obstacles to filing applications to extend status while in the U.S.

Thus far U.S. Citizenship and Immigration Services (USCIS) has declined to provide special relief.  Its position is that there are measures under current law that are available for nonimmigrants who may not be able to timely file extensions or depart the U.S. due to COVID-19 or health-related issues. These existing measures are discretionary and generally still require physical filings with USCIS.

Apply for an Extension of Status

Eligible nonimmigrants whose status and work authorization will soon expire may file applications to extend or change status with a USCIS Service Center prior to the I-94 status expiration date.   In certain circumstances, a timely filed extension of status application may also extend the work authorization of the applicant for a period of 240 days beyond the I-94 expiration date, while the application is pending. However, this benefit does not apply to all visa types. Please check with your designated Gibney representative for an individual case assessment, as there are serious consequences for working without authorization for both the employer and the employee.

Limited Online Filings Available

One of the obstacles that foreign nationals and their employers face in filing applications to extend or change nonimmigrant status is the need to file hard copy applications with USCIS.  While USCIS has waived the requirement that individuals file applications with original (“wet”) signatures,  unfortunately, USCIS only offers limited online/electronic filing options. The most common employment-based nonimmigrant visa petition used to secure work authorization, Form I-129, is not currently available for online filing or online payment of fees.  As a result, in most instances, foreign nationals and their employers must still submit a physical filing to USCIS, entailing the need to produce and include filing fee checks and to arrange for the physical delivery of a petition to USCIS.

Flexibility for Late Application Filings

An individual who is unable to file an extension of status application prior to his/her I-94 expiration date may  be eligible for discretionary relief in making a late filing.  Under current regulations, if an applicant files an extension of stay or change of status request after the authorized period of admission expires, USCIS may, in its discretion, excuse the failure to file on time if it was due to extraordinary circumstances.

COVID-19 as Extraordinary Circumstance

USCIS has generally recognized COVID-19 as an “extraordinary circumstance” beyond the control of the foreign national. This means that in those cases where an individual was unable to depart the U.S. or file an extension of status prior to status expiration due directly to the pandemic, a request to retroactively grant status may be approved.  Granting such requests is still within the sole discretion of the USCIS adjudicator.  The length of delay in filing must be commensurate with the circumstances and the applicant must submit credible evidence to support the request, which USCIS will evaluate on a case-by-case basis.   We caution against relying on this discretionary relief as there are severe consequences for remaining in the U.S. beyond an I-94 expiration date when an extension of status application was not timely filed.  Please consult with your Gibney representative prior to making any late filing.

Visa Waiver Entrants – Satisfactory Departure

Individuals who have entered the U.S. for business or tourism pursuant to the visa waiver program (i.e., with ESTA approval) are prohibited from filing  extensions of stay in the U.S. and must depart the U.S. when the authorized period of stay expires. However, in limited circumstances, the individual may request Satisfactory Departure if he/she is unable to depart the U.S. by the admission period expiration date.  Satisfactory Departure provides a one-time, 30-day extension of status if an emergency prevents timely departure.

Generally USCIS has authority to consider and grant Satisfactory Departure requests.  However, there are also regional ports where U.S. Customs and Border Protection (CBP) has stepped in to provide assistance for visa waiver travelers needing Satisfactory Departure.  Participating ports have specific requirements and procedures, and not all ports will assist. If you are a visa waiver traveler and require Satisfactory Departure, please contact your designated Gibney representative prior to expiration of your current period of stay.

For policy updates, operational changes, and other COVID-19 information, please visit uscis.gov/coronavirus or contact your Gibney team.

April 14, 2020

USPTO Issues Patent and Trademark Filing Deadline Extensions

The United States Patent and Trademark Office (USPTO) is providing extensions to file certain patent and trademark-related documents and pay required fees as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

Extension Guidelines

  • For eligible documents or fees due between (and inclusive of) March 27, 2020 and April 30, 2020, the filing will be considered timely if made within 30 days of the original due date, provided that the filing is accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak.
  • A delay in filing or payment is due to the COVID-19 outbreak if the outbreak materially interfered with timely filing or payment.
  • Qualifying circumstances include office closures, cash flow interruptions, lack of access to files or other materials, travel delays, personal or family illness, or similar circumstances.
  • The person affected by the outbreak may be a practitioner, applicant, registrant, or other person associated with the filing or fee. For patents, this may also be a patent owner, petitioner, third-party requester or inventor.

Trademarks

Eligible trademark filings include responses to Office actions, notices of appeal, statements of use, notices of opposition, priority filings, transformation and renewal applications, affidavits of use or excusable nonuse and related requests for extension. For all other situations where COVID-19 has prevented or interfered with a proceeding before the Board, a request or motion for an extension can be made.

Patents

Eligible patent filings include responses to Office actions, notices of appeal, appeal and reply briefs, appeal forwarding fees, PTAB oral hearing and rehearing requests, Chief Judge petitions, patent owner preliminary response in a trial proceeding, or any related responsive filings. Additional relief limited to small and micro entities includes replies to the following notices: omitted items; file corrected application papers; incomplete applications; comply with nucleotide sequences requirements; file missing parts of application (including payment of filing). The extension does not apply to filing dates for new patent applications.

