Tag Archives: COVID

USCIS Postpones Administrative Furlough

USCIS Postpones Administrative Furlough Scheduled for August 30, 2020

USCIS has been planning furloughs for several months, citing declining revenues due to COVID-related closures and lower filing volumes. The agency previously announced that almost two-thirds of the workforce would be furloughed starting August 30, 2020. In an attempt to prevent the workforce and services disruption, the U.S. House of Representatives unanimously passed the Emergency Stopgap USCIS Stabilization Act. It still faces challenges in the Senate before being sent to the White House for the President’s signature.

Earlier today, USCIS notified employees that the agency was “in a position to cancel the current administrative furlough that was scheduled to begin on Aug. 30, 2020.” The announcement credited the agency’s efforts to “find savings” by making spending cuts. The agency warns that the “severe cost cutting efforts” will “have an impact on agency operations.” The agency implores Congress to take action to find a long-term fix.

USCIS predicts the following operational impacts may occur:

  • Reduction in the number of contractors who assist the federal workforce
  • Wait times for pending case inquiries through USCIS Contact Center will increase
  • Case processing times will increase
  • Naturalization adjudications will slowdown

While a new target date is not set, the message to the workforce noted that a “future furlough scenario is still possible” unless Congress takes action.

Don’t wait until the last minute to file for new visas or extensions! Contact us to get started before the delays affect your immigration status.

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Employer I-9 Update: Using I-797s During EAD Production Delays

Employer I-9 Update: Using I-797s During EAD Production Delays

COVID-19 has led to unprecedented EAD production delays, leaving many foreign workers without proof of work authorization. A federal judge ordered the delayed green cards and EADs to be printed within seven days, but with one production facility shut down and a furlough looming, workers may still be left waiting.

USCIS announced that due to the printing production delays, employers may now accept Form I-797, Notice of Action, with a notice date on or after 12/1/2019 through 8/20/2020 (that indicates approval of the EAD) during I-9 verification. The approval notice is an acceptable list C #7 document for compliance through December 1, 2020, even though the notice states it is not evidence of employment authorization.

The announcement notes that the I-797 does not provide evidence of identity or serve as a document establishing both identity and employment authorization. Any employee presenting an approval notice for new employment must also prove their identity with acceptable List B documents. Employees presenting the document for reverification purposes can use the I-797 as proof of work authorization under list C.

The employer must reverify any employee who presents the I-797 Notice of Action as a List C document by December 1, 2020.

Learn More

UPDATED: I-9 Compliance Flexibility Extended Through September 19, 2020

Resuming on Wednesday, September 16 are our weekly immigration webinars! 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.

 

3 Eligibility Criteria for Overcoming L-1 Travel Ban

National Interest Exceptions to Travel Ban: 3 Eligibility Criteria for L-1 Applicants

Earlier this year, President Trump signed a presidential proclamation suspending entry to the U.S. of certain immigrant and nonimmigrant visa applicants based on their “risk to the U.S. labor market” due to the ongoing COVID-19 outbreak.

The Department of State (DOS) has expanded exceptions for H-1B visa applicants, L-1A and L-1B visa applicants, and J-1 visa applicants.

Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification can now travel to the U.S. The update states “forcing employers to replace employees in this situation may cause financial hardship.”

As we previously reported, the orders do not apply to:

  • Applicants in the United States on the effective date
  • Those with valid visas at the time of the effective date
  • Individuals with other official travel documents valid on the effective date
  • Spouses and children of the individuals above

The proclamation also allows travel for:

  • Public health or healthcare professionals and researchers entering to alleviate effects of COVID-19 pandemic or in areas not directly related, but has been adversely impacted by the pandemic
  • Individuals invited to meet U.S. foreign policy objectives, satisfy treaty or contractual obligations with a U.S. government agency

L-1A Exceptions

Additionally, the proclamations included exceptions for individuals whose entry would be in the national interest. The Department of State recently allowed “Travel by a senior level manager or executive filling a critical business need of an employer meeting a critical infrastructure need.

