Uncategorized

USCIS Extends Flexibility for Responding to Agency Requests

USCIS Extends Flexibility for Responding to Agency Requests

In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibility it announced on March 30, 2020, to assist applicants and petitioners who are responding to certain:

  • 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;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Read Challa Law Group’s update from the previous USCIS announcement.

Notice/Request/Decision Issuance Date:

This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and Sept. 11, 2020, inclusive.

Response Due Date:

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 any action. We will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action. USCIS states:

“We are adopting several measures to protect our workforce and community and to minimize the immigration consequences for those seeking immigration benefits during this time. USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection.”

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

New Immigration Ban: President Declares Foreign Workers “Threat” to U.S. Economy

WHAT IS THE IMMIGRATION BAN?

President Trump issued a proclamation continuing his April 22, 2020 proclamation that prohibited the entry of immigrant visa holders and suspending and limiting the entry of any individual seeking entry pursuant to the following nonimmigrant visas:

  1. H-1B or H-2B visa, and any individual accompanying or following to join such individual.
  2. J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and
  3. L visa, and any individual accompanying or following to join such individual.

The proclamation shall apply only to any individual who:

  1. is outside the United States on the effective date of this proclamation.
  2. does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
  3. does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The suspension and limitation on entry pursuant to section 2 of this proclamation shall not apply to:

  1. any lawful permanent resident of the United States.
  2. any individual who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen.
  3. any individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
  4. any individual 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 continuation of Proclamation 10014 is effective immediately. The suspension of the entry of certain nonimmigrants took effect on June 24, 2020, at 12:01 am (ET) and is planned to expire on December 31, 2020 (but may be continued).

HOW DOES THIS AFFECT YOU?

If you are currently residing in the U.S. on a nonimmigrant status, this ban does not affect you.

  1. You can change status in the U.S.
  2. You can extend your status in the U.S.
  3. You can process your permanent residency application.

If you are currently outside the U.S. and you are already in possession of a valid visa, this ban does not affect you.

  1. CHALLA TIP: If you traveled outside the U.S. to visa process for a new nonimmigrant category, but are in possession of another valid nonimmigrant visa, you can return to the U.S. on your existing visa and change status to another classification in the U.S.

If you are processing a visa other than H-1B, H-2B, L-1 or J-1, this ban does not affect you.

  1. CHALLA TIP: If you are exploring investment opportunities in the U.S., the B-1 visa, which is not one of the banned nonimmigrant classifications, is a mechanism for exploring expansion into the U.S. market. You can then change status to an L-1, if eligible, in the U.S. if once arriving in the U.S. and investigating expansion options, you discover that you need to obtain a work eligible status immediately.
    1. Caution: The B-1 classification requires that at the time of entry, you intend to return to your home country. Therefore, it is impermissible to enter on the B-1 with the predetermined notion or intent to change status in the U.S. Therefore, we do not recommend utilization of the B-1 for entry with the preconceived intent to change status, but only highlighted that if after entry, the circumstances presented themselves where departing and reentering would pose a business risk, at that point there is the ability to file for a change of status application, but only after 60 days of entry.

There is also an exemption for 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. That may be an opportunity to those who are able to make that argument if it is aligned with the standard for national interest waiver, an employment based permanent residency program. However, since it is a discretionary determination, we will need to wait and see how it is applied.

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

DHS Defends H-4 EAD in Court Brief

DHS Defends H-4 EAD in Court, Plans to Rescind Work Authorization Through Agency Processes

Earlier this month, the U.S. Department of Homeland Security argued that a federal judge should not block work authorization for certain spouses of H-1B visa holders in the U.S. in response to a lawsuit brought by U.S. technology workers. In the Save Jobs USA v. DHS. lawsuit, the workers purport that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.

However, DHS’s argument to the judge shouldn’t be seen as a defense for the H-4 EAD, but rather support for the agency’s intention to rescind the rule through rulemaking. The DHS has repeatedly noted its intention to issue a Notice of Proposed Rulemaking (NPRM) to remove work authorization for dependents of certain H-1B visa holders.

DHS first extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence in 2015. That rule has been under reconsideration as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017.

The proposed rule moved forward to review by the Office of Management and Personnel, where it has been held up for over a year. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register this spring, as it still remains on the Spring Regulatory Agenda.

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

Please contact us at info@challalaw.com if you would like to discuss options for an independent work-authorized status.

