The USCIS has announced an extension of its accommodations for responding to RFE’s, NOID, etc during this time of COVID-19. As a practical matter, most deadlines have been extended by 60 days. The USCIS has been extremely generous in steps it has taken to serve its customers during this pandemic and they should be saluted for their efforts.
Pursuant to a settlement agreement reached in Federal Court, the USCIS has released an official Policy Memorandum which eliminates the Neufeld memo from 2010 and the contracts and itineraries memo from 2018. This is a major victory for IT and healthcare staffing cos. The new memo reminds employers that they must continue to prove the existence of an employer-employee relationship but, that is now defined per the language of the statue instead of a made up policy designed to target a specific industry. As a practical matter, this new policy should result in full approvals and will alter the number of RFE’s and the issues raised. This new policy will also change the type of evidence that is needed to file a new case.
The White House is expected to issue a proclamation within the next 2 weeks that will prohibit visa issuance and entry to the US for H-1b, L, and J visa holders for 120 days. There are expected to be some exceptions for certain types of workers. It is possible that L-1a holders and certain healthcare workers may be exempted but those are not confirmed yet.
We would encourage you to caution your employees from engaging in any international travel at this time as they may be stuck abroad. If you have workers that are abroad now waiting for visa appointments, visa issuance, or for travel to be permitted, the timing of their entry is expected to be delayed. In addition, we would encourage you to contact your governmental affairs dept or your Congressional or Administration contacts and urge them not to take these measures against legal immigration. We would also remind you that nothing is final until the proclamation has been issued and changes in what we have described above are possible.
In addition to the proclamation, the Administration has announced that they intend to issue a series of new regulations on a variety of topics including: wage levels, filing fees, joint employment, OPT STEM, OPT EAD cards, H-4 EAD, specialty occupation definition, and other measures designed specifically to counter Federal Court decisions that have been declaring many of their policies unlawful and unconstitutional. We expect the Administration to follow the Administrative Procedures Act and publish these changes so that there is an opportunity for notice and comment but that is not assured at this time. We will update you as further developments occur.
The USCIS has announced that its offices would re-open to the public on June 4,2020. We are hopeful that other services including premium processing availability will shortly follow.
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.
Yesterday, the USCIS announced that it was extending the closure of its offices to in person interviews or appointments until May 3rd. If you had an I-485 interview scheduled, you will receive a new notice with a new date.
Earlier this week, the USCIS also announced that for EAD renewals, they will use previously submitted fingerprints instead of requiring new fingerprints (sounds like they watched an episode of Law and Order and realized that fingerprints do not change).
We applaud the accommodations the USCIS is making during this crisis.
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.
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.
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.
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.