Tag: Immigration

The U.S. Department of Homeland Security (DHS) announced  temporary relaxation of a key Form I-9 compliance requirement as it pertains to individuals who require an  I-766, Employment Authorization Document (EAD) for employment.  Specifically,  DHS will permit employees to use a Form I-797, Notice of Action, as a Form I-9, List C document establishing employment eligibility if the Notice indicates approval of an Application for Employment Authorization and is dated on or after December  1, 2019 and through and including  August 20, 2020.

Typically an employee working pursuant to an EAD is  required to provide the actual card as a List C document to establish employment eligibility. However, there have been significant delays by USCIS in producing EAD cards after approval of applications.   The temporary relaxation of the requirement to present the EAD card as a List C document stems from litigation challenging USCIS card production delays.   As a result, an employee may now use the I-797 Notice in lieu of the EAD card as a Form I-9, List C document.

HOW DOES THIS IMPACT EMPLOYERS

• For purposes of Form I-9 compliance, employers may accept the Form I-797, Notice of Action, described above as a Form I-9, Employment Eligibility, List C #7  document. This is true even though the I-797 Notice states  that it is not evidence of employment authorization.
• The I-797 Notice must be dated between December 1, 2019 through and including August 20, 2020, and it must indicate that the Application for Employment  Authorization (I-765) has been approved.
• Employers may use the I-797 Notice as evidence of a List C document and employment authorization  until December 1, 2020.
• Employees must still present an acceptable Form I-9, List B document to establish identity.
• Current employees who require reverification may also present the I-797 Notice  as proof of employment authorization under List C.
• Employers must reverify employees who provided the I-797 Notice as a List C document by December 1, 2020.  At the time of reverification, employees may present their new EAD card or a different document from either List A or List C.

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.

UPDATE – On August 14, 2020, the U.S. Department of Homeland Security further extended measures to restrict non-essential travel to the U.S. from Canada and Mexico through land ports of entry and ferry terminals through September 21, 2020.  The United States previously reached mutual agreements with Canada and Mexico to limit non-essential travel at land ports of entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.

Information concerning the scope of the travel restrictions and exemptions is available here.

The COVID-related travel restrictions at the U.S. land border are distinct from the visa-related travel ban imposed by the Trump Administration on June 22, 2020 in  Presidential Proclamation (PP) 10052.  PP 10052 restricts the admission of certain H, L and J visa holders to the United States  until December 31, 2020.    While PP 10052 also remains in effect,  U.S. Customs and Border Protection has indicated that Canadian citizens are not subject to P.P. 10052, as previously reported by Gibney.  In contrast, Mexican citizens are also subject to the restrictions imposed by PP 10052.

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

The U.S. Department of Homeland Security (DHS)  has extended  Form I-9 compliance flexibility for certain employers until September 19, 2020.  The policy, initially announced on March 20, 2020,  relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic.

WHO DOES THE POLICY AFFECT?

Form I-9 in-person inspection rules are relaxed for any US employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

HOW SHOULD QUALIFYING EMPLOYERS PROCEED?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

WHAT ELSE?

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

HOW LONG ARE THESE RELAXED RULES EFFECTIVE?

The relaxed  rules for qualifying employers will remain in place until September 19, 2020

Gibney will closely monitor any proposed changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding whether your business is a qualifying employer or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

USCIS is conducting a second lottery for the fiscal year (FY) 2021 H-1B cap, and has started to  notify employers that additional registrations have been selected.  Employers with selected registrations from the second lottery are expected to have from August 17, 2020 to November 16, 2020 to file an H-1B petition for the beneficiary of a selected registration.

USCIS previously concluded its initial H-1B cap lottery on March 20, 2020, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery is being conducted because the number of H-1B petitions ultimately  submitted during the initial H-1B filing period (April 1, 2020 to June 30, 2020) were not sufficient to meet the annual H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery is being conducted from this reserve. USCIS has not yet announced how many additional registrations will be selected from the reserve.

What Should Employers Expect Next?

• Employers or their designated counsel  should check their registration accounts for new selection notices.
• Selected registrations will have a notice indicating “August 2020 Selection of Reserve Registration.”
• The notice will specify the filing period  during which the employer must submit the H-1B cap petition for the selected registration.  The American Immigration Lawyers Association is reporting that notices will indicate a filing period of August 17, 2020 to November 16, 2020.
• The H-1B cap petition for the selected registration must be submitted to USCIS  within the filing period specified on the notice.
• The notice must be included with the H-1B petition submitted to USCIS during the specified filing period.
• The H-1B cap petition may only be submitted for the beneficiary named in the selected registration; employers may not substitute another beneficiary.

For additional information, please contact your designated GIbney representative.