Employers May See Relief from “Arbitrary” USCIS H-1B Policies

Judge Rules “Specialty Occupation” Interpretation is “Arbitrary and Capricious”

In an extensive exploration of the qualifications for H-1B specialty occupation, a federal judge ruled that a recent USCIS denial for an H-1B visa was based on an “arbitrary and capricious standard.” In the decision, the judge noted that the Administrative Procedure Act “allows a court to set aside an agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In multiple pages of analysis, Judge L. Patrick Auld pointed to the USCIS denial that determined an engineering degree requirement as too generalized, which “further confirms the unreasonableness of the Decision’s interpretation.”

Judge Auld was ruling on a case brought forth by InspectionXpert Corporation against Kenneth Cuccinelli in his leadership of the U. S. Citizenship and Immigration Services agency. USCIS denied an H-1B petition for a Quality Engineer position for a beneficiary with a master’s degree in mechanical engineering. In the company’s support letter, it was stated that this position requires a Bachelor’s degree or higher in Mechanical Engineering, Computer Science, or a related technical or engineering field.

In the USCIS denial, the agency claims that “the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics.” The agency goes on to claim that engineering “or one of its other subspecialties, such as civil engineering or industrial engineering, is not closely related to mechanical engineering.”

The court determined that the USCIS decision “rather than requiring a degree in a ‘specific specialty,’ it interprets the Provision to require a degree in a specific “subspecialt[y].” Judge Auld determined this was unlawful and that “Moreover, the Decision’s interpretation conflicts with the Agency’s longstanding construction, which recognizes that a position can qualify as a specialty occupation even if it permits a degree in more than one academic discipline.”

The court’s decision goes on to delve into how the Immigration and Nationality Act (INA) has defined professions historically:

“Importantly, the INA defines professions — the basis of the H-1B Regulation’s specialty occupation requirement — at the categorical level (e.g., “lawyers” and “teachers,” 8 U.S.C. § 1101(a)(32), rather than “tax lawyer” or “college English professor,” see id.) and specifically includes “engineers,” id. In addition, the specialty occupation provision arose from a need “to meet labor shortages . . . in occupational fields, such as nursing, engineering, and computer science.” 1988 Proposal, 53 FR 43217-01, at 43218. Put simply, in contrast to a liberal arts degree, which the Service deemed “an [in]appropriate degree in a profession” because of its “broad[ness],” 1990 Rule, 55 FR 2606- 01, at 2609, an engineering degree requirement meets the specialty occupation degree requirement.”

He ruled that because USCIS did not address the entirety of the evidence and the decision departs from the agency’s “longstanding construction, which recognizes that a position can qualify as a specialty occupation even if it permits a degree in more than one academic discipline.”

Implications for H-1B Employers

Companies have seen an increase in Requests for Evidence (RFEs) and denials on specialty occupation issues, but especially for roles that fall into the “Computer Occupations, All Other” category in the Occupational Outlook Handbook. This court decision limits the ability of USCIS to apply a “subspecialty” standard when the regulations outline the necessity of a “specialty” degree instead.

In order to make a stricter “subspecialty degree” a requirement, the agency would need to formally update regulations rather than relying on adjudicating officers to deny petitions on an ad hoc basis. However, USCIS has signaled it plans to publish a rule that would “revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” With the latest setback in court, we may see this rule prioritized by the agency to continue to implement the the “Buy American and Hire American” Executive Order agenda.

Below are some tips to help your H-1B get approved:

  • Consult with an immigration attorney to ensure the position meets H-1B regulations for a specialty occupation.
  • Develop a detailed job description that clearly lists job duties and make sure the position matches the required salary.
  • Explain how the position is specialized and requires a minimum of a bachelor’s degree.
  • H-1B applicants must have all documentation translated into English with a valid translation certificate attached.
  • If the degree is from a foreign institution, plan to have a credentials evaluation completed.
  • Double check the required filing fees and decide whether to utilize premium processing.

Employers also need to ensure strict compliance to the H-1B regulations and file timely amendments or extensions for employees who could shift job duties or be near the end of a project.

H-1B Memos on Employer-Employee Relationship and Third-Party Worksite Issues Overturned by Federal Judge

Over the past few years, a series of USCIS policy memos have changed adjudication trends, causing increased Requests for Evidence (RFEs) and denial rates despite no formal rulemaking changing the regulations. On March 10, 2020, U.S. District Judge Rosemary Collyer determined that these memos and policies contradicted existing regulations (8 C.F.R. Sec. 214.2(h)(4)(ii)).

