Tag: Immigration Updates & FAQs

U.S. Citizenship and Immigration Services (USCIS) announced three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits. The updated policies:

• Clarify the criteria for expedited processing of benefit applications;
• Address guidance regarding Request for Evidence (RFE) and Notice of Intent to Deny (NOID) issuance; and,
• Increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

These policy initiatives were taken pursuant to  Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Issued by President Biden on February 2, 2021, the order directs federal agencies to identify strategies to eliminate barriers that impede access to immigration benefits.

What Employers and Foreign Nationals Need to Know

Expedited Processing

Applicants and petitioners may request that USCIS expedite the adjudication of immigration benefit requests even if premium processing is otherwise available for the application. USCIS reviews these requests on a case-by-case basis. The updated expedite policy clarifies the criteria and circumstances under which USCIS will generally consider expedite requests. It restores the ability of nonprofit organizations to request expedited processing if the beneficiary will further U.S. cultural and social interests. It also clarifies that expedited processing for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).

Requests for Evidence and Notices of Intent to Deny

The updated RFE and NOID guidance rescinds a Trump-era policy that permitted officers to deny certain benefit requests outright instead of first issuing an RFE or NOID.  The updated guidance instructs officers to issue a RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit, rather than simply denying the benefit request. This practice helps to ensure that those requesting benefits  have an opportunity to correct simple mistakes or unintentional omissions. This was USCIS policy from 2013 until 2018, when it was rescinded by the Trump Administration. With this action, the 2013 guidance is restored.

Employment Authorization Documents

 

Updated policy guidance increases the validity period for initial and renewal Employment Authorization Document (EADs) from one year to two years for certain adjustment of status applicants. The goal is to significantly lessen the number of employment authorization applications filed with USCIS, allowing USCIS to shift limited resources to other priority areas.

Gibney welcomes these developments and will closely monitor their impact. We will continue to report on additional initiatives to improve and modernize the U.S. immigration system.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

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.  The policy, initially implemented in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. The guidance, which was set to expire May 31, 2021, has now  been extended to August 31, 2021.

Who does the Policy Affect?

Form I-9 in-person inspection rules were relaxed for any U.S. employer who 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.

The current extension includes guidance for employees hired on or after June 1, 2021 working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

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 use 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.

Looking Ahead

Employers should anticipate that DHS will terminate the  flexibility to verify Form I-9 documents virtually  as pandemic restrictions are lifted.  Because employers who have availed themselves of the relaxed rules will have only three (3) business days to physically examine documents when normal operations resume,  employers may wish to designate agents to physically inspect documents now for those hired and verified remotely since March 2020.  Keep in mind, though, as noted above, that employers are liable for any violations or errors made by the designated authorized representative during the verification process.

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.

The Department of Labor (DOL)  has further postponed the effective date of its prevailing wage final rule to November 14, 2022.   The final rule significantly increases prevailing wage requirements  for permanent resident and H-1B, H-1B1 and E-3 nonimmigrant visa sponsorship.  Under the revised timeline, transition to the new, higher wage tiers will commence January 1, 2023.

Background

The prevailing wage final  rule was published by the Trump Administration in January  2021, and was set to take effect on March 15, 2021.  Upon taking office, the Biden Administration  postponed the effective date of the rule for 60 days, until May 14, 2021, and solicited additional  public comments concerning the rule and the wage computation methodology.  With publication of the May 13, 2021 DOL notice, the effective date of the rule is further postponed to November 2022.

The rule revises the calculus to determine prevailing wage levels  for labor condition applications required for the H-1B, H-1B1 and E-3 temporary visa programs, and prevailing wage determinations required for the PERM labor certification program. The rule would  significantly increase threshold wage requirements for employers across the four tiers of prevailing wages utilized by the Department of Labor in connection with these visa programs.

Looking Ahead

Employers can welcome the 18-month reprieve on implementation of restructured wage levels for labor condition applications and prevailing wage determinations.  In the interim, the Department of Labor will consider the rule’s legal and policy impact and will gather additional wage data.  Notably, an earlier interim final version of the  rule implemented  by the Trump Administration in October 2020 was  invalidated by a federal court as unlawful on procedural grounds. That rule had higher wage tiers than the current version.  Nonetheless, the current version of the rule is also the subject of legal challenges.  It is possible that the rule will be modified further before taking effect.

