On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status” to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension . The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Read the full blog post here.
The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading USCIS gets flexible on I-9 Process, but Employers must stay Vigilant
Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.
Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading PERM Gets Rough in an Uncertain Job Market
On July 14, 2020, the Trump Administration rescinded SEVP guidance issued last week, which forbid F-1 students from attending universities that were planning to be 100% remote during the fall 2020 semester.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.
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. 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
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.
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