The U.S. Department of State (DOS) released additional  guidance expanding the scope of national interest exceptions to the June 24, 2020 Presidential Proclamation (PP 10052) banning the admission of certain J, H and L visa holders until at least December 31, 2020.  The guidance will potentially permit many more foreign nationals to be admitted to the U.S. in H and L status while the ban remains in effect. Significantly, the updated guidance permits H and L visa applicants to enter the U.S. to resume ongoing employment in the same position with the same employer and visa classification.  The guidance also provides additional criteria for consulates to consider in granting national interest exceptions for certain H, L or J visa applicants and dependent family members.  Although applicants may be eligible for an exception, consular delays and uncertainty due to COVID-19 regional travel bans continue to impact the availability of visa appointments and visa issuance.

Who Qualifies?

Foreign nationals seeking admission in the classifications below may be eligible for a national interest exception to PP 10052.

H-1B Visa Applicants

H-1B visa applicants may be eligible for an exception to the travel ban for:

• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research).
• Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Note that the supporting petition must explicitly specify that the applicant is continuing in “previously approved employment without change with the same employer.”
• Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  At least two of the following five indicators must be present:
  1. The petitioning employer continues to need the services performed by the H-1B nonimmigrant in the United States.  If the Labor Condition Applications (LCA) supporting the petition was certified by the Department of Labor (DOL) during or after July 2020, DOS is  more likely to consider that the employer has a continuing need for the worker despite the pandemic.  If the LCA was certified by the DOL before July 2020, the consular officer must be able to  determine from the visa application the continuing need for the worker within the U.S.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
  2. The foreign national’s proposed job duties with the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
     • Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
       The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
     • The wage rate paid to the H-1B worker meaningfully exceeds the DOL determined prevailing wage rate by at least 15 percent.
  3. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the foreign national will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may qualify under this criteria.
  4. Denial of the visa will cause financial hardship to the U.S. employer. For example, the employer will be unable to  to meet financial or contractual obligations, continue its business or return to its pre-COVID-19 level of operations.

L-1A Visa Applicants

L-1A visa applications may be eligible for an exception to the travel ban for:

• Travel by applicants seeking to resume ongoing employment in the U.S. in the same position with the same employer and visa classification.
• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
• Travel based on a request from a US government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations (e.g., supporting US military base construction or IT infrastructure).
• Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need (chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems) and at least two of the following three indicators are present:
  1. Will be a senior-level executive or manager;
  2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
  3. Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Visa Applicants

L-1B visa applicants may be eligible for an exception to the travel ban for:

• Travel by applicants seeking to resume ongoing employment in the US in the same position with the same employer and visa classification.
• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
• Travel based on a request from a US government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations (e.g., supporting US military base construction or IT infrastructure).
• Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
  1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
  2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; and
  3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

J-1 Visa Applicants

J-1 visa applicants may be eligible for a national interest exception to the travel ban for:

• Travel to provide care for a minor US citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).
• Travel by an au pair that prevents a US citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
• Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help combat COVID-19.
• An exchange program conducted pursuant to a valid agreement or arrangement between a foreign government and any federal, state, or local government entity if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Proclamation.
• Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019).
• Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019 who meet certain criteria.
• Critical foreign policy objectives.

H-2B Visa Applicants

National interest exceptions may also be available for certain H-2B visa applicants for:

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
• Travel necessary to facilitate the immediate and continued economic recovery of the United States (e.g. those working in forestry and conservation, nonfarm animal caretakers, etc).  Consular officers may determine that an H-2B applicant falls into this category when at least two of the following three indicators are present:

1. The applicant was previously employed and trained by the petitioning U.S. employer.  The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.  U.S. employers dedicate substantial time and resources to training seasonal/temporary staff, and denying visas to the most experienced returning workers may cause financial hardship to the U.S. business.
2. The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.  TLCs approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business, and therefore this indicator is only present for cases with a TLC approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-2B worker.  For TLCs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.
3. Denial of the visa will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

H-4, L-2 and J-2  Dependent Visa Applicants

Spouses and dependent children of H, L or J visa applicants who are already excepted from, or not subject to PP 10052, are eligible to apply for a derivative visa.  If a principal visa applicant is not subject to the proclamation, the derivative family member is also not subject.  If the principal visa applicant is granted a national interest exception, the eligible family member may apply for a visa to accompany the principal applicant.

Impact on Foreign Workers

Despite the recently announced exemptions, consulates retain significant discretion in scheduling  visa appointments, determining who qualifies for an exemption, and the issuance of visas.  Many consulates remain closed or may be available for limited emergency requests only.  Additionally, visa issuance by a consulate or exemption from  P.P. 10052 does not mean that an individual is eligible for admission to the U. S.  The coronavirus-related regional travel bans generally restricting entry to the U.S. from the European Schengen Area, the United Kingdom and Ireland, China, Iran, and Brazil, as well as the land border restrictions at the U.S., Canadian and Mexican borders, remain in place, though it has been reported unofficially that if an individual is granted a national interest exception to the visa ban, he or she may likewise be exempted from the regional travel bans. Individuals granted a national interest exemption from the visa ban may need to verify their admissibility to the U.S.  with U.S. Customs and Border Protection prior to traveling to the U.S.

