The United States-Mexico-Canada Agreement known as the USMCA is effective July 1, 2020. The USMCA replaces the North American Free Trade Agreement (NAFTA) which expired June 30, 2020. As it relates to US immigration, the USMCA includes comparable provisions as found in the NAFTA for Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. No occupation categories are eliminated or added and there are no numerical limitations for entries under the new provisions.

Notably, the USMCA retains all of the occupations previously designated as eligible for the NAFTA TN visa. There are interesting changes including new footnotes that the Mathematician occupation includes the profession of Actuary and the Biologist occupation includes the profession of Plant Pathologist.

Businesses and individuals impacted by the recent executive order suspending visa issuance of H-1B, L-1, and J-1 visas should consider the TN visa category for Canadian and Mexican citizens.

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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 (424) 249-1759 or at abrodie@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” (June 17, 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:  June 17, 2020

EMPLOYMENT-BASED PREFERENCE CATEGORIES:

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) remains current in July and should remain so through the end of this fiscal year. In July the final action date for EB-1 China advances one week from August 15, 2017, to August 22, 2017. There are currently almost 2,000 EB-1 China adjustment of status (AOS) cases pending at USCIS. EB-1 India again advances significantly, moving forward eleven months from June 8, 2016, to May 8, 2017. This rapid advancement is made possible by the infusion of otherwise unused numbers falling up from EB-5 and the lack of significant EB-1 Worldwide demand. Charlie is consulting with USCIS regarding their processing capacity and to determine how much of the outstanding demand is close to completion in order to understand what can realistically be approved before the end of the fiscal year.

EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) remains current in July and should do so through FY2020. EB-2 China advancement slows to one week, moving modestly from November 1, 2015, to November 8, 2015. In contrast, EB-2 India advances more rapidly by three weeks, from June 12, 2009, to July 8, 2009. As with EB-1 China and EB-1 India, there is a significant amount of pre-adjudicated demand in these categories and relatively low rest of world demand.

EB-2 China and EB-2 India will certainly exceed their per country limits this year. The open question is how close the EB-2 category will be to reaching its worldwide limits.

EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) which advanced more than ten months in June, advances at a significant yet slower five month pace in July 2020 from November 8, 2017, to April 15, 2018. Similar to EB-1 India, there is a large amount of pre-adjudicated demand in EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), making it more reliable that the advancements will result in visa issuances this fiscal year. However, as also noted above, this category is much closer to reaching its annual limit than the other categories.

EB-3 China advancement slows to one week in July from June 15, 2016, to June 22, 2016. EB-3 China Other Workers starts to advance again in July by one week from July 15, 2008, to July 22, 2008. As EB-2 China and EB-3 China both advance by one week in July, the spread between them remains the same, with EB-3 China’s final action date holding ~7.5 months ahead of EB-2 ChinaEB-3 India and EB-3 India Other Workers both advance two months in July from April 1, 2009, to June 1, 2009.

EB-4 Worldwide (including China, India, Philippines, and Vietnam) remains current in July. EB-4 El Salvador, Guatemala, and Honduras advances 1.5 months from December 15, 2016, to February 1, 2017 and is likely to hold at this date through the remainder of the fiscal year. EB-4 Mexico advances one week–from June 8, 2018, to June 15, 2018. Members should continue to watch EB-4 Mexico for potential movement. It is too early to predict what will happen in the remaining months of FY2020.

EB-5 India (Regional and Non-Regional Centers) becomes current in July and will remain so through FY2020.

EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, remains current in July and will remain so through this fiscal year as well.

EB-5 China (Regional and Non-Regional Centers) advances one week in July, from July 15, 2015, to July 22, 2015. EB-5 Vietnam (Regional and Non-Regional Centers) advances three weeks in July from April 22, 2017, to May 15, 2017.

FAMILY-BASED PREFERENCE CATEGORIES:

Although consular processing is minimal, the National Visa Center (NVC) is operational and continues to process cases, approximately 95% of which are family-based.

F2A remains current in July and will continue to do so throughout the remainder of FY2020. All other family-based preference categories continue to advance in July, many at the same or a slightly slower pace, with a few (F2B Philippines and F3 Mexico) advancing more rapidly.

