U.S. Consulates around the world are gradually resuming routine nonimmigrant and immigrant visa services, after their suspension in mid-March due to the COVID-19 pandemic. The Department of State has confirmed that each Consulate will begin visa services on its own timeline, in light of the particular conditions of that country. Applicants should check the specific U.S. consulate website for most up-to-date information, available through the following website http://usembassy.gov. This means that applicants may soon be able to schedule or reschedule their visa appointments. It is also possible that the Consulate may automatically reschedule the applicant’s prior appointment. Importantly, Consulates continue to accept requests for emergency visa appointments through their scheduling service at https://ais.usvisa-info.com/. If you have specific questions, talk to your immigration lawyer, as the situation is fluid and subject to change.
On July 14, 2020, the Trump Administration rescinded SEVP guidance issued last week, which forbid F-1 students from attending universities that were planning to be 100% remote during the fall 2020 semester. With the rescission, schools may now revert to following the SEVP March 9 Broadcast Message: Coronavirus Disease 2019 and the March 13 COVID-19: Guidance for SEVP Stakeholders . Read more about this important development in our education law blog, UpdateED.
On July 6, 2020 the Student and Exchange Visitor Program (SEVP) provided long awaited guidance for the fall 2020 semester. In an unexpected about face from guidance issued in March 2020 at the height of the COVID-19 response effort by higher education, SEVP has determined that foreign students on F-1 visas cannot attend universities that will be 100% remote during the fall 2020 semester. Continue reading ICE Bars F-1 Students from 100% Remote Programs for Fall Semester
On June 25, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced its plans to furlough over 13,000 of its staff, which will impact its current operations and mission. The USCIS Deputy Director for Policy Statement explained that if Congress does not provide the much needed funding, the furlough will being on August 3, 2020 and will last through the end of Fiscal Year 2020. The agency explained that this is due to the “ effects of the coronavirus pandemic”, that it has “a crippling budget shortfall that requires assistance from Congress.”
If the Congress does not provide additional funding to the agency over the course of the next month and USCIS furloughs its staff, the processing of pending cases will be significantly delayed. Moreover, USCIS may stop accepting new applications or may put them on hold until October 1, 2020. If your work permit or status document expires soon, you should work with you immigration counsel to see if your application/ petition can be submitted in the next month, before the expected furlough on August 3, 2020. The timely filing of an application for immigration benefit within the U.S, will allow you, in certain circumstances to remain in the U.S, legally and continue working, while the case is being adjudicated. Employers should work with their counsel to prioritize the cases for their employees who might be most adversely affected by these additional challenges. In these unprecedented times, it is critical to not only get information from credible sources, but also seek advice from immigration attorneys who can help you assess your specific immigration situation.
On June 18, 2020, a narrowly divided Supreme Court of the United States held that the Court can review the Deferred Action for Childhood Arrivals (DACA) program and that the Trump administration’s decision to terminate the program was arbitrary and capricious under the Administrative Procedure Act. Chief Justice John G. Roberts Jr. wrote the 5-4 decision in Department of Homeland Security v. Regents of University of California. DACA grants undocumented immigrants brought to the United States as children permission to live and work lawfully.
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The White House has issued a new travel ban blocking Chinese nationals associated with entities that are part of China’s “military-civil fusion” strategy from obtaining graduate level Student (F) or Exchange Visitor (J) visas. The ban went into effect on June 1 and has no end date. The ban specifically references those visa applicants who are currently outside the United States, but does not exclude the possibility that the estimated 3000 Chinese nationals, already studying in the U.S. who meet the criteria of the executive order, could have their existing visas revoked. Read Valentine’s full post on the Duane Morris Education Law Blog, UpdateED.
U.S. Consulates around the world are beginning to reopen and start scheduling visa appointments and it is critical for applicants to be well prepared for their interviews. Recently, the Department of State revised its Foreign Affairs Manual (FAM), to include a new, heightened adjudication standard for blanket L-1 applications. As detailed in our prior blog, 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.” So the visa applicants should be prepared to confidently, concisely and directly provide the relevant information in responding at the interview. We recommend that employees, who would be applying for blanket L visas at U.S. Consulates abroad, work closely with their immigration counsel and prepare for their visa interviews. Oftentimes, Consular Officers have only a few minutes to review the documents and question the applicant. Therefore, the applicant’s preparation for the interview is critical for a successful visa adjudication.
Here are some tips for applicants preparing for their L-1 visa interview:
- Make sure to read carefully and thoroughly the L visa application package, especially the company support letter explaining the relationship between the companies, the job offered, and how the applicant qualifies based on her/his specialized knowledge or managerial/ executive experience.
- Applicants should be familiar with the content of the application packet but should not try to memorize it or use fancy complex legal verbiage.
- Applicants should be prepared to explain, in their own words, what makes their transfer to the US business critical.
- Applicants should be able to highlight their accomplishments as they relate to their specific employment within the company.
Applicants should be able to give direct, on point and truthful answers to the following common L visa interview questions:
- Why was he/she selected for this job?
- Isn’t there a US worker with the U.S. employer who can do the job?
- What is his/her specialty?
- What managerial decisions does he/ she make?
- Who will the applicant be working for?
- Who does the applicant report to? Who will the applicant report to in the U.S.?
- Will anyone report to the applicant in the U.S.? Be prepared to state names and titles of direct reports.
- If the applicant is coming to the U.S. as a specialized knowledge employee and will be working at a third party site, who at the U.S. company will control his/her work? It is important to know the name and title of his/her manager in the U.S.
- What company specific experience or knowledge does she/he have?
- How long does it take to acquire this special knowledge?
- How long will the applicant remain in the US? This is especially important if he/she would be coming to the U.S. on an intermittent basis, over a period of time.
- What are his/her plans after the US assignment ends?
This list is not exhaustive and the Consular Officer’s questions will be more case specific at the interview and applicants should be well prepared to respond, with the assistance of their counsel. The attorney can explain the legal framework and requirements for the highly scrutinized L intra-company transfer non-immigrant visa, which will help him/her in responding to the questions at the visa interview to ensure the successful case outcome and the visa issuance.
On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.
Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC
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.
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