JSP mourns the loss of the inspirational and irreplaceable Supreme Court Justice Ruth Bader Ginsburg. She not only blazed a trail for women in the law, but set an example for reaching the very highest levels of achievement in the practice. Our hearts are heavy, and we send our condolences to her family and loved ones.
U.S. Immigration & Travel Restrictions - September 2020 Updates
Updated 9/29/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
Visa Bulletin: The Department of State’s October 2020 Visa Bulletin has been released. See our separate post here.
Visa Ban: As detailed in our frequently updated blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new/first-time H, L, and certain J visas, as well as certain immigrant visas applications, with some exceptions. As of September 7, 2020, court decisions have only affected the ban as it relates to Diversity Visa (aka “green card lottery”) applicants.
COVID Travel Ban for Europe, China, Iran, Brazil: Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the European COVID ban. Note that based on how the Department of State is implementing the guidance, which remains Embassy-by-Embassy, the COVID ban is creating a de facto visa ban in many cases. CBP/CDC airport health screenings and requirements to land at a CBP-designated airport ended on September 14, 2020, however the COVID-related travel bans for Schengen, UK, Ireland, China and Brazil remain in place.
Closure of Land Ports of Entry (Canada & Mexico): U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least October 21, 2020.
Phased Embassy Re-Opening: Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID ban waivers.
NPRM on Students and Media visas: On September 25, 2020, DHS issued a Notice of Proposed Rulemaking establishing a fixed time period for admission for students, exchange visitors, and representatives of foreign media. The rule would replace the “duration of status” admission period. The rule must now go through the usual “Notice and Comment” period; it is not final.
USCIS Updates:
Public Charge: As of September 22, 2020, USCIS is once again implementing its public charge rule, e.g. the “wealth test.”
Fee Changes: USCIS filing fee and form changes will take effect on October 2, 2020.
H-1B Rule: The administration is pushing forward with a new rule on H-1Bs.
H-1B Cap: On August 14, 2020, USCIS ran an (unannounced) second lottery on existing H-1B cap registrations. The filing period for the newly selected registration cases is from August 17 to November 16, 2020.
Interviews/Appointments: On June 4, 2020, USCIS Field Offices started a phased re-opening process. Most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
Service center operations remain mostly unchanged.
USCIS’s planned furlough has been delayed/cancelled at this time.
U.S. Passport Agency: On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. https://travel.state.gov/content/travel/en/passports.html
Form I-9 Completion During COVID-19: See our August post for further information.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020
USCIS fee changes take effect October 2, 2020
09/29/2020 update:
On September 29, 2020, the U.S. District Court for the Northern District of California granted the motion for a preliminary injunction (“PI”) filed by eight nonprofit organizations in the ongoing Fee Rule litigation. The PI has a nationwide effect and bars the rule in its entirety for the duration of the litigation. Therefore, DHS may not require its new fees, forms, and other changes outlined below.
Original post:
On August 3, 2020, the Department of Homeland Security published a new rule containing numerous adjustments to U.S. Citizenship and Immigration Services’ (USCIS) filing fee schedule. In the new rule, DHS is planning on an upward adjustment of USCIS fees “by a weighted average of 20 percent.”
The rule, set to go into effect on October 2, 2020, further increases fees for many commonly used forms such as N-400 for naturalization, I-485 for Adjustment of Status (AOS), I-140 for immigrant visa petitions, and I-129 for nonimmigrant visa petitions, which will carry separate fees for each visa classification.
Other significant changes in the rule include:
Employment Authorization (EAD) and Advanced Parole (AP) are now “unbundled” from AOS applications – meaning that each form must be filed with the corresponding fees, whereas previously when filed with a Form I-485 the EAD and AP fees were waived.
AOS fees for children under 14 years old are now the same as the adult fee.
Separate biometrics fees are now subsumed within the form’s fee (in most cases the separate biometrics fee is no longer required).
Premium Processing Service (PPS) is changing to 15 business days instead of 15 calendar days.
Forms available online have different fees for filing online vs. paper; the filing the fee will be $10 lower for applying online.
The American Immigration Lawyers Association (“AILA”) has published a searchable table of fee adjustments, located here. USCIS will be publishing new forms 30 days before the rule will take effect, and new forms are required starting October 2, 2020, with some limited exceptions.