While USCIS began claiming employers must have “actual control” of employees while they perform work, one of the arguments the ITServe Alliance attorneys made was regarding the definition of employer, which was borrowed from the Department of Labor. The regulations state that an employer “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” Employers placing employees at third-party worksites were often challenged to explain and prove the employer-employee relationship in RFEs. In USCIS denials, the agency often claims that employers placing these employees at customer sites did not qualify as employers. In the decision for ITServe Alliance v. L. Francis Cissna, Judge Collyer wrote:

“The current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.”

Judge Collyer also addressed the recent practice of USCIS providing shortened approval periods, including one example of an H-1B visa valid for a single day. USCIS stated that the regulations and the 2018 memo titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” allowed the agency to request proof of non-speculative work assignments for the entire duration of the requested visa statute. When employers weren’t able to provide a detailed list of all contracts or work performed during a three-year requested period, USCIS was denying the H-1B petitions and claiming the position is not a specialty occupation. However, the court decision said these requirements were:

“not supported by the statute or regulation and is arbitrary and capricious as applied… These requirements were also announced and applied without rulemaking and cannot be enforced. USCIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in nonproductive status and is, therefore, no longer enforceable.”

The nonproductive status mentioned was a reference to the “anti-benching” segment of the ACWIA (American Competitiveness and Workforce Improvement Act) that allows employers to maintain H-1B employees during nonproductive periods (i.e. between projects or contracts) if the employee is still being paid.

Judge Collyer called the contracts and itineraries requirements a “total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses” and points to the use of the memo as “legislative” because “it would effectively destroy a long-standing business resource without congressional action.”

This is good news for employers, who should start receiving longer approval notices going forward. Longer approvals mean lower legal and filing fees and greater job security and stability for H-1B employees.

Additional Questions?

Email us with any additional questions. You can also sign up for our mailing list  for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn.

USCIS Fees Likely to Increase Due to Budget Shortfall

USCIS Fees Likely to Increase Due to Budget Shortfall

As the COVID-19 pandemic restricts travel and limits economic growth in some sectors, USCIS states that a drop in applications and petitions for green cards, nonimmigrant visas, citizenship and other immigration programs is causing the agency to encounter a budget shortfall. The agency is seeking a $1.2 billion cash bailout from Congress and plans to increase service fees in addition to the increases proposed in November 2019. The agency predicts that receipts could dip by more than 60 percent by the end of the fiscal year on September 30, 2020. A spokesman for the agency stated that a 10 percent surcharge would be added to existing fees, in addition to the previously proposed increases.

The increases have been met with some criticism, as processing delays were common prior to the pandemic and adjudication completions have decreased for many immigration benefits. In a recent review of EB-5 completion data, we found that the fewest adjudications of all time occurred, falling from over 4,400 applications completed in the third quarter of 2018 to just over 450 I-526 forms processed in the first quarter of FY 2020.

We have updated the fee chart below with the 2019 proposed fees and the additional 10% surcharge, if implemented.

