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USCIS to Reuse Biometrics for Employment Authorization Extensions

USCIS to Reuse Biometrics for Employment Authorization Extensions

In response to the COVID-19 pandemic, USCIS announced that previously submitted biometrics will be reused in order to process Form I-765 for employment authorization extension requests. Application Support Centers (ASC) are closed until at least April 7, but that date may shift as CDC guidelines mandate longer time periods for social distancing.

USCIS stated that any applicant with an appointment scheduled at an ASC on or after March 18, 2020 or who filed their I-765 extension will have the application processed using previously submitted biometrics. In other circumstances when biometrics have been reused, any biometrics fees paid to USCIS are nonrefundable, regardless of any action taken on the application, petition, or request, or if the request is withdrawn.

It is important that the Form I-765, Application for Employment Authorization is still “timely filed” for the appropriate visa category. For most categories, applicants should not file an I-765 renewal more than 180 days (6 months) prior to the expiration of their current EAD. F-1 students have 30 days from the date that the Designated School Official (DSO) enters an OPT recommendation in SEVIS. Some categories also have automatic extensions due to long processing times. Employment authorizations could take up to 10 months according to posted USCIS processing time estimates.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Webinar Recording & Resources Available

Thank you to all of those who attended our first webinar in the COVID series for employers and foreign workers. Ways to stay informed:

At Challa Law Group, we are taking measures to safely operate at full capacity and we are ready to assist with your immigration needs. Email us your questions at info@challalaw.com

USCIS Clarifies & Expands Flexibility for RFE, NOID, NOIR, NOIT Responses

USCIS Clarifies & Expands Flexibility for RFE, NOID, NOIR, NOIT Responses

USCIS previously announced a 60 day deadline expansion for Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDS). This flexibility has been expanded to Notices of Intent to Revoke (NOIRs) and Notices of Intent to Terminate (NOITs) for regional investment centers, as well as filing date requirements for Form I-290B, Notice of Appeal or Motion.

The 60 day expansion applies to an RFE, NOID, NOIR, NOIT, or any appealable decision within the Administrative Appeals Office’s (AAO) jurisdiction if the issuance date on the request, notice, or action is between March 1, 2020 and May 1, 2020.

USCIS confirmed that it would consider any responses received within 60 calendar days after the response due date listed in the request or notice. The 60-day period also applies for any Form I-290B, which is calculated as 60 days from the date of the decision that is being appealed.

Form I-290B is used for the following:

  • An appeal with the Administrative Appeals Office (AAO);
  • A motion with the USCIS office that issued the latest decision in your case (including a field office, service center, or the AAO); or
  • Certain appeals of the denial of an Immigration and Customs Enforcement (ICE) Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student” with the ICE Student and Exchange Visitor Program.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

USCIS Announces H-1B Electronic Registration Selection

USCIS Announces Registrations Received are Sufficient to Fill H-1B Cap

USCIS announced that enough electronic registrations were received between March 1 and March 20, 2020 to fill the H-1B allotted cap for FY 2021. The registrations have been randomly selected and petitioners and attorneys will be notified no later than March 31, 2020. If a registration is selected, the petitioner is eligible to file an H-1B cap-subject petition for the beneficiary named in the registration.

The announcement stated that online USCIS accounts will reflect one of the three following statuses for each beneficiary registered:

  • SUBMITTED: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected, or Denied.
  • SELECTED: Selected to file an FY 2021 H-1B cap-subject petition.
  • DENIED: A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If denied as a duplicate registration, all registrations you submitted for this beneficiary for the fiscal year are invalid.

The status of registrations not selected as part of any initial random selection process and not denied will remain as “Submitted.” The H-1B Electronic Registration Process webpage also shows a fourth status that will appear at the end of the fiscal year:

  • NOT SELECTED: Not selected for this fiscal year. Please note that a registration will not reflect a status of Not Selected until the conclusion of the fiscal year. In the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation.

If H-1B petitioners decide not to move forward with filing for selected beneficiaries, it is possible that a registration could shift statuses from “submitted” to “selected” after the notification process begins and prior to the start of the new fiscal year. The COVID-19 outbreak may affect employers’ workforce projections, so registrants should periodically check the USCIS portal for updates.

USCIS previously indicated that April 1, 2020 will be the earliest date that the selected cap-subject petitions may be filed. There have been no announcements on delaying or extending the filing window at this time.

Was your H-1B registration selected for filing? USCIS continues to implement policies that have resulted in challenging new standards for employers. Despite 2019 being a record breaking year for RFEs and denials across visa categories, Challa Law Group has consistently earned H-1B, L-1, and PERM approval rates at over 95% because of our investment in time and resources dedicated to securing successful outcomes.