On August 20, 2020, AILA and partners sued USCIS over the rule, claiming that the agency lacked authority to issue the rule, and that its issuance violated the Administrative Procedures Act. The litigation is ongoing as of this writing.
© Jewell Stewart & Pratt PC 2020
U.S. Immigration & Travel Restrictions - August 2020 Updates
Updated 8/19/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
H-1B Cap:
On August 14, 2020, USCIS ran a second lottery on existing H-1B cap registrations. The filing period for the newly selected registrations will be from August 17 to November 16, 2020.
Visa Ban:
As detailed in our frequently updated blog post, Presidential Proclamations 10014 and 10052 affect the issuance of new H, L, and certain J visas. Anyone who is in the United States in valid status is not affected assuming they do not depart the U.S. Note that a “visa” is the travel document/sticker affixed in a passport, and is different from “status” or an I-797 petition.
The June 22 expansion of the original visa ban also extended the initial ban of consular processing immigrant visa cases, with certain exceptions.
PERM, I-140, Adjustment of Status (I-485) and related in-country “green card” filings are unaffected. Most employment-based green card interviews are now being waived.
F-1 & M-1 Students:
On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating solely online for the fall semester. On July 14, 2020, the administration agreed to withdraw the proposed rule entirely; however, first-time (initial) student visa applicants may still be affected. For a more detailed update please see our blog post here.
Closure of Land Ports of Entry (Canada & Mexico):
U.S. Customs & Border Protection has extended the land border closure (with exceptions for essential travel) until at least September 21, 2020.
COVID Travel Ban for Europe, China, Iran, Brazil:
Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the Europe ban, including for business travelers and students. Students currently in Europe who already hold valid F-1 or M-1 visas and current I-20s do not need to apply for permission to travel. Otherwise, interested travelers must initiate an exception request with their nearest Embassy or Consulate or CBP.
Proclamation / COVID Travel Ban: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/
Guidance on exceptions: https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html
New York Residents Now Eligible for CBP Trusted Traveler Programs:
On July 23, 2020, DHS announced that New York state residents would again be eligible to use CBP’s Trusted Traveler Programs such as Global Entry. These programs had been unavailable to New York residents since February 2020.
Phased Embassy Re-Opening:
Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be limited or suspended. On July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are showing appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies, for non-banned categories, emergencies, and assistance with COVID bans.
USCIS Re-Opening & Potential Furloughs:
On June 4, 2020, USCIS Field Offices started a phased re-opening process. As mentioned, most employment-based adjustment of status interviews are being waived. Naturalization interviews are being prioritized. Naturalization oath ceremonies are being scheduled as small socially-distanced events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The San Francisco USCIS office has also indicated that the oath may be administered at the conclusion of a naturalization interview and/or same-day, where possible. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
Application Support Centers (for biometrics) are slowly re-reopening and appointments are (also slowly) being rescheduled via mailed notices.
USCIS Service Center operations continue as usual, which means that regular filings are still being accepted. Premium Processing Service or “PPS” has been restored for most previously-accepted application types, and scanned signatures continue to be accepted for filings.
That said, USCIS has issued furlough notices to thousands of its employees to take effect at the end of August 2020 unless/until it secures additional government funding. Note that USCIS is meant to be fee-funded. It is not clear how benefits adjudications and processing times will be affected or if PPS will be suspended again.
USCIS is also reportedly scaling back its printing operations / contracts because of the agency’s financial crisis. This is causing a delay of printing secure cards such as permanent resident cards (“green cards”) and employment authorization documents (“work permits”).
U.S. Passport Agency:
On August 3, 2020, the U.S. Passport Agency announced a phased re-opening. At this time, passport issuances for “life and death” emergencies are being prioritized.
https://travel.state.gov/content/travel/en/passports.html
Form I-9 Completion During COVID-19:
On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19.
On August 19, 2020, DHS issued a temporary policy allowing for I-797s for EADs which were issued between December 31, 2019 and August 20, 2020, to be considered List C documents until December 1, 2020. This is helpful for persons who have approved EADs but have not received them because of card production delays mentioned above. The I-797 does not work as a List A document (as an EAD would) but instead would need to be presented along with a List B document of the employee’s choosing.
