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.
- Topics Discussed Below
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”
USCIS announced at 2:19 PM on 3/20/2020 that Premium Processing services for I-129 (E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.) and I-140 (EB-1, EB-2 and EB-3) is suspended temporarily. Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Continue reading “USCIS Suspends Premium Processing for all I-129s and I-140s”
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.
By: Valentine Brown
On January 26, 2019, USCIS announced that Premium Processing will resume on January 28, 2019 for all cap-subject FY2019 H-1B petitions; in other words, for any H-1B lottery application filed last April that is still pending with the agency. But shouldn’t all of those petitions have already been approved? Well, um…. yes. But wasn’t the employment start for all of those petitions October 1, 2018? Another, Yes. In spite of these facts there are several thousand H-1B cap-subject petitions still un-adjudicated or waiting for a decision months after employers responded to USCIS requests for additional information. Better late than never, as the old adage goes.
The announcement means that employers who have any of those thousands of petitions still at the agency can upgrade them to premium processing and receive a decision or a request for additional information within 15 days. Employers who are currently compiling responses to requests for information can also submit their response with a premium processing upgrade and $1410 to obtain a decision on their petition within 15 days.
The USCIS announcement is only applicable to cap-subject FY2019 H-1B applications. Premium processing remains suspended for the following H-1B categories, at least until February 19, 2019.
- H1B Extension Petitions that include changes to the original position
- H1B Petitions where there is a change of employer
- H1B Petitions that request amendments with changes to the original petition
The continued ban on premium processing, especially for petitions where there is a change of employer is burdensome to both employers and H-1B status holders. With current adjudications taking as long a six months and denial rates higher than ever, it is often too risky for an H-1B nonimmigrant to make an employer switch until the H-1B petition is approved, and for employers waiting six months or more for a new hire to start is untenable.
Premium processing continues to be available for H-1B cap exempt petitions filed by institutions of higher education, government research entities and some qualified non-profit organizations that file petitions at the California Service Center. It is also still available for H-1B extension petitions where there are no changes or amendments. These are applications that are filed with the Nebraska Service Center.
USCIS states that the agency will update the availability of premium processing for other categories once the workload of the agency permits. It is unclear whether the original deadline for the lifting of the premium processing ban of February 19, 2019 will be honored, or whether the ban will be further extended.