The U.S. Immigration Agency (USCIS) Resumes In-Person Operations in Early June

U.S. Citizenship and Immigration Services (USCIS) plans to reopen its offices on or after June 4, 2020.  The USCIS temporarily suspended its in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus .  USCIS field offices will send notices by mail to applicants and petitioners with rescheduled appointments and naturalization ceremonies impacted by the temporary closure.

The USCIS plans scheduling fewer appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy, as well as to hold some interviews over video in separate rooms at an agency office. The USCIS  will also begin holding naturalization oath ceremonies,  but the ceremonies will be shorter and with limited exceptions, only the candidates will be permitted to attend to limit exposure.

Additionally, people entering USCIS facilities must wear face masks covering their mouths and noses and cannot arrive for interviews more than 15 minutes early or with too many people. Individuals should not come to their appointments if they are feeling sick, and there will be no penalty for rescheduling for that reason.  USCIS also encourages applicants to bring their own pens.

USCIS’ planned reopening comes as the agency, funded by application fees, faces a budget shortfall in response to a drop in application requests during the pandemic. Earlier this month, the USCIS requested $1.2 billion in emergency funding, which would be repaid by individuals seeking immigration fees in the form of higher application fees.

Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19

Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees).  Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny  by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.

Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.

During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html

Continue reading Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19

What is New with L-1 Blanket Consular Adjudications  – Expect Tougher Standards Ahead

The immigration regulations allow employees of large, multinational corporations that have an approved L-1 blanket petition, to apply directly at U.S. Consulates abroad for L-1 intra-company transfer visas to the U.S.  This has been a fast, cost effective, and often times, easier and preferred method for employees who qualify to be transferred to the U.S. in L-1 nonimmigrant status.  The standards for L-1 blanket adjudication at the U.S. Consulate have now been changed and seem to have become even stricter than for those seeking L-1 status through individual petitions filed with the U.S. Citizenship and Immigration Service (USCIS) – their standards have in practice also become tougher over the last 2 to 3 years, despite no recent regulatory changes.

The Consular L-1 adjudication process is detailed in the Foreign Affairs Manual (FAM), which includes a new, heightened adjudication standard for blanket L-1 applications.[1] This is a higher standard than articulated in the prior FAM section, which stated only that the application must be “clearly approvable.” The revised provision directs the Consular Officer to deny the L-1 visa if he/she “has any doubt” whether an applicant has established their L visa eligibility and if the “questions or issues cannot be resolved during the interview.” This is different than the former meaning of “clearly approvable”, which has been the longstanding standard for blanket L adjudications and has been interpreted to mean that the applicant needs to provide clear and convincing evidence of eligibility for the L-1 visa, or documentation that makes the purported fact “highly probably or reasonably certain.”

Interestingly, the term “clearly approvable” remains in the revised FAM section.  However, previously, the consular officers could issue an INA 221(g) refusal (aka administrative processing) notice and give the applicant an opportunity to submit further documentation to resolve the issue.  The new FAM section may eliminate this practice, as it states that the Officers “must deny the visa” if the issue cannot be resolved at the visa interview.  This is especially important, as U.S. Consulates around the world are beginning to reopen, and many potential or existing employees of large U.S. companies would likely be applying for blanket L visas at U.S. Consulates abroad in the coming months.  This also means that the applicant’s L-1 visa interview preparation will be crucial for the case outcome, given that this provision allows the Officers to deny the visa if they are not satisfied with the applicant’s answers and the application presented at the interview.

The alternative to consular filing is the filing of an L-1 individual petition with the USCIS, where the adjudication standard is “preponderance of the evidence” – i.e., the petitioner must establish that it is  more likely than not – that the beneficiary qualifies for the particular immigration benefit.  However, USCIS filings are generally more expensive, take longer and have, as indicated above, been subject to more scrutiny and requests for evidence, including more denials, in the past few years.

Given the anticipated increased scrutiny of blanket L applications at U.S. Consulates and the current USCIS adjudication climate, it is critical for employers and individuals to work closely with their immigration counsel to determine the best filing strategy for success, after careful analysis of the individual case circumstances.

[1] See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F

 

 

 

PERM Business Necessity – Back with a Splash?

The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.

Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.

Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading PERM Business Necessity – Back with a Splash?

Is President Trump Going to Suspend U.S. Legal Immigration in Response to the COVID19 Pandemic?

In response to the coronavirus pandemic and to protect jobs for U.S. workers, President Trump announced at a Tuesday press conference (April 21, 2020) that he would sign an Executive Order temporarily suspending certain individuals seeking permanent resident (green card)  status into the United States.  The President is expected to sign the suspension order this week and its scope will be limited only to green card applicants.

Contrary to earlier reports, the immigration suspension order will not apply to individuals entering the U.S. on a temporary work or other visa.  The immigration suspension will not apply to essential immigrant workers, such as those working in the healthcare sector who are seeking permanent resident status and to their family members. Beyond that, the scope of the suspension and which specific agencies and programs will be affected are not known. The immigration suspension order will be in effect for 60 days but may be extended.

As noted, as of the time of this writing, there are solely reports about the draft Executive Order, but the actual suspension order has not yet been issued. We are closely monitoring the situation and will provide more information as soon as it is available.