While the expanded scope of national interest exceptions to the visa ban is welcome news to many employers, the government restrictions and exemptions imposed by fiat and without the benefit of notice and comment,  are part of a deeply concerning trend by which the Administration advances its anti-immigration agenda outside of the regulatory process, creating chaos and a lack of predictability for U.S. employers.  There is ongoing litigation challenging the visa bans, and the exceptions to the ban – clearly mirroring what the Administration has been unable to accomplish through law and regulation – may serve to strengthen challenges to the bans.

In the interim, foreign nationals and their employers should keep in mind that  travel restrictions are subject to change without advance notice.  Visa applicants should consult with immigration counsel prior to departing the U.S. or applying for a visa. For additional information, please contact your designated Gibney representative.

On August 3, 2020, President Trump signed an Executive Order requiring federal agencies to review the use of foreign temporary workers and overseas offshoring practices by federal contractors and subcontractors.

The order also directs the Department of Labor (DOL) and the Department of Homeland Security (DHS) to take action to enforce H-1B regulations and ensure that U.S. workers are not adversely impacted by the hiring of H-1B workers.

Review of Federal Agency Contracting and Hiring Practices

The order directs federal agencies to review federal government contracts to determine if federal contractors or subcontractors used temporary foreign labor, and, if so, the nature of the work performed by temporary foreign labor, whether opportunities for U.S. workers were affected, and the impact on national security.

The review is not limited to the use H-1Bs workers. It extends to all nonimmigrant hiring practices by federal contractors and subcontractors.

The order also directs federal agencies to ensure compliance with existing laws, including those regulating which federal jobs are required to be held by U.S. workers.

Federal agencies are required to submit a report summarizing the results of their review with recommendations for proposed action to implement the order by early December 2020.

Increased Scrutiny of H-1B Workers and Placement at Third-Party Jobsites

The order directs DOL and DHS to take action by mid-September to ensure that the wages and working conditions of U.S. workers are not adversely impacted by the employment of H-1B workers, including placement of H-1B workers at third-party job sites.

DHS and DOL are expected to advance regulations to restrict H-1B visas and to impose additional obligations on employers that sponsor H-1B workers, as well as employers that contract with other employers to place H-1B workers at end client sites.

Impact on Employers

The order and the expected  ensuing regulations are expected to pose a significant burden on employers who work with the federal government as contractors or subcontractors, and employers who utilize H-1B workers.

• Employers who contract with federal agencies may be required to provide extensive information concerning their workforce, including contingent workers, in connection with the agency review process.
• Employers who hire H-1B workers, and/or have contracts with employers that place H-1B workers at their job sites, may face new regulations imposing additional wage and recordkeeping obligations.
• Employers who contract with employers that place H-1B workers at their job sites may be required to assume additional employer liability associated with placement of these workers onsite.
• Employers who utilize H-1B workers should expect increased investigations from DOL and DHS, increased scrutiny of petitions, and denials.

Gibney will continue to monitor how the order is implemented and provide updates as they become available.  If you have any questions or require legal advice, please contact your Gibney representative.

Effective October 2, 2020, filing fees for certain non-immigrant, immigrant, and naturalization benefit requests will be adjusted to help meet U.S. Citizenship and Immigration Services (USCIS) operational needs.  As a fee-funded agency, USCIS would be underfunded by around $1 billion per year based on current fees, and the adjustments in fees will help the agency recover its costs of services.  Applications, petitions, or requests postmarked on or after October 2, 2020, must include payment of new fees as established by a final rule from the DHS, which can be read here.

Some notable fee adjustments in the final rule include the following:

• Form I-129 Petition for Nonimmigrant Worker:  Current fee $460.  Increases for H-1B category to $555, for L-1 category to $805, and for O-1 category to $705.
• Form I-539 Application to Extend/Change Nonimmigrant Status:  Increase from $370 to $400
• Form I-765 Application for Employment Authorization (Non-DACA): Increase from $410 to $550
• Form I-130 Petition for Alien Relative: Increase from $535 to $560.
• Form I-140 Immigrant Petition for Alien Worker: Decrease from $700 to $555.
• Form I-485 Application to Register Permanent Residence or Adjust Status: Change to $1,130.  There will no longer be a reduced child fee, and there is an additional $1,080 fee for certain asylum applicants.
• Form N-400 Application for Naturalization: Increase to $1,170. There will no longer be a reduced fee option for an applicant whose documented income is higher than 150% but equal to or less than 200% of the Federal poverty level.

There is also a $10 reduction in the filing fee for online applications, if an online option is available.

For more information on any specific filing fee adjustments, please view the table that starts on page 13 of the final rule from DHS.

If you have any questions, please contact your Gibney representative.