EAD I-797s announcement: https://www.uscis.gov/i-9-central/form-i-9-verification-during-ead-production-delays-due-to-covid-19
I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19
DHS’s I-9 manual, M-274, Handbook for Employers: Guidance for Completing Form I-9, was updated on April 28, 2020.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020
Updates on the Administration’s Public Charge Rule
November 5, 2020 update:
On Wednesday, November 4, 2020, the Seventh Circuit Court of Appeal stayed the lower court’s order. Therefore Public Charge is back in effect for now.
November 3, 2020 update:
On Monday, November 2, 2020, the U.S. District Court for the Eastern District of Illinois vacated the administration’s Public Charge rule and denied the government’s request to stay the judgment pending appeal. The USCIS may not require Forms I-944 going forward on a nation-wide basis. As of this writing, USCIS’s website has not been updated to reflect compliance with the order.
September 22, 2020 update:
On September 22, 2020, USCIS posted implementation instructions for its Public Charge rule. Any Adjustment of Status cases that were filed after February 24, 2020, will receive a Request for Evidence for the Form I-944 and relevant supporting documents. Any Adjustment of Status cases filed after October 13, 2020, without the Form I-944 and supporting documents, will be rejected.
September 14, 2020 update:
On Friday, September 11, 2020, the Second Circuit Court of Appeals lifted the injunction; it is not clear how or when USCIS will re-implement rule.
August 14, 2020 update:
The injunction is now limited to cover only certain states (namely New York, Connecticut, and Vermont); however, USCIS and the Department of State have not announced if and how they will implement the rule.
August 10, 2020 update:
Despite news articles to the contrary regarding several Circuit Court rulings, the national-wide injunction as described below remains in place.
August 7, 2020 update:
The Department of State (DOS) has now posted on its website that it will comply with the injunction and is in the process of updating its guidance to consular officers. While guidance is being updated, visa applications that appear to be ineligible based on the public charge grounds of inadmissibility will be “refused” for administrative processing to allow for consultation with DOS. Applicants are not required to complete nor present the DS-5540 Public Charge Questionnaire.
Original post:
On July 29, 2020, the U.S. District Court for the Southern District of New York issued two nationwide injunctions preventing the Department of Homeland Security (DHS) and Department of State (DOS) from implementing and enforcing the administration’s USCIS and DOS public charge rules and policies.
The injunction issued against DHS prevents DHS from enforcing, applying, implementing, or treating as effective its public charge rule that was implemented on February 24, 2020 (and outlined in our blog post here) as long as there is a declared national health emergency in response to the COVID-19 pandemic. (The Secretary of Health and Human Services declared a public health emergency on January 31, 2020.) The ruling came after the plaintiffs successfully argued that the DHS public charge rule has had a chilling effect on foreign nationals seeking health care and other benefits during the COVID-19 pandemic.
USCIS announced that as long as the injunction is in effect, it will not apply the Public Charge Rule implemented on February 24, 2020 for any applications and petitions USCIS adjudicates on or after July 29, 2020. Instead, USCIS will apply prior public charge guidance. Any information and documentation previously provided on Form I-944 Declaration of Self Sufficiency (for the green card process) or the receipt of public benefits (for nonimmigrant status) will not be considered. In addition, the detailed information and evidence is need not be provided for applications or petitions going forward, again while this injunction is in place. USCIS has indicated that additional guidance will be forthcoming.
The injunction issued against DOS in a separate case prevents DOS from implementing, enforcing, or applying its public charge rule as well as the administration’s Health Care Proclamation that required visa applicants to show proof of private health insurance. This was the first decision fully addressing these policies, and the court’s decision enjoined those policies indefinitely. As of this writing, DOS has not made an announcement on its website regarding the injunction. Many U.S. Embassies and consulates remain closed or on very limited operations due to the ongoing pandemic.
