On May 11, 2002, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum relating to certain J-1 waivered foreign medical graduates during the COVID-19 national emergency. The memo, captioned “Temporary Policy Changes for Certain Foreign Medical Graduates During the COVID-19 National Emergency” was issued solely as guidance to USCIS officers with regard to H-1B physicians who received and are fulfilling either an Interested Government Agency (IGA) waiver or Conrad 30 waiver. Relating to the COVID-19 pandemic, the memo addresses two issues: (1) failure of these physicians to maintain a full-time work schedule, and/or (2) their provision of telehealth services.

More specifically, the temporary policy changes include the following:

  • Effective January 27, 2020 – end of the Public Health Emergency
    • “USCIS officers will not consider…a failure [of the physician] to work full-time to be a failure to fulfill” the contractual full-time work requirement if the physician is “temporarily unable to work full-time due to quarantine, illness, travel restrictions or other consequences of the pandemic during the declared Public Health Emergency period…”
      • The memo notes that this temporary flexibility is limited and “only relates to the [physician’s] eligibility for future immigration benefits that would be affected by the re-imposition of the 2-year home residence requirement” resulting from a contract violation.
      • The memo does not grant a reprieve to employers with regard to H-1B requirements; these responsibilities remain in effect even during the effective dates of the temporary flexibility policy. As such, affected employers should consult qualified legal counsel before making any material changes in the terms and conditions of the physician’s employment, including but not limited to a COVID-19 related reduction in hours below full-time.
  • Effective May 11, 2020 (i.e., the publication date the memo) – end of the Public Health Emergency
    • USCIS will allow IGA and Conrad waivered physicians to provide “telehealth” services during the COVID-19 Public Health Emergency (but see below).
    • Other than VA physicians, affected physicians must continue to provide medical services (even if telehealth) “through their contracting facility” located in the shortage area or, under the Flex 10 program, to patients who reside in a designated area.
    • Only affected VA physicians may “provide telehealth services to patients outside of the state of their contracting facility”(!)
    • USCIS “will not interpret the provision of such telehealth services to be a failure to fulfill” the terms of the employment contract under the statutory section–which is good because telehealth is still patient care and likely much-needed in shortage areas, especially now due to social-distancing measures.
    • An employer that offers an affected foreign medical graduate the option to provide telehealth services from home, must offer the same option to its similarly employed US workers.

While the memo may seem straightforward, it raises questions. As such, affected employers and/or physicians should seek fact-specific legal advice to address their issues at the earliest possible time.

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 Consulates worldwide.  Ms. Wadhwani is based in our Pittsburgh, Pennsylvania office.  She can be reached at cwadhwani@foxrothschild.com or at 412-394-5540.

On Thursday, May 14, 2020, U.S. Immigration and Customs Enforcement (ICE) announced a 30-day extension to its previously announced temporary flexibility provisions relating to I-9 Employment Eligibility Verification compliance during the COVID-19 national emergency. Extension of the flexibility provisions is the result of “continued precautions related to COVID-19”. The COVID-19 I-9 flexibility provisions were originally valid for only 60 days and were set to expire on May 19, 2020.

For eligible employers, the temporary flexibility measures defer the statutory physical presence requirements for the in-person review of an employee’s identity and work authorization documentation in the employee’s presence.

In addition, the notice granted an additional 30-day extension, to the prior 60-day extension, to employers who received notices of inspection (NOIs) in March 2020 and had not already responded.

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 Consulates worldwide.  Ms. Wadhwani is based in our Pittsburgh, Pennsylvania office.  She can be reached at cwadhwani@foxrothschild.com or at 412-391-1334.

On April 27, 2020 United States Citizenship and Immigration Services (USCIS) released a new version of the Handbook for Employers, Guidance for Completing Form I-9 (M-274).  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.

The new version of the M-274 was released in connection with its release of the new version of the Form I-9, Employment Eligibility Verification (rev. 10/21/19 on bottom left), which became mandatory on May 1, 2020.  See our post on this topic for additional information.  Here we will highlight some of the most import­ant changes to the M-274.

Automatic EAD Extensions

The most significant change to the M-274 revolves around the process for documenting the automatic extension of Employment Authorization Documents (EAD) for certain foreign national employees working in the U.S.  An automatic EAD extension is a fairly new concept, which was brought about by a Department of Homeland Security (DHS) rule that provides additional benefits and flexibility to high-skilled nonimmigrant workers in the U.S.  Under this rule, EADs can be automatically extended for up to 180 days for certain individuals who timely filed to renew an EAD that is in the same category as the previous EAD.