F2B Philippines advances four months from September 1, 2010, to January 1, 2011, and F1 Philippines, F3 Philippines and F4 Philippines advance four months to June 1, 2011, August 15, 2001, and June 1, 2001 respectively. As reported in prior columns, family-based Philippines demand continues to be extremely low, with applicants not acting to become documentarily qualified in a timely manner, despite rapid advancements in the Final Action Dates. The Philippines family-based categories will continue to advance at a similar pace in the coming months. Based on the data, there is a trend of Philippines applicants responding to the NVC Agent of Choice letter and becoming documentarily qualified within three months of when the advancement indicates their priority dates will become current and within the three months after they would become current. This behavioral trend data helps Charlie understand how to best advance the final action date to elicit responses.

F1 Worldwide (including F1 China and F1 India) advances approximately six weeks from May 22, 2014, to July 8, 2014. F1 Mexico advances three weeks from November 15, 1997, to December 8, 1997.

F2B Worldwide (including F2B China and F2B India) advances 1.5 months in June from March 15, 2015, to May 1, 2015. In July, F2B Mexico advances three weeks from February 15, 1999, to March 8, 1999.

F3 Worldwide (including F3 China and F3 India) advances three weeks in July from April 15, 2008, to May 8, 2008, and F3 Mexico also advances three weeks from June 22, 1996, to July 8, 1996.

F4 Worldwide (including F4 China) advances two weeks in July from August 8, 2006, to August 22, 2006. F4 India also advances at a pace of two weeks from January 22, 2005, to February 8, 2005. F4 Mexico advances another three weeks from May 8, 1998, to June 1, 1998.

Moving forward, Charlie expects movements in the family-based categories to remain consistent with what we have been seeing these past few months.

QUESTIONS & ANSWERS:

QUESTION: In last month’s Check In, Charlie said that “it is unlikely that the employment-based limit will be reached in FY2020.” If that is the case, why is Charlie not accelerating the Visa Bulletin with the hope of attracting as many approvals as possible?

ANSWER: That is exactly what I am doing, but I have to do so within reason based on processing capacity, and not strictly for the sake of movement with no reasonable expectation of actual number use.  Processing capacity at both consular posts and USCIS is diminished due to the pandemic. Currently, immigrant visa processing at consular posts abroad is limited to “mission critical” processing, which is defined at the discretion of the post and which is often limited to adjudicating cases based on compelling reasons, such as age-outs.  Immigrant visa processing at USCIS has also been constrained due to the pandemic, but their capacity has been much greater than that of the consular posts. For example, in May 2020, USCIS used over 3,600 numbers across the employment-based first and second preference categories. This contrasts with number usage in excess of 6,000 for the same categories in May 2019.

The premise that dramatically advancing the Final Action Dates will result in full (or closer to full) number usage is flawed. The agencies’ (and State’s) diminished processing capacity makes it unreasonable to expect that an even more accelerated advancement in the Final Action Dates would increase actual number usage this fiscal year. Additionally, such abrupt movements would likely result in corrective action in the form of retrogression, which should be avoided.  The good news is that there is currently a significant amount of pre-adjudicated demand in EB-1 China, EB-1 India, EB-2 China and EB-2 India that can reasonably be expected to be adjudicated despite the processing constraints. Many of these cases may only require renewed security checks to complete processing, and others may also require renewed medicals. Given USCIS’s potential processing capacity and the current status of these cases, it may be realistic to expect that USCIS will be able to finalize as many employment-based cases as its capacity allows. In contrast, while there is significant demand for EB-5 China numbers awaiting processing in Guangzhou, there is no pre-adjudicated pending demand for EB-5 China numbers at USCIS, and at this time USCIS’s data does not demonstrate significant USCIS demand for that category.

There is no data to indicate the existence of significant EB-5 China USCIS demand that would warrant a more rapid advancement of the Final Action Date in this category. As it stands, this category has advanced much more rapidly than I would have thought possible earlier in the fiscal year. Last October, I expected the best case scenario for the FY2020 EB-5 China Final Action Date to reach March 8, 2015. However, I have been pleased that the data has subsequently supported advancing the date far into the summer–to July 22, 2015. As there remains a significant amount of pending consular demand and no USCIS pending demand, sweeping advancements in this category are not supported by the data at this time. However, as the situation is constantly being monitored, future changes cannot be ruled out.

Although many employment-based preference categories are unlikely to reach their annual limits, there are two categories which are close to doing so. When a final action date was imposed for EB-3 Worldwide earlier this fiscal year, it signaled that this category was close to reaching its annual limit. Given significant early number usage, the EB-3 and EB-4 categories are most likely among the various employment-based categories to reach their annual limits this fiscal year.