 

Can Immigrants Receive Recovery Rebates under the CARES Act?

Thee  (CARES) Act of March 27, 2020, provides $2 trillion in direct financial assistance, including paid leave, unemployment insurance benefits, and rebates to eligible individuals.  Immigrants and foreign nationals in the United States may be eligible for some or all of these benefit, depending on the circumstances.  Specifically, the CARES Act provides for the issuance of one-time payments, called recovery rebates (or commonly referred to as “stimulus checks”) to help individuals recover from the economic impacts of the COVID-19 pandemic.

Eligible individuals with an adjusted gross income up to $75,000 can receive a one-time payment of $1,200. Married couples filing a joint tax return are eligible to receive a payment of $2,400, as long as their adjusted gross income is less than $150,000. Eligible individuals can also receive an additional $500 for each eligible child under the age of 17. Reduced amounts will be issued to individuals making up to $99,000 per year, or up to 198,000 for married couples). The recovery rebate is to be automatically advanced to eligible individuals in 2020 based on their 2019 federal income tax return. For eligible individuals who did not file a 2019 return, the rebate is to be automatically advanced based on 2018 tax return information.

Who Is Eligible for the CARES Recovery Rebate?

Only individuals with valid Social Security numbers and people who qualify as “resident aliens” as defined by the IRS are eligible to receive the payment. Non-U.S. citizens are considered nonresident aliens unless they meet one of two tests set forth by the IRS: the green card test or the substantial presence test.

Green Card Test:Lawful permanent residents of the United States are considered resident aliens if they were lawful permanent residents at any time during the calendar year.

Substantial Presence Test:A foreign national is considered a “resident alien” if he or she meets the substantial presence test for the calendar year. To meet this test, an individual must have been physically present in the United States for a designated minimum threshold period outlined by the IRS. Note that the IRS exempts certain nonimmigrant visa statuses from the physical presence calculation, such as individuals temporarily present in the U.S. under a F, J, M, or Q visa. Most work-authorized immigration statuses, such as H-1B, L-1, O-1, and TN, are not exempted and may be able to meet the substantial presence test.

Importantly, those who file their taxes using an Individual Taxpayer Identification Number (ITIN) are not eligible for a recovery rebate. Moreover, under the CARES Act, eligible individual with a Social Security number will not receive the recovery rebate, if the individual filed a joint return with a spouse who has an ITIN, or filed a return with a qualifying child who has an ITIN. There is a limited exception for adopted children and military families. Sinconly foreign nationals with U.S. work authorization may apply for SSNs, this excludes broad categories of foreign nationals who are otherwise lawfully present in the United States, including but not limited to spouses and children of some H-1B visa holders.

Thus, many H-1B and other work-authorized nonimmigrants will not be eligible for a recovery rebate if they filed a joint income tax return with a spouse who does not have, a social security number. For example, an H-1B worker whose H-4 spouse is not eligible for a social security number, and who filed a joint income tax return with his or her H-4 spouse, will not be eligible for a recovery rebate.

Will Receiving a CARES Recovery Rebate Impact an Immigration Application under the Public Charge Rule?

The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS Final Rule on Inadmissibility on Public Charge  clear that tax credits are not  taken into account for the purpose of a public charge determination.. Similarly, the Department of State Interim Final Rule indicates that for the purposes of defining “public benefit”, cash assistance for income maintenance does not include tax credits.

Therefore, if you are a non US citizen, eligible for a recover rebate under the CARES Act, such a benefit would not impact your application for immigration benefit under the public charge rule, even though you may have to disclose the receipt of such benefit on an immigration application.

 

Ireland: Immigration Authorities Respond to COVID-19

The Garda National Immigration Bureau (GNIB) has provided several recent updates for visitors and foreign residents in Ireland in the wake of COVID-19 closures, and travel bans. GNIB offices are now closed and all permits expired between March 20 and May 20 have been automatically extended for 60 days. Continue reading Ireland: Immigration Authorities Respond to COVID-19

COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency.  Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.

Continue reading COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update

USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19

COVID-19 social distancing directives, State and Federal agency closures and remote work requirements have made it impossible for employers to comply with the normal I-9 and E-Verify regulations on timing and review of employee documents. To address these concerns, USCIS has announced several measures to extend time frames and loosen its normally strict requirements. In this blog, we discuss USCIS suspension of the I-9 requirement to review physical documents,  an automatic 60 day extension for all I-9 audit responses, acceptance of expired documents for new hires who are unable to update driver licenses and state IDs, as well as E-verify suspension of the 8 day response time for responding to Tentative Nonconfirmations. Continue reading USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19

South Africa Bans Tourists and Implements Immigration Procedures for those Unable to Leave the Country in wake of COVID-19

The South Africa Minister of Department of Home Affairs released a Directive clarifying the implementation of COVID-19 Epidemic travel ban and associated restrictions.  Tourist visas normally issued upon entry have been suspended,  visas of Chinese and Iranian nationals revoked, and most travelers banned. For those unable to leave the South Africa, visas will be extended until July 31, 2020. Continue reading South Africa Bans Tourists and Implements Immigration Procedures for those Unable to Leave the Country in wake of COVID-19