The updated M-274 describes the various categories of foreign nationals currently eligible for these auto-extended EADs and sets out the process for reviewing the appropriate documentation and recording the information on the Form I-9, which involves updating both sections 1 and 2 to reflect the auto-extended date.  The review process has been outlined in further detail than previously, requiring employers to more carefully review the underlying documentation (both the EAD and the receipt notice showing the renewal filing) to make sure the individual fully qualifies.  There is also a description of how auto-extended EADs should be completed on the Form I-9, including the auto-extended EAD rule on reverification, refugees and asylees, nonimmigrants requesting extensions of stay, accepting an expired document and when employment authorization expires.

Additional I-9 Rules for Certain Foreign National Employees

In addition to the automatic EAD provisions, the updated M-274 features several other changes that will impact employers when hiring foreign national employees that have temporary work authorization.

  1. E-Verify STEM: The USCIS now explicitly notes (in keeping with its recent guidance) that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who received a 24-month extension of their optional practical training.
  2. F-1 students in CPT:An acceptable Form I-20 for F-1 students in curricular practical training (CPT) must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location.
  3. H-1B extensions:In the context of documenting an H-1B extension and the 240-day automatic work extension, the updated M-274 also indicates the following that, “your employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. Write in the new date that the automatic extension of employment authorization ends.  Initial and date this update in the margin of Section 1.”
  4. Extensions of stay:The updated M-274 also includes new instructions relating to documentation that must be maintained when filing an extension of stay for a qualifying employee. Specifically, it indicates: “After you receive the I-797C, Notice of Action, which bears the amount of the filing fee submitted and acknowledges USCIS’ receipt of the new Form I-129 petition, it is not necessary to maintain a copy of the Form I-129 application, proof of payment, and mailing receipt for Form I-9 purposes.  You should retain the I-797C, Notice of Action to show that you filed for an extension of stay on the employee’s behalf.”

Form I-9 Retention

The updated M-274 also includes a new provision relating to the retention of I-9s for employees who never started work for pay.  Specifically, the USCIS indicates:

“Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay, or never finishes the Form I-9.” (emphasis added)

Based on this new information in the M-274, USCIS appears to be stating that employers need to retain I-9 forms for all employees, re­gardless of whether or not they ever start work or receive a paycheck.  This new instruction, however, is at odds with the regulations at 8 CFR 274a.2, which define an employer’s I-9 obligation limited to indi­viduals who provide services or labor for wages or remuneration.  An individual who never starts work for pay would arguably not fall into this category (and thus no I-9 obligation exists).  Moreover, officials from Immigration and Cus­toms Enforcement (ICE) have previously noted that an employer is not required to retain a Form I-9 for an individual who never starts work for pay, and thus would not be required to produce the I-9 in the event of an inspection.

Given the apparent contradiction between this new guidance and the regulations, employers are advised to work with their legal counsel before adopting any strategies regarding the retention (or destruction) of I-9s for individu­als who never started to work for pay.

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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.

This is a reminder that employers are required to use the new version of the Form I-9 as of May 1,2020.  As noted in our prior post, USCIS announced the publication of the new version of the Form I-9 on January 31, 2020, with a 60-day grace period for its mandatory use.  Accordingly, the new version of the went into effect on May 1, 2020 and all prior versions of Form I-9 are no longer be valid for use and are obsolete.

It is important that employers do not lose track of the requirement to use the new edition of the Form I-9 among the myriad of DHS announcements regarding changes or relaxation of requirements relevant to completing the Form I-9 and verifying identity and employment eligibility due to the COVID-19 pandemic.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website.  (Note that the Spanish form may only be executed by employers in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide only but must complete the English version of the Form.)  The associated instructions and the Form I-9 Supplement, Preparer and/or Translator Certification, have both also been updated.

Employers can confirm that they are using the current and correct edition of the form by checking the form date in the lower left corner, which should read 10/21/2019, and the expiration date in the upper right corner, which should read 10/31/2022.

In addition, on April 27, 2020, USCIS released a revised M-274, Handbook for Employers: Guidance for Completing Form I-9, with expanded information on properly completing Form I-9, Employment Eligibility Verification.  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.  Please refer to my upcoming post on this topic for additional information.