An L-1A applicant must not be entering to establish a new office and must meet at least two of three indicators.

#1 – The applicant will be a senior-level executive or manager

The individual must have held this role

#2 – The applicant has substantial knowledge within the organization

The Department of State notes that the individual can meet this criterion by spending multiple years with the company overseas to indicate that his or her substantial knowledge and expertise within the organization can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

#3 – The applicant will fill a critical business need for a company meeting critical infrastructure need

Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

Note: The Department of State states that L-1A applicants seeking to establish a new office will likely not fall into this category unless they meet two of three criteria and the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B Exceptions

DOS is allowing L-1B visa applicants to travel if they are a technical expert or specialist meeting a critical infrastructure need.  The applicant must meet all three of the indicators.

#1 – Applicant will provide significant and unique contributions to petitioning company

These contributions can be demonstrated by the applicant’s proposed job duties and specialized knowledge.

#2 – Specialized knowledge is specifically related to a critical infrastructure need

The evidence required to prove this specialized knowledge will vary by industry, but should fall into one of the critical infrastructure sectors.

Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

#3 – The applicant’s substantial knowledge is not easily replicated

An applicant can demonstrate substantial knowledge and expertise within the organization by showing multiple years of experience with the company overseas. A new employee within the company would need to follow extensive training, which would cause the employer financial hardship.

Additional Resources

Next Steps

It will be at the consular officer’s discretion as to whether visa applicants meet the criteria above. Visa appointments will be limited as embassies and consulates begin to reopen. Applicants and employers should consult with their attorneys to prepare a package of strong evidence before scheduling an appointment.

Contact us at info@challalaw.com to schedule a time to discuss whether your critical employees are eligible for an exception to the travel ban.

CONFIRMED: New H-1B Cap Selections & Filing Window!

CONFIRMED: New H-1B Cap Selections

We have confirmed that USCIS is selecting additional H-1B registrations for the FY2021 cap. The additional registration selections are allowed because USCIS did not receive enough H-1B cap petitions during the April 1 to June 30, 2020 filing window. Many employers reported temporary closures and reduced services during pandemic shutdowns, leading to fewer organizations moving forward with hiring.

USCIS has not reported how many additional registrations are being selected, but the agency is expected to make an official announcement soon.

Checking the Registration Status

Employers and their legal representatives can check the status of the registrations by logging into the H-1B cap registration system. Currently, a registrant’s online USCIS account will display one of four statuses for each individual registration:

  • 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.
  • Not Selected: Not selected for this fiscal year.
  • Denied: The same registrant or representative submitted more than one registration on the beneficiary’s behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.

H-1B cap-subject beneficiaries, including those eligible for the advanced degree exemption, must have a “Selected” registration notification in order for a registrant or representative to properly file an H-1B cap-subject petition for FY 2021. The status of registrations not selected as part of any initial random selection process and not denied will remain as “Submitted.”

USCIS cautions that registrants and representatives will not be notified until the end of the fiscal year if they are not selected.

New Filing Window: August 17 to November 16

When a registration is selected, a selection notice will be generated by the H-1B cap registration system. The notice will include the filing deadline and USCIS filing location. New selection notices received by our office are displaying a filing window of August 17 to November 16, 2020.

Our legal team is monitoring the registrant accounts to see if additional registrations are selected for filing. We have notified several clients who have already had additional registrants selected.

Has your H-1B registration been selected in the past few days? Contact us at info@challalaw.com to get started with your H-1B filing!

5 Eligibility Criteria for Overcoming H-1B Ban

National Interest Exceptions: 5 Eligibility Criteria for Overcoming H-1B Travel Ban

Earlier this year, President Trump signed a presidential proclamation suspending entry to the U.S. of certain immigrant and nonimmigrant visa applicants based on their “risk to the U.S. labor market” due to the ongoing COVID-19 outbreak.

