On March 18, USCIS extended the suspension of all routine face-to-face services with applicants at all of its offices through May 3, to protect its workforce and to help mitigate the spread of coronavirus (COVID-19) in our communities.  USCIS offices plan to re-open on May 4, unless the public closures are extended further.

This includes interviews, naturalization ceremonies and biometric collection appointments. However, USCIS continues to provide emergency services and mission-essential services that do not require face-to-face contact with the public.

USCIS field offices will send notices to applicants and petitioners with scheduled appointments, including naturalization ceremonies, impacted by the temporary public closure.  USCIS will reschedule all applicants when USCIS resumes normal operations.

USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview.

USCIS will also automatically reschedule application support center appointments due to the temporary office closure. Those impacted will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments at the field office must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if the office in your jurisdiction has been reopened before reaching out to the USCIS Contact Center.

Additionally, USCIS is postponing all in-person public engagement and outreach events for the duration of the temporary office closure. Please contact public.engagement@uscis.dhs.gov if you have an immediate engagement question during this time.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance in response to this situation. Please visit uscis.gov/coronavirus for updates.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Petitioners with registrations selected in the FY 2021 H-1B cap lottery may begin filing as of April 1, 2020. The period for filing H-1B cap-subject petitions will be at least 90 days and the submission must include a printed copy of the registration selection notice. USCIS released the following statistics in relation to FY 2021 H-1B cap registrations:

  • Nearly 275,000 unique registrations were submitted during the registration period
  • More than 40,000 registration accounts were created
  • Roughly 46% of all registrations were for beneficiaries with U.S. advanced degrees
  • Nearly 81% of submitted registrations were for potential beneficiaries from India (67.7%) and China (13.2%)

Last year, USCIS received approximately 201,000 filings for the lottery; this year represents about a 38% increase over the FY 2020 H-1B cap lottery season.

Please contact Ali Brodie or any member of the firm’s immigration practice group with questions concerning filing H-1B cap-subject petitions.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

Today USCIS announced it has received enough electronic registrations during the initial period to reach the FY2021 H-1B cap.  USCIS conducted a lottery by randomly selecting from the registrations properly submitted.  USCIS will notify petitioners with registrations selected no later than March 31, 2020.  Petitioners will be able to file an H-1B cap subject petition for the beneficiary named in the selected registration.

Registrants online accounts are being updated and will show one of the following statuses for each registration:

  • Submitted: The registration status may continue to show ‘submitted’ after the initial selection process as these registrations will remain in consideration for selection until the end of the fiscal year.
  • Selected:  The petitioner may proceed to file an FY 2021 H-1B cap-subject petition on behalf of the beneficiary in the applicable selected registration.
  • Denied:  A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

March 20, 2020: U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing.  USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria.  However, it will not send notices using pre-paid envelopes, even if provided.   USCIS will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e).  USCIS will notify the public with a confirmed date for resuming premium processing, once established.

USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.

This temporary suspension includes petitions filed for the following categories:

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.

I-140: EB-1, EB-2 and EB-3.

This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.

For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.

See here for USCIS’ Announcement.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Department of Homeland Security, Immigration and Customs Enforcement Announcement of March 20, 2020:  Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).  Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.

Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date.  At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

Going forward DHS will continue to monitor the ongoing National Emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

We will provide updates as information becomes available.

The official announcement can be found here: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In an effort to allay concerns and to enable our clients to adjust plans relevant to nonimmigrant or immigrant visa status in light of the current unprecedented situation, we are providing you with this update regarding current operations of relevant government agencies and any special notifications, dispensations or waivers granted due to the COVID-19 pandemic.  Please note that this may not be a comprehensive list.  If you have concerns about your particular situation, please contact us at immigration@foxrothschild.com.  We are available during our normal business hours throughout this crisis.  Please note that the COVID-19 situation is fluid and continues to evolve on an hourly basis.  The information below is current as of March 20, 2020 10:00 am (EST).

Department of State:  Suspension of Routine Visa Services

– In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates.  Embassies and consulates are cancelling all routine immigrant and nonimmigrant visa appointments as of March 20, 2020.  As resources allow, embassies and consulates will continue to provide urgent and emergency visa services.  Services to U.S. citizens continue to be available.  Currently there is no date set for operations to resume.

– Machine Readable Visa (MRV) fees that have been paid in connection with immigrant or nonimmigrant visa appointments which are cancelled will remain valid for one year and may be used for a future visa future appointment in the country where it was purchased.

– Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment

– See the Embassy’s individual website for additional information.