As a reminder, as noted in my prior post on this topic, on March 20, 20 DHS Announced Flexibility in Requirements Related to Form I-9 Compliance, allowing employers to inspect Section 2 documents remotely (e.g., over video link, fax or email, etc.) for purposes of completing Section 2.   Employers must continue to adhere to the three business day requirement and also conduct a physical inspection of the original documents once normal operations resume.  This flexibility policy is currently in effect until May 19, 2020, at a minimum (and may be extended), or within three business days after the termination of the National Emergency, whichever comes first.

Also, on May, 1, 2020, DHS announced Temporary flexibility for List B documents for Form I-9, Employment Eligibility Verification and in E-Verify, allowing identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, to be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.  See my prior post on this topic for additional information.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  Beginning May 1, 2020, employers must use the new edition of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation.  Employers should not complete new Forms for existing employees who do not require re-verification.

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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.

USCIS extends immigration related deadlines:

On March 30, 2020, in response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced an extension of the flexibility it announced to assist applicants and petitioners who are responding to the following types of requests, with deadlines:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and
  • filing date requirements for Form I-290B, Notice of Appeal or Motion.

 Notice/Request/Decision Issuance Date

This flexibility applies to the documents listed above if the issuance date listed on the request, notice, or decision is between March 1 and July 1, 2020, inclusive.

Response Due Date

USCIS will consider a response to a request or notice listed above received within 60 calendar days after the response due date set in the request or notice before taking action.  USCIS will also consider a Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.

For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance.  You may visit uscis.gov/coronavirus for the latest facts and other USCIS updates.

Temporary flexibility for List B documents for Form I-9, Employment Eligibility Verification and in E-Verify:

On May 1, 2020, DHS issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification in light of stay-at-home orders due to COVID-19 creating challenges renewing a state driver’s license, a state ID card, or other Form I-9, Employment Eligibility Verification, List B identity documents.

Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

When an employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

  • Record the document information in Section 2 under List B, as applicable; and,
  • Enter the word “COVID-19” in the Additional Information Field.

Within 90 days after DHS’ termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired.

Note:  It is best if the employee can present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and record the new document information in the Additional Information Field. 

When the employee later presents an unexpired document, you should:

  • In the Section 2 Additional Information field:
    • Record the number and other required document information from the actual document presented;
    • Initial and date the change.

Procedure for List B Documents extended by an Issuing Authority

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority.

When your employee provides an acceptable expired List B document that has been extended by the issuing authority you should:

  • Enter the document’s expiration date in Section 2; and,
  • Enter “COVID-19 EXT” in the Additional Information Field

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.  Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles’ website.

Note:  For extended documents, the employee is not required to present a valid unexpired List B document later. 

E-Verify participating employers should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated guidance as needed.

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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.

As some U.S. states are starting to re-open parts of their state, this alert is a reminder that the U.S. border with both Mexico and Canada remains closed for non-essential travel and will remain so until at least May 21st.

Federal Regulations state that individuals traveling for tourism purposes (sightseeing, recreation, gambling or attending cultural events) do not fall within the definition of “essential travel”.

On April 20, 2020, Acting DHS Secretary Chad Wolf made the announcement as follows:  “In close collaboration, the US, Mexico, and Canada have each agreed to extend restrictions on non-essential travel across their shared borders for 30 additional days. As President Trump stated last week, border control, travel restrictions and other limitations remain critical to slowing the spread and allowing the phased opening of the country.”

“Essential travel,” includes the following:

  • U.S. citizens and lawful permanent residents returning to the United States;
  • Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
  • Individuals traveling to attend educational institutions;
  • Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel);
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo);
  • Individuals engaged in official government travel or diplomatic travel;
  • Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
  • Individuals engaged in military-related travel or operations.

Individuals traveling for work should check with their immigration lawyer before making any cross-border travel plans since “essential travel” has been prone to different interpretations by CBP officials.

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.

On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19).  This closure was scheduled through May 3.  Today, April 24, 2020, USCIS is announced that it will reopen on or after June 4. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public while the offices are closed.  During the temporarily closure, USCIS continues to provide limited emergency in-person services.

USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary 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 of the interview.  When USCIS again resumes operations for in-person services, USCIS will automatically reschedule ASC appointments due to the temporary office closure. Individuals will receive a new appointment letter in the mail.  Those who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again.  P

You may also visit uscis.gov/coronavirus and visit https://www.uscis.gov/about-us/uscis-office-closings for updates and latest information on the status of a USCIS office.

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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 April 22, 2020, President Trump issued a proclamation suspending the entry of any individual seeking to enter the United States as an immigrant who:

  • Is outside the United States on the effective date of the proclamation;
  • Does not have a valid immigrant visa as of April 23, 2020; and
  • Does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter.

