By Executive Order (“EO”) on January 31, the White House has directed CBP to help contain the spread of the coronavirus by preventing entry to the U.S. by foreign nationals (specifically non-immigrants) who have visited China in the last 14 days. This new EO goes into effect as of 5pm EST Sunday February 2, 2020. The EO provides limited exceptions for some non-immigrants related to U.S. citizens or permanent residents, and it also puts in place mandatory screening of passengers arriving in the U.S. U.S. citizens and permanent residents who have visited China are advised to self-quarantine, however, those individuals who have visited Hubei Province will be subject to a mandatory 14 day quarantine.
In addition to this EO, the Department of State (“DOS”) authorized voluntary departure for all non-emergency employees from the U.S. Embassy in Beijing and U.S. consulates general stationed in Chengdu, Guangzhou, Shanghai, and Shenyang in response to the coronavirus outbreak. The outbreak has been declared a global emergency by the World Health Organization, and the DOS has also updated its travel advisory to “Level 4: Do Not Travel” for China.
DOS employees and family members who voluntarily depart China may not return until the Under Secretary for Management has lifted the evacuation. In the past, evacuations have generally lasted an average of 3-4 months. However, given that scientists have indicated that the outbreak is in its early stages, it is not clear how long departed employees will be away from their posts, likely resulting in significant delays in visa processing for applicants.
There is a very practical problem that is now presenting itself – we anticipate clients may be stuck in China, or have planned travel to China that may have been cancelled (and if not cancelled, should be reconsidered). As we don’t know the individual travel plans of our clients, we ask that you contact a member of our legal team if an inability to travel to China has an impact on your visa status. Given the DOS position and lack of available reentry at this time, travel to China should be avoided by anyone who is not a U.S. Citizen or Permanent Resident. With the increased health risk, some airlines ceasing flights to the country, and reduction in consular personnel, travel and appointment scheduling will be challenging. Our team will be happy to explore other travel options for your immigration needs, including potentially applying for a visa at a third-country consulate.
We will continue to monitor the situation and provide updates. A copy of the EO is available here.
Separately the White House also released another EO as an update to the original travel ban. This EO expands the list of “banned” countries, but only applies to preventing immigrant visa applications from the additional countries added. We will provide additional updates in our next news alert.
On January 30, U.S. Citizenship and Immigration Services (“USCIS”) announced that it would implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020, except for the State of Illinois where an injunction remains in effect. The Final Rule broadened how the agency will determine whether a foreign national applying for admission or adjustment of status is inadmissible, if the foreign national is deemed a public charge or likely at any time to become a public charge.
USCIS will issue new forms, including Form I-129, Form I-485, Form I-539, and Form I-864, among others, in order to collect additional information for the application of the Final Rule. In addition, certain adjustment applicants will be required to submit the new Form I-944, Declaration of Self-Sufficiency. The I-944 will ask questions regarding an applicant’s work history, work skills and education history, language ability, financial circumstances, and receipt of public benefits, in addition to requiring additional supporting financial evidence.
USCIS will post updated forms and instructions on its website during the week of February 3, 2020. The Final Rule will apply to applications and petitions postmarked on or after February 24, 2020. In other words, nonimmigrant extensions and adjustment applications, which may use current forms, must be postmarked before February 24, 2020 to take advantage of the old public charge rules.
Depending on a case’s progression, our legal team may file with existing forms or wait until new forms are issued before forms are finalized and sent for signature. We will work to prioritize filing affected applications, which are sufficiently progressed, prior to February 24 in order to avoid the additional evidentiary burden imposed by the Final Rule. Please contact a member of our legal team if you have questions regarding the new public charge rule and whether it will impact you.
On January 29, on USCIS’ Official LinkedIn page, the agency announced that representatives may begin creating myUSCIS H-1B registration accounts on February 18 and employers may begin creating myUSCIS H-1B Registration Accounts on February 24. The short window of 13 days for representatives and 6 days for employers to create accounts prior to the H-1B registration opening on March 1 is a cause for concern given the strong anticipated demand. In the event that account setup is not possible, or if there are significant technical difficulties, USCIS has not indicated how it would proceed.
To address uncertainties, the American Immigration Lawyers Association (“AILA”) sent a letter raising questions and concerns about the H-1B Registration Tool to USCIS. To date, USCIS has not responded. The agency’s lack of response has some members of AILA worried about whether the agency may suspend the online registration system before the registration commences, or after it is concluded, and that the registration system will very likely have major technical difficulties.
Our firm continues to actively monitor developments with USCIS’ H-1B Registration Tool in order to best position ourselves to respond to any abrupt USCIS change. As the cap season continues to progress, we will continue to provide updates, and if needed, revise our strategy to ensure that all eligible cases are timely filed for entry into the H-1B lottery. Be sure to attend David Brown’s H-1B Webinar this Tuesday at 12:00 pm PST or 3:00 pm EST by registering on through this link.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **