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Government Agency Actions – USCIS, ICE, etc.

Borders Closed Due to COVID-19

The US has announced agreements with both Mexico and Canada to close the border for all but essential travel. Read the Fact Sheet and announcements here. All non-essential travel has been prohibited. We believe this prohibits the issuance of new TN’s for Canadians. For Mexican nationals, a new TN requires a visa issued from a US Consulate which are all closed at present. For persons who already are in possession of a TN or other working status, for example, an L visa, it is not clear whether you would be permitted to re-enter the US after a trip to Canada but, we are advising you not to travel unless you are prepared to remain in Canada until the border is opened again.

Premium Processing Suspended

Effective today, the USCIS has suspended premium processing for I-129 and I-140 petitions. Cases previously filed as premium will continue to be adjudicated under the premium guidelines. Cases filed yesterday to be received today by the USCIS will have their premium filing fee returned.

USCIS Cancels Interviews Due to COVID-19

In response to the COVID-19 pandemic and the need for social distancing in the U.S., the USCIS has closed its offices to the public until at least April 1, 2020. For legal immigrants, the major impacts are the cancellation of I-485 interviews and I-539 biometric appointments for family members. Until the offices are reopened to the public, no rescheduling will be done. If you have an I-485 interview scheduled and were holding off on filing for a renewal of your EAD/AP in anticipation of an approval, I’d recommend you file the extension.

US Consulate Closures

In response to the COVID-19 virus, many US Consulates have closed for visa services and are not conducting interviews or issuing non-immigrant or immigrant visas. The press release from the US Consulate in India can be found here and from the US Consulate in Mexico here. This is a very fluid situation so please check with your Consulate if you have an appointment scheduled. It is expected that these closings will significantly disrupt the operations of many IT companies. Here is a nice summary article. In addition, many H-1b and L-1 workers may be stranded abroad unable to get new visas issued and return to their US based jobs.

Stuck in Europe

On March 12th, President Trump imposed a ban on any person with a visa from traveling into the U.S. if they are from or have been in a Schengen country in the 14 days prior to their attempted entry to the U.S. Schengen countries include 26 European countries. There are a number of exceptions to the entry ban (including all persons who have had at least a 3 night stay at a Trump resort and/or played a round of golf or at least I think that is in there). The ban applies to all non-immigrant visas and new immigrant visas and is expected to last 30 days. A copy of the proclamation can be found here.

Update 3-16-2020 UK and Ireland have been added to the entry ban.

Cuccinelli compared to Dwight from The Office

For those of you who need a bid of levity this morning and a break from the news of coronavirus, stock market plunging, retrogression, and shortened H-1b approval notices, take a look at this decision A U.S. Federal Court declared the appointment of acting USCIS Director, Ken Cuccinelli illegal and referenced Dwight of The Office. Judge Moss pointed out that “there may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager.’ But either way, that person is, at best, second in command. Here, the acting secretary created a position that is second in command in name only.” In keeping with their philosophy for an outright disregard for the rule of law, the administration is ignoring this ruling and Cuccinelli remains. Policy memos and directives put into effect during the Cucinnelli tenure may all be at risk of being struck down.

New Form I-9

On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

The major changes are to the form’s instructions, which include:

1. Clarified who can act as an authorized representative on behalf of an employer
2. Updated USCIS website addresses
3. Provided clarifications on acceptable documents for Form I-9
4. Updated the process for requesting paper Forms I-9
5. Updated the DHS Privacy Notice

Travel Ban Explained

On Friday, January 31, 2020, President Trump issued a new set of travel restrictions for nationals of certain foreign countries. This is an expansion of the “travel ban” issued in 2017, as both draw their power from the Immigration and Nationality Act, Section 212(f).
The foreign nationals affected are those from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria.
This does not affect nationals of those countries if they are already present in the U.S. For example, if you have a Nigerian employee on H-1B, they may remain employed. You are also perfectly fine to start or continue a permanent residency case (PERM, I-140, I-485) via employment-based sponsorship.
Non-immigrant visas, such as H-1b, TN, L-1, O, etc are not impacted.
Students are also unaffected. For example, you may continue to employ a Kyrgyzstani student on Optional Practical Training. Nationals from affected countries are also permitted to extend or change status in the U.S.—they may apply for a STEM OPT extension, and/or you may place them into the H-1B lottery.
The most heavily affected are those candidates who are outside of the United States and going through National Visa Center processing for an immigrant visa. Nationals of those four countries are no longer able to seek immigrant visas through U.S. embassies and consulates abroad, regardless of the location of the post. If you have candidates who are currently part of the offshore immigrant visa process, you need to inform the candidate as soon as you can that their case may continue to be processed, but that their case will be placed into administrative processing or outright denied if this ban remains in effect.
Dual citizens are unaffected so long as they seek an immigrant visa on their non-affected passport.
This set of restrictions will affect your employees’ family members who are not in the United States and seeking to immigrate under the follow to join rules. Permanent resident or U.S. citizen employees who are attempting to bring their family members—spouses, parents, siblings, and the like—are now unable to bring them here on an immigrant visa if the family member is a national of one of those four countries. H-1B or L-1A/L-1B employees may still bring their spouses and Under-21-Children on H-4/L-2 visas.
If you have specific cases, please contact your HLG atty. to discuss.

Great News !

The USCIS announced that the H-1b cap/lottery will be conducted via electronic registration in 2020 ! The initial registration period will be from March 1st through March 20th ! As announced earlier this month, the filing fee will only be $10.00 per registration. This is exciting news and will save a tremendous amount of time and money for US employers (and law firms). More details will be provided as they become available and we expect to do a free teleconference for our clients in mid January.

Proposed Fee Increases………. Plus More

In a recent proposed rule, the USCIS has proposed changes to filing fees for most immigration benefits. Some filings would actually go down eg. the I-140 would go from $700.00 to $545.00 and the biometric charges would be reduced from $85.00 to $30.00 however, most filing fees would increase. For example, the H-1b visa petition fee would increase from $460.00 to $560.00 and an L-1 petition would go from $460.00 to $815.00. Other significant changes proposed include the lengthening of the time the USCIS has to process a premium processing case from 15 calendar days to 15 business days. Also, in an effort that targets certain dependent employers, those with more than 50 employees who have more than 50% of their workforce made up on H-1b and/or L-1 workers, would be required to pay an additional $4,000(H-1) or $4500(L-1) fee, respectively, for extensions. At present, the additional fee is only imposed on new petitions. Given the current practice of the USCIS to illegally shorten approval notices for staffing/consulting cos. this would be a rather severe result. Comments on the proposed rule are due on Dec 16, 2019.