The proclamation went into effect at 11:59 pm (ET) on April 23, 2020 and will last for at least 60 days. It can be extended and modified. The following categories are exempt from the proclamation:

  • Lawful permanent residents (green card holders)
  • Individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other work essential to combatting COVID-19 (as determined by the Department of Homeland Security (DHS) and the Department of State (DOS))
  • Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
  • Spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on an IR-4 or IH-4 visa
  • Individuals who would further important U.S. law enforcement objectives (as determined by DHS and DOS)
  • Members of the U.S. Armed Forces and their spouses and children
  • Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa
  • Individuals whose entry would be in the national interest (as determined by DHS and DOS)

Discretion. It is within the discretion of the consular officer to determine if an individual is within one of the exempted categories outlined above.

Nonimmigrant Visa Holders (H, L, O, E, TN, etc.) and Asylum Seekers Are NOT Prohibited from Coming to the U.S. by the Proclamation.

Additional Considerations

  • Routine visa services at all U.S. embassies and consular posts around the world remain suspended since March 20, 2020. U.S. embassies and consulates continue to provide urgent and emergency visa services as resources allow. DOS intends to continue to process visa applications for farm workers and medical professionals assisting with COVID-19.
  • S. Citizenship and Immigration Services (USCIS) has temporarily suspended in-person services through at least May 3, 2020, but continues to accept and process applications and petitions, including applications requesting an extension or change of status.
  • The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020.
  • With some exceptions, the entry of individuals who were present in China, Iran, the Schengen Area, the U.K., and Ireland, during the 14-day period before their attempted entry into the United States has also been suspended.
  • The Proclamation requires a review of temporary visa programs within 30 days and recommendations to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

 We are closely monitoring the situation and will provide further updates as soon as we know more about the implementation of this Proclamation.

Thank you to the American Immigration Lawyer’s Association for their summary of the proclamation, on which this post is based.

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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 our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (March 13, 2020), reflecting his analysis of current trends and future projections for the various immigrant preference categories and his answers to various questions from the public.

As posts and USCIS will not be processing as many immigrant visa (IV) and adjustment of status applications due to the closures and suspension of services due to the coronavirus, we are in a unique, unexpected situation.

Check-in with DOS’s Charlie Oppenheim:  March 16, 2020

In some categories, where visa numbers remain unused, it will result in those otherwise unused numbers being made available to other categories, such as falling “up” or “down” to other employment-based categories.  This is likely to occur in EB-5, since the bulk of those numbers are used by China and the closure of the Guangzhou post will almost certainly result in positive forward movements in the EB-1 category.

The reduction in IV processing generally will also create a situation of pent up demand since the visa process cannot be finalized.  As such, depending on how long the continued impact of the coronavirus outbreak lasts, it could result in FY2020 immigrant visa numbers not being completely utilized in all preference categories.

If there is any good news, it is that advancements in the final action dates in certain categories over recent months have helped to spur early number usage (e.g., EB-3).  For now, given the likely slowdown in processing, it is more difficult than ever to predict the advancement of the categories.  Charlie will likely watch these developments over the next two months or so before making any sweeping forward movements in any of the preference categories.

Questions & Answers:

Question: USCIS officers at local green card interviews check visa availability against what they tell us is a Department of State database.  That DOS database can say “visa unavailable” even if the Visa Bulletin shows that the visa is available, based on the final action date.  Can you please explain why this appears to be a discrepancy?

Answer: When the Visa Bulletin is published, it indicates visa availability for the upcoming month based upon the demand which has already been received for consideration in the determination of that month’s final action dates, and numbers are provided for such demand.  Then item #1 of each Visa Bulletin describes what may happen if subsequent changes in demand patterns may require some type of corrective action when it says “(i) f it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin.  If at any time an annual limit were reached, it would be necessary to immediately make the preference category ‘unavailable’, and no further requests for numbers would be honored.”

That is exactly what happened with the determination of the March dates (February 10), and subsequent publication of that Visa Bulletin.  At that time, a “Rest of World” Employment Third preference final action date was listed in Chart A on page four of the bulletin.  Then Item D in the bulletin not only explained why that date had been established, but that it was being imposed effective immediately on all future requests being received for such numbers.

Therefore, if a visa number had not already been provided for use by an applicant prior to that time, they became subject to the March final action date.  For example, if a request for visa authorization were received for an adjustment of status applicant appearing for interview on February 19 the applicant’s priority date had to be prior to January 1, 2017 for such authorization to be granted.  If not, that request submitted by the USCIS Officer processing the case went into our “Pending” demand file awaiting authorization based on future forward movement of that final action date.

