Immigration Updates - October 2020

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Summary

1.OCTOBER VISA BULLETIN SHOWS MAJOR MOVEMENT IN EMPLOYMENT-BASED CASES; USCIS APPLIES FILING DATE RATHER THAN FINAL ACTION DATE TO CERTAIN ADJUSTMENT APPLICATIONS

USCIS issued guidance the same day stating that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status applications.

2. ICE PROPOSES A FIXED TIME PERIOD OF ADMISSION AND EXTENSION-OF-STAY PROCEDURE FOR NONIMMIGRANT STUDENTS, EXCHANGE VISITORS, FOREIGN MEDIA REPRESENTATIVES

ICE proposes to amend its regulations by changing the admission period of F, J, and I individuals from duration of status to admission for a fixed time period.

3. EAD DELAYS DUE TO COVID-19: E-VERIFY/I-9 GUIDANCE

To complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C document that establishes employment eligibility.

4. DOL ANNOUNCES PERMANENT ADOPTION OF ELECTRONIC ISSUANCE OF PERM LABOR CERTIFICATIONS

The Department of Labor announced that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.

5.CBP PUBLISHES NOTICES EXTENDING TRAVEL RESTRICTIONS AT LAND PORTS OF ENTRY BETWEEN THE UNITED STATES AND CANADA, MEXICO

CBP issued notices extending temporary restrictions on travel of individuals from Canada and Mexico into the United States along land ports of entry at the border. Such travel is limited to "essential travel," as defined in the notice, effective through October 21, 2020.

6. USCIS ISSUES NEW GUIDANCE ON APPLICATION OF PUBLIC CHARGE RULE

Following litigation, USCIS said it will apply the public charge final rule and related guidance in the USCIS Policy Manual to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

7. DOL INTERIM FINAL RULE EXPECTED TO RAISE WAGES FOR H-1B, H-1B1, E-3, AND PERM WORKERS

No description has been provided for the rule, which is at the OMB awaiting approval.

8. USCIS SENDS REMINDER TO ENSURE EMPLOYEES CHOOSE THE CORRECT ATTESTATION ON FORM I-9

USCIS sent a reminder that employers are not held liable for any erroneous attestations an employee makes in Section 1 of Form I-9, Employment Eligibility Verification. Rather, an employer must ensure that the employee checks only one box to complete Section 1. To ensure employees can complete Section 1 accurately, the employer must provide them with the entire Form I-9, including the instructions.

9. I-9 REQUIREMENTS FLEXIBILITY EXTENDED FOR ADDITIONAL 60 DAYS

DHS and ICE announced an extension for 60 days of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification, because of ongoing precautions related to COVID-19.

10. USCIS ISSUES POLICY ALERT ON O NONIMMIGRANT VISA CLASSIