Immigration Agency Interviews in COVID-19 Times

If you are applying for certain immigration benefits, for example U.S. citizenship or a marriage-based green card, the last step of your immigration journey is an interview with a U.S. Citizenship and Immigration Service (USCIS) Officer held at a local USCIS field office.  Needless to say, you should be well prepared for your interview and in many cases, it is recommended that you have an attorney accompany you to the interview.  These interviews are meant to be non-adversarial, with the goal of completing the adjudication of your immigration benefit application.  There are certain procedural requirements to be met, including regarding the interview environment, your right to privacy, and your right to counsel, which have recently been changed given the COVID pandemic to ensure the safety of the officers, the applicants, and the general public.  These changes bring up some strategic considerations for your preparation or legal representation at interview.

In today’s COVID times, the immigration interviews present new challenges, so here is a brief general summary of what you can expect.  The USCIS outlines the specific CDC mandated safety measures before you can even go to the interview. There are restrictions regarding who may accompany you, and if you have traveled outside the U.S. in the past 14 days immediately preceding the interview, you will not be allowed to proceed with the interview, which will be rescheduled.  Generally, you may not enter a USCIS facility, if you: (1) have any symptoms of COVID-19, including recently developed cough, fever, difficulty breathing, changes in smell or taste or fatigue (list is not all-inclusive); (2) have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; (3) have been instructed to self-quarantine or self-isolate by a health care provider, public health authority or government agency within the last 14 days; or (4) are awaiting the results of a COVID-19 test.

Further, you may not enter the facility more than 15 minutes before your appointment (30 minutes for naturalization ceremonies), and you must wear face coverings that cover both the mouth and nose (masks with exhaust valves, neck gaiters or bandanas are not allowed). You will have to follow social distancing guidelines and may have to answer health screening questions before entering a facility.  The immigration agency also encourages bringing your own pens.  These are some of the general office requirements but you should check your interview appointment notice for any additional instructions, as the practice of each USCIS field office significantly vary.

If you are represented by counsel, the above rules apply equally to you as the applicant, and to your attorney.  You should also note that some field offices may conduct interviews at the window, which raises privacy concerns if the are other persons waiting in the area.  Other field offices conduct interviews via video, which may impact the ability of the officer to obtain accurate information during the interview and for the applicant to understand the officer, particularly if there are issues with audio or video quality.  Attorneys may raise concerns regarding those issues by citing the relevant agency guidance, but accommodations are entirely within the Officer’s discretion.

It is also possible that USCIS separates the petitioner and applicant due to new room occupancy limits.  This means that a USCIS interview may be conducted where the attorney and clients are in one room and the officer in another, connected via iPad.  In that situation, you should assume that information shared in that setting is not confidential even if it appears that the iPad is “off”. Due to COVID-19 limitations on room occupancy, some field offices are now limiting the number of persons in the room to three, which results in the separation of the petitioner and applicant if an attorney attends in person. In this scenario, you may have the choice of being separated, or have your attorney appear by telephone or video.  However, some USCIS officers may give you an option of proceeding without an attorney, and you should be well-prepared to insist on calling your attorney and refuse to waive counsel, unless your attorney and you have already decided that you can proceed with the interview on your own.

All of these practices vary at the local USCIS field offices and pose concerns, so it is important that you discuss the best plan of action for you and your case with your attorney.  If you do not have an immigration counsel, you may wish to secure one for the interview, or at least speak to one who can prepare you for the interview, as the attorney will likely be more familiar with the local office procedures and able to advise you.  Feel free to reach out to us, if you have any questions about your upcoming immigration interview, or any other immigration concerns.

H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration

A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation”  was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations.  The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”

Universities Weigh Impact of Latest Travel Ban on Certain Chinese Graduate Students and Post Docs

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.

TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC

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”

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”

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”

Switzerland Responds to COVID-19; Travel Restrictions and Immigration Processing Limitations

In order to maintain Switzerland’s capacity to cope with the COVID 19 epidemic, and in particular to guarantee the conditions for an adequate supply of care and therapeutic products to the population, the Federal Council issued exceptional entry restrictions at the border on 13 March 2020 and has updated these on 25 March 2020. In this connection, and in light of the fact that several airlines have in between ceased operations on certain routes, the State Secretariat for Migration has issued instructions to the cantonal migration authorities, Swiss representations abroad and the border security authorities. Continue reading “Switzerland Responds to COVID-19; Travel Restrictions and Immigration Processing Limitations”