QUESTION: Also, does he have an estimate as to how many visas they would be short in FY2020?

ANSWER: The processing limitations resulting from the COVID-19 related issues continue to impact number use under the various numerically controlled visa annual limits. At this time, it is estimated that there could easily be 25,000 unused numbers under FY2020 Employment-based annual limit. That estimate depends largely on the extent that processing is able to return to something approaching normal processing. Although we are unlikely to use all of the employment-based visa numbers this fiscal year given the current family-sponsored processing capacity, there is a silver lining. The law requires that the number of unused family-sponsored visas will be added to the FY2021 employment-based annual limit. In FY2020, we already enjoyed the second highest employment-based annual limit in recent memory—156K, which places the current per country limit at almost 11K. I expect that in FY2021 there will be over 200K employment-based numbers available—which is the highest number I can recall ever having in a fiscal year–and which translates to a 14K per country limit—a 21.5% increase over FY2020. Effectively, any unused employment-based numbers in FY2020 will be more than compensated for next year, and assuming the pandemic subsides and processing returns to normal, these excess numbers will create the possibility of significant advancement in EB-1 China, EB-1 India and EB-5 China, as well as the possibility of EB-3 Worldwide becoming current. Keep in mind that the next fiscal year is just over 3 months away

You may access the June 2020 Visa Bulletin here and the July 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.  Ms. Bahal is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Ms. Bahal at (973) 994-7800, or abahal@foxrothschild.com.

Yesterday, June 22, 2020, President Trump issued the anticipated Proclamation suspending the entry into the US of certain nonimmigrant visa holders.  Specifically, the following new restrictions are in effect 6/24/2020:

  • The executive order applies to foreign nationals who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status (as well as all accompanying or following to join family members).
  • The order also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.”
  • The executive order does NOT apply to anyone who is in the United States as of the effective date of the order (12:01 a.m. eastern daylight time on June 24, 2020)
  • The order does NOT apply to anyone who has a valid nonimmigrant visa as of the effective date.
  • The order does NOT apply to anyone who has “…an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.”
  • The order does NOT apply to any alien whose entry would be in “the national interest”, lawful permanent residents of the US, those providing temporary labor or services essential to the US food supply chain, law enforcement, diplomacy, provision of medical care to individuals with COVID-19 who are hospitalized, and research at US facilities to help combat COVID-19.
  • Notably, there is a section calling for the removal of any foreign national who circumvents the proclamation through fraud, willful misrepresentation, or illegal entry.
  • This executive order is scheduled to remain in place through December 31, 2020, and may be extended beyond that date.

This means if you are an employer with an employee abroad who was expecting to obtain an L-1 or H-1B visa in the coming months (including those individuals who are waiting for approval of their H-1B visas under the cap/lottery) you should expect that the employee will not be able to return to the U.S. until January 2021 at the earliest, even if in possession of an approved visa petition.

Beyond the language of the EO itself, individuals who are exempt and plan to enter the U.S. soon, should be prepared to be challenged at the port of entry.  Individual immigration officers at the port of entry may or may not fully understand the details of the order, or the exceptions, and it would not be surprising that if a few try to apply it too broadly or too aggressively.

Please contact any member of the Fox Rothschild immigration practice to discuss the specifics of the Presidential Proclamation and how it affects you or your workforce.

__________________________

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

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, Ms. Brodie’s practice spans the United States and reaches Consulates worldwide.  You can reach Ms. Brodie at (303) 446-3854 or (424) 249-1759 or at abrodie@foxrothschild.com.

Catherine 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.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com  or at 412-394-5540.

The U.S. Department of Homeland Security (DHS) announced an extension of restrictions limiting non-essential travel at U.S. land ports of entry with Canada and Mexico for an additional 30 days. The government indicates the travel restrictions have been successful in reducing the spread of COVID-19 while still maintaining essential trade and travel. The travel restrictions, after having been extended multiple times, were previously set to expire on June 22, 2020. Non-essential travel includes travel that considered tourism or recreational in nature. Essential travel is permitted and this includes a variety of activities including work, study, health/medical care services, critical infrastructure support, etc. U.S. Citizens, lawful permanent residents, and those with valid travel documents returning to the U.S. are exempted.

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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 (424) 249-1759 or at abrodie@foxrothschild.com.

