On May 7, Senators Tom Cotton (R-AR), Ted Cruz (R-TX), Charles E. Grassley (R-IA), and Josh Hawley (R-MO) sent a letter to President Trump urging him to suspend all new guest worker visas for 60 days, and to suspend certain nonimmigrant visas including the H-1B, H-2B, and OPT for at least the next year, or until unemployment has returned to normal levels, and to remove the exemption from the EB-5 program which allowed EB-5s to continue to obtain green cards under the Presidential Proclamation that suspended the entry of most new immigrants for at least 60 days issued on April 22, 2020. Their stated purpose is to “protect unemployed Americans in the early stages of economic recovery.” However, contrary economic data and statistics challenge the senators’ assumption that limiting immigration would help the U.S. economy.
Under the Presidential Proclamation, by May 22, the President will decide whether to take “other measures” regarding nonimmigrant visas to “stimulate the economy and ensure the prioritization, hiring, and employment of U.S. workers.” As a result, there is concern that new restrictions on nonimmigrant visas such as the H-1B, F-1, and others, may be imposed. Although no text has been released by the Administration, it is anticipated that any potential restrictions will likely target “new” applications. This is an educated guess based on those Executive Orders that courts have upheld and based on recent EOs issued by the Administration. Conversely, any attempt to retroactively limit non-immigrant visas, such as to stop issuing new H-1Bs that were awarded in the lottery season, faces the very real likelihood that a court would find such a move unlawful.
While we don’t know the if, what, when, or how at this time, the best way to avoid potential new restrictions for nonimmigrant visas is to ensure client cases are filed as soon as practicable. Further, while the scope of any additional restrictions is unknown, if new restrictions are put into place, and they are excessive, we can expect lawsuits seeking to enjoin the restrictions, preventing them from going into effect. We will continue to monitor any announcements regarding new restrictions and provide timely updates.
Given the economic impact of the Coronavirus and its resulting state closures, we have discussed with many clients and other employers the possibility of reductions in force or furlough situations. Our Managing Partner, David Brown, has previously held webinars on this issue – they are available for replay HERE (under Previous Webinars). There are two areas where we can assist our clients directly to lessen the difficulty associated with such planning. We can advise clients on acceptable salary reductions and how to manage possible garden leave and notice requirements, to ensure the employer is meeting its legal obligations. On the flipside, we can also be available to help impacted employees to both understand their options and to file applications to maintain status. Given the dramatic impact of the Coronavirus and resulting economic uncertainty, we recommend that employers considering reductions build into their process costing for both legal consultation and status maintenance – put another way, employers should pay to allow the employee to consult with counsel, and file to change to a B-2, dependent or F-1 status. Providing such support goes a long way to reduce the significant stress foreign nationals feel as a result of sudden loss of employment, especially when the termination is not a result of their own performance.
Please contact us directly if we can assist with internal planning or organize direct support for foreign born employees who may be impacted. If you have already been impacted and are a client of ours, please reach out to the attorney directly if you have maintenance of status concerns.
With consideration of the challenges caused by stay-at-home orders due to COVID-19, the Department of Homeland Security (“DHS”) has issued a temporary policy regarding expired List B identity documents used to complete Form I-9. Beginning May 1, identity documents found in List B, such as a driver’s license, set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be accepted as if the employee presented a valid document for I-9 purposes. However, within 90 days after the termination of this temporary policy, the employee must present a valid unexpired document to replace the expired document initially presented. The employment may present a replacement of the expired document, or the employee may choose to present a different List A or List B document.
When an employee initially presents an acceptable expired List B document that has not been extended by the issuing authority employers should:
Once an employee presents an unexpired document, employers should:
If an employee presents an acceptable expired List B document that has been extended by the issuing authority, employers should:
We will continue to provide updates regarding I-9 compliance as DHS announces them. Lastly, employers are reminded that the latest version of Form I-9 (10/21/2019 edition), must be used for employees hired on or after May 1, 2020.
On April 24, United States Citizenship and Immigration Services (“USCIS”) announced that it intends to reopen field offices on or after June 4, unless the public closures are extended further, and assuming there are no specific state/local rules that prevent opening. Field offices, asylum offices, and application support centers (ASCs) have been closed since March 18 to help slow the spread of COVID-19. The announcement extends the office closures by an additional month as USICS had previously closed offices through May 3. Once the agency resumes in-person services, USCIS will reschedule appointments for individuals who were impacted by the closures. Individuals who had InfoPass appointments must reschedule through the USCIS Contact Center.
On May 5, a bipartisan group of senators introduced the Healthcare Workforce Resilience Act (S. 3599) in the hopes of granting green cards to nurses and physicians as soon as possible. With one-sixth of the healthcare workforce being foreign born, foreign doctors and nurses provide critical care, especially in rural medically underserved areas. Due to the seven percent numerical per country annual limitation on green cards, foreign born physicians from the two most oversubscribed countries face over a 10-year wait before being able to obtain a green card. Under the bill, USCIS would recapture up to 40,000 unused immigrant visas for nurses (25,000) and doctors (15,000) and issue them to immigrant nurses and doctors in the order of their priority date regardless of per-country limitations. Furthermore, immediate family members of these individuals would not count toward the 40,000 limit, and qualifying petitions and applications would be eligible for premium processing with USCIS and expedited processing with the Department of State. The bill limits the recaptured visas to those petitions filed at any time up until 90 days following the termination of the President’s COVID-19 emergency declaration.