Family-based Preference Categories

In April 2020, F2A, which became current back in July 2019, remains current.  Charlie anticipates that F2A will continue to remain current for the foreseeable future.  Even if he were to establish a final action date, it would be very close to the calendar date.  There are tens of thousands of eligible individuals in this category who have not become documentarily qualified, despite the category having become current 9 months ago.

F1 Worldwide and F1 China also remain the same in April, holding at a final action date of July 1, 2006.

Beyond that, the other family-based preference categories are moving forward based on Charlie’s prior projections at the pace of a few weeks at a time, with the exception being the Philippines family-based preference categories, which continue to leap forward rapidly due to lack of demand, ranging from a four month advancement in F2B Philippines to a 7.5 month advancement in F3 Philippines. 

Employment-based Preference Categories

EB-1:  In March, EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) advances another three months to June 1, 2019.  Charlie continues to predict fairly sizeable advancement in this category, with a strong possibility that this category could become current in early summer.  This likelihood will increase the longer the Guangzhou, China post remains closed to IV interviews, since any otherwise unused EB-5 numbers will “fall up” to EB-1.  If and when EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) becomes current, the otherwise unused numbers would then be allocated to those applicants with the earliest priority dates regardless of place of birth, which would predominately impact EB-1 India.  There are currently over 18,000 EB-1 India applicants that have already been interviewed and are awaiting a visa number based on forward movement of that final action date.  In April, the final action date for EB-1 China will advance one week to June 8, 2017 and EB-1 India will advance 2 months to May 1, 2015.

EB-2:  As predicted, EB-2 Worldwide remains current in April.  Last month, based on demand patterns that existed at the time, Charlie predicted that a final action date would need to be imposed in EB-2 Worldwide no later than June 2020.  Based on the anticipated slowdown in processing due to the coronavirus, Charlie expects that might not occur until late summer, if at all.  EB-2 China advances two weeks in April to September 1, 2015, and EB-2 India advances three days to May 25, 2009.

EB-3 and EB-3 (EW) Other Workers:  In April, the final action date for EB-3 Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam) holds at January 1, 2017.  The same goes for EB-3 Other Workers Worldwide (including EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam).  Only EB-3 Other Workers China and EB-3 Other Workers India advance modestly by one month and one week respectively, for an EB-3 Other Workers China final action date of July 1, 2008 and an EB-3 Other Workers India final action date of January 22, 2009.  EB-3 China continues to advance at a slightly faster pace than EB-2 China, leaving EB-3 China 7.5 months ahead of EB-2 China.  Although Charlie is starting to see downgrades materialize, he expects the effects of the coronavirus may cause this situation to continue longer than it otherwise might.  EB-3 India and EB-3 India Other Workers advance one week to January 22, 2009 in April.  EB-3 number usage in FY20 has been robust, which caused the category to retrogress.  As such, this category has already used a significant amount of its fiscal year allocation.

EB-4:  The final action date for EB-4 El Salvador, Guatemala, and Honduras held for a while before advancing briefly in March 2020.  In April, it will hold again with a final action date remaining at July 15, 2016.  As predicted, EB-4 Mexico continues to advance modestly, this time by 9 weeks to January 22, 2018.

EB-5:  With the suspension of IV appointments in Guangzhou, China, EB-5 China number usage is essentially nonexistent.  Although the final action date advanced 4.5 months in March, this category will hold at May 15, 2015 in April.  This category is not advancing is because although processing has temporarily ceased, there is pent-up demand for interviews which would have been scheduled if not for the reduction in services related to the coronavirus.  Date movement was expected to encourage applicants to act on their case in a timelier manner.  However, advancing the date at this time would not be prudent given the processing issues during the coronavirus global pandemic.  Doing so could ultimately require a steep correction.  In April, EB-5 India advances modestly by 9 weeks to January 1, 2019, and EB-5 Vietnam advances three weeks to February 8, 2017.  As noted above, the temporary hold on processing EB-5 China cases in Guangzhou will likely prevent all available numbers from being used in the EB-5 category this fiscal year, causing numbers to “fall up” to EB-1.

You may access the March 2020 Visa Bulletin here and the April 2020 Visa Bulletin here.