 

 

U.S. Immigration and Customs Enforcement (ICE) announced on June 16 that it will provide a 30-day extension to its temporary policy allowing flexibility in the rules related to Form I-9 for employers operating 100% remotely in light of COVID-19. The new expiration date for these accommodations is July 19, 2020.

In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This provision was implemented for 60 days and was set to expire on May 19. On May 19, DHS extended this policy for an additional 30 days, until June 18. Our prior blog post provides additional documentation information and instructions.

Employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers. This will be the final extension relative to NOIs served by ICE during the month of March 2020. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. Please see the COVID-19 webpage for more information.

DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed.

___________________________

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.

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.

On May 29, 2020, President Trump issued yet another immigration-related Executive Order.   This one is entitled, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” and can be found here.

The proclamation goes into effect today, June 1, 2020, and its stated purpose is to restrict certain Chinese nationals from entering the United States on F Student visas or J Exchange Visitor visas associated with entities in the People’s Republic of China (PRC) that implement or support China’s “military-civil fusion strategy”.

The Proclamation applies to graduate level students and researchers from the PRC applying for visas or seeking entry into the U.S. who:

(A) receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or (B) have been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s military-civil fusion strategy.

Additionally, the Secretary of State will also consider whether the visas of PRC nationals already in F or J status, to which the executive order would otherwise apply, should be revoked pursuant to INA section 221(i).

The order excluded the following individuals:

  1. Any Lawful Permanent Resident of the United States;
  2. Any alien who is the spouse of a U.S. Citizen or U.S. Lawful Permanent Resident;
  3. Any alien who is a member of the U.S. Armed Forces or who is the spouse or child of a member of the U.S. Armed Forces;
  4. Any alien whose travel falls within the scope of Section 11 of the United Nations Headquarters Agreement;
  5. Any alien who is studying or conducting research in a field involving information that would not contribute to the Chinese military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security;
  6. Any alien whose entry is important for U.S. law enforcement objectives;
  7. Any alien whose entry would be in the national interest.

The short-term and long-term impact of the Executive Order on the STEM fields in general and diplomatic relations between the two nations is now in question.   Chinese students should speak to their Student Advisors regarding this new Executive Order and how it will impact their ability to study in the United States.

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 Friday, May 29, 2020, U.S. Citizenship and Immigration Services (USCIS) announced plans for the phased-in resumption of premium processing for eligible I-140 Immigrant Petition for Alien Worker petitions and eligible I-129 Nonimmigrant Worker petitions. (See USCIS website at https://www.uscis.gov/news/alerts/uscis-resumes-premium-processing-certain-petitions.)

USCIS temporarily suspended premium processing availability for all eligible Form I-129 and I-140 petitions on March 20, 2020, due to the coronavirus (COVID-19) national emergency.  After nearly two months without premium processing, this is welcome news. Of course, the announcement includes a caveat–USCIS may change its phase-in plans as needed based on the circumstances.

An appropriately prepared and filed Form I-907, Request for Premium Processing Service packet continues to be the means for upgrading a pending petition or to concurrently request premium processing for an upcoming filing.

According to USCIS’s announcement, the resumption of Premium Processing is planned to occur in phases during the month of June and USCIS will accept I-907s as follows:

  • Effective Monday, June 1:  I-907s accepted for all eligible Form I-140 petitions.
  • Effective Monday, June 8:  I-907s accepted for certain I-129 petitions filed before June 8 and pending, including:
    • Cap-Exempt H-1B petitions (e.g., those filed by cap-exempt petitioners and for beneficiaries previously counted toward the numerical limits); and
    • All other (non H-1B) I-129 petitions for eligible nonimmigrant classifications such as for L-1 Intracompany Transferees, E Treaty Traders and Investors, O-1 Aliens of Extraordinary Ability, etc.
  • Effective Monday, June 15:  I-907s accepted for Cap-Exempt H-1B petitions filed after June 8 with a concurrently filed request for premium processing, including those exempt from the H-1B Cap because:
    • The employer is cap-exempt or the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a non-profit research organization or a governmental research organization); or
    • The beneficiary is cap-exempt based on a J-1 Physician Conrad/IGA waiver under INA section 214(l).
  • Effective Monday, June 22:  I-907s accepted for all other I-129 petitions, including: 
    • All FY-2021 H-1B Cap-Subject petitions (e.g., including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s.)
    • All other I-129 petitions for eligible nonimmigrant classifications with a concurrently filed I-907.
  • Pre-March 20, 2020 Premium Processing Requests:
    • Petitioners whose pre-March 20 premium processing requests relating to eligible I-129 and/or I-140 petitions received no action and for which the premium processing fee was refunded may refile their Form I-907 Request for Premium Processing Service following the announced timings—and keeping in mind that USCIS may announce date changes at any time in the future.
    • For Petitioners whose pre-March 20 premium processing requests otherwise remain pending, the USCIS announcement states that the Agency will continue “to process any petition with a previously accepted Form I-907, in accordance with the premium processing service criteria.”