Form No. Form Title Current Fee Proposed Fee Difference Percent Change Plus 10% Surcharge Total Percent Change
G-1041 Genealogy Index Search Request $65 $240 $175 269 percent $264.0 306%
G-1041A Genealogy Records Request $65 $385 $320 492 percent $423.5 552%
I-90 Application to Replace Permanent Resident Card $455 $415 ($40) -9 percent $456.5 0%
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document $445 $490 $45 10 percent $539.0 21%
I-129/129CW Petition for a Nonimmigrant Worker $460 *DHS is proposing to separate Form I-129 into several forms. See below.
I-129F Petition for Alien Fiancé(e) $535 $520 ($15) -3 percent $572.0 7%
I-129CW (Proposed) Petition for a CNMI-Only Nonimmigrant Transitional Worker $460 $705 $245 53 percent $775.5 69%
I-129E&TN (Proposed) Application for Nonimmigrant Worker: E or TN Classification $460 $705 $245 53 percent $775.5 69%
I-129H1 (Proposed) Petition for Nonimmigrant Worker: H-1 Classification $460 $560 $100 22 percent $616.0 34%
I-129H2A (Proposed) Petition for Nonimmigrant Worker: H-2A Classification $460 $860 (named); $425 (unnamed) $400 (named) 87 percent
I-129H2B (Proposed) Petition for Nonimmigrant Worker: H-2B Classification $460 $725 (named); $395 (unnamed) $265 (named) 58 percent
I-129L (Proposed) Petition for Nonimmigrant Worker: L Classification $460 $815 $355 77 percent $896.5 95%
I-129MISC (Proposed) Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification $460 $705 $245 53 percent $775.5 69%
I-129O (Proposed) Petition for Nonimmigrant Worker: O Classification $460 $715 $255 55 percent $786.5 71%
I-130 Petition for Alien Relative $535 $555 $20 4 percent $610.5 14%
I-131 Application for Travel Document $575 $585 $10 2 percent $643.5 12%
I-131 Travel Document for an individual age 16 or older $135 $145 $10 7 percent $159.5 18%
I-131 I-131 Refugee Travel Document for a child under the age of 16 $105 $115 $10 10 percent $126.5 20%
I-131A Application for Carrier Documentation $575 $1,010 $435 76 percent $1,111.0 93%
I-140 Immigrant Petition for Alien Worker $700 $545 ($155) -22 percent $599.5 -14%
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) $930 $800 ($130) -14 percent $880.0 -5%
I-192 Application for Advance Permission to Enter as Nonimmigrant $930/585 $1,415 $830/ $485 142/52 percent $1,556.5
I-193 Application for Waiver of Passport and/or Visa $585 $2,790 $2,205 377 percent $3,069.0 425%
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal $930 $1,040 $110 12 percent $1,144.0 23%
I-290B Notice of Appeal or Motion $675 $705 $30 4 percent $775.5 15%
I-360 Petition for Amerasian, Widow(er), or Special Immigrant $435 $455 $20 5 percent $500.5 15%
I-485 Application to Register Permanent Residence or Adjust Status $1,140 $1,120 ($20) -2 percent $1,232.0 8%
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) $750 $1,120 $370 49 percent $1,232.0 64%
I-526 Immigrant Petition by Alien Entrepreneur $3,675 $4,015 $340 9 percent $4,416.5 20%
I-539 Application to Extend/Change Nonimmigrant Status $370 $400 $30 8 percent $440.0 19%
I-589 Application for Asylum and for Withholding of Removal $0 $50 $50 N/A $55.0
I-600 Petition to Classify Orphan as an Immediate Relative $775 $810 $35 5 percent $891.0 15%
I-600A Application for Advance Processing of an Orphan Petition $775 $810 $35 5 percent $891.0 15%
I-600A/I-600 Supp. 3 Request for Action on Approved Form I-600A/I-600 N/A $405 $405 N/A $445.5
I-601 Application for Waiver of Grounds of Inadmissibility $930 $985 $55 6 percent $1,083.5 17%
I-601A Application for Provisional Unlawful Presence Waiver $630 $960 $330 52 percent $1,056.0 68%
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) $930 $525 ($405) -44 percent $577.5 -38%
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act $1,130 $1,130 $0 0 percent $1,243.0 10%
I-690 Application for Waiver of Grounds of Inadmissibility $715 $770 $55 8 percent $847.0 18%
I-694 Notice of Appeal of Decision under Section 210 or 245A $890 $725 ($165) -19 percent $797.5 -10%
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) $1,670 $1,615 ($55) -3 percent $1,776.5 6%
I-751 Petition to Remove the Conditions of Residence $595 $760 $165 28 percent $836.0 41%
I-765 Application for Employment Authorization $410 $490 $80 20 percent $539.0 31%
I-800 Petition to Classify Convention Adoptee as an Immediate Relative $775 $810 $35 5 percent $891.0 15%
I-800A Application for Determination of Suitability to Adopt a Child from a Convention Country $775 $810 $35 5 percent $891.0 15%
I-800A Supp. 3 Request for Action on Approved Form I-800A $385 $405 $20 5 percent $445.5 16%
I-817 Application for Family Unity Benefits $600 $590 ($10) -2 percent $649.0 8%
I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal) $0 $275 $275 N/A $302.5
I-824 Application for Action on an Approved Application or Petition $465 $500 $35 8 percent $550.0 18%
I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status $3,750 $3,900 $150 4 percent $4,290.0 14%
I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal $285/570 $1,800 $1,515/$1,230 532/216 percent $1,980.0
I-910 Application for Civil Surgeon Designation $785 $650 ($135) -17 percent $715.0 -9%
I-924 Application for Regional Center Designation Under the Immigrant Investor Program $17,795 $17,795 $0 0 percent $19,574.5 10%
I-924A Annual Certification of Regional Center $3,035 $4,470 $1,435 47 percent $4,917.0 62%
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant $230 $1,515 $1,285 559 percent $1,666.5 625%
I-941 Application for Entrepreneur Parole $1,200 $1,200 $0 0 percent $1,320.0 10%
N-300 Application to File Declaration of Intention $270 $1,320 $1,050 389 percent $1,452.0 438%
N-336 Request for a Hearing on a Decision in Naturalization Proceedings $700 $1,755 $1,055 151 percent $1,930.5 176%
N-400 Application for Naturalization $640 $1,170 $530 83 percent $1,287.0 101%
N-400 Application for Naturalization (Reduced Fee) $320 *DHS is proposing to remove the reduced fee option
N-470 Application to Preserve Residence for Naturalization Purposes $355 $1,600 $1,245 266 percent $1,760.0 396%
N-565 Application for Replacement Naturalization/Citizenship Document $555 $545 ($10) -2 percent $599.5 8%
N-600 Application for Certification of Citizenship $1,170 $1,015 ($155) -13 percent $1,116.5 -5%
N-600K Application for Citizenship and Issuance of Certificate Under Section 322 $1,170 $960 ($210) -18 percent $1,056.0 -10%
USCIS Immigrant Fee $220 $200 ($20) -9 percent $220.0 0%
Biometric Services Fee $85 $30 ($55) -65 percent $33.0 -61%
Dishonored Payments (Returned Check Fee) $30 $0 ($30) -100 percent $0.0 -100%