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

 

 

 

 

U.S. Citizenship and Immigration Services (USCIS) intends to suspend collecting biometrics for individuals requesting E, H-4 and L-2 status on Form I-539, Application to Extend/Change Nonimmigrant Status. The policy, projected to take effect May 17, 2021, is expected to reduce adjudication backlogs and improve processing times for these applications, as well as for associated applications for Employment Authorization Documents  (EADs) filed on Form I-765.

Background

In March 2019, USICS implemented a nationwide requirement for H-4 and L-2  applicants to attend an appointment at a local Application Support Center (ASC) to submit biometrics, including fingerprints, photographs and digital signatures.  This requirement significantly delayed adjudication of these applications and associated applications for work authorization filed on Form I-765.  The problem was compounded by closure of ASC locations due to the COVID-19 pandemic.  Though ASCs have reopened,  many operate at reduced levels due to ongoing health and safety protocols, and are dealing with unprecedented backlogs. USCIS reports that 123,000 H-4 and L-2 applications are pending adjudication, with an additional  57,500 applications for EADS backlogged.

Agency Action

In response to lawsuits stemming from the delays, and recognition of the significant  backlogs and ensuing hardships created, USCIS is deploying additional officers to adjudicate  I-539 applications for H-4 and L-2 status and implementing the policy to suspend temporarily  biometrics requirements  for individuals requesting an extension of stay in, of change of status to, H-4, L-2, E-1, E-2 and E-3 nonimmigrant status.

The new policy is expected to begin May 17, 2021, and remain in effect for two years, to May 17, 2023, subject to extension or revocation by the USCIS Director.

The policy will apply only to I-539 Applications for H-4, L-2, E-1, E-2, and E-3 status pending as of the effective date of the policy that have not yet been issued  a biometric appointment notice, and new applications received by USCIS after the effective date of the policy.  If an applicant has received a biometrics appointment for a pending application, failure to attend the biometrics appointment may result in denial of the application. USCIS will also retain discretion to require biometrics for any case for identity verification and other screening purposes.

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

 

On April 30, 2021, the Biden Administration issued a proclamation imposing restrictions on the admission of travelers from India.  The ban will take effect at 12:01 am eastern daylight time on Tuesday, May 4, 2021.  Impacted travelers include nonimmigrant foreign nationals who have been physically present in India at any point during the 14 day period prior to arrival in the U.S.

WHO IS EXEMPTED FROM THE BAN?

The entry restrictions do not apply to:

• US citizens;
• US lawful permanent residents;
• Noncitizen nationals of the US;
• Noncitizens who are the spouses of US citizens or lawful permanent residents;
• Noncitizens who are the parents or legal guardians of US citizens or lawful permanent residents under the age of 21;
• Noncitizens who are the siblings of  US citizens or lawful permanent residents under the age of 21;
• Noncitizens  who are the children, foster children, or wards of  US citizens or lawful permanent residents, or who are prospective adoptees;
• Noncitizens traveling  at the invitation of the US government for purposes related to virus mitigation; and,
• Certain other travelers classified as nonimmigrant crew members, foreign government officials, and diplomats, etc.

Keep in mind that under existing policy, all international travelers, including those exempted from travel bans,  are required to show proof of a negative COVID-19 test result or proof of recovery from COVID prior to traveling to the U.S.

HOW LONG WILL THE BAN REMAIN IN EFFECT?

The ban will remain in effect until terminated by the President.

BACKGROUND INFORMATION

The restriction comes at the recommendation of the CDC after the surge of COVID-19 cases in India in recent weeks and a  Level 4 Do Not Travel advisory issued by the Department of State last week.

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

Early in its tenure, the Biden Administration issued an executive order directing the State Department and the Department of Homeland Security (DHS) to  identify barriers that impede access to immigration benefits and the fair and efficient adjudications of these benefits. This week the agencies have taken important steps in furtherance of this directive.

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS), the benefits agency within DHS, announced policy guidance  instructing officers to give deference to prior agency determinations when adjudicating extension requests involving the same parties and same material facts unless the initial decision contained a material error.   In essence, USCIS is reverting to guidance that was in place from 2004 until it was rescinded by the Trump Administration in 2017.  According deference to prior approvals will help to restore predictability and fairness to adjudications, benefiting employer sponsors and foreign national applicants alike. The policy will also help USCIS to better allocate resources, improve operational efficiency, and eliminate backlogs  as it moves to streamline adjudication of benefit applications.

