Immigration Updates & FAQs - Gibney Anthony & Flaherty, LLP

March 27, 2020

H-1B Initial Electronic Registration Selection Process Completed

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.

March 27, 2020

USCIS Operational Changes in Response to COVID-19

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.

March 26, 2020

USCIS FY 2021 H-1B Cap Update

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.

March 26, 2020

COVID-19: U.S., Mexico and Canada: Temporary Travel Restrictions for Land Ports of Entry & Ferry Service

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.

March 25, 2020

COVID-19 Travel: U.S., Mexico and Canada – Temporary Travel Restrictions for Land Ports of Entry & Ferry Service

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.

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.

March 24, 2020

COVID-19 Travel Restrictions: India

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.

March 20, 2020

I-9 “In-Person” Requirement Relaxed During Pandemic

During the 2020 coronavirus pandemic, DHS has 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.

Who does this affect?

Form I-9 in-person inspection rules are currently relaxed for any US employer who has converted to a total remote working schedule for all employees due to COVID-19. On the other hand, DHS 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, exceptions will also be made if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How should qualifying remote-working employers proceed?

Remote employees should be asked to 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, fax or email, etc. and complete Section 2. 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 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.

What else?

Remote-working employers who avail themselves of this option must be prepared to provide to DHS 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 inspection of documents. 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.

Finally, effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

How long are these relaxed rules effective?

The relaxed rules are effective immediately and will remain in place until Tuesday, May 19, 2020, or until the President ends the National Emergency Declaration, whichever comes first.

Gibney will be closely monitoring any proposed changes to I-9 policy or procedures and we will provide updates as needed.

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

March 20, 2020

COVID-19: U.S. Travel Advisories and Suspension of Visa Services

As the world grapples with the COVID-19 pandemic, the U.S. and other countries are cautioning against travel, imposing fast-breaking travel restrictions, and cancelling non-essential visa services at consulates abroad. Recent actions are highlighted below.

Travel Advisory – U.S. Citizens

The U.S. Department of State has issued a travel advisory advising U.S. citizens to avoid all international travel and recommending that U.S. citizens arrange for immediate return to the U.S. if they are able to do so. The State Department is warning that U.S. citizens who chose to travel internationally may be forced to remain outside of the U.S. indefinitely.
The State Department has also authorized the departure of U.S. personnel and family members from its diplomatic and consular posts abroad if they are at higher risk if exposed to COVID-19. Departure of personnel may limit the ability of U.S. Embassies and consulates to provide services to U.S. citizens who remain abroad.

Suspension of U.S. Visa Services

With increased travel restrictions, the Department of State also announced that it is suspending routine U.S. visa services in most countries worldwide and cancelling immigrant and nonimmigrant visa appointments effective March 18, 2020. The Department of State aims to resume visa services as soon as possible, but cannot provide a specific date at this time. Please check the Embassy websites for the status of current operations and for information about the availability of emergency appointments.

Travel to the U.S.

Earlier this week, the U.S. and Canada announced a mutual agreement to close their shared border to non-essential travel. Official details regarding implementation have not been published as of March 19.
The Trump Administration has temporarily suspended travel to the U.S. for most foreign nationals traveling from Schengen Area countries in Europe, the U.K. and Ireland, China and Iran. Additional information is available on our Insights We expect more countries to face similar restrictions going forward and it is possible that the U.S. may determine to temporarily close its borders to all foreign national travelers in the near future.

Travel to Countries Outside the U.S.

Many countries around the world are imposing similar restrictions on admitting foreign travelers. All travelers should check airline carriers, foreign embassy websites and Department of State country-specific travel advisories frequently if travel cannot be avoided.
For the latest information on conditions in each country, please review the Department of State’s COVID-19 country-specific information and the U.S. Centers for Disease Control for risk assessments by country.

Gibney is closely monitoring these developments. Please contact a Gibney representative for additional information.

March 16, 2020

COVID-19 Measures: U.S. Travel Ban Expanded to U.K. and Ireland

The Trump Administration issued a Proclamation extending travel restrictions to travelers from the U.K. and Ireland. The ban will take effect at 11:59 pm ET on Monday March 16, 2020. Impacted travelers include most foreign nationals who have been physically present in the U.K. or Ireland at any point during the 14 day period prior to arrival in the U.S. A similar ban went into effect on Friday, March 13, 2020 at 11:59 pm ET for travelers who have been in Schengen Area countries at any point during the 14 days prior to their scheduled arrival in the U.S.

The U.K. and Ireland will join the growing list of travel impacted countries including Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Iran and China.

It is likely that additional countries will be added to this list as the U.S. and the rest of the world grapples with the COVID-19 pandemic. All travelers should also expect other countries to impose restrictions, and should check foreign embassy websites and airline carriers before traveling.

WHO IS EXEMPTED FROM THE BAN?

The entry restrictions for the U.K., Ireland and Schengen Area countries do not apply to U.S. citizens, U.S. lawful permanent residents, immediate family members of U.S. citizens, and certain other individuals who are identified in the proclamation. Exempted individuals will arrive on flights that are directed to designated ports of entry to the U.S. and these travelers will undergo enhanced screening. Those who are allowed to enter the U.S. will be asked to self-quarantine for 14 days.

HOW LONG WILL THE BAN REMAIN IN EFFECT?

While news outlets have widely reported that the suspension will remain in effect for 30 days, the Presidential Proclamation announcing the Schengen Area ban does not specify a time period. Gibney is monitoring the implementation of these measures and will provide updates as they become available.

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

March 13, 2020

Visa Appointments at U.S. Embassy and Consulates in India Cancelled

On March 13, 2020, the U.S. Department of State announced on its website that the U.S. Embassy and Consulates in India are cancelling all visa appointments scheduled on or after March 16, 2020 due to the COVID-19 pandemic. The U.S. Department of State has not provided a date by when they expect to resume regular consular operations.

Who is Impacted?

Any foreign nationals who have scheduled, or are in the process of scheduling, a visa appointment at a U.S. Embassy or Consulate in India.

Do Cancellations Apply to Both Immigrant and Nonimmigrant Visa Appointments?

Yes, the U.S. Embassy and Consulates in India are cancelling all nonimmigrant and immigrant visa appointments scheduled on or after March 16, 2020.

Will the Embassy Contact Each Visa Applicant with a New Appointment Date?

No, it will be the visa applicant’s responsibility to monitor the website of the U.S. Embassy and Consulates in India to find out when appointments will be made available again and schedule a new one.

If you are currently in India and had a U.S. visa appointment scheduled on or after March 16, 2020, please contact your Gibney representative immediately.

Foreign nationals who are in the U.S. and are planning on visiting India in the near future should contact their Gibney representative to discuss travel risks and visa/status renewal or extension options. If travel or visa appointments were cancelled, please be sure to notify your Gibney representative to ensure no other action is needed to maintain valid status in the U.S.

Background Information and Resources

More information on the U.S. Embassy and Consulates in India and their operations is available here.

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

The general information provided is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.