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

COVID Legislative Updates & Proposals

Legislative Updates & Proposals

Below we review the main immigration effects of four recent legislative updates and proposals:

  • HEROES Act
  • Presidential Proclamation Suspending Immigration
  • Healthcare Worker Resiliency Act
  • Senators’ Letter to White House on Immigration Restrictions

HEROES Act

On Friday, May 15 the U.S. House of Representatives passed the HEROES Act, the latest bill to address the COVID pandemic recovery. Several portions of the bill may affect immigration if it proceeds:

Extension of Filing & Other Deadlines

COVID-related travel restrictions and processing delays have left many individuals with expiring statuses or travel documentation. The bill proposes to shield lawfully present noncitizens from the negative immigration consequences due to their inability o meet filing deadlines or leave the country. It would also grant automatic extensions in status and work authorization during the length of the national emergency. Immigrant visas that have been issued would be expired beyond their expiration dates. The bill also calls for an extension in voluntary departure deadlines. Another interesting proposal was the mechanism for unused immigrant visa numbers to be rolled over for use in subsequent years, since it is likely that immigration will drop in 2020 due to the COVID disruptions. In a related note, USCIS announced that it would face a funding shortfall this year unless fee surcharges are implemented, or additional funding is provided by Congress.

Naturalization Oath Ceremony Flexibility

The bill called upon the Department of Homeland Security to develop a structure for remote administration of naturalization oath ceremonies. DHS would be required to provide written notice to any eligible candidate and to ensure expeditious oath ceremonies. Delaying of citizenship for individuals could have additional implications as we quickly approach the November elections. Only U.S. citizens can vote in federal elections.

Protection for Essential Critical Infrastructure Workers

The House bill provides some temporary protections for undocumented workers who are in essential critical infrastructure positions by allowing work authorization and deferred action against deportation. Employers would also be shielded from certain immigration-related violations for employment of these workers.

Supplementing the COVID Response Workforce

Certain workers stuck in the visa backlogs would be allowed to immediately apply for green cards if engaging in COVID-19 work. The bill would also expedite nonimmigrant petitions and applications for medical professionals and researchers involved in COVID-19 work and would allow employers to more easily transfer employees to COVID-19 hotspots to address the national emergency. The bill also proposes to permanently authorize the Conrad 30 Waiver Program to assist with getting doctors to medically underserved areas.

ICE Detention

To assist with safety in the ICE detention centers, the bill proposes that Immigration and Customs Enforcement evaluate the need for continued detention and prioritize non-mandatory detention for release on recognizance or to an alternative to detention program (such as ankle-bracelet monitoring). The bill also calls on ICE to ensure detainees have access with basic hygiene products, legal educational information, and secure methods of communication with their attorneys by phone, video, fax, email, etc.

What’s next for the HEROES Act?

The bill is expected to meet opposition in the Senate due to some of the partisan provisions. Several Republican Senators have called it “dead on arrival” and a “non-starter” and confirmed that the bill would likely not be addressed until after the Memorial Day recess. The tentative legislative schedule states that Congress will not be in session from May 25 to May 29, 2020.

Presidential Proclamation Update

On April 22, 2020, the President signed the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” The order suspended entry for individuals receiving green cards during the 60-day effective period of the order, with a few exceptions. You can read our previous article about the proclamation here.