On April 26, the State Department issued updated National Interest Exemption (NIE)  guidance for travelers restricted from entering the U.S. due to  their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland stemming from the COVID-related regional travel bans covered by  Presidential Proclamations (PPs) 9984, 9992, and 10143.    Students with valid visas intending to begin or continue an academic program commencing August 1, 2021 or later do not need to contact an embassy or consulate to seek an individual NIE to travel.  They may enter the United States no earlier than 30 days before the start of their academic studies with a valid visa.  Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. If qualified for student visa, they will automatically be considered for an NIE to travel. Ideally this action will facilitate the admission of foreign students and also allow the consulates to reallocate resources to help clear backlogs in issuing immigrant and nonimmigrant visas stemming from COVID-19, consular closures and regional and visa category travel bans.

Gibney will continue to monitor agency action and provide updates as they become available.   For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

Today U.S. Citizenship and Immigration Services (USCIS) announced that F-1 students applying for work authorization in connection with optional practical training (OPT) may now file Form I-765, Application for Employment Authorization online.   The online filing option will allow eligible students to file forms in a more user-friendly manner and help to increase efficiencies for adjudicators.

Background
Certain foreign students in the U.S. are eligible for OPT in connection with their studies, and may apply for temporary employment authorization to work in positions related to their major area of study. Eligible students may apply for up to 12 months of OPT employment authorization before or after completing their academic studies.  F-1 students who are awarded science, technology, engineering or mathematics (STEM) degrees may apply for an additional 24 months of post-completion OPT.

What to Expect

• F-1 Students are eligible to file online if they fall within one of the following categories:
  • Pre-Completion OPT;
  • Post-Completion OPT;
  • 24-Month Extension of OPT for STEM graduates.
• The online filing option is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15 based on eligibility for employment authorization in another category, USCIS will deny the application and retain the fee.
• To file online, applicants must create a USCIS online account. This allows applicants to submit forms, pay fees, track case status, communicate with USCIS through a secure inbox and respond to Requests for Evidence.
• Filing online is not required. USCIS will continue to accept the latest paper version of Form I-765 by mail.

USCIS processes Form I-765 applications on a first-in, first-out basis.  Applications submitted online will not be prioritized over paper filings; however, filing online will mean that the application is receipted and placed in the adjudication queue more quickly.

USCIS is working to expand online filing for Form I-765 to additional categories as part of a transition to paperless operations. USCIS currently has 11 forms that can be filed online.

Please contact your Gibney representative for additional information or email info@gibney.com.

Presidential Proclamation (PP)  10052  suspending entry to the U.S. of certain nonimmigrants in  J, H and L status  expired March 31, 2021. The Biden Administration has declined to  extend the ban.

PP 10052 was initially implemented  by the Trump Administration in June 2020 with the stated rationale of protecting U.S. workers from the economic downtown stemming from the pandemic. The ban was later successfully challenged  by the U.S. Chambers of Commerce and other associations,  with a federal court invalidating significant portions of the ban, but limiting  the ruling to members of the plaintiff organizations.

What to Expect

Expiration of  PP 10052 is welcome news to U.S. companies, hospitals, universities and small businesses seeking to employ high-skilled and temporary workers, as well as multinational corporations seeking  to leverage the expertise of employees from overseas affiliate offices. Nevertheless, significant challenges remain in bringing nonimmigrants to the U.S.

• The regional COVID-related travel bans stemming from PP 10143 remain in place for the Schengen Area, the United Kingdom, Ireland, South Africa, Brazil, Iran and China. With limited exceptions, foreign nationals who have been physically present in these regions at any point during the 14-day period prior to arrival in the U.S. are prohibited from entering the U.S.
• The Department of State may issue National Interest Exemptions (NIEs) for certain individuals traveling to the U.S. from the Schengen Area, the United Kingdom and Ireland, but qualifying for an exemption is very restrictive.  Exemptions are limited to individuals seeking to enter the U.S.  to provide vital support for critical infrastructure, the public heath response, national security or other humanitarian considerations.
• With the termination of the nonimmigrant visa ban, which also had associated guidance for exemptions, it is not clear how travelers from Brazil, China, Iran and South Africa may qualify for an NIE. Gibney is monitoring Department of State guidance on this matter.
• Visa appointments at U.S. consular posts are likely to remain difficult to obtain  for the foreseeable future.  Consular posts worldwide continue to be impacted by the pandemic with many local health-related restrictions still in place. This continues to limit the ability of consular posts to process  cases for qualifying individuals.  Additionally, consular posts are prioritizing immigrant visa appointments pursuant to the revocation of the immigrant visa ban (PP 10014). Finally, after a year of suspended and limited consular operations,  significant backlogs exist for scheduling nonimmigrant and immigrant visa appointments.
• As a reminder, pursuant to CDC guidance, all international travelers to the U.S. age  2 years and older, including U.S. citizens and permanent residents, are required to present proof of a negative COVID-19 test result or documentation of recovery from COVID-19.  At this time, proof of COVID-19 vaccination does not exempt international travelers from the testing requirement.

