Tag: Immigration Updates & FAQs

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.

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.

U.S. Citizenship and Immigration Services announced that H-1B cap-subject petitions for fiscal year (FY) 2021 may now be filed with USCIS if based on a valid selected registration.

What This Means for Employers

• Employers may now file H-1B cap petitions for beneficiaries who were selected in the random selection process (“lottery”) that was completed March 27, 2020.
• Employers or their representatives may access their online USCIS H-1B cap registration accounts to see whether a beneficiary was selected in the lottery. If the registration status indicates “selected,” the employer may file a FY 2021 H-1B cap petition for that beneficiary.
• The H-1B cap petition must be properly filed for the selected beneficiary within the period indicated on the registration selection.
• The registration selection notice specifies a 90-day filing period (April 1, 2020 through June 30, 2020) and designates the USCIS Service Center for submission of the petition. The registration selection notice must be printed and filed with the H-1B cap petition for the selected beneficiary.

Reminders

• Online filing is not available for submission of H-1B petitions. Petitioners must submit a hard copy/paper petition to USCIS that includes a printed copy of the applicable registration selection notice.
• Due to COVID-19, USCIS will temporarily accept all benefit forms, including Form 1-129 for H-1B cap petitions, with reproduced original signatures. (Employers must still retain the original documents containing the “wet” signature to provide to USCIS if requested at a later date.)
• Effective March 20, 2020, USCIS has temporarily suspended premium processing service for all Form I-129 and I-140 petitions until further notice. This means that all H-1B cap petitions must be submitted under “regular” processing. If premium processing is later reinstated, employers may have the option of interfiling a premium processing request (with the applicable $1440 filing fee) to obtain a decision in 15 days.

Background

This was the first year that USCIS used an electronic registration system for the H-1B cap lottery instead of requiring employers to submit fully prepared H-1B cap petitions for selection in the lottery. The new system was generally viewed as a great improvement for employers and USCIS alike, and an overall success. USCIS received approximately 275,000 unique registrations during the registration period from March 1 to March 20, 2020.

USCIS received approximately 275,000 unique registrations during the registration period from March 1 to March 20, 2020, an increase of more than one third over last year, when 201,011 petitions were entered into the lottery. Approximately 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees.

USCIS cautions that employers must still establish that selected beneficiaries are eligible for H-1B classification, and that the H-1B cap petition is approvable at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the lottery merely conveys eligibility to file an H-1B cap petition; the employer must still submit sufficient evidence to establish eligibility for the benefit sought. More information is available at the USCIS H-1B Electronic Registration Process page.

Gibney will work with employers to prepare and file H-1B petitions for selected beneficiaries during the 90-day filing window. For additional information, please contact your designated Gibney team or email info@gibney.com.

Today USCIS announced that it received enough electronic registrations during the initial registration period to reach the FY 2021 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted.

What Employers Can Expect

USCIS will notify petitioners with selected registrations no later than March 31, 2020 that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration.

Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

• Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If petitions are not filed for selected beneficiaries with the designated 90-day filing window, USCIS may conduct another lottery from the reserve Submitted registrations until the cap is reached.
• Selected: Indicates that the employer may file an FY 2021 H-1B cap-subject petition for the beneficiary.
• Denied: Either a duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If the denial is due to a a duplicate registration, all registrations submitted for this beneficiary for the fiscal year are invalid.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2021 and only for the beneficiary in the applicable selected registration notice. Employers will have a 90-day window during which to file. The filing period is expected to start no later than April 1. For more information, visit the H-1B Electronic Registration Process page.

Gibney will continue to monitor the FY 2021 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window. For additional information, please contact your Gibney legal team or email info@gibney.com.

Due to the impact of COVID-19 on its operations, USCIS has implemented several changes to the processing of petitions and the completion of forms. USCIS has also temporarily suspended all in-person services at its offices, including interviews and biometrics collection.

Temporary Suspension of Premium Processing

Effective March 20, 2020, USCIS has temporarily suspended premium processing service for all Form I-129 and I-140 petitions until further notice.

What This Means for Employers and Foreign Nationals

• USCIS will process petitions with a previously accepted Form I-907, Request for Premium Processing Service.
• For all petitions mailed before March 20 but not yet accepted, USCIS will reject Form I-907 and return the $1,440 filing fee.
• Petitioners who filed a Form I-129 or Form I-140 using premium processing service who receive no agency action within the 15-calendar-day period will receive a refund.
• Petitioners may submit a request to expedite their petition if it meets the expedite criteria.

Flexibility in Submitting Signed Petitions and Applications

USCIS will temporarily accept all benefit forms and documents with reproduced original signatures, including Form I-129, for submissions dated March 21, 2020 and after.

What This Means for Employers and Foreign Nationals 

• For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. This temporary change only applies to signatures – all other form instructions should be followed.
• Individuals or entities that submit documents bearing an electronically reproduced original signature must retain copies of the original documents containing the “wet” signature.
• USCIS may, at any time, request the original signed documents, which, if not produced, could negatively impact the adjudication of the immigration benefit.