We are quickly approaching the 30 day deadline for the review provision that directed the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State to “review nonimmigrant programs and shall recommend… other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

Since the original proclamation, we have seen some indications of the direction the administration seems to be focusing their efforts. In an interview with Fox News, Acting DHS Secretary Chad Wolf states that some OPT programs have been abused in the past and that the department will “have a series of recommendations that we’ll be teeing up and some of those could include students on what we call OPT and CPT.” He was responding to a question about recent comments from Senator Tom Cotton, who called for Chinese students to be banned from studying technical fields in America because they take that information back to China. There is also some speculation that new regulations could be implemented to retaliate against China for the ongoing coronavirus outbreak.

We could see restrictions on other nonimmigrant work-authorized categories, such as the H-1B and H-2B. A new order may suspend entry of these categories from outside the country or could impose new conditions on their entries.

Healthcare Worker Resiliency Act

A bipartisan group of senators proposed the Healthcare Worker Resiliency Act as a temporary stopgap to meet the demand for health care workers. The bill cites that there are doctors currently working in the U.S. who are stuck in the green card backlog. Over 25% of the nation’s doctors were born outside of the U.S. The senators have proposed a process to recapture visas that weren’t used over the past 28 years. If the annual quota was not met, those visas have previously been “lost” or never issued.  The bill would allow those visas to be distributed to doctors and nurses whose immigrant petitions were filed within 90 days of the end of the national emergency declaration. The text specifically allocates 25,000 visas to nurses, 15,000 for physicians, and designates a separate pool of reclaimed visas for recipient families. Doctors and nurses would also be exempted from the annual visa caps for applicable categories.

Republican Senators Send Letter Urging Immigration Restrictions to White House

Senators Tom Cotton, Ted Cruz, Charles Grassley and Josh Hawley have urged President Trump to suspend all guest worker visas for 60 days, with only limited exceptions for time-sensitive industries like agriculture or on a case-by-case basis when Americans can’t be found to take jobs.

The letter requests the suspension of work visas including H-1Bs, H-2Bs, and the F-1 OPT program for at least the next year or until “unemployment has returned to normal levels.” The senators request that new H-1B visas are temporarily limited, claiming it would protect current H-1B workers who are already in the U.S. They also propose an exception for doctors, nurses, and healthcare professionals who are battling coronavirus.

The proposal does not address most employment-based immigrant visa categories, except for the call to immediately suspend the EB-5 immigrant investor program. The letter claims that the program is plagued by scandal and fraud and they call it a “pay for citizenship scheme.” Despite the boost to the U.S. economy due to the foreign investment and job creation mechanisms, the senators stated that there is no reason for “preferential treatment as opposed to other green card programs for employment-based immigrants.”

The letter ends with the following statement: “As we work toward recovery, we urge you to keep the American worker in mind and limit the importation of unnecessary guest workers while American families and businesses get back on their feet.”

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on FacebookTwitterInstagram, or LinkedIn. You can also sign up for our mailing list.

COVID Webinar Updates

Have you subscribed to our YouTube channel? Explore our COVID Immigration Webinar Series: Critical COVID Updates for Employers & Foreign Workers

Additional Questions?

Join us every Monday at 11 AM ET for the live webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on Facebook, Twitter, Instagram, or LinkedIn. You can also sign up for our mailing list.

ESTA/VWP Notice: Requesting Satisfactory Departure “Extension”

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, which has now been extended through June 3, 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. Please check with Customs and Border Patrol at the appropriate airport for additional details.

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.

USCIS Announces Additional Satisfactory Departure Request Procedure

In USCIS’s announcement on processing delays, the agency also states that for Visa Waiver Program entrants who have already been granted satisfactory departure but they are unable to depart within the 30 day period because of COVID-19 travel issues, USCIS can temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

The procedure for requesting Satisfactory Departure from USCIS is as follows:

  1. The SD (satisfactory departure) requestor should contact the USCIS Contact Center indicating that they wish to request SD. The phone number for the USCIS Contact Center is 800-375-5283.
  2. The USCIS Contact Center representative will ask limited questions to determine if the requestor appears eligible (e.g. admitted visa waiver, applying timely).
  3. The USCIS Contact Center representative will then instruct the requestor to send an e-mail to them with “SD” in the subject line and to include an image of their passport biographic page(s), reason for requesting SD, and any additional contact information. The email should include the following:
    • Date and place most recently entered the United States on a visa waiver;
    • Reason for requesting Satisfactory Departure;
    • Contact information;
    • An image (attachment) of the biographic page(s) of their passport.
  4. The USCIS Contact Center will then forward that e-mail to the USCIS Field Office located nearest to the requestor.
  5. A designated “SD officer” at the USCIS Field Office will review the documentation and then process the request and notify the applicant of the decision by creating a Service Request Management Tool (SRMT) number and emailing the applicant.