Looking Ahead

As the U.S. and the rest of the world begin to loosen pandemic-related restrictions, opportunities for international travel and mobility  will increase. However,  considerable patience will be required as consular posts continue to grapple with appointment  backlogs, local health mandates and restrictions, and limited resources.   The lifting of the visa category ban will not mean that previously impacted individuals will be able to secure visas to travel to the U.S. immediately, and the COVID-related regional travel restrictions will continue to limit admission the U.S. until affirmatively lifted.  It is very important to confer with legal counsel prior to making international travel plans.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

Today USCIS announced that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 9, 2021 through March 25, 2021. H-1B petitions may be filed for selected registrations starting April 1, 2021.

WHAT EMPLOYERS CAN EXPECT

USCIS has notified all prospective petitioners with selected registrations 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 FY 2022 cap is reached. This was the case last year, when numerous “submitted” registrations were later selected for a second round of filings, after the initial 90-day filing period concluded.
• Selected: Indicates that the employer may file an FY 2022 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
• Denied: A duplicate registration was submitted by the same registrant for the same beneficiary; all registrations submitted for this beneficiary for FY 2022 are invalid.
• Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary in the applicable selected registration notice. Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2021.

Gibney will continue to monitor the FY 2022 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 representative or email info@gibney.com.

The Trump Administration’s draconian  2019 Public Charge Final Rule  is no longer in effect.  U.S. Citizenship and Immigration Services (USCIS) announced it will revert to utilizing the public charge guidance that was in effect prior to implementation of the 2019 rule. With elimination of the rule,  Form I-944,  Declaration of Self Sufficiency, is no longer required in connection with adjustment of status (“green card”) applications and individuals  no longer have to respond to questions regarding the receipt of public benefits on the current version of Forms I-485, I-129 and I-539.

Background
The Trump Administration advanced the 2019 Public Charge Final Rule to impose a “wealth test” on intending immigrants and nonimmigrants.  The rule was almost immediately challenged as unlawful.  Several federal courts issued decisions invalidating or blocking enforcement of the rule, but the prior administration appealed the decisions at both the federal circuit court and U.S. Supreme Court level.    Upon taking office, the Biden Administration directed the Department of Homeland Security (DHS) to review the  2019 Public Charge Final  Rule and the ongoing federal court litigation.  DHS subsequently announced that it would not continue to appeal  judicial decisions invaliding the rule.  With dismissal of the appeals,  on March 9, 2021,  an earlier federal court decision from Illinois invaliding the rule took effect nationwide.  On March 15, 2021, the Department of Homeland Security published a final rule, effective March 9, 2021, removing the 2019 Public Charge Final Rule from the immigration regulations, and restoring the pre-2019 public charge guidance.

What This Means for Foreign Nationals
The 2019 Public Charge Rule, now vacated, had expanded the definition of public charge, potentially disqualifying large numbers of green card applicants, while also significantly increasing the burden of proof and evidence of income required for others.  Elimination of the rule is a significant step toward ending the chaos stemming from  publication of the rule in 2019 and restoring predictability to adjudication of adjustment of status applications.

• Elimination of rule will help to protect adjustment of status eligibility for many individuals, and will streamline the adjustment of status process, as submission  of the Form I-944, Declaration of Self Sufficiency, together with extensive supporting documentation,  is no longer required.
• If an adjustment of status applicant previously submitted Form I-944, the documentation will not be considered if the case is adjudicated after March 9, 2021.
• Applicants and petitioners seeking to  extend  or change of nonimmigrant status do not need to provide information related to the receipt of public benefits on Form I-129, Form I-129CW, Form I-539, and Form I-539A.
• USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.
• If USCIS issues a request for public charge evidence on a case filed before the rule was vacated, please contact your designated Gibney representative to evaluate the appropriate response.

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