© Jewell Stewart & Pratt PC 2020
Executive Order regarding Hong Kong has Significant Impact to U.S. Immigration
On July 14, 2020, President Trump issued Executive Order (EO 13936) that ends the special treatment of Hong Kong as a separate foreign state from China. The immigration impact to Hong Kong nationals is significant. For the permanent residence (i.e. green card) process, Hong Kong-born nationals will now be “charged” to China, rather than the “Worldwide” quota, meaning they will now be subject to the same multi-year wait times and immigrant visa backlogs as nationals born in mainland China for many employment-based preference categories. In addition, Hong Kong SAR passport holders with H, L, and O visas will now be subject to shorter visa validity periods, in accordance with the Department of State’s visa reciprocity tables. The EO also orders the termination of the Fulbright Exchange Program with Hong Kong and China, and J-1 exchanges for Hong Kong residents would likely now be subject to the two-year home country requirement that most programs for residents of China fall under. The exact effective date of the EO is not yet clear and we will update this blog post once we know more.
© Jewell Stewart & Pratt PC 2020
New Rules Affecting F-1 and M-1 Students
July 29, 2020 update:
On July 24, 2020, ICE issued “clarifying guidance” regarding the gaps noted in our July 19 below. Specifically, universities are now prohibited from issuing I-20s to new or “initial” students, and so students starting new programs will not be eligible to apply for visas. As the proposed rule (discussed below) was withdrawn, students who were already enrolled but left the U.S. due to COVID may be eligible to re-enter and resume studies, even if they are provided in a fully online format. The Department of State similarly revised its guidance, providing for visa issuance for continuing, but not for new, international students.
July 19, 2020 update:
Note that although the proposed rule discussed below was withdrawn, there are still several gaps in the guidance which essentially reverted to FAQ issued in March 2020, which allowed existing students to maintain status despite classes being held primarily online due to COVID. Notably, the March ICE guidance states that students who are not already in the United States should “remain in their home country” which raises questions about new students arriving for Fall semester. In addition, current Department of State guidance directs Consular Officers to refuse visa applications for students who intend to attend their programs entirely online. F-1 and M-1 students (including those participating in CPT or OPT) will need to remain in close contact with their DSOs for guidance. The current H, L, J visa ban does NOT prevent F-1 or M-1 student visa issuance, and the current COVID travel ban for Schengen, U.K., and Ireland does not apply to F-1 students with valid visas and I-20s.
July 14, 2020 update:
The administration reportedly agreed to withdraw the proposed rule in entirety during a TRO hearing on the Harvard/MIT litigation.
Original post:
On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating online for the fall semester. Many universities are currently in the process of determining whether and how they will operate going forward due to COVID concerns, and had been relying on the temporary measures put in place during spring and summer that allowed F-1 and M-1 students to maintain status despite coursework and classes being moved to remote scenarios for safety during the pandemic. (Ordinarily, only 1 class or 3 credit hours may be taken online.)
On July 7, 2020, Harvard and MIT sued to enjoin this new rule. There has already been a hearing on a temporary restraining order (TRO) in that case, with a decision expected around July 15, 2020. Experts are divided as of this writing on whether a TRO could cover only Harvard and MIT, or whether it could be national in scope. Other universities and states, including California, are also filing lawsuits. More guidance is potentially expected when ICE issues the interim final rule (regulation) in the Federal Register, after which there may be a brief comment period.
Many, many questions are unanswered such as what the minimum in-person requirements would be for a so-called “hybrid” program (which would be acceptable under the new rule), how post-docs will be treated if they have completed coursework, how students may maintain active SEVIS status if they elect to take coursework remotely from their home countries (to preserve, say, CPT eligibility), and how the international student offices will deal with the requirements to issue new I-20s for the millions of international students in the U.S.
We are closely monitoring developments on this issue for our clients as there will also necessarily be an impact on CPT and OPT work authorizations if students are not allowed to remain in the U.S. to continue or complete their programs.