The Department of State has clarified some exceptions to the rule, allowing travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification. The update states “forcing employers to replace employees in this situation may cause financial hardship.”

As we previously reported, the orders do not apply to:

  • Applicants in the United States on the effective date
  • Those with valid visas at the time of the effective date
  • Individuals with other official travel documents valid on the effective date
  • Spouses and children of the individuals above

The proclamation also allows travel for:

  • Public health or healthcare professionals and researchers entering to alleviate the effects of COVID-19 pandemic or in areas not directly related, but has been adversely impacted by the pandemic
  • Individuals invited to meet U.S. foreign policy objectives, satisfy treaty or contractual obligations with a U.S. government agency

Additionally, the proclamations included exceptions for individuals whose entry would be in the national interest. The Department of State recently allowed “Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States” if consular officers determine the H-1B applicant meets at least two of five eligibility criteria.

Five Eligibility Criteria for H-1B Workers

#1 – Employer has a continued need for the services or labor

This indicator applies to Labor Condition Applications (LCAs) approved during or after July 2020, as DOS sees these LCAs as more likely to account for the effects of the COVID-19 pandemic on the labor market and the petitioner’s business.

For LCAs approved before July 2020, the consular officer must determine from the visa application that the U.S. employer has a continuing need of petitioned workers.

Note: If an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, this indicator is not met.

#2 – The individual will provide significant and unique contributions to an employer meeting critical infrastructure needs

Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.

However, a critical infrastructure sector alone is not sufficient evidence. The H-1B visa applicant must have:

  1. Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
  2. The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

#3 – The wage rate paid to the H-1B applicant exceeds the prevailing wage by at least 15 percent

The higher wage suggests that the employee fills an important business need where an American worker is not available.

#4 – The applicant has unusual expertise in a specialty occupation

The DOS states that an applicant’s education, training, and/or relevant experience can demonstrate this expertise and make it more likely that he or she will perform critically important work for the petitioning employer.

#5 – The denial of the visa constitutes a financial hardship for the employer

To demonstrate that the denial would cause the employer financial hardship, the employer must provide evidence of the company’s inability to meet financial or contractual obligations, continue its business, or a delay or other impediment to the employer’s ability to return to pre-COVID-19 level of operations.

Additional Resources

Next Steps

It will be at the consular officer’s discretion as to whether visa applicants meet the criteria above. Visa appointments will be limited as embassies and consulates begin to reopen. Applicants and employers should consult with their attorneys to prepare a package of strong evidence before scheduling an appointment.

Contact us at info@challalaw.com to schedule a time to discuss whether your critical employees are eligible for an exception to the travel ban.

Judge Orders USCIS to Address EAD and Green Card Printing Backlogs

Judge Orders USCIS to Address EAD and Green Card Printing Backlogs

A federal judge has ordered USCIS to print all backlogged green cards and EADs within seven days, citing the harm the lack of income is causing plaintiffs in the midst of the pandemic. The suit claims that the USCIS backlog is purposeful, stating that the agency has “either an intention to harm plaintiff and class members or deliberate indifference.”

USCIS typically prints and mails EADs within 48 hours of approval but argued in court documents that the agency is not legally required to provide the documents within that timeframe. Judge Algenon Marbley disagreed: “The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish.”

Even as companies are struggling to stay profitable, USCIS has delayed printing documents critical to continued employment of skilled workers. Thousands of individuals who have been approved to legally work in the United States are instead without proper documentation to present to employers due to the USCIS backlogs and reduced printing capacity. The USCIS website reports processing times up to 12 months for some service centers, but in public statements the agency has reported four-month processing times, insisting that the speed is faster than 2019 and consistent with 2018 processing times.

