20 February 2020
20 February 2020,
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Important H-1B Cap Filing Updates

USCIS held public sessions for employers and counsel over the last two weeks to update the public on what is to be expected of the new Cap Lottery platform and registration process. We now know that USCIS will open the platform for registrations on Sunday March 1st at noon EST, and close it at noon EST on March 20, 2020. Until the platform opens, we only have an understanding of how it will work, and USCIS representatives could not comment on what will happen if it does not work. So we, along with our clients are anxiously awaiting March 1st to see how this process will unfold.

Behind the scenes we are finalizing cases that we have heard of, and are in the midst of getting needed documents, drafting LCAs, and forms and letters, and requesting educational evaluations and expert opinions. We will be ready for the H-1B Cap Lottery as it unfolds on the new USCIS platform.

As clients cannot create their own myuscis account until Monday February 24, 2020 we will be checking in that week to ensure all of our clients create their own accounts and ensure they are set up for use the week following. If you have questions about this process, be sure to discuss with your legal team member and/or attend our next webinar scheduled to discuss the H-1B lottery process.

 

New Public Charge Forms Released

We previously sent an emergency news blast regarding the Supreme Court’s lifting of a federal injunction on USCIS’ new public charge rules. As a brief follow-up, USCIS did release new forms that are now compliant with the new rules. This has necessitated us having to ask additional questions of all individuals who file an I-129, I-539, or I-485 for any cases submitted to the government after February 24, 2020. Clients who have a concern regarding the use of federal means tested benefits should discuss such concerns with our legal team.

 

DHS Suspends Trusted Traveler Program for New York Residents

On February 6, Customs and Border Protection (“CBP”) announced the suspension of Trusted Traveler Programs, including Global Entry, NEXUS, Sentri, and Fast, for all residents of the state of New York. The suspension applies to all new applications or renewals. New Yorkers who are currently enrolled in Trusted Traveler Programs will retain their benefits until their memberships expire. According to the agency, the decision came after New York implemented its “Driver’s License Access and Privacy Act” which prohibits CBP from accessing information maintained by New York’s DMV. The decision will not impact New Yorkers enrolled in the TSA’s PreCheck program which allows for expedited security screenings for airline passengers. Although the Administration has claimed the move by New York has made it impossible to issue Trusted Traveler Program approvals, that claim is false. Reporting has made it clear that this suspension was predicated on bringing states and cities into line with Federal immigration policy priorities of the Administration. As President Trump asked New York Governor Andrew Cuomo to drop all lawsuits against Trump and his companies/organizations in response for resumption of this program, the lack of true policy rationale for this suspension has been made clear.

 

New I-9 Version Released

On January 31, USCIS published a new version of Form I-9, Employment Eligibility Verification, with a version date of 10/21/19. Though employers may use the existing 07/17/17N or the 10/21/2019 versions until April 30, 2020, the newly released version must be used beginning May 1, 2020. As a best practice, we encourage employers to begin using the new version of the I-9 at this time. If an employer is found to use prior editions of the form after May 1, the employer may be subject to financial penalties for non-compliance. As a reminder, this new form does not trigger a separate need to complete new I-9s for current employees; rather, it is only required of new hires or certain rehires.

The new version is comparable to the previous version – it only makes minor updates. Specifically, the electronic version has the addition of two countries in the drop-down menu of the foreign passport field. Additionally, USCIS added clarifying information to the form instructions. Notably, USCIS clarified who can act as an authorized representative on behalf of an employer.

If you have any questions regarding the new Form I-9 or I-9 compliance, please contact a member of our legal team.

 

U.S. Visa Services Suspended in China

In response to the novel coronavirus, and very limited staffing, as of February 3, regular visa services at the U.S. Embassy in Beijing and Consulates General in Chengdu, Guangzhou, Shanghai and Shenyang are suspended, including visa interview waiver applications. Very limited appointments will be available for individuals that qualify for an exemption under the Presidential Proclamation on Novel Coronavirus (i.e., lawful permanent residents; spouses and children of U.S. citizens or lawful permanent, etc.).

The Presidential Proclamation, which became effective February 2, prohibits anyone from entering the U.S who has been physically present anywhere in China within the past 14 days from seeking US entry. The prohibition does not apply to US citizens or lawful permanent residents, their spouses, or their minor children. Given the continued spread of the Novel Coronavirus we anticipate this travel restriction will remain for at least the next several weeks.

If you have urgent travel needs and may potentially qualify for an exemption, please contact a member of our team.

 

Court Permanently Enjoins DHS from Enforcing Unlawful Presence Policy

On February 6, a federal district court permanently enjoined the Department of Homeland Security (“DHS”) from enforcing its 2018 Policy Memorandum that changed how “unlawful presence” would be calculated for F, J or M nonimmigrants. The new policy stated that foreign students would begin accruing unlawful presence, whether knowingly or not, for inadvertent status violations such as failing to update physical address, working more than the allotted hours, taking an insufficient course load, or administrative errors. As a result, F, J, or M nonimmigrants were potentially subject to the 3- or 10-year admissions bar without their knowledge.