For foreign nurses and doctors applying at consulates abroad, the bill requires employers provide an attestation, in a job offer letter presented by the foreign national to a consular officer during the consular interview, that the hiring of the foreign national has not and will not displace a U.S. worker.
The Healthcare Workforce Resilience Act’s companion bill H.R. 6788 was introduced in the House on May 8. Both the Senate and the House bills have received support from national professional groups including the American Medical Association, the American Hospital Association, the American Organization for Nursing Leadership, the American Immigration Lawyers Associate, and the U.S. Chamber of Commerce.
We will continue to provide updates regarding the Act as it makes its way through Congress, and we are here to help speed such nurses or doctors through the system if this Bill becomes law.
On April 22, Customs and Border Protection (CBP) announced it was continuing to suspend operations of all Trusted Traveler enrollment centers until at least June 1, 2020 to protect CBP officers and the public from exposure to COVID-19. The closure applies to the Global Entry, NEXUS, SENTRI, and FAST enrollment locations. Conditionally approved applicants who require an enrollment center interview will need to reschedule after June 1.
CBP’s Enrollment on Arrival program will remain active for conditionally approved Global Entry applicants who arrive on an international flight at any airport that offers the program.
Given the extensive backlogs caused by the closure of enrollment centers, all Trusted Traveler Program (“TTP”) applications will now have 485 days from the date of application to complete the enrollment process. Furthermore, CBP will extend TTP benefits of members who apply for renewal before their current membership expires for up to 18 months.
On May 11, USCIS issued temporary policy changes regarding the full-time work requirement and the provision of telehealth services by foreign medical graduates who have received a waiver of the 2-year foreign residence requirement based on the recommendation of an Interested Government Agency (IGA) or through the Conrad State 30 program. If an H-1B foreign medical graduate under these programs is unable to work full-time due to quarantine, illness, travel restrictions, or other consequences of the pandemic during the declared Public Emergency period, which began on January 27, 2020, USCIS will not consider the failure to work full-time to be a failure of the terms of the contract under INA 214(l)2(B).
Likewise, for foreign medical graduates currently employed by an IGA or through the Conrad State 30 program, UCSCIS will allow these individuals to provide telehealth services during the Public Health Emergency. If not working for the VA, these foreign medical graduates must still provide medical services through their contracting facility or through patients the contracting facility serves in a designated shortage area. Foreign medical graduates may not provide telehealth services to patients outside of the state of their contracting facility unless they are employment by the VA.
The provisions related to the full-time work requirement are retroactive to the beginning of the Public Health Emergency on January 27. Telehealth services provisions are effective May 11, 2020. The temporary changes will last through the end of the Public Health Emergency.
Government officials indicate that Canada and the U.S. are working on an agreement to extend the closing of the northern border to non-essential travel (recreation and tourism purposes) until June 21. In March, the U.S. and Canada agreed to limit border crossings to essential travel due to the ongoing pandemic. The agreement was extended in April. A source familiar with the discussions notes that Canada has requested another 30-day extension, and that it will likely be several days before the U.S. formally agrees. As the John Hopkins COVID-19 tracker confirms, our infection rate per capita is reportedly more than twice the rate of Canada, and this is a likely concern related to admitting U.S. visitors. Canada has also implemented a mandatory 14-day quarantine for entries to the country.
Recent reporting confirms USCIS is seeking $1.2 billion in emergency funding to support its operations as filings dramatically fall. With the government/border closing down, DHS making filings more difficult and expensive, and the unprecedented impact of the Coronavirus on the economy, USCIS which is entirely self-funded by filing fees paid is running out of money. Critics of USCIS for the last three years (our firm included) have commented that the Agency has dramatically increased its workload by significantly increasing the number of RFEs and NOIDs it has issued over the last 3 ½ years. And these RFEs and unlawful denials have eroded confidence in our collective ability to trust the work of USCIS, and this has impacted demand for the benefits issued by USCIS. Now the pandemic has made things inexorably worse and the fee increases proposed earlier this year are likely to be implemented and even increased to close the budget shortfall. USCIS should not be rewarded for its malfeasance by charging higher fees, at the same time, know that this is the most likely outcome given the budgetary shortfall.
In case you missed in, over the last few months we’ve been repeatedly messaging on a variety of key topics that impact employers and their workers as companies navigate issues related to the coronavirus through multiple webinars hosted by the firm.
This information is still available for you and only a click away if you want to listen to Managing Partner, David Brown’s past webinars on best practices related to “Work From Home” compliance for H-1/H-1B/E-3 employees, and Reduction in Force/Furlough management visit HERE or if you want to better understand the impact of Covid-19 on our entire immigration ecosystem visit HERE.
And with changes to non-immigrant visa status types under consideration by the current administration we will ensure we cover any new announcement with an updated presentation soon after any document is published, so feel free to bookmark and pay attention to updates on our webinars page HERE.
Stay safe, stay healthy, and stay up-to-date!
The Team at Brown Immigration Law
** 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 **