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.

Temporary and Permanent U.S. Immigration Options for Information Technology Workers

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession. Here is an overview of the most common U.S. visa categories for the IT industry:

Temporary Work Visa Categories:

  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S Citizenship & Immigration Services.
  • For foreign students in the United States: F-1 on-campus employment; F-1 curricular practical training (CPT; i.e., on the job training that is part of the curriculum); F-1 pre-or post-graduation optional training (OPT) for up to 12 months; and F-1 STEM OPT extension for up to an additional 24 months (for those with a U.S. degree major in a STEM field and whose employer is enrolled in E-Verify).
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in an IT or closely related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max), for computer systems analysts and possibly software engineers under “engineers”; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed IT workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for large, global IT service providers).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as patents (not impossible, but challenging in the IT industry as employer-independent awards are rare).
  •  Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationalityE-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

Permanent (Green Card) Work Visa Categories:

  • For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the IT work would have substantial merit and national importance; no test of the U.S. labor market required; self-petition possible but challenging in the IT industry).
  • For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help IT employers and individuals determine what options are feasible, and advise on expected timing and cost.

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”