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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 April 3, 2020 USCIS issued a series of Questions and Answers regarding its previously announced Flexibility in Requirements Related to Form I-9 Compliance.  See our blog post of March 20, 2020 Breaking News: DHS Announces Flexibility in Requirements Related to Form I-9 Compliance and Automatic Extension of time to respond to a Notice of Inspection (NOI) for information on the original announcement.

Below is a reprint of USCIS’ Q&A, updated as of 4/3/20.

Questions and Answers Related to Temporary Policies for Form I-9 and E-Verify

Questions about Form I-9 Requirements

Q1.  Can you provide an overview of changes to Form I-9 requirements due to COVID-19 and also explain what is staying the same? 

A. Yes, here is an overview:

  • The employee completes Section 1 no later than the first day of employment.

There is no change to current requirements.

  • The employer completes Section 2 within three business days of their employee’s first day of employment.

There is no change to current requirements for employees who are physically present at a work location.

Employers and workplaces that are operating remotely may follow the DHS news release that announced flexibility in requirements related to Form I-9.

If employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter “COVID-19” in the Additional Information field. A physical inspection must take place, after normal operations resume. The date of the physical inspection and who conducted it, should also be recorded in the Additional Information field.

As a reminder, the employer may designate an authorized representative to complete Section 2 or 3 of Form I-9 on behalf of the company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative completes Form I-9 on behalf of the employer, they are still liable for any violations in connection with the form or the verification process.

  • The employer physically examines their employee’s documents with their employee present.

DHS has announced changes to these procedures in certain circumstances; see the news release that announced flexibility in complying with requirements related to Form I-9.

  • The employer completes Section 3, Reverification.

DHS has announced changes to these procedures; the ability to inspect documents remotely for some employers applies to reverification as well. See the March 20 news release for details on remote inspection.

If you are updating Section 3, write “COVID-19 EXT” in the margin or annotate in the additional information field.

There is no change to current requirements for employees physically present at a work location.

Q2. Will the three-day requirement for completing a Form I-9 be relaxed or extended?

A. No.

Q3.  Once operations are back to normal, what is the responsibility for employers?

A. The guidance states that once normal operations are commenced, Section 2 should be completed by physically examining both the employee and the work authorization documents, whoever does this, should sign Section 2.

Q4. Many states are extending the expiration date of state IDs and/or driver’s licenses. How should the extension be documented in Section 2? 

A. If the employee’s state ID or driver’s license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document for Form I-9. Enter the document’s expiration date in Section 2 and enter “COVID-19 EXT” in the Additional Information field. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.

Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicle’s website.

Q5. The DHS March 20 announcement allows for remote inspection of documents and providing a “COVID-19” annotation in the Section 2 “Additional Information” field. How should employers handle this annotation if they use an electronic Form I-9 that does not have this field?

A. The employer can physically or electronically attach a note to an employee’s Form I-9 providing the information that ICE guidance has requested in the Form I-9 “Additional Information” field. Any notation should clearly explain the situation and be signed and dated by the employer.

Questions about E-Verify

Q6. Can you clarify how remote inspection works for E-Verify?

A. On a temporary basis due to COVID-19, employers and workplaces that are operating remotely have the option to inspect Form I-9 documents remotely. Employers who choose the remote inspection option may inspect the Section 2 documents over video link, fax, email, etc.  Employers should obtain, remotely inspect, and retain copies of the identity and employment eligibility documents their employees provide, within three business days for purposes of completing Section 2.

After they inspect the employee’s documents remotely and determine whether the documents reasonably appear to be genuine and relate to the employee, they should create an E-Verify case for the employee. They should still follow current guidance and create the E-Verify case for their new hire within three business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

Q7. In the DHS March 20 announcement, the option for remote inspection only applies to remote workers. What if I have employees working both remotely and reporting in person to work?

A. The current DHS guidance allows for flexibility only when completing a Form I-9 for a new employee that is only working remotely, but as stated in paragraph five of the DHS news release, “…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.”

Q8. If an employee presented a receipt from an agency that is now closed due to COVID-19, how should the employer proceed after the 90 days if the document has not been received?

A. Although many federal and state agencies are closed to the public, internal operations continue. If available, employees should use available customer service phone lines, emails to contact customer service, and other online portals federal and state agencies may have available.

This is an ongoing issue. DHS will reassess this policy if necessary.

Q9.  If an employee presents a driver’s license that has expired (but has been auto-extended by our state due to COVID-19), what expiration date do I use when creating the E-Verify case?

A. If a state has automatically extended the employee’s driver’s license due to COVID-19, employers should enter the actual expiration date as printed on the employee’s document when creating the E-Verify case.

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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.