We know you’ve seen a gazillion updates related to the Coronavirus the past few weeks (goodness knows we have – from every airline, to every vendor, to even the local trampoline park!) – but it is important that we communicate what is happening in the world for our clients. The first and most important thing to keep in mind is this is a dynamic situation – one which we have no control over – we will do our best to inform and update, but know that the pace of change outstrips our ability to report on it [while writing this alert 5 countries announced shutting their borders, the J-1 program within the U.S. was suspended for 60 days] – the hits just keep coming. Stay safe, stay informed, and it appears, do not travel unless you are ok possibly being stuck for a period of time.
For a more thorough update of the impact of COVID-19 on common visa programs visit our web-page. This alert will feature some immediate news of importance. Please also join our Webinar next Wednesday March 25th.
Friday, March 20, at 12:00 p.m. EDT will mark the close of USCIS’ registration period for the FY2021 H-1B lottery. By March 31, selected registrants will be notified if they have been selected into the H-1B lottery and are eligible to file an H-1B petition.
Over the next several days, our firm will continue to prepare registrations and complete the “handshake” protocol with employers’ H-1B registrant accounts in order to complete the final steps of the H-1B registration process. To avoid any potential last-minute technical failures of the registration system, our firm is committed to submitting all registrations before the close of business on March 19. Toward that end, we ask that all employers promptly complete the handshake process, once initiated, as soon as possible to ensure timely submission.
Additionally, given recent University closings throughout the U.S. we need clients to immediately update us if they feel they will not graduate this year and thus no longer be eligible for a regular H-1B filing, or if they will not complete their U.S. Master’s degree as planned, as this selection is made on the H-1B registration. If you fear your degree will not be completed, please alert the attorney and legal writer supporting your case filing.
And as a final reminder, as we approach the registration deadline, there is still time to enter additional registrants. Please contact a member of our legal team if your company would like to add additional registrants to this year’s H-1B cap registrations. We would be happy to answer any questions as we approach the conclusion of the registration period, but we need to be notified of any additions as soon as possible.
On March 13, in response to the global Novel Corona Virus Disease (“COVID-19”) pandemic, the U.S. Department of State (“DOS”) announced the cancellation of all immigrant and nonimmigrant visa appointments throughout U.S. Consulates in India from March 16, 2020 onward. Affected foreign nationals in India should immediately contact our legal team to explore options. This is in addition to rolling cancellations in much of Europe, and there undoubtedly will be more as governments move to contain the spread of COVID-19.
The DOS has not indicated when appointments will be made available again. However, given ongoing developments with COVID-19, and the increase in restrictions, it is expected that visa appointments will not be available for the foreseeable future. Foreign nationals in the U.S. who are planning to visit India (or really anywhere) to obtain new visas should delay travel and consult with our team regarding other extension or renewal options in light of Indian visa appointment cancellations.
Please visit the DOS’ website for country specific information related to COVID-19. Our team will continue to monitor travel restrictions, consular availability, and provide timely updates.
We previously reported the Trump Administration’s 30-day travel ban for certain individuals who are traveling to the US from 26 European countries (known as the Schengen Area). On March 14, President Trump signed another proclamation that extended the travel ban to include the United Kingdom and the Republic of Ireland starting on March 16 at 11:59 p.m. EDT. The ban does not apply to persons aboard a flight scheduled to arrive in the U.S. that departed prior to the start of the ban. The European travel ban does not apply to U.S. citizens, lawful permanent residents, specific family members of U.S. citizens or lawful permanent residents, and certain other individuals.
Customs and Border Patrol has posted a warning that any traveler with a valid ESTA, who attempts to travel to the U.S. in violation of the European travel ban, will have their ESTA cancelled. A cancelation of ESTA generally will require an individual to apply for a B1/B2 visa for future entries into the U.S. Hence, it is critically important to communicate with our team if you are currently in a European country subject to the travel ban and are intending to return to the United States.
At the time of this writing, the Department of Homeland security maintains its strict Form I-9 compliance requirements, despite the broadening impact of COVID-19. Though employers have shown flexibility by offering remote, “work-from-home,” options for their employees, employers are reminded that the I-9 must be completed within three days for new employees. For existing employees with expiring documents, re-verification must occur before the fourth day after document expiration. Likewise, original documents that establish identity and employment eligibility must be physically reviewed in order to comply with Section 2 of Form I-9 requirements; viewing or examining original documents via webcam is strictly prohibited.
Nonetheless, in situations where the employer representative works from home, or an employee is unable to physically present the original documents to the employer representative for inspection due to not being able to go into work, the new Form I-9 instructions, which apply to the Edition 10/21/2019 of Form I-9, provides that an employer may designate any person as an authorized representative to complete Section 2 of the I-9. As a result, other employees, agents, notary public, or even family members could potentially view the original documents and complete Section 2 as an authorized representative. As a best practice, an employer ought to take steps to ensure that the designated individual understands the requirements and obligations as authorized representative. The employer remains liable for “any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on [the employer’s] behalf.”
On March 5, a federal judge ruled against U.S. Citizenship and Immigration Services (“USCIS”) for improperly denying an H-1B petition due to the offered position not requiring a degree in a specific subspecialty and that it could be filled by an individual with a degree in more than one discipline, such as different types of engineering degrees. The court determined that the USCIS’ position contradicted its longstanding position. Specifically, the court held that “a position could qualify as specialty occupation even if it permits a degree in more than one discipline” and that USCIS’ subspecialty requirement was too narrow, and as a result, unlawful. Notably, the decision is the first known case where a federal judge has analyzed whether USCIS’ interpretation of its H-1B regulation is entitled to deference under the Supreme Court’s Kisor decision in June 2019. In the past, USCIS relied on deference to sustain its H-1B denials. After Kisor, courts should only provide deference to official, well-reasoned, agency policy versus ad hoc declarations or justifications.