Resources:
https://www.nytimes.com/reuters/2020/07/06/us/06reuters-usa-immigration-visas-students.html
https://www.nafsa.org/regulatory-information/sevp-covid-19-guidance-fall-2020
https://www.chronicle.com/article/Here-s-a-List-of-Colleges-/248626?cid=wcontentgrid_hp_1b
© Jewell Stewart & Pratt PC 2020
Five JSP lawyers selected for inclusion in Super Lawyers® for 2020
Jewell Stewart & Pratt (JSP) is pleased to announce that five of its lawyers have been selected for inclusion in Northern California Super Lawyers® in 2020. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas, including immigration, who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Founder & Principal Phyllis Jewell was named a Super Lawyer at the inception of the Northern California Super Lawyers list in 2004, and has been named to the list each year from 2004 to 2013, and 2015 to present. Principal & Managing Attorney Claire Pratt has been named to the Super Lawyers list from 2019 to present, having previously received Rising Stars designation since 2015. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers.
Principal Jennifer Carr has been selected in Rising Stars from 2017 to present. In addition, Associate Attorneys Zdeni Amadio and Nicole Tahtouh were selected as Rising Stars for the first time in 2020. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars.
Congratulations to Phyllis, Claire, Jennifer, Zdeni, and Nicole!
© Jewell Stewart & Pratt PC 2020
COVID-19-Related U.S. Travel Restrictions & Government Closures - July 2020 Updates
Updated 7/29/2020
Disclaimer: Any foreign national considering international travel should have an attorney review the particular circumstances of their case as there are currently several “bans” in effect.
Presidential Proclamations:
As detailed in our continually updated blog post, Presidential Proclamations 10014 and 10052 affects the issuance of new H, L, and certain J visas. Anyone who is in the United States in valid status is not affected assuming they do not depart the U.S.
The June 22 expansion of the original ban also extended the initial ban of consular processing immigrant visa cases, with certain exceptions. PERM, I-140, Adjustment of Status (I-485) and related filings are unaffected.
F-1 & M-1 Students
On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating solely online for the fall semester. On July 14, 2020, the administration agreed to withdraw the proposed rule entirely; however, questions remain in several areas. For a more detailed update please see our blog post here.
On May 29, 2020, the administration issued an additional Proclamation banning the entry of certain Chinese undergraduate students and researchers on F or J visas.
Closure of Land Ports of Entry (Canada & Mexico):
On June 16, 2020, U.S. Customs & Border Protection extended the land border closure to 11:59 PM ET on July 21, 2020. Essential travel is excepted. Although not officially announced, the closure is expected to be extended until August 2020.
https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus
Arrival Restrictions for Europe, China, Iran, Brazil:
Arrival restrictions for persons present in Europe (Schengen, U.K., Ireland), China, Iran, or Brazil (“COVID travel ban”) are continuing until cancelled or modified. Certain national interest exemptions are available for the Europe ban, including for business travelers and students. Students currently in Europe who already hold valid F-1 or M-1 visas and current I-20s do not need to apply for permission to travel. Otherwise, interested travelers must initiate an exception request with their nearest Embassy or Consulate.
Proclamation / COVID Travel Ban: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/
Guidance on exceptions: https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-from-certain-travelers-from-the-schengen-area-uk-and-ireland.html
New York Residents Now Eligible for CBP Trusted Traveler Programs
On July 23, 2020, DHS announced that New York state residents would again be eligible to use CBP’s Trusted Traveler Programs such as Global Entry. These programs had been unavailable to New York residents since February 2020.
Phased Embassy Re-Opening:
Routine visa issuance operations at U.S. Embassies and Consulates worldwide continue to be suspended although on July 14, 2020, the Department of State announced a phased resumption of routine visa services. Some Embassies are starting to show appointment availability, and emergency appointments are available on a case-by-case basis at some Embassies.
USCIS Re-Opening & Potential Furloughs:
As of June 4, 2020, USCIS Field Offices are starting a phased re-opening process. In San Francisco, most employment-based adjustment of status interviews are being waived. Naturalization oath ceremonies are being scheduled as small socially-distanced events at the Field Office versus a larger celebratory event at Oakland’s Paramount Theater. The San Francisco office has also indicated that the oath may be administered at the conclusion of a naturalization interview going forward, where possible. As interviews and in-person services are resumed, including fingerprints (biometrics), new notices will be mailed out to applicants.
USCIS Service Center operations continue, which means that regular filings are still being accepted. Premium Processing Service or “PPS” has been restored for most previously-accepted application types, and scanned signatures continue to be accepted for filings.