Automatic Extension of Some Filing Deadlines

On March 27, 2020 USCIS announced that it would extend response deadlines for some requests for evidence (RFEs) and notices of intent to deny (NOIDs).

What This Means for Employers and Foreign Nationals   

• For applicants and petitioners who receive an RFE or NOID dated between March 1, 2020 and May 1, 2020, a response will be considered timely submitted if it is received at USCIS within 60 calendar days after the response deadline set in the RFE or NOID.
• If an RFE or NOID is dated prior toMarch 1, 2020, applicants and petitioners must respond by the specified deadline.

In-Person Appointments Suspended

USCIS has suspended in-person services in-person services at all field offices, asylum offices and Application Support Centers (ASCs), including the collection of biometrics, through at least April 7, 2020. USCIS will provide limited emergency services which must be coordinated through the USCIS Contact Center.

What This Means for Employers and Foreign Nationals

• The inability to collect biometrics and conduct in-person interviews will slow the adjudication of associated benefits, including applications for employment authorization, advance parole travel documents, and adjustment of status (“green card”) applications, among others.
• 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.
• ASCs will be automatically reschedule biometrics appointments when normal scheduling resumes and will send 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

The situation is rapidly evolving. USCIS continues to follow CDC guidelines and posts updates at USCIS.gov.  This site should be checked regularly. For additional information, please contact your Gibney legal team or email info@gibney.com.

The electronic registration period for the fiscal year 2021 (FY 2021) H-1B cap season successfully concluded on March 20, 2020.

What’s Next?

USCIS is expected to conduct its random selection process (lottery) of submitted registrations by March 31, 2020.  Selected registrants (employers) will have a 90-day window during which to file H-1B cap petitions for their selected beneficiaries.  The petition filing period is expected to start not later than April 1, 2020.   Employers may file  H-1B cap petitions for selected beneficiaries only; no substitutions are permitted.

What Should Employers Expect?

USCIS intends to notify employers and their legal representatives of lottery results no later than March 31, 2020.  USCIS will generate an email alerting employers and their legal representatives that the status of a registration has changed.  Recipients may then log into their USCIS accounts to view the status of individual beneficiaries included in the registration.  If a beneficiary has been selected, the system will generate a selection notice specifying the filing period for the H-1B cap petition for that individual. This notice must be  printed and submitted with the H-1B petition during the designated filing period. The filing period will be at least 90 days.

Premium Processing Suspended

Due to the impact of COVID-19 on USCIS  Service Center operations,  USCIS has suspended premium processing for ALL I-129 petitions, including H-1B cap petitions, until further notice.  As a result, for the foreseeable future, all H-1B cap petitions must be filed during the designated filing window using regular processing.

USCIS initially planned to implement  a two-tiered approach for premium processing of FY 2021 H-1B cap petitions, first allowing  premium processing for petitions requesting a change of status from F-1 nonimmigrant status (starting not later than May 27, 2020), followed by premium processing availability for all other H-1B cap petitions  (starting not later than June 29, 2020). This schedule was subsequently  suspended due to COVID-19. Once premium processing service resumes, USCIS may implement a similar schedule and two-tiered approach. For more H-1B cap information, you may visit USCIS’s  H-1B FY 2021 Cap Season page.

Gibney will continue to monitor the FY 2021 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window.  For additional information, please contact your Gibney legal team or email info@gibney.com.

UPDATE – APRIL 22, 2020:  On April 20, 2020, the Centers for Disease Control (CDC) issued an order extending the suspension of entry of  certain persons traveling  to the US from Canada and Mexico through land ports of entry through 11:59 pm ET on May 20, 2020.

The United States 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.

Effective Dates

The restrictions are effective as of March 20, 2020 at 11:59 p.m. EDT and will remain in effect until at least April 20, 2020 at 11:59 p.m. EDT.

Restricted Non-Essential Travel

Restricted non-essential travel includes individuals traveling to the U.S. for tourism purposes, including sightseeing, recreation, gambling or attending cultural events.

Essential Travel

Essential travel is permitted. On March 24, 2020, U.S. Customs and Border Protection (CBP) published Federal Register notices with additional information about impacted travel from Canada and Mexico, specifying that essential travel includes, but is not limited to:

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico or Canada in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Mexico or Canada);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

Essential Travel Caution

Despite CBP’s fairly broad definition of essential travel, not all business travel may be deemed essential by a CBP officer at a Port of Entry. The American Immigration Lawyers Association is reporting that CBP officers at some Ports of Entry on the Canadian border continue to adjudicate L petitions and TN applications, while at other ports, CBP indicates it is waiting for more guidance. There are also anecdotal reports that some CBP officers have denied petitions and admission to individuals because their employment was not deemed essential.

With respect to travel from Mexico, U.S. consular closures in Mexico directly impact the ability to secure L and TN visas for admission to the U.S.

Travelers with valid visas and visa exempt travelers, including individuals traveling on the Visa Waiver Program, may be admitted at Ports of Entry from Canada or Mexico, though these travelers should also expect scrutiny as to whether their travel meets essential travel criteria. Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.