United States Citizenship and Immigration Services:  Closed to the Public; all other operations continue at this time

– As of March 18, U.S. Citizenship and Immigration Services has suspended routine in-person services until at least April 1.  USCIS operations that do not involve contact with the public continue at this time.  USCIS will provide emergency services on a limited basis.  To schedule an emergency appointment contact the USCIS Contact Center.

– USCIS domestic field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure.  USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews.  When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date, and location for the interview.  When USCIS again resumes normal operations, USCIS will automatically reschedule Application Support Center appointments due to the office closure.

– Individuals who had InfoPass at the USCIS field office must reschedule through the USCIS Contact Center, once field offices reopen to the public.  Applicants do not need to contact USCIS regarding an upcoming appointment; applicants will automatically receive a new appointment letter in the mail (other than InfoPass appointments).

– See USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.

Temporary Dispensations and/or Waivers:  Extension of B-1/B-2 (or Visa Waiver) status or J-1 Exchange Visitor status.

– Individuals admitted under the VWP/ESTA program who find themselves unable to depart the U.S., before their current period of admission will end because of COVID-19 related issues who were admitted to the U.S. through John F. Kennedy International Airport, NY (JFK) and Newark Liberty International Airport, NJ (EWR) only can contact the Deferred Inspections office at JFK, starting Monday, March 16, 2020, Monday – Friday, 9am to 4pm ET and request Satisfactory Departure (see below) for up to 30 days.  Individuals or their attorneys will need to provide the affected individual’s name, Date of Birth (DOB) and passport information at the time of the request.  It may be necessary to provide the original departure flight itinerary along with the new flight itinerary.

– Satisfactory Departure may be requested if the individual’s period of stay will expire in 14 days or less from the day he or she contacts JFK Deferred Inspections.  If their period of VWP/ESTA admission has expired, the decision to grant Satisfactory Departure will be considered on a case-by-case basis.

ALTERNATIVE: Apply for Satisfactory Departure from USCIS: 

– There is no provision under U.S. law to extend the stay of an alien admitted under the VWP.  The only form of relief for an alien admitted under the VWP who is unable to depart timely due to emergent circumstances is the exercise of Satisfactory Departure.  Ports of entry (including deferred inspection locations) may be contacted by VWP travelers already in the United States who are unable to depart the United States before their authorized period of admission ends.

– Pursuant to Title 8 Code of Federal Regulations (CFR) Section 217.3(a), if an emergency prevents an alien admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days – provided that the request is made during the period of admission and the alien is still in status at the time of the request.  If departure is made within the period of approved Satisfactory Departure, the alien is regarded as having made a timely departure without overstaying the allowed time.  In emergent circumstances, requests for Satisfactory Departure may be granted if the alien is out of status but can prove the intent was to depart timely – authority to approve these cases is reserved for the Director, Field Operations, unless re-delegated locally.

– Requests for Satisfactory Departure are generally adjudicated by U.S. Citizenship and Immigration Services (USCIS).  However, in extraordinary circumstances, CBP may adjudicate requests for Satisfactory Departure.

-At this time, only Newark and JFK Airports have confirmed that CBP at these locations will adjudicate requests for Satisfactory Departure; individuals should contact their local airport (or the airport they entered though) to confirm whether that location will accept such a request.  If not, individuals should submit an application to USCIS to request Satisfactory Departure to prevent a visa overstay, which can have long-term implications.

See USCIS’ Special Situations Information here:  https://www.uscis.gov/humanitarian/special-situations

Exchange Visitors:

– The Department of State’s Office of Academic Exchanges advises that USCIS’ retains the discretion to extend or change status, and in some cases provide student work authorization, for individuals who cannot depart the United States at the appropriate time due to extreme circumstances.

Flexibility of I-9 Requirements;  DHS  announced temporary flexibility of the I-9 requirements today, March 20, 2020, including deferring the physical presence requirement and permitting the review of remotely (e.g., over video link, fax or email, etc. but also requiring that employers retain copies of the documents).  See our separate post on this here.

No Changes:  H-1B Regulations (including DOL requirements for Notice and Posting), PERM Regulations, all other visa and status requirements

– If you are a foreign national in the U.S. pursuant to a visa, you should continue to make an effort to comply with all the requirements and restrictions of that visa classification.  There is no suspension to this legal requirement.  Any unauthorized employment or other status violations will render your visa invalid.

– As always, you should be aware of your permissible period of admission by reviewing your I-94 record.  Every foreign national who enters the U.S. pursuant to a nonimmigrant visa is issued one.  The I-94 record, and, thus, the period of admission, rarely follows the same time period as a visa stamp.  See https://i94.cbp.dhs.gov/I94/ to obtain a copy of your current I-94 record.  Requests for extension of status, or change from one status to another, must continue to be made timely (i.e. before the expiration of current status).

