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.
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. 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.
 See 9 FAM 402.12-8, available at https://fam.state.gov/fam/09FAM/09FAM040212.html#M402_12_8_F
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.
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. Since only 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.
To limit the further spread of Coronavirus, the United States entered into joint initiatives with Canada and Mexico to temporarily close its Northern and Southern borders for all non-essential travel, effective March 21, 2020, for a 30-day period. Essential commercial activity will not be impacted. Please read on for a helpful FAQ on these provisions. Continue reading What is the Meaning of the US- Canada and US-Mexico Temporary Border Closures due to the COVID19 Pandemic?
The ongoing worldwide outbreak of the Coronavirus has led to serious public safety concerns, restrictions, and even bans on international travel. The Coronavirus disease 2019 (COVID-19) is caused by a virus (more specifically, a coronavirus) identified as the source of an outbreak of respiratory illness first detected in Wuhan, China. The disease outbreak has also led to several measures by the U.S. Government to control the entry to the United States of individuals potentially exposed to the virus.
On January 31, 2020, President Trump issued a proclamation suspending and limiting entry into the U.S. as immigrants or nonimmigrants of all individuals who were physically present within the People’s Republic of China, excluding Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry. The proclamation became effective at 5:00 pm (ET) on February 2, 2020.
The proclamation does not apply to U.S. citizens or lawful permanent residents (green card holders). Foreign diplomats traveling to the United States on A or G visas are excepted from this proclamation. Other exceptions include certain family members of U.S. citizens or lawful permanent residents, including spouses, children (under the age of 21), parents (provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21). There is also an exception for crew traveling to the United States on C, D or C1/D visas.
Additionally, US citizens and others who are allowed to travel to the US from China are being admitted through 11 designated airports where US authorities will conduct extra screening and transfer people if needed. All flights from China have go to the following 11 airports – JFK in New York; ORD in Illinois; SFO in California; SEA in Washington; HNL in Hawaii; ATL in Georgia; EWR in New Jersey; DFW in Texas; DTW in Michigan; LAX in California, and IAD in Virginia. At the designated airports, CBP officials will determine 1) whether a traveler is admissible to the US and (2) if someone needs extra screening or quarantine, at which point travelers will be referred to secondary inspection staffed with medical professionals. Passengers who have been to China in the past 14 days and were not already traveling to one of those airports will have to re-book their flights.
It should be noted that any U.S. citizen returning to the United States who has been in Hubei province, China in the previous 14 days may be subject to up to 14 days of quarantine. And any U.S. citizen returning to the United States who has been in the rest of mainland China within the previous 14 days may undergo a health screening and possible self-quarantine. If you choose to travel, it is recommended to enroll in the Smart Traveler Enrollment Program to receive updates. As the situation is changing daily, so are Government policies and restrictions on travel, so it is advisable to monitor the Travel.state.gov and CDC.gov for important information.
Under the US immigration law, an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a lawful permanent resident. On February 24, 2020, the U.S. Citizenship and Immigration Services (USCIS) will implement a new Inadmissibility on Public Charge Grounds rule, which significantly broadens the immigration agency’s authority to determine whether individuals will become a public charge and expands the inquiry to nonimmigrants seeking an extension or change of status. The USCIS will implement the rule in all US states, except in Illinois, where the rule remains enjoined by a federal court as of Jan. 30, 2020. The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after Feb.24, 2020.
Individuals seeking permanent residence through the adjustment of status process will be subject to increased financial information and documentation requirements, and more scrutiny of their personal circumstances. Under the rule, adjustment of status applicants will be reviewed under a “totality of circumstances” test that will take into account each applicant’s age, household size, income, financial liabilities, receipt of certain public benefits, health, and education and skills. Also, after February 24, 2020, adjustment applicants will be required to submit a report of their credit history and credit score, as well as detailed information about health insurance coverage. The USCIS will also require applicants to complete new Form I-944, Declaration of Self-Sufficiency. Importantly, refugees, asylees and other humanitarian or special immigrant categories of applicants are exempt from the new rule.
One of the biggest changes is that as of February 24, 2020, nonimmigrants seeking an extension or change of status, must satisfy a new public charge condition to be deemed eligible for their requested immigration benefit. Specifically, nonimmigrant applicants will be required to disclose whether they have received or are certified to receive certain public benefits on or after February 24, 2020. In order to negatively affect the application, the individual must have received the benefits for more than 12 months within a 36-month period since obtaining their nonimmigrant status. Certain nonimmigrant categories, related to humanitarian and victim classifications, are exempt from the public benefits condition requirement.
Not all public benefits would lead to a public charge determination and USCIS guidance specifies that receipt of cash assistance for income maintenance (such as Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance) could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. Each determination is made on a case-by-case basis in the context of the totality of the circumstances. In addition, public assistance, including Medicaid, used to support individuals who reside in an institution for long-term care (such as a nursing home or mental health institution) may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.
Starting Feb. 3, 2020, the USCIS is expected to update its guidance, forms and submission instructions on its websitehttps://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet.