Tag Archives: Immigration

What is the Meaning of the US- Canada and US-Mexico Temporary Border Closures due to the COVID19 Pandemic?

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 Impact of Coronavirus on Travel and Entry to the United States

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.

 

What is the new Public Charge Rule and what does it mean to applicants for immigration benefits in the U.S.?

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.

Duane Morris Pro Bono Attorneys Step Up for Citizenship

On Saturday, September 19, 2015  Duane Morris attorneys in Philadelphia and Boca Raton offices assisted Legal Permanent Residents with their U.S. Citizenship applications. The annual event, Pro Bono Citizenship Day, is organized by the American Immigration Lawyers Association. Duane Morris has participated for the last 6 years.  It is estimated that there are 8.8 million Legal Permanent Residents who are eligible to naturalize in the United States, with 50,000 of those residing in Philadelphia.  To learn more about the Philadelphia event, read Valentine Brown’s article that appeared in the Legal Intelligencer on Friday, September 19, 2015.

USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio

U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.

Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.

Previous USCIS Guidance:  Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.

New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.

If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location.  After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.

Compliance:  If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.

However,  USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location).   USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.

 

State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

On June 12, 2015 the U.S. State Department announced that a computer glitch has hit the Consular Consolidated Database (CCD) affecting the printing of U.S. visas at all consulates and U.S. embassies worldwide.

On June, 15, 2015 the State Department published the following State Department Update, indicating that there is no resolution to the problem and none in sight as of this writing. Continue reading State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

The ABCs of Alternatives to the H-1B

The H-1B Cap for the 2016 H-1B Cap Year (October 1, 2015 – September 30, 2016) has been exhausted. 233,000 applications were submitted for approximately 85,000 slots. There is no relief in sight, as stalemate in Congress continues to prevent any meaningful immigration reform. Employers that want to hire professional workers who do not already have an H-1B from a prior lottery, will have to wait until next year or look for an alternative. While the list looks promising, in actuality it is a rare case when one of the alternatives fits an employer’s specific needs. Consulting with experienced immigration counsel is mandatory for finding a suitable alternative. The basic list of alternatives follows: Continue reading The ABCs of Alternatives to the H-1B

Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

The Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices has been actively investigating and prosecuting employers for large and small violations. While fines can be minimal, the intrusion into a company’s day-to-day operations as well as the strong likelihood of a follow-on I-9 Audit and multiple years of re-auditing by both the DOJ and the USCIS should be deterrent enough to encourage employers to get their policies and practices in order. Continue reading Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

E-Verify Capabilities Continue to Expand

E-Verify is an electronic employment eligibility verification system administered by the federal government. It is voluntary for most employers, but is required to be used by  federal contractors and is mandated by several states.  In spite of its voluntary nature, many employers  choose to use the system in addition to the required I-9 process in order to verify the work authorization of their employees.  The E-Verify system has continually been improved since its inception with new capabilities regularly being added.  Three recent add-ons are discussed below: Continue reading E-Verify Capabilities Continue to Expand