Contact Challa Law Group for assistance with your H-1B filing today!

Send us a request for the complete Challa Law Group Success Report!

USCIS Grants Extensions for RFE and NOID Responses

Responses Accepted Within 60 Days of Deadlines

UPDATE on 3/30/2020: USCIS Clarifies & Expands Flexibility for RFE, NOID, NOIR, NOIT Responses

U.S. Citizenship and Immigration Services announced that due to the ongoing effect of the COVID-19 pandemic, the agency was “adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020.

Any responses to RFEs or NOIDs with deadlines between March 1 and May 1, 2020 that are submitted within 60 calendar days after the deadline, will be accepted for consideration by USCIS. The agency stated additional updates will be provided as the situation develops.

Over 200 organizations, including the American Immigration Lawyers Association’s New York Chapter, have written to the the U.S. Department of Justice, Executive Office for Immigration Review, Department of Homeland Security, U.S. Citizenship and Immigration Services, and Immigration and Customs Enforcement to request “policies and protocols to fully and effectively respond to the crisis currently being caused by COVID-19.” The letter states that “immigrants and the providers and advocates who help them to navigate these systems will suffer serious hardships that raise due process concerns.”

The letter has requested that courts be closed and deadlines extended. Some of the additional requests are below:

  • Address “age-outs” caused by COVID-19
  • Issue automatic work authorizations and renewals during the length of the pandemic
  • Suspend the issuance of new RFEs and NOIDs until offices resume normal operations
  • Waive requirements for original signatures and original photographs

USCIS recently announced that reproduced original signatures are acceptable for forms that typically require original “wet ink” signatures. We will keep you posted on additional updates to these requests to the respective agencies.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

COVID Flight Cancellations – Options for Visa Waiver Program/ESTA Extensions

 

Visa Waiver Program Extensions: “Satisfactory Departure”

The Visa Waiver Program allows individuals from participating countries to visit the U.S. for tourism or business for 90 days or less without obtaining a visa. The travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to their scheduled travel and are not eligible for an extension of stay or a change of immigration status. Due to the COVID-19 outbreak and continued travel restrictions, foreign nationals admitted using VWP or ESTA may be unable to depart the United States prior to the end of their current period of admission.

Visitors in the U.S. utilizing ESTA may be able to delay their departure due to emergency situations. A period of “Satisfactory Departure” may be granted, giving VWP visitors up to 30 additional days to depart the country. The request must be made during the authorized period of admission and while the individual is still in valid status. If Satisfactory Departure is approved, the individual must depart the U.S. within the approved period to be regarded as having made a timely departure without overstaying the allowed time.

Requesting Satisfactory Departures

Requests for Satisfactory Departure are generally adjudicated by the U.S. Citizenship and Immigration Services (USCIS) at an in-person appointment. On March 18, USCIS suspended all routine in-person services until at least April 7, 2020.

In extraordinary circumstances, U.S. Customs and Border Protection (CBP) may adjudicate requests for Satisfactory Departure. Some individuals admitted under the VWP may be stranded at U.S. airports due to canceled flights. Where appropriate, CBP has the authority to grant Satisfactory Departure if the individual is awaiting a canceled flight and the period of VWP admission is expiring prior to the traveler’s ability to depart.

Extensions for Stranded Travelers (At Certain Airports)

Currently CBP will only adjudicate requests made by VWP/ESTA travelers admitted through certain airports, but the list continues to grow. Travelers can contact the Deferred Inspections office at the airport to request Satisfactory Departure for a period of up to 30 days.

At John F. Kennedy International Airport (JFK) and Newark Liberty International Airport (EWR), requests are limited to those whose ESTA period of admission will expire within 14 days. At Raleigh-Durham International Airport (RDU), requests are limited to those whose VWP/ESTA period of admission will expire within three days.

At a minimum, travelers must provide the following information to the Deferred Inspections:

  • Full Name
  • Date of birth
  • Passport information
  • Original flight itinerary
  • New flight itinerary
  • Reason for the Satisfactory Departure request

Officers may request additional information, such as I-94 number and expiration date, additional evidence to support the request, documentation from the airline about flight cancellation, etc.

It is unclear if or when CBP will implement a similar process at other ports of entry, or if additional periods of Satisfactory Departure will be available to travelers who are unable to depart the United States beyond the 30-day window due to COVID-19–related travel issues.

While these developments affect all U.S. businesses, they will be particularly impactful for business sectors that typically have a significant number of foreign nationals in their workforce, such as investment funds, IT businesses, and consulting companies.

Individuals in the United States under the VWP who had intended to travel out of the United States prior to the end of their admission period, but who are now unable to depart due to travel restrictions implemented in their destination country, should apply for Satisfactory Departure. If granted, travelers would be granted up to an additional 30 days to leave without overstaying their ESTA approvals.

Do you have questions on the procedure for a specific port of entry? Please contact us at info@challalaw.com for the latest updates.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Business Struggles Due to COVID: Responsibilities of H-1B Employers

Business Struggles Due to COVID: Responsibilities of H-1B Employers

The COVID-19 outbreak is having a substantial effect on U.S. businesses as operations shutdown or the workforce begins working remotely. In addition, employees affected by the virus may need to self-quarantine. If you missed our previous article on remote employment I-9 compliance, click here to read more. Unfortunately working remotely is not an option for many companies and as business slows down, paying employees can become more challenging. It is important for H-1B employers to understand their responsibilities as they consider options for keeping their business afloat.

Changing Business Conditions

Employers must pay H-1B workers for all “nonproductive time” such as lack of assigned work or time spent on studying or training for an exam. Due to these Department of Labor anti-benching provisions, employers must still pay the full wage or salary listed on the LCA. Workers must be paid according to their status, i.e. full time salaried workers must be paid the full wage rate, full-time hourly workers must be paid for 40 hours (or normal full-time employment for hourly employees), and part-time workers must be paid for at least the number of hours on the I-129 and LCA. If the business must shut down and the employee is nonproductive, the wage would still need to be paid unless employment is terminated.

EMPLOYER OPTIONS

Change employee’s status from full-time to part-time

To mitigate the reduction in business needs, the employer may amend the H-1B employee to part time status. The employers will need to file an amended petition with a new LCA to update USCIS and DOL of the material changes in employment taking place. The amended petition can be filed with a range of hours, for example, 15-20 hours. The H-1B employee must be paid for the hours worked. If an amended petition is not filed to reflect the updated pay and hours, or if the employee works for more hours than the employee was paid, employers could be held liable for back pay.

Terminating H-1B Employees

If the employer’s reduction in business mandates a reduction in workforce including H-1B employees, the employer must comply with the H-1B regulations on termination.

  1. Withdraw the Labor Condition Application and H-1B petition.
  2. Offer the employee return transportation.

H-1B EMPLOYEE OPTIONS

Personal Leave

Employees who are affected by the virus, either directly or on behalf of a family member, may request personal leave. If an employee requests personal leave, the employer does not have to pay the employee salary during the leave period, as long as employers are complying with other immigration and employment regulations (such as the Family and Medical Leave Act) and this practice is applied consistently to all employees regardless of their immigration status.

If terminated or an employee voluntarily leaves his or her job, the employee can remain in the U.S. the earlier of:

  1. 60 days, or
  2. Until the end of the I-94 validity period.

The employee can either search for another job during that time or plan to make a return trip back to his or her home country. If the H-1B employee does depart the country, the employer must offer to pay for the return trip back as outlined above. With travel restrictions in place across the globe, H-1B workers may be unable to return to their home countries immediately.

Some considerations for the 60-day grace period:

  1. For each H-1B petition, the employee is granted a 60-day grace period that must be used consecutively. Any time that is not used is lost. If the employee files an amended petition with a new employer, the new H-1B petition would provide a new 60-day grace period.
  1. Employment is not authorized during the grace period. However, an H-1B worker may begin employment with a new petitioner after the petition has been filed under the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21), as described below.
  2. The H-1B employee can also change his or her status to another nonimmigrant status, such as F-1, H-4, etc.

It may be possible to rehire an employee prior to the end of the period of authorized stay by filing a new H-1B petition. However, the new petition could leave your business and employee with the risk of denials, shortening authorized stays and creating uncertainty for employees. Check with an attorney to see if this a feasible option for your employees and business.

RISK: The 60-day grace period is a discretionary benefit and therefore the USCIS is not required to grant the grace period benefit. The H-1B employee will know whether the USCIS grants the benefit when it adjudicates the H-1B amended petition for a change in employment.

Employment Authorization Document (EAD) for “Compelling Circumstances”

USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) for up to one year if the USCIS determines that there are compelling circumstances that justify issuing the EAD.

This temporary employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions, and who are caught in the continually expanding backlogs for immigrant visas and face compelling circumstances.

  1. Eligible nonimmigrant statuses: E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status
  2. Principal beneficiaries must have an approved I-140 petition
  3. Qualifying dependent spouses and children of a principal beneficiary are also granted employment authorization.
  4. Compelling circumstances that mandate the grant of the EAD include the following examples or situations:
    1. Serious Illnesses and Disabilities.
    2. Employer Dispute or Retaliation.
    3. Other Substantial Harm to the Applicant.
    4. Significant Disruption to the Employer.

