Green Cards

Presidential Proclamation RE: H-1B, H-2B, J-1, and L-1 Visas

As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.

The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.

Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.

The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.

As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.

If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.

Government Agency Actions - USCIS, ICE, etc.

Delays to H-1B CAP Notices due to COVID-19

In a recent stakeholder message, a copy of which can be found here, USCIS has confirmed that the COVID-19 pandemic will cause delays in data entry and notice generation for CAP cases. Even though cases could be filed starting April 1, 2020, USCIS does not expect to be able to get notices out for cases filed until May 1, 2020. Cases will still retain their original receipt date for petitions that have time sensitive issues and USCIS notes that they are mindful of these time sensitive cases. However, USCIS still expects this to cause a delay in adjudication of CAP cases this year. USCIS will not extend the original filing window in the registration notice and there is no new update on when premium processing will be reinstated. As more updates become available we will share with our clients.

Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

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

US Immigration Policy

Expect H-4 Processing Delays

At a recent stakeholder phone conference, USCIS has confirmed that because of the new version of Form I-539 and the addition of the bio-metric appointment for dependent applications, USCIS will no longer offer premium processing as a courtesy to these types of applications. Even when filed concurrently. This is a huge hit for anyone on H-4 working on an H-4 EAD.

Those that fall into this category should be prepared for lengthy delays (average processing time for H-4’s posted by USCIS at VSC is 6 Months to 8 Months, which better reflects the realities of longer processing times) and gaps in their ability to work as the adjudication of their H-4 EAD will also be delayed.

Government Agency Actions - USCIS, ICE, etc.

End of the H4 EAD?

On February 20, 2019, USCIS again submitted to The Office of Management and Budget their proposal for “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” This rule proposal was also published in the Fall 2018, Spring 2018 and Fall 2017 reports. The current administration has been maligning the H4 EAD program for that long. The final rule has not been published yet and will need to go through a public comment period. As the process develops we will update our clients.

In case USCIS is actually serious this time, we recommend that any current employees on H4 EAD be included in this year’s H1b cap filings in order to minimize any potential gaps in their ability to work. If you have specific questions, please contact your HLG attorney.

Green Cards

Clarification on the Accrual of Unlawful Presence for F-1 Students

On August 9, 2018, USCIS again changed the way that unlawful presence is calculated for F, M and J students but for the better! See the new memo here.

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M non-immigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

Further, and most importantly, USCIS has removed the retroactive application of unlawful presence for student who fail to maintain status after August 9, 2018. Meaning that for all future cases, unlawful presence does not start accruing until the day after it has been found that the student has failed to maintain status.

HLG applauds this move by USCIS to help students stay in the U.S. lawfully.

Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

Possible Upcoming Rule Changes to be on the Lookout For

DHS has release its Agency Rule List for Spring 2018. In this release the current administration outlined their rule change wish list, which includes:

1. Scrapping the H1b lottery. Possibly requiring preregistration for H1b’s.
2. Revisions to H1b definitions for specialty occupation. We’ve already seen some Officers use narrower interpretations than what we believe the regs plainly state.
3. Ending the H4 EAD program.
4. OPT reform. We have already seen some of this through the USCIS website update restricting 3rd party placements.
5. B visa reform. We anticipate that they are seeking to narrow the allowable business activities on B1 visas.
6. New Fee schedule. Because USCIS Officers are having to work overtime to generate all these RFE’s for you! [satire]

These are changes that will not take effect immediately and must go through the regulatory rule change process. HLG will be monitoring these potential changes and will update our clients when/if they affect your business.

Government Agency Actions - USCIS, ICE, etc. Green Cards Visas - H-1b, L-1, E, O, TN

The Invisible Wall

Good AILA report on the steps being taken to limit and frustrate legal immigration. Invisible wall

Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

Canadian L-1 Applicants at Blaine, Washington Ports of Entry

Beginning April 30, 2018, U.S. Customs and Border Protection (CBP) will no longer adjudicate L-1 intracompany transferee petitions for Canadian citizens at the Blaine, Washington ports of entry. Canadians seeking L-1 status who wish to enter the United States through Blaine must first file their petitions with the USCIS California Service Center for processing. This will apply to both L-1 admissions based on an employer’s previously approved blanket petition and individual L-1 petitions. Once an approval notice is issued, the beneficiary may use it at any northern border port of entry to request admission.

It has been strongly advised that applicants wait for the USCIS approval notice before applying for admission at the border. However, USCIS has indicated that applicants could be able to bring the filing receipt to the border for entry, at which point CBP would contact USCIS to verify whether the case would be approved, and then act on the admission request accordingly. USCIS is expected to provide further information on the pilot program as the implementation date nears and HLG will provide updates as they are available.

Initially, the pilot program will operate only at Blaine, Washington ports of entry. CBP is expected to continue to adjudicate Canadian L-1 applications for admission at other ports of entry until further notice. USCIS also has indicated that the program could be implemented across the northern U.S. ports of entry, and may also be extended to other immigration categories, such as the TN!

If you are a Canadian planning to apply for admission at the Blaine ports of entry for an L-1 visa, you need to take the upcoming pilot program into account when planning your travel.

Government Agency Actions - USCIS, ICE, etc.

USCIS Has a New Mission Statement

As if they needed to make it any more clear that USCIS is taking a more combative stance against any benefits sought, USCIS has updated its mission statement. The old mission statement was:

“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

The new Mission statement reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

They don’t consider you a customer even though providing Services is in their title! They don’t believe the United States is a country of immigrants anymore, one of our founding principles. I would be prepared for the culture of NO to intensify and that every little thing will be a battle with them.