Travel Restrictions from Canada and Mexico Extended

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.

USCIS Offers Limited Flexibility to Meet Response Deadlines

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.

Reopening of USCIS Offices Postponed to at least June 4

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.

New Version of Form I-9 is Required on May 1, 2020

REMINDER: Employers must use the new version of Form I-9 new version of Form I-9 (version dated 10/21/2019) starting Friday, May 1, 2020. Due to the coronavirus pandemic, DHS has temporarily relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule.

Form and Instruction Changes

  • Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North (change is only visible on the online form)
  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

In-Person Requirements Relaxed

DHS 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. Please  visit our alert reviewing instructions for the remote completion of Forms I-9 due to the COVID-19 pandemic.

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

President Restricts Entry for Limited Group of Immigrants

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.

President Trump Announces Intent to Suspend Immigration to U.S.

COVID-19:  USCIS Guidance for Extending/Changing Status During Pandemic

The coronavirus pandemic presents unique challenges for foreign nationals in the U.S. who have status expiration dates approaching. Many of these individuals are unable to depart the U.S. due to travel restrictions and health concerns, while others may face obstacles to filing applications to extend status while in the U.S.

Thus far U.S. Citizenship and Immigration Services (USCIS) has declined to provide special relief.  Its position is that there are measures under current law that are available for nonimmigrants who may not be able to timely file extensions or depart the U.S. due to COVID-19 or health-related issues. These existing measures are discretionary and generally still require physical filings with USCIS.

Apply for an Extension of Status

Eligible nonimmigrants whose status and work authorization will soon expire may file applications to extend or change status with a USCIS Service Center prior to the I-94 status expiration date.   In certain circumstances, a timely filed extension of status application may also extend the work authorization of the applicant for a period of 240 days beyond the I-94 expiration date, while the application is pending. However, this benefit does not apply to all visa types. Please check with your designated Gibney representative for an individual case assessment, as there are serious consequences for working without authorization for both the employer and the employee.

Limited Online Filings Available

One of the obstacles that foreign nationals and their employers face in filing applications to extend or change nonimmigrant status is the need to file hard copy applications with USCIS.  While USCIS has waived the requirement that individuals file applications with original (“wet”) signatures,  unfortunately, USCIS only offers limited online/electronic filing options. The most common employment-based nonimmigrant visa petition used to secure work authorization, Form I-129, is not currently available for online filing or online payment of fees.  As a result, in most instances, foreign nationals and their employers must still submit a physical filing to USCIS, entailing the need to produce and include filing fee checks and to arrange for the physical delivery of a petition to USCIS.

Flexibility for Late Application Filings

An individual who is unable to file an extension of status application prior to his/her I-94 expiration date may  be eligible for discretionary relief in making a late filing.  Under current regulations, if an applicant files an extension of stay or change of status request after the authorized period of admission expires, USCIS may, in its discretion, excuse the failure to file on time if it was due to extraordinary circumstances.

COVID-19 as Extraordinary Circumstance

USCIS has generally recognized COVID-19 as an “extraordinary circumstance” beyond the control of the foreign national. This means that in those cases where an individual was unable to depart the U.S. or file an extension of status prior to status expiration due directly to the pandemic, a request to retroactively grant status may be approved.  Granting such requests is still within the sole discretion of the USCIS adjudicator.  The length of delay in filing must be commensurate with the circumstances and the applicant must submit credible evidence to support the request, which USCIS will evaluate on a case-by-case basis.   We caution against relying on this discretionary relief as there are severe consequences for remaining in the U.S. beyond an I-94 expiration date when an extension of status application was not timely filed.  Please consult with your Gibney representative prior to making any late filing.

Visa Waiver Entrants – Satisfactory Departure

Individuals who have entered the U.S. for business or tourism pursuant to the visa waiver program (i.e., with ESTA approval) are prohibited from filing  extensions of stay in the U.S. and must depart the U.S. when the authorized period of stay expires. However, in limited circumstances, the individual may request Satisfactory Departure if he/she is unable to depart the U.S. by the admission period expiration date.  Satisfactory Departure provides a one-time, 30-day extension of status if an emergency prevents timely departure.

Generally USCIS has authority to consider and grant Satisfactory Departure requests.  However, there are also regional ports where U.S. Customs and Border Protection (CBP) has stepped in to provide assistance for visa waiver travelers needing Satisfactory Departure.  Participating ports have specific requirements and procedures, and not all ports will assist. If you are a visa waiver traveler and require Satisfactory Departure, please contact your designated Gibney representative prior to expiration of your current period of stay.

For policy updates, operational changes, and other COVID-19 information, please visit uscis.gov/coronavirus or contact your Gibney team.

FY 2021 H-1B Cap Filing Period Opens

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.

COVID-19 Travel: India Travel Restrictions and Evacuation Procedures

The India Government continues to implement new travel restrictions due to the COVID-19 pandemic. The following are guidelines for commercial flights and evacuation procedures for citizens of other countries who are in India:

Commercial Passenger Services Suspended Until April 14, 2020

All scheduled international commercial passenger services will remain suspended until April 14, 2020 at 6:30 PM GMT.

No incoming international commercial passenger aircrafts will be allowed to land and disembark passengers in India until April 14. This restriction will not apply to international all-cargo operations and flights specifically approved by the Directorate General of Civil Aviation. While there is no specific announcement regarding the departure of flights from India, no flights are leaving India at this time.

Evacuation Procedures for Citizens of Other Countries

The French, U.S., and United Kingdom governments, among others, are working with the Indian Government and airlines to obtain clearance for flights to leave India so their citizens may return to their home countries. Germany and Israel have already obtained permission to evacuate their citizens.

U.S. Nationals in India

The U.S. consulates in India anticipate that several flights will depart from New Delhi and Mumbai to the U.S. this week. U.S. citizens interested in departing from India on a U.S. government coordinated flight must complete a Repatriation Registration for U.S. Citizens Form as soon as possible to be notified of potential ticket availability. The form may be accessed at https://tinyurl.com/uscit-india.

British Nationals in India

British citizens who wish to return to the U.K. must email the High Commission of the United Kingdom at Conqry.Newdelhi@fco.gov.uk. The High Commission of the United Kingdom indicates that British nationals should be prepared to stay in-country until commercial flights resume. Additional information is available at https://www.gov.uk/foreign-travel-advice/india/return-to-the-uk.

Italian Nationals in India

Italian nationals are requested to report their presence to the Embassy of Italy in New Delhi by providing information to the Embassy on shorturl.at/qHWY1.

We are closely monitoring matters in India and will provide further updates as they are announced by the Indian government. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

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.