That said, USCIS has issued furlough notices to thousands of its employees to take effect in August unless/until it secures additional government funding. Note that USCIS is meant to be fee-funded. It is not clear how benefits adjudications and processing times will be affected. USCIS is also reportedly scaling back its printing operations / contracts because of the agency’s financial crisis. This is causing the delay of printing secure cards such as permanent resident cards (“green cards”) and employment authorization documents (“work permits”).
Form I-9 Completion During COVID-19:
On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning on May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes. DHS has also issued policies for virtual review of certain documents, and has extended the time period to resolve tentative non-confirmations on E-Verify due to COVID-19.
I-9 FAQ: https://www.uscis.gov/i-9-central/temporary-policies-related-covid-19
Finally, DHS issued a new M-274 manual M-274, Handbook for Employers: Guidance for Completing Form I-9, with expanded information on properly completing Form I-9, Employment Eligibility Verification, on April 28, 2020.
Reminder: Changes are rapidly evolving and may not be immediately posted here.
© Jewell Stewart & Pratt PC 2020
Expansion of U.S. Travel Restrictions Includes Nonimmigrant Visas
Important disclaimer: This blog post should not be taken as specific advice in any case. Any foreign national considering traveling must have their individual circumstances and plans reviewed by a lawyer.
October 13, 2020 update:
The Department of State made additional updates to its website regarding the application of injunction, limiting it to visa applicants with a relationship to one of the plaintiff organizations.
October 6, 2020 update:
As of October 1, 2020, court decisions had only affected the visa ban as it relates to Diversity Visa (aka “green card lottery”) applicants and the plaintiffs of a NIV ban case. However, on October 5, the Department of State made certain updates to its website which imply that it may apply the court order to non-plaintiffs, meaning that the effect is a lift of the H, L, and J visa ban across the board. The court decision is appealable, the COVID regional bans remain in place, and Embassies continue to have very limited scheduling due to COVID closures and safety precautions. We are monitoring this development closely.
August 12, 2020 update:
On August 12, 2020, the Department of State significantly expanded the list of possible exceptions to the visa issuance ban contained in Presidential Proclamation 10052, issued on June 22, 2020, expanding and extending Presidential Proclamation 10014 from April 22, 2020.
Visa Applications to Resume H or L Employment
The newly expanded exceptions allow for visa appointments for persons with certain expired visas who are seeking to resume U.S. employment. These applicants must be “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.”
Visa Applications for New H or L Employment
The exceptions also allow for certain new visa applications for employees in critical or essential roles, including healthcare professionals and researchers, travel supported by U.S. government agencies, and, notably “technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.” Requirements for this final criteria are as follows:
For new H-1B applicants, the criteria are as follows (and 2 out of the 5 possible factors must be met):
Employer has as continued need for services (Embassy will first look to LCA approval date to determine this factor);
Applicant “will provide significant and unique contributions to an employer meeting a critical infrastructure need. 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 . . . .” as determined by either: a) senior or managerial role OR b) “job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company;”
Wage exceeds “prevailing wage” by 15%;
Applicant has unusual or advanced expertise;
Denial will cause financial hardship to the employer.
For new L-1A applicants, the criteria are as follows:
“Travel by a senior level executive or manager filling a critical business need of an employer meeting a 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.”
In addition to showing “essentially,” applicants must meet two of the three factors:
Applicant will be a senior level executive or manager;
Applicant has been employed by the company for multiple years abroad (signifying undue hardship to company to re-train or replace);
Applicant “will fill a critical business need for a company meeting a critical infrastructure need.” (This requirement appears to be duplicative of the overarching criteria.)
For new L-1B applicants, the criteria are as follows:
“Travel as a technical expert or specialist meeting a critical infrastructure need,” which is demonstrated by meeting all three of the following factors:
“The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;”
“The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND”
“The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.”
Note that public health or government agency exceptions are available; other exceptions/exemptions are discussed in our original post, below. Exemptions are also available to corresponding dependent visas.
