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Visas – H-1b, L-1, E, O, TN

H-1b Cap Lottery Update

With all of the news about COVID-19; and, with Consulates, USCIS offices and borders closing, it was easy to miss that the H-1b cap lottery registration ended last week. The USCIS has indicated that registrants who are chosen in the lottery will be notified by March 31st and then be given at least 90 days to file their H-1b cap petition. There is some speculation that the 90 day filing window may be expanded due to the effects of COVID-19. Please note that persons who are going to take advantage of the cap-gap rules must still file before the expiration of their EAD and may not have the full 90 days.

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.

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.

New USCIS Forms !

Following its Supreme Court victory, the White House has begun the implementation of the new public charge rules, which will have far-reaching implications for both employment and family based cases. The new forms to be used in all USCIS filings as of Feb 24, 2020 have been released and can be reviewed here.

USCIS Scores Victory in Federal Court Over H-1b Company

We often hear about the victories that IT cos. have been scoring over the USCIS when litigating H-1b denials relative to specialty occupation, beneficiary qualifications, and employer-employee relationship issues; and, the wins are numerous. We rarely hear about the losses but, recently a Federal Court in Az. ruled against an IT company’s pursuit of a preliminary injunction over 18 denials. The Court ruled that the company had not proven irreparable harm in denying the motion. The lawsuit remains pending on the substantive issues. A full copy of the decision can be read here.

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.

Trump Immigration Policy Cheered in Toronto !

With the denial rate of H-1b visas in the mid 30% over the past 2 quarters and inching closer to 40%, ever wonder where all of those talented engineers and computer professionals are going ? Looks like they are landing nicely in Canada. Check out this latest article from NPR.

H-1b Cap Lottery Update

Save the time and date, HLG will be hosting a free conference call for all clients on Tues. Jan 14th at 2:30 pm eastern to provide information about the new electronic registration system that will be used for this year’s cap/lottery.