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.

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on Facebook, Twitter, Instagram, or LinkedIn. You can also sign up for our mailing list.

Immigration Proclamation Signed: 60-day Suspension for New Green Card Entries to U.S.

Immigration Proclamation Signed: 60-day Suspension for New Green Card Entries to U.S.

The White House announced President Trump signed a presidential proclamation limiting immigration, set to become effective at 11:59 p.m. eastern daylight time on April 23, 2020. For the next 60 days, “the entry into the United States of aliens as immigrants is hereby suspended.” The order goes on to exempt certain immigrant visa categories, such as applicants for the EB-5 visa program and certain relatives of U.S. citizens.

The order, titled “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak” cites record unemployment levels as the reason for limiting foreign workers from entering the U.S. labor market. Consular officers are given discretion to determine whether an immigrant has established his or her eligibility for one of the exceptions outlined by the order.

While the order is effective for 60 days, there is also a review provision at the 30-day mark to evaluate whether additional nonimmigrant categories should be added to the order. The proclamation directs the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State to “review nonimmigrant programs and shall recommend… other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” This review may lead to additional restrictions for H-1B, L-1, and other nonimmigrant visa categories.

Below are some frequently asked questions we have received over the past couple of days as the text was still forthcoming.

I’m a permanent resident. Does this affect my ability to travel?

The order only applies to individuals attempting to enter the U.S. as immigrants who do not already have an immigrant visa valid for April 23, 2020. Green card holders living in the U.S. have no travel restrictions and individuals attempting to adjust their status to permanent resident while already residing in the U.S. are not affected. Unless a member of one of the exempted classes, individuals receiving green cards after the effective date will not be allowed to enter for at least 60 days.

I am living in the U.S. and my green card is in progress. Can I still become a permanent resident when approved?

The order prohibits all entry of immigrants without existing valid immigrant visas. If you are already in the United States as of April 23, 2020 and you are attempting to adjust your status to permanent resident, you will not be affected by the current executive order.

I am outside of the U.S. and my green card is in progress. Can I still enter as a permanent resident when approved?

If your green card is in progress and is approved within the next 60 days, you will not be able to enter as a permanent resident if you are living abroad unless you are in an exempted category.

I live in the United States with a pending I-485. I have approved advance parole documents and wish to travel abroad. Does this affect my ability to reenter the U.S.?

Advance parole allows you to travel without abandoning your green card status. If you have an underlying nonimmigrant status such as an H-1B, H-4, L-1, or L-2 visa, you may also reenter the U.S. using that documentation as long as the green card is not yet approved. However, you would no longer be eligible for a nonimmigrant visa stamp if the I-485 is approved.

If the I-485 is approved while abroad, it is possible that Customs and Border Patrol officers will not allow you to reenter utilizing the advance parole documentation. The proclamation will likely prevent your entry for at least 60 days (or longer if the order is extended). Travel abroad may be risky if your case is close to approval.

I or my spouse work as a healthcare professional and plan to enter the U.S. to assist in the COVID-19 effort. Our green cards were approved after the effective date. Can travel to the United States as permanent residents?

The order specifically allows individuals entering on an immigrant visa such as a physician, nurse, or other healthcare professional “to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak.” The order also allows any spouse and unmarried children under 21 years old to accompany or follow to join the individual.

I have invested money in an EB-5 project and my green card is approved after the effective date. Can I enter with my immigrant visa?

The order exempts EB-5 immigrants, likely due to the job creation generated by EB-5 investments. Investors can enter the United States, even after the effective date of the executive order.

I am a U.S. citizen and I have petitioned for my spouse to enter the U.S. as a green card holder. Will my spouse be able to join me?

The rule allows the spouses of U.S. citizens to continue to enter the country.

The order suspends “immigrants” for 60 days, but what are the exemptions from the executive order?

At this time, no nonimmigrant categories (such as H-1B, B-1, L-1, etc.) are affected by the order. Only individuals applying for new green cards or getting new approvals after the effective date are suspended from entering. Individuals in the following categories can continue to enter during the 60-day period, whether their immigrant visa was valid on the effective date or is approved later:

  • EB-5 investors
  • Spouses of U.S. citizens
  • Children of U.S. citizens under 21 years of age
  • Prospective adoptee (entering on IR-4 or IH-4 visa classifications)
  • Individuals critical to law enforcement objectives
  • Members of U.S. Armed Forces and their spouses and children
  • Special Immigrant Visa holders in the SI or SQ classifications and their spouse and children
  • Immigrants whose entry would be in the national interest

I am working using an H-1B visa in the United States and my green card should be approved soon. Will this order prevent me from becoming a permanent resident?