Now is the time to prepare, file, etc.  As mentioned, the dates set forth are subject to change so it’s important to watch for updates as USCIS takes on more premium processing requests. USCIS will announce date changes accordingly.

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.  She is based in our Pittsburgh, Pennsylvania office.  Please contact Ms. Wadhwani at cwadhwani@foxrothschild.com or at 412-394-5540.

 

 

On May 27, 2020 U.S. Citizenship and Immigration Services announced that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.  Routine in-person services at USCIS field offices, asylum offices and application support centers (ASCs) has been suspended since March 18 to help slow the spread of coronavirus (COVID-19).  USCIS is following the Centers for Disease Control and Prevention’s guidelines to protect our workforce and the public.  As services begin to reopen, offices will reduce the number of appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy.

Appointment notices will contain information on safety precautions that visitors to USCIS facilities must follow.  The status of any particular office may change at a moment’s notice, so USCIS recommends that you check their USCIS Office Closings and Field Offices pages for up to date information about office closures or changed hours.  Specifically, USCIS requests that all applicants check these pages on the day and before visiting a USCIS office for a scheduled appointment.  USCIS also requests that any applicants who feel sick do not attend a scheduled appointment.  Instead, applicants should follow the instructions on the appointment notice to reschedule the appointment.  There is no penalty for rescheduling an appointment due to illness.  All individuals who appear at a USCIS office are required to follow all safety precautions (see below).  While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services.  Individuals may locate USCIS contact information on the USCIS Contact Center page to obtain emergency services.

Interviews and Appointments

USCIS will send notices to applicants and petitioners with previously scheduled appointments and interviews.  Those attending appointments must follow the safety guidelines outlined below.  Any individual with an appointments should confirm that the USCIS where they plan to appear remains open and available for the appointment immediately before appearing.  Visitors are limited to the applicant, one representative, one family member and one individual providing disability accommodations. The applicant should arrange to have their interpreter available by phone.

Application Support Centers

USCIS will automatically reschedule any necessary ASC appointments that were cancelled due to the temporary office closure.  Those attending appointments must follow the safety guidelines outlined below.  Individuals who appear at a date or time other than what is listed on the ASC appointment notice may encounter significant processing delays, except for military members.

 Naturalization Ceremonies

USCIS will send notices to applicants to reschedule postponed naturalization ceremonies.  The ceremonies will be shorter to limit exposure to those in attendance, but all legally required portions of the ceremony will take place.  Instead of playing videos during naturalization ceremonies, attendees will receive a flyer with information and links directing them to the videos on the USCIS Naturalization Ceremonies page for advance viewing.  Attendance will be limited to the naturalization candidate and individuals providing assistance to disabled persons.

Asylum Offices

USCIS asylum offices will automatically reschedule asylum interviews that were cancelled during the temporary closures.  When USCIS reschedules the interview, asylum applicants will receive a new interview notice with the new time, date, and location for the interview and information about safety precautions.

In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room.  Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.

For affirmative asylum interviews, applicants must bring all immediate family members listed as dependents on the application and an interpreter, if the applicant does not speak English.  Additionally, a representative, witness, individual providing disability accommodations, or “trusted adult” if an applicant is a minor, may attend the interview.

For non-detained credible or reasonable fear interviews, individuals must bring any family members listed on the interview notice.  Representatives may attend credible and reasonable fear interviews but are encouraged to participate telephonically.  USCIS will provide contracted, professional interpreters for credible and reasonable fear interviews.

SAFETY GUIDLINES FOR ENTERING USCIS FACILITIES:

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points.
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities.  Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph.  There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

See uscis.gov/visitorpolicy and uscis.gov/coronavirus for more information.

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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 May 11, 2020, 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.