Agencies continue to make adjustments affecting immigration in this difficult time. USCIS has extended its Field Office closures, while other agencies continue to operate but with limited services. In the past week, we’ve seen the government take various actions which help petitioners, including the extension of deadlines, waiver of some in-person waiver appointments, and the waiver of biometrics for certain applications. We continue to help businesses, professionals, and families navigate these difficult and fast-moving waters.
Here is a brief summary of recent developments, related to U.S. immigration and the COVID-19 national emergency.
U.S. Citizenship and Immigration Services
USCIS extended the closure of its Field Offices until May 4th, at the earliest. The offices have been closed since March 18th. Regular activities will be rescheduled, with notices sent out. These include naturalization interviews and ceremonies, adjustment of status interviews, and appointments for biometrics. The agency says it will use previously submitted biometrics for I-765 Employment Authorization Document extension requests, which is good news for those with EADs set to expire. We also hear that some employment-based adjustment interviews are being waived, although there has been no official announcement. This was the usual practice until about two years ago. The agency is still available for emergency services, which they say can be arranged through the USCIS Contact Center.
USCIS will allow 60 extra days to respond to certain Requests for Evidence (RFE), Notices of Intent to Deny (NOID), Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion. The extensions apply to relevant agency actions issued between March 1st and May 1st, 2020, inclusive.
USCIS’s H-1B lottery is now concluded, and we are informing our employer clients who were so fortunate to be selected. Hopefully the odds were with you. We understand that less than 50% were selected, which has been the norm these past few years. Selected registrants now have 90 days to submit their H-1B applications. Work should begin immediately. Premium processing is suspended, but we have noted that H-1Bs are being adjudicated more quickly than normal in the past month.
Many questions are arising for employers that have H-1B professionals on their teams. Fast-changing employment circumstances now include telecommuting, multiple job sites, changes in duties, layoffs, and other forms of wage reductions. Material changes to an H-1Bs employment conditions may require the filing of an amended H-1B petition, new labor condition applications, or other required action. Wage reductions can present immigration issues, due to previous employer attestations. Layoffs for a company present issues for hiring H-1Bs, PERM applications, and unemployment issues for H-1B holders. Perhaps the most common wrinkle, due to the “shelter-in-place” rules, is the new worksite for an H-1B employee working from home. There may be need to file a new labor condition application and post a notice of filing at the home, as absurd as that may sound. HR Departments should flag these issues and contact immigration counsel to discuss, ideally before taking action, or at least as soon as possible on recognition of the possible issue. These are basically matters of due diligence for immigration compliance.
Also, now that we are sadly seeing record unemployment, some noncitizens in the United States have been terminated. Some are concerned that receiving unemployment benefits may cause issues under the newly heightened public charge rules, which became effective in February. In legal matters, each case always requires specific consultation. Nonetheless, I will note here that the Federal Rule establishing the new heightened standards includes the following statement: “DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.”
U.S. Customs and Border Protection
The U.S.-Canada border continues to be closed, except for “essential” workers, such as health care, military, and trucking. U.S. Customs and Border Protection (CBP) says they will adjudicate TN and L petitions, but we have heard of new applications where they denied applications because individuals seeking entry were not deemed “essential”. Every case needs to be handled with extra care right now. Businesses and persons with TNs scheduled to expire in the coming months should schedule consultations to discuss the best approach for their renewals, as the situation is fluid.
Southbound crossings are reportedly at a near standstill, due to the closure. Greg Boos recently attended a local briefing, and said that on a recent Sunday, there were 289 southbound crossings, when usually there are 11,000. Border communities are taking a particularly hard hit, because of the loss of ordinary sales tax revenues and business. We wish well to all our friends in the community.
NEXUS lanes are reportedly closed for now at Northwest crossings. NEXUS holders can show their pass when they go through the regular lane. There simply isn’t that much traffic right now.
U.S. Department of State
The U.S. Department of State (DOS) announced that it may waive visa interview requirements for certain H-2 visa applicants, and I expect we’ll see more of this, particularly for certain health care and information technology workers. The agency says:
“The H-2 program is essential to the economy and food security of the United States and is a national security priority. Therefore, we intend to continue processing H-2 cases as much as possible, as permitted by post resources and local government restrictions. Secretary Pompeo, in consultation with the Department of Homeland Security, has authorized consular officers to expand the categories of H-2 visa applicants whose applications can be adjudicated without an in-person interview. Consular officers can, if they so choose, now waive the visa interview requirement for first-time and returning H-2 applicants who have no apparent ineligibility or potential ineligibility.”
U.S. Department of Labor
The Department of Labor (DOL) announced it will issue electronic PERM approvals for labor certifications during the national emergency. Daily mail processing at the Chicago and Atlanta offices is temporarily suspended, and applicants are encouraged to use the on-line systems for submissions and communications. DOL issued a second round of FAQs, related to COVID-19 and H-2 workers.
Historically, DOL does not expedite cases. Despite these difficult times, I do not expect them to do so now. Also, at some point, we’ll probably see more audits on PERM cases, due to the spike in unemployment nationally. The labor certification process is meant to satisfy the dual goals of protecting the U.S. labor market while facilitating employment of foreign nationals where there is a shortage of U.S. workers. Nevertheless, labor certification continues to be one of the best ways to obtain permanent residence for workers where there is an actual shortage of U.S. workers (e.g. health care, certain I.T. occupations), because the process is not subject to a merits analysis, and the timelines are relatively reasonable.
Executive Office of Immigration Review
Non-detained hearings have been postponed, but detained hearings are proceeding in immigration courts. Lawsuits are pending, seeking to restrict operations further, in the interests of public health and safety.
Immigration and Customs Enforcement
U.S. Immigration and Customs Enforcement, which is responsible for detention and deportations, continues to update its website with notice of actions it is taking. The agency says its making various modifications to its enforcement activities and detention practices, although unsurprisingly, this is not without controversy. The agency is actively updating its guidance to university administrators regarding foreign students, and the continuing guidance is important to foreign students who’s academic programs have been radically altered to remote learning.
We’ll continue to post updates, as the situation evolves. Wishing all the very best, in health, business, and life.