This decision marks a major win for employers and immigration advocates. For years, USCIS has arbitrarily imposed a stricter requirement for the definition of specialty occupation than required by regulation. The decision will allow employers to push back against arbitrary, ad hoc denials that are inconsistent with established USCIS policy.
In a similar vein, the decision in ITServe Alliance v. L. Francis Cissna, on March 10, 2020, repudiated USCIS’ position regarding whether an employer contractor that places its employee at a third-party site to perform work satisfies the definition of an employer. USCIS’ interpretation of the employer-employee relationship in recent years has caused the denial rate for new H-1B petitions to go up from about 2% in FY 2015 to over 30% for many IT consulting companies.
In order to be classified as an employer, an employer-employee relationship must exist. To determine whether such a relationship exists, USCIS examines whether the employer may “hire, pay, fire, supervise, or otherwise control the work” of the nonimmigrant worker. The court concluded that USCIS had “silently replaced [the ‘or’] with an ‘and’” as Plaintiffs asserted. Instead of having to prove just one of the four criteria, USCIS required employer contractors to establish all four. Hence, USCIS’ interpretation of the employer-employee relationship cannot be enforced due to being inconsistent with regulation, and it did not satisfy the rulemaking requirement. In addition, the court determined that USCIS’ requirements that employers provide proof of non-speculative work assignments for the duration of the visa period and the itinerary requirement as no longer enforceable. Lastly, the court concluded that, though USCIS may grant an H-1B for less than three years, the agency can do so only for a “legitimate reason.”
The court’s decision is momentous for employers that engage in third-party placement. Moving forward, employers will be able to counter many of USCIS’ denial reasons resulting in increased approvals.
On March 16, Canadian Prime Minister Justin Trudeau announced that he will close Canada’s borders to anyone not a Canadian citizen or lawful permanent resident due to the COVID 19 pandemic. At this time, US citizens will still be permitted to enter Canada due to “level of integration of [the] two economies.” In addition to the border closure, all travelers, including Canadian Citizens who are exhibiting symptoms, will be denied access when boarding flights.
If you have a visa appointment scheduled in Canada, and are impacted by the border closure, please contact a member of our team to immediately explore other options.
On February 28, new proposed changes for the Fairness for High-Skilled Immigrants Act of 2020 (S. 386) (“Fairness Act” or “the Act”) were released. Significant proposed changes to the Act include:
The elimination of the Do No Harm provision strips a major protection from the Fairness Act. Under the original version, the provision would have protected individuals with an approved employment-based immigrant visa petition from getting a visa no later than they would have under the existing scheme. Without the protection, individuals in the EB-1, EB-4, and EB-5 visa categories would be especially impacted since a transition period is not provided for these visa categories. In addition, though the bill extends the transition period for EB-2 and EB-3 from 3 years to 9 years, the elimination of the Do No Harm provision would likely still adversely impact many individuals. Furthermore, the proposed changes to the early adjustment filing provision, notably the inclusion of the two year waiting requirement, scales back earlier proposed changes, potentially resulting in situations where individuals may run out of status before being able to file their adjustment of status applications.
In brief, these significant changes would add additional burdens, resulting in fundamental unfairness, to those already waiting in the immigrant visa backlog. Based on Senator Lee’s latest revisions the American Immigration Lawyers Association (“AILA”) changed its stance from “support” of the Fairness Act to “oppose” and they have recently explained the significant detrimental effect such new provisions will have. We are hopeful that if it passes the Senate the negative new sections can be revised through a conference committee with House members to track more directly with the House version of the bill. We will continue to track developments with the Fairness Act. In the meantime, we encourage individuals to support the RELIEF Act, which provides a more equitable solution and quicker more permanent solution to backlogs for all immigrants.
The April 2020 visa bulletin made limited progress in some categories, while others remain unchanged, compared to March 2020 in terms of Final Action Dates for employment-based visa applications. EB-1 Worldwide has advanced to June 01, 2019. EB-1 China has advanced to June 08, 2017; EB-1 India has advanced to May 01, 2015, and EB-1 Philippines has advanced to June 01, 2019. EB-2 Worldwide remains current. EB-2 China has advanced to September 01, 2015 while India has advanced to May 25, 2009; EB-2 Philippines remains current. EB-3 Worldwide remains at January 01, 2017. EB-3 China has advanced to April 15, 2016. EB-3 India has advanced to January 22, 2009, and EB-3 Philippines remains at January 01, 2017. As a reminder, after each Visa Bulletin is published you should check with USCIS to see which chart they are accepting for that specific month.
Please join David Brown, Managing Partner of Brown Immigration Law, for guidance on how to best manage the impact of the current pandemic on U.S. immigration issues. This is a planned 45 minute update on all the key compliance issues of concern for employers and their foreign staff created by COVID-19 changes. David has been managing employment-based immigration issues for over 22 years, and although this pandemic is wholly unprecedented, he has worked through other interesting periods in our immigration history that offer guidance for this situation.
As we know, there is new news every hour of every day, and this is an evolving problem that is constantly changing.
David will synthesize the most important immigration topics you are facing as employers and HR today, including:
This is just a sample of issues our clients are confronting and that David will discuss. After the initial presentation David will stay for an extended Q&A period to provide as many answers as possible.
If you have specific questions you would like answered, please send us your question in advance to email@example.com.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
** 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 **