As a reminder, foreign nationals who have traveled in one of the otherwise restricted countries (China, Iran and Europe) in the 14 days prior to requesting admission to the U.S. from Canada or Mexico will not be admitted.

Finally, CBP advises that any person with COVID-19 symptoms should not make a personal appearance at a Port of Entry.

For additional information, please contact your Gibney representative or email info@gibney.com.

The United States 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.

Effective Dates

The restrictions are effective as of March 20, 2020 at 11:59 p.m. EDT and will remain in effect until at least April 20, 2020 at 11:59 p.m. EDT.

Restricted Non-Essential Travel

Restricted non-essential travel includes individuals traveling to the U.S.  for tourism purposes, including sightseeing, recreation, gambling, or attending cultural events.

Essential Travel

Essential travel is permitted.  On March 24, 2020, U.S. Customs and Border Protection (CBP) published Federal Register notices with additional information about impacted travel from Canada and Mexico  Mexico, specifying that essential travel includes, but is not limited to:

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (g.,to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (g.,individuals working in the farming or agriculture industry who must travel between the United States and Mexico or Canada in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (g.,government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (g.,truck drivers supporting the movement of cargo between the United States and Mexico or Canada);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

Essential Travel Caution

Despite CBP’s fairly broad definition of essential travel, not all business travel may be deemed essential by a CBP officer at a Port of Entry.  The American Immigration Lawyers Association is reporting that CBP at some Ports of Entry on the Canadian border continue to adjudicate L petitions and TN applications, while other ports indicate that they waiting for more guidance. There are also anecdotal reports that some CBP officers have denied  petitions and admission to individuals  because their  employment is not deemed essential.

With respect to travel from Mexico, U.S. consular closures in Mexico directly impact the ability to secure L and TN visas for admission to the U.S.

Travelers with valid visas and visa exempt travelers, including individuals traveling on the Visa Waiver Program, may be admitted at Ports of Entry from Canada or  Mexico, though these travelers should also expect  scrutiny  as to whether their travel meets essential travel criteria. Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.

As a reminder, foreign nationals who have traveled in one of the otherwise restricted countries (China, Iran and Europe) in the 14 days prior to requesting admission to the U.S. from Canada or Mexico will not be admitted.

Finally, CBP advises that any person with COVID-19 symptoms  should not make a personal appearance  at a Port of Entry.

For additional information, please contact your Gibney representative or email info@gibney.com.

India has issued new travel restrictions due to the COVID-19 pandemic. The following are guidelines for foreign nationals traveling to India:

Commercial Flight Restrictions

Effective March 23, 2020 and until March 29, 2020, no incoming scheduled international commercial passenger aircraft will be allowed to land and disembark passengers in India.

Visa and Consular Services

All Indian visa services are suspended until April 15, 2020. This does not include in-country registration, visa extension, and other visa related formalities.

India has temporarily suspended Visa-on-Arrival for nationals of Japan and South Korea.

Foreign nationals who are already in India on visas remain in valid status until their visa expires. The Indian government has made special provisions (set out below) for in-country extensions.

The Foreigners Regional Registration Offices (FRROs) and Foreigners Registration Offices (FROs) are temporarily providing essential consular services for foreign nationals who are currently unable to leave the country due to travel restrictions. Consular processed visas, electronic visas (e-visas) and stipulations of stay endorsed on the visas, which have expired, or are set to expire, during the period from March 13, 2020 (midnight) to April 15, 2020 (midnight) will be extended until April 15, 2020 (midnight). All foreign nationals must file an online application on the e-FRRO portal. Foreign nationals whose visas have expired and who have made an application to exit the country, will be granted an Exit Permit without a penalty for overstay. Foreign nationals are not permitted to visit the FRRO or FRO without a prior appointment for in-country Registrations, Visa Extensions, Overseas Citizen of India (OCI) applications and other visa related services, until further notice.

OCI cardholders in India remain in valid status. However, OCI cardholders who are not currently in India cannot travel to India until April 15, 2020.

Travel Restrictions for Foreign Nationals and Indian Nationals

Foreign nationals and Indian nationals residing in the following countries are restricted from traveling to India from March 18, 2020 until March 31, 2020:

• Member countries of the European Union
• Member countries of the European Free Trade Association (Switzerland, Norway, Liechtenstein and Iceland)
• Turkey
• United Kingdom.

Citizens from Afghanistan, Malaysia and the Philippines are restricted from all travel to India until March 31, 2020.

Quarantine Procedures

All foreign nationals who have traveled to India from any location outside India or who may travel to India once international flights are permitted to land in India, may be quarantined for a minimum period of 14 days upon their arrival to India.

All incoming travelers including Indian nationals who have traveled or who are set to travel to India once international flights are permitted to land and who have visited China, Italy, Iran, the Republic of Korea, France, Spain or Germany after February 15, 2020 will be quarantined for a minimum period of 14 days upon their arrival.

We are closely monitoring matters in India and will provide further updates as they are provided by the Indian government.

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