Stay up to date on legal issues arising from the conoronavirus at the Fox Rothschild Coronavirus Resources page.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On March 16, 2020, the American Immigration Lawyers Association (AILA) sent a letter to the Acting Secretary of the U.S. Department of Homeland Security seeking guidance regarding employer I-9 Employment Eligibility Verification requirements during the Coronavirus (COVID-19) public health emergency.

In the letter, AILA requested guidance regarding “Form I-9 verification and reverification, E-Verify and compliance requirements for U.S. businesses throughout the remainder of [the] national emergency”.  Of mounting concern among employers is the requirement that the I-9 process must be completed in person for all new hires and reverifications / rehires.

AILA notes in its letter, “the nature of the national public health emergency brought on by the COVID-19 global pandemic and recommendations from federal, state, and local government officials, is such that compliance with [I-9] requirements becomes impossible if the employer follows those recommendations to avoid spreading the virus.”

While employers cope with a variety of safety and other concerns for their employees and their businesses, guidance from DHS could provide welcome respite regarding I-9 requirements.  As a start, in its letter AILA recommended to DHS that it consider taking the following practical measures:

  • Temporary suspension of, or greater leniency in, the I-9 completion timeframe requirement for all businesses during the national emergency,
  • Temporary permission for employers to utilize video or other virtual verification of acceptable documentation instead of mandatory in-person documentary verification including time for completion of E-Verify requirements for enrolled employers—provided that within a reasonable period of time when the employer is able to do so, the employer physically examines the employee’s I-9 documents,
  • Issuance of an official statement that a reasonable approach will be taken when considering compliance for new hires and for reverification of existing employee’s work authorization during the COVID-19 pandemic emergency,
  • Temporary hold on routine, non-criminal Form I-9 inspections (which incidentally would also benefit government personnel with social distancing from COVID-19),
  • Adequate extensions by Homeland Security Investigations’ (HSIs’) Special Agents and Auditors to existing deadlines related to last week’s round of Form I-9 Notices of Inspection.

For now, employers must be aware that the Form I-9 Employment Eligibility Compliance requirements remain in full effect.

If you have questions regarding this topic or about Form I-9 Employment Eligibility Verification Requirements, please contact Catherine Wadhwani at cwadhwani@foxrothschild.com or Mark Harley at mharley@foxrothschild.com or any member of the firm’s immigration practice group .  Ms. Wadhwani and Mr. Harley can be reached at 412-391-1334.

Ms. Wadhwani is a Partner and Co-Chair of the Immigration Practice Group at Fox Rothschild LLP.  For nearly 25 years, her practice has focused on business immigration law and compliance, primarily in the health care, general corporate and academic sectors.  Ms. Wadhwani’s practice covers the United States and U.S. Consulates worldwide.  Ms. Wadhwani is based in the firm’s Pittsburgh, Pennsylvania, office.  She can be reached at cwadhwani@foxrothschild.com or 412-391-1334.

Mr. Harley is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  Mr. Harley’s practice covers the United States and Consulates worldwide.  Mr. Harley is based in our Pittsburgh, Pennsylvania office.  He can be reached at mharley@foxrothschild.com or at 412-391-2418.

** As of March 25, 2020, USCIS has updated its temporary closures described below and has extended the suspension of in-person services to April 7, 2020. **

In an effort to slow the spread of COVID-19, USCIS announced temporary office closures effective March 18, 2020.  USCIS is suspending all in-person services at its field offices, asylum offices, and Application Support Centers (ASC) until at least April 1, 2020.   The suspension includes all in-person services at USCIS field offices across the United States, including all interviews, naturalization ceremonies, and biometric collection.  The government plans to send out cancellation notices to individuals with scheduled appointments during the period of suspension and will automatically reschedule all applicants for new interviews / naturalization ceremonies / ASC appointments when USCIS resumes regular operations.  Individuals with InfoPass appointments scheduled during the closure must reschedule through the USCIS Contact Center once field offices reopen.  USCIS will provide limited emergency services which may be requested through the USCIS Contact Center.

To reach the USCIS Contact Center:  https://www.uscis.gov/contactcenter

To determine whether your field office has reopened:  https://www.uscis.gov/about-us/uscis-office-closings

Fox Rothschild will continue to monitor the impact of COVID-19 on USCIS and other immigration-governmental agencies.

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Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance.  Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide.  You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.