While it is reasonable to assume the delays were due to COVID precautions, many USCIS workers continued to process EAD and green card applications. Approvals were still generated during adjudications, but the documentary proof required for work authorization continues to be delayed. The printing backlog is in part attributable to USCIS ending a contract with a company responsible for green card and EAD production. The agency intended to continue production in-house, but instead shut down one of the two facilities and reduced capacity at the second.

USCIS has acknowledged that 50,000 green cards and 75,000 employment authorization documents remain to be printed and continually points to the financial problems on the horizon. The agency is primarily fee-funded, so the temporary closure of offices and reduction of services left USCIS with a projected billion-dollar shortfall.

On July 31, DHS announced the final rule on increasing fees for immigration and naturalization benefit requests. The new fees will become effective on October 2, 2020. Read more about the planned increases.

File your extension and EAD early to account for longer processing times and printing delays. Contact us at info@challalaw.com or 804-360-8482 to get your case started.

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.

USCIS Announces Delays for H-1B Cap Processing & Nonimmigrant Extension/Change of Status Filings

USCIS Announces Delays for H-1B Cap Processing & Nonimmigrant Extension/Change of Status Filings

USCIS announced a series of delays due to the COVID-19 pandemic, including extensions and change of status filings for nonimmigrants and H-1B cap petitions. USCIS offices have been temporarily closed for in-person appointments and much of the workforce is working remotely.

H-1B Cap-Subject Petitions

The H-1B cap filing window opened April 1, 2020 for registrations selected during the March registration period. Previously, USCIS announced that premium processing (guaranteeing a 15 day adjudication window) is suspended until further notice due to the pandemic. Petitioners are now advised that receipt notices will not be generated until at least May 1, 2020, but that intake processing will be done in the order in which the filings arrived at the service centers. Petitions will still be stamped on the date they arrive (if otherwise properly filed) and the receipt date will correspond with the actual arrival date to the service center.

While the receipt date should remain the same, this delay narrows the window for refiling if the case was “improperly filed” due to an error. Increasing the stress on petitioners is the discrepancy between the service centers noted on the registration selection notices, which reflected different service centers than indicated on the USCIS direct filing for I-129 webpage.

The filing windows are not being extended at this time and there is no indication this window will be extended. Petitioners are also asked not to make inquiries on any petitions until receipt notices are received. USCIS stated that:

“Due to delayed data entry and notice generation, there will be a general delay in processing FY 2021 cap-subject petitions. We are mindful of petitions with sensitive expiration and start dates, such as cap-gap petitions, and will strive to process these petitions as efficiently as possible.”

The announcement advised that all cap-subject petitions should be filed at the service center noted on the selection notice, but cases may be transferred between the Vermont, California, Nebraska, and Texas Service Centers to “balance the workload and enhance efficiencies.” All transferred cases will receive a notification in the mail with the new location.

Nonimmigrant Extension/Change of Status Filings

In the announcement warning of delays in processing, the Department of Homeland Security also hinted of more restrictive immigration policies:

“DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.”

The announcement acknowledges the existing options available to nonimmigrant visa holders, but despite the requests by many immigrant workers and supporting organizations, the notice does not provide guaranteed flexibility for those facing hardships due to COVID-19. USCIS shares the following options available:

  • Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.
  • If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.
  • Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.

USCIS also notes that in certain situations, a late filing request for an extension or change of status may still be excused after the authorized period if it was “due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19.” The notice states that the “length of the delay must be commensurate with the circumstances” and that the individual must submit “credible evidence to support their request” which will be evaluated on a case-by-case basis.

Visa Waiver Program/ESTA Update

Unlike visitor’s visas or other nonimmigrant visas, entrants in the U.S. under the Visa Waiver Program are not eligible for extensions. However, the regulations provide for the concept of “Satisfactory Departure” under certain emergency situations, such as COVID-19. 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. We previously explored options for requesting satisfactory departure for up to 30 days by contacting the Customs and Border Protection (CBP) at the appropriate port of entry.

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.

Visit Challa Law Group’s COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates or email us at info@challalaw.com with any questions.