Tag: Immigration

UPDATE – On May 19, 2020,  the Secretary of Homeland Security extended the suspension of entry of  certain persons traveling  to the U.S. from Canada and Mexico through land ports of entry. The travel restriction will remain in place  through 11:59 pm ET on June 22, 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.

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

Under the order, CBP may still  adjudicate Free Trade applications at the border, including L-1 petitions and TN applications for Canadians. 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 expect scrutiny as to whether their travel meets essential travel criteria.     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.   Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.  There have been anecdotal reports that some CBP officers have denied 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.

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.

On May 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced flexibility for applicants and petitioners to meet certain government response deadlines for the following:

• Requests for Evidence;
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and
• Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Which Documents are Eligible

Response deadline flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and July 1, 2020, inclusive.

New Response Deadlines

USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking action. USCIS will consider a Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.

Please visit uscis.gov/coronavirus for other USCIS updates.

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

What This Means for Employers and Foreign Nationals

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

Ongoing Updates

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

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.