The USCIS takes the position that “job loss” by itself will not be considered substantial harm to the applicant. However, if the applicant can show “additional circumstances that compound the hardship associated with job loss,” the individual may establish eligibility for a compelling circumstances EAD. Similarly, unemployment alone is not a compelling circumstance, but it may rise to that level in conjunction with other factors.

RISK: If you receive a compelling circumstances EAD, and begin working based on this EAD, you will no longer be maintaining your nonimmigrant status and therefore, would be ineligible to change or adjust status in the U.S. However, you generally will not accrue unlawful presence in the U.S. while the EAD is valid or while your application is pending if you filed a non-frivolous application on time.

Contact us at info@challalaw.com with your questions about the effect of COVID-19 on your H-1B employees.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Form I-9 Requirements Temporarily Modified for Remote Offices

The Department of Homeland Security (DHS) announced some temporary changes in Form I-9 compliance due to the COVID-19 outbreak. DHS will exercise discretion to defer the physical presence requirements for document review. Employers will not be required to review employee identity and employment authorization documents while the employee is present if the place of business is shutdown or working remotely, but they must inspect Section 2 documents remotely and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.

The DHS notice also requires employers using these options to provide written documentation of remote onboarding and telework policies for each employee. Once normal operations resume, all employees using remote verification must bring their identity and employment eligibility documentation to their employer within three days.

After normal operations resume and once physical inspection takes place, the employers should enter “COVID-19” as the reason for the physical inspection delay in the Additional Information field. The employer should then add the statement “documents physically examined” with the date of the actual inspection on the Form I-9 in Section 2 or Section 3 as appropriate. The announcement stated that these provisions allowing for increased flexibility may be implemented for a period of 60 days from the date of the notice (March 20, 2020) or within three business days after the termination of the National Emergency, whichever comes first.

Please note, this flexibility is only extended to employers and workplaces that are operating entirely remotely. The announcement states that if employees are still physical present at the work location, there are no exceptions to the in-person document verification requirements for the I-9. If new hires or existing employees are subject to COVID-19 quarantine restrictions or lockdown protocols, DHS will evaluate modifications to the process on a “case-by-case basis.”

An alternative option for I-9 compliance is for employers to designate an authorized representative to act on their behalf for Section 2 completion and signature of the I-9. The employer still holds the same responsibilities and liabilities for the authorized representative, including violations with the form or verification process.

DHS also noted that any employers who received Notice of Inspections (NOIs) in the month of March will receive a 60-day automatic extension from the effective date if they have not already responded. DHS may grant additional extensions at the end of the period if conditions are unchanged. Employers should monitor shifting conditions and look for additional updates from DHS regarding the extensions and other policy changes.

Contact Challa Law Group at 804-360-8482 or info@challalaw.com with your I-9 compliance and immigration questions.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Temporary Suspension of Premium Processing for H-1B, E-1/E-2, EB-1 and Other Employees

Temporary Suspension of Premium Processing for H-1B, E-1/E-2, EB-1 and Other Employees

USCIS announced that Form I-907, Request for Premium Processing will not be accepted for any Form I-129 or I-140 submitted until further notice. Any petitions already in process will be processed in accordance with existing Premium Processing criteria, so if there is no agency action on the case within a 15-calendar day period, a refund will be issued. The announcement does not state whether processing would continue to be expedited if a refund is issued, but if following current criteria, the cases should remain on an expedited schedule.

For petitions mailed prior to March 20 but not yet accepted, USCIS will reject the I-907 and return the $1,440 filing fee to the sender. Affected categories include:

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
  • I-140: EB-1, EB-2 and EB-3.

USCIS had previously announced a suspension of Premium Processing for cap-subject H-1B petitions. The H-1B registration period ended on Friday, March 20, 2020 with selection expected to be announced by March 31, 2020. USCIS stated in the new update that the previous announcement providing tentative dates for resumption of premium processing is no longer valid. All H-1B petitions are affected by the suspension, including petitions from previous fiscal years and cap-exempt petitions.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.

Reproduced Original Signatures Acceptable for USCIS Submissions for Duration of National Emergency

Reproduced Original Signatures Acceptable for USCIS Submissions for Duration of National Emergency

Due to the ongoing National Emergency, USCIS announced that all benefit forms and documents with reproduced original signatures will be accepted for submissions dated March 21, 2020 and beyond. This announcement includes Form I-129 for H-1B petitions. A document “may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.” Throughout the National Emergency, USCIS will accept electronically reproduced original signatures rather than the original “wet ink” signatures required by some form instructions. 

USCIS also instructs individuals or entities submitting electronically reproduced documents to retain all documents with the original signatures. The agency reserves the right to request the original documents at any time and states that “if not produced, could negatively impact the adjudication of the immigration benefit.”

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.