Ongoing Challenges for Visa Applicants
Many Embassies and Consulates worldwide are still closed or are limiting visa appointments to emergencies only due to the ongoing COVID-19 pandemic. Further, many Embassies and Consulates are limiting visa appointments to those who are also exempt from the various COVID-related visa bans. The August 12 guidance also noted that applicants and/or dependents not subject to the ban (because they were present in the U.S. on the date it took effect, or they had/have a valid visa) will not be prevented from being issued visas, but ongoing Embassy and Consulate closures have significantly limited anyone’s ability to apply for visas at this time.
Original Post follows, as last updated 8/5/2020 at 8:30 AM PT:
Presidential Proclamation 10052, issued on June 22, 2020, expanding and extending Presidential Proclamation 10014 from April 22, 2020 (“visa ban”), is available at https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/. The Proclamation took effect at 12:01 a.m. EDT on Wednesday, June 24, 2020, and will remain in effect through December 31, 2020 unless/until paused by litigation. The Proclamation, like many of the prior ones, is a visa issuance ban, so existing visa holders, including those seeking in-country extensions and changes-of-employer, are NOT affected.
Affected Categories:
Categories affected are NEW H-1B, J-1, and L-1 visa issuances, including visa renewals, along with the corresponding spouse/dependent visas (H-4, J-2, L-2). (Note that certain exceptions or exemptions are discussed further below.) On July 17, 2020, the Department of State issued guidance that if an H-4, J-2, or L-2 seeks to “follow to join” a principal already in the U.S., they may apply for those visas. Further, if a new H-1B, J-1, or L-1 visa is issued pursuant to an exemption or exception, their dependents accompanying or following to join may also apply for visas.
Unaffected Categories:
B-1s, B-2s, H-1B1s, E-2s, E-3s, F-1s, J-1 researchers, O-1s and TNs (and the dependent visas) are all not affected by the ban (note: AILA liaisons have confirmed that H1B1s are not included in the ban, and JSP has confirmed with various J-1 sponsors that Canadians may be issued DS-2019s).
Exceptions to the H, L, J Visa Ban:
Exceptions to the H-1B, J-1, and L-1 visa ban include:
Anyone who already has an unexpired visa or travel document, such as advance parole (but note that if such document expires, the agency guidance is unclear as to whether a new application may be made);
Lawful permanent residents;
A spouse or child of a U.S. citizen;
Any foreign national seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain;
Any foreign national whose U.S. entry would be in the national interest (e.g., medical workers, COVID-related, contributing to the U.S.’s economic recovery, as well as other areas to be established**); and
Canadians, who are visa-exempt (note: CBP has confirmed to American Immigration Lawyers Association’s liaisons that Canadians are exempt from the Proclamation).
**Additional exceptions/exemptions based on “National Interest:”
On July 17, 2020, the Department of State issued additional guidance for applications who would be allowed to apply for visas where their entry would be in the national interest, including:
H-1B healthcare professionals or researchers, including travel to alleviate “secondary effect[s]” of the pandemic;
H-1B workers supporting U.S. government contracts or essential for U.S. foreign policy reasons;
J-1 visas including certain au pairs, interns and trainees in government training programs, and certain teachers;
L-1 visas for travel related to healthcare or research particularly if COVID-related; including travel “to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic"; and
Again, H-4, L-2, and J-2 dependents accompanying or following to join an H-1, L-1, or J-1 principal.
Challenges to the Visa Ban:
This Proclamation will be subject to litigation and review by the court system. The first lawsuits have already been filed, some challenging parts of the ban, and at least one lawsuit challenging the entire ban. In the primary lawsuit challenging the entire ban (Gomez v. Trump), plaintiffs filed a request for a preliminary injunction on July 31, 2020.
COVID-related Embassy Closures and Travel Bans:
As mentioned above, any foreign national seeking to apply for a visa or travel should receive case-specific advice. We will be reaching out to strategize these ongoing changes with clients; thank you for your patience!
Previous updates follow.
6/22/2020 2:45 PM PT: The order is out and we are reviewing it now: https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
6/22/2020, 2:10PM PT: We are seeing lots of reports in the news of an order going into effect today, but no actual order has been posted as of this writing.
6/22/2020, 12:45PM PT: We are monitoring for the text of the rumored signed order and will post an update ASAP after it is posted. We believe it may affect H, L, and J categories with certain exceptions and will not affect existing visa holders.
© Jewell Stewart & Pratt PC 2020