This order only prevents entry from new immigrants from abroad and does not affect individuals adjusting status within the United States.

Additional Questions?

Join us every Monday at 11 AM ET for a webinar covering COVID updates for businesses and foreign workers. Register for the webinar or email us with any additional questions.

Visit our COVID-19 resource page for the latest updates or follow us on Facebook, Twitter, Instagram, or LinkedIn. You can also sign up for our mailing list.

Trump Tweets Plan to “Temporarily Suspend Immigration into the United States”

 

UPDATED 4/22/2020: White House Provides Details on Twitter-Announced Immigration Plan

The White House released more details on the proposed executive order referenced by President Trump in a tweet on the evening of April 21, 2020. The order is expected to be released as early as today and would pause the issuance of green cards for at least 60 days, preventing new permanent residents from entering the United States.

President Trump cited the order as a way to protect American jobs and hinted that there may be a second executive order with additional restrictions. However, the announcements stated that popular visas for foreign workers will not be affected and “will not apply to those entering on a temporary basis.” The President stated he wanted to protect U.S. workers: “I think as we move forward, we will become more and more protective of them.”

Last year, one million people became legal permanent residents or “green card holders.” The COVID-19 pandemic has already slowed processing and caused delays for green card seekers, as embassies and consulates have limited in-person services and rescheduled appointments required before entering the country. White House officials confirmed that U.S. citizens will still be allowed to bring their children or spouses to the U.S., but other family-based and employment-based permanent residence categories would be limited.

Many technology groups have pushed back against the announcements, pointing to the tremendous contributions immigrants make to the economy, both through ownership of companies with U.S. workers and as critical resources in organizations that need specific skill sets.

Trump Tweets Plan to “Temporarily Suspend Immigration into the United States”

President Donald Trump signaled his intention to suspend immigration into the U.S. amidst the COVID-19 outbreak, despite his continued reassurances that the pandemic is “under control.” Critics claim that his Twitter announcement is another strategy to limit legal immigration to align with hardliners within his party.

In his tweet, President Trump claims that he is protecting jobs of U.S. citizens. A series of USCIS policies were issued after his April 18, 2017 executive order: “Buy American and Hire American: Putting American Workers First.” As a result of the executive order and shifting adjudication standards, denials and Requests for Evidence (RFEs) rose for popular work visas such as H-1Bs and L-1s. H-1B denials doubled between 2017 and 2018, while RFEs jumped from 20.8% in 2016 to 40.2% in 2019. However, many such policies have been successfully challenged by employers in court. View our H-1B webinar for a recap of how the courts have recently sided with employers on a range of common RFE topics and reasons for denials.

Trump’s tweet is the first notice of his forthcoming executive order and provides no details on how he intends to limit immigration. The New York Times reported that “a formal order temporarily barring the provision of new green cards and work visas could come as early as the next few days, according to several people familiar with the plan.” If implemented, an order of this magnitude would far exceed the temporary travel restrictions already in place for Iran, China, and European countries.

While a tweet does not set policy or change immigration regulations, it does provide some clues as to how the forthcoming order may be framed. The President cites the “need to protect the jobs of our GREAT American Citizens,” so it is likely that he will focus the order on limiting work authorization for foreign workers.

An order with such wide-ranging scope would not consider the many foreign-owned businesses who employ U.S. citizens nor the need for labor in industries where U.S. citizens historically haven’t been able to fill the demand. New American Economy reports that 3.2 million immigrant entrepreneurs employ almost 8 million people in the U.S., contributing $1.3 trillion in sales. New American Economy also states that $458.7 billion in taxes were paid by immigrants in 2018.

While we cannot predict how the executive order will affect legal immigration, we will continue to keep you posted on any new updates. Processing times have slowed down due to the outbreak and continued backlogs, so it is important to make sure any extensions are filed in a timely manner and that individuals are maintaining compliance with the terms of their visas. At this time, we cannot advise on any travel plans. We will provide the latest news on our Monday webinar. Register now to attend at 11 AM ET on Monday, April 27, 2020.

Please contact us at info@challalaw.com with any questions. You can also visit our COVID-19 resource page for the latest updates.