Additional Relief

For trademark and patent applications that were abandoned and registrations that were canceled/expired due to COVID-19, the USPTO waived the petition fee to revive the abandoned application or reinstate the canceled/expired registration. Petitions must include a statement explaining how the failure to respond to the Office communication was due to the COVID-19 outbreak and must be filed not later than two months after the issue date of the notice of abandonment or cancellation.

USPTO Office Remains Open

The USPTO is open for the filing of documents and fees. Waivers are only available for delays due to the COVID-19 emergency.

What’s Next

The USPTO will continue to evaluate the evolving situation around COVID-19 and the impact on the USPTO’s operations and stakeholders. If the USPTO extends the CARES Act relief, the USPTO will provide timely notice. Gibney will continue to monitor these updates. For more information, please see the USPTO FAQs.

April 9, 2020

IRS Employee Retention Credit: What Employers Need to Know

The Internal Revenue Service launched the Employee Retention Credit to encourage businesses to keep employees on their payroll. The refundable tax credit is 50% of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19.

What Businesses Qualify

The credit is available to all employers regardless of size, including tax-exempt organizations. State and local governments and their instrumentalities and small businesses who take small business loans do not qualify.

Employers must fall into one of two categories:

  • Business is fully or partially suspended by government order due to COVID-19 during the calendar quarter
  • Gross receipts are below 50% of the comparable quarter in 2019; if gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter
  • Measures are calculated each calendar quarter

How Credit is Calculated

Credit is 50% of qualifying wages paid up to $10,000 in total for wages paid after March 12, 2020, and before Jan. 1, 2021. Wages are not limited to cash payments, and also include a portion of the cost of employer provided health care.

Qualifying Wages

Qualifying wages are based on the average number of a business’s employees in 2019.

  • Employers with less than 100 employees in 2019: Credit is based on wages paid to all employees, regardless if they worked or not; if employees worked full time and were paid for full time work, employers still receive the credit
  • Employers with more than 100 employees in 2019: Credit is allowed only for wages paid to employees who did not work during the calendar quarter

How Employers Can Receive Credit

  • Will be immediately reimbursed by reducing their required payroll tax deposits withheld from employees’ wages by the amount of the credit
  • Must report their total qualified wages and related health insurance costs for each quarter on their quarterly employment tax returns or Form 941 beginning with the second quarter
  • If employment tax deposits are not sufficient to cover the credit, employers may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19

More updates on the Employee Retention Credit, Tax Credits for Required Paid Leave and other information can be found on the IRS Coronavirus page.

April 9, 2020

Of Cash, Counterfeits and Technology

Without waxing on too much with a certain amount of nostalgia, I remember the late 1990s when we first started enforcing against online sellers. Addressing the issue was simple and fairly straight forward. Little did we know what awaited us.

As number of platforms grew, technology advanced, mobile platforms mushroomed, counterfeiters developed the uncanny knack of exploiting nascent technology to best serve their illegal wants and desires. With no road map and strategies instituted on the fly, the enforcement battle lines were drawn and the battle joined.

What still amazes me is the willingness of counterfeiters to continue to sell in the darkest of times. Without even taking in the account the those who lack a moral compass and would sell counterfeit PPE and pharmaceuticals to desperate people around the world, let’s talk about the close in sellers providing goods through sites that encourage local connections and in person exchanges.

While conducting online enforcement on behalf of our clients, we have noticed that sellers now tend to post more during the weekend than in the past (real work takes precedence). Sellers are now more prevalent on these platforms in the western half of the country. In reviewing images, sellers appear to be enjoying the outdoors without significant social distance. However, they will not sell in person. Many have shifted to mailing product (even locally) with tracking numbers and securing payment through a variety of person to person payment options; again using technology to enhance their efforts.

As the discussion turns to the post-pandemic world, it will be interesting to see how the sale of counterfeit goods will change. In particular, what the future will be of in person, cash transactions. You can rest assured that the counterfeiters will lead the way in harnessing technology to their maximum benefit.

What do you think? What are your current enforcement challenges and what hazards in the road do you see ahead for stemming the sale of counterfeit goods.

April 8, 2020

New York Permits Remote Witnessing and Notarization of Estate Planning Documents

On April 7, Governor Cuomo issued an executive order allowing the act of witnessing estate planning document required under New York State laws to be done using audio video technology. This expands the executive order issued on March 19, 2020 permitting remote notarization.

Requirements for Remote Witnesses

  • The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
  • The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
  • The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
  • The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

This applies to execution and attestation of wills, living trusts, appointment of health care proxies, powers of attorney and recording instruments affecting real property.

Requirements for Remote Notarization

  • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
  • The person must affirmatively represent that he or she is physically situated in the State of New York;
  • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
  • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
  • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

For questions or additional information:

Meredith Mazzola
mmazzola@gibney.com