The District Court determined that the new policy violated the Administrative Procedures Act and the plain language of the Immigration and Naturalization Act. The same court had issued a preliminary injunction that temporarily halted enforcement of the policy last May.

With the permanent injunction, USCIS will continue applying the prior policy guidance based on its 2009 unlawful presence memorandum. F, J, or M immigrants will only begin accruing unlawful presence after USCIS has made a formal finding of status violation. At this time, it is not clear whether the administration will appeal the District Court’s decision.

 

Iranians No Longer Eligible for E-1 or E-2 Visa Status

On January 22, USCIS announced that, due to the termination of a treaty with Iran on October 3, 2018, Iranians will no longer be eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status. The E-1 /E-2 visa classifications allow an alien from a treaty country to be admitted to the U.S. for purposes of engaging in international trade or investing capital in a U.S. business. Without a treaty, or any relevant legislation, the E-1/E-2 visa is no longer available to Iranians.

Iranians currently in E-1/E-2 status may continue to reside in the U.S. until the expiration of their authorized period of stay. Thereafter, they will need to depart unless they have changed to another nonimmigrant status.

 

Six Additional Countries Added to Travel Ban

On January 31, President Trump issued a Presidential Proclamation expanding the Travel Ban to include certain foreign nationals of the following six countries which have large Muslim populations: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. Effective February 21, 2020 at 12:01 AM EST, the entry of immigrants from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria will be suspended except Special Immigrants who have provided assistance to the U.S. government. Likewise, the entry of Diversity Visa Immigrants from Sudan and Tanzania will also be suspended. According to DHS, the “restrictions are the result of these countries’ unwillingness or inability to adhere to our identity management, information sharing, national security, and public safety assessment criteria.” Nonetheless, entry from these additional countries are only restricted for immigrant visas; individuals seeking nonimmigrant visa entries should still be able to enter the U.S.

The travel ban, commonly referred to as Travel Ban 3.0, was initially issued in 2017 after a global review of information sharing practices between the U.S. and approximately 200 countries to assess whether the foreign nationals of each country seeking to enter the U.S. pose a national security or public safety risk. Following the review, travel restrictions to the U.S. were placed on foreign nationals from Chad, Iran, Libya, North Korea, Syria, and Venezuela. At the time, Travel Ban 3.0 sparked controversy and protest. Ultimately, it was upheld by the U.S. Supreme Court in June 2018.

Whether the Administration’s publicly stated rational is its real intention is unclear. What is clear is that thousands of individuals with immigrant visas, who have been vigorously screened through the immigrant visa process, will be barred from entry into the U.S. after significant time and expense. We will continue to monitor the introduction of this updated travel ban and any other proposed changes.

 

Visa Bulletin

The March 2020 visa bulletin made progress in some categories while others remain unchanged, or retrogressed, compared to February 2020 in terms of Final Action Dates for employment-based visa applications. EB-1 Worldwide has advanced to March 01, 2019. EB-1 China has advanced to June 01, 2017; EB-1 India has advanced to March 01, 2015, and EB-1 Philippines has advanced to March 1, 2019. EB-2 Worldwide remains current. EB-2 China has advanced to August 15, 2015 while India has advanced to May 22, 2009; EB-2 Philippines remains current. EB-3 Worldwide has retrogressed to January 01, 2017. EB-3 China has advanced to March 22, 2016. EB-3 India has advanced to January 15, 2009, and EB-3 Philippines has retrogressed to January 01, 2017.

Though USCIS is accepting adjustment applications using the Dates for Filing chart for employment based applicants in March, which experienced no movement except for EB-5 China compared to February, the agency may utilize the Final Action Dates chart for subsequent months. If it does, given the retrogression in EB-3 in March, which is expected to remain retrogressed, it is likely we will be unable to file most EB-3 cases that receive PERM approval until October of this year – when the retrogression is likely to be lifted. Though EB-2 worldwide remains current under the Final Action Dates chart, if demand continues, it may also experience retrogression at some point during the second half of the fiscal year. Accordingly, our ability to file most adjustment applications would be impacted by the retrogression. Of course, if the current draft of S. 386 (Fairness Act) ultimately passes Congress, and is signed by the President, we would be able to file adjustment applications for beneficiaries with approved I-140s despite existing immigrant visa backlogs. We will continue to pay close attention to the visa bulletin, monitor any retrogression, track the progression of S. 386, and explore our options for affected beneficiaries.

 

Important Upcoming Learning Opportunity This Month

H-1B Cap Filing Season: The H-1B Season is ramping up now, to learn what you need to know – both as an HR/Manager and as an employee involved in filing, we will be hosting a short Webinar on February 26th at 1:00 PM CST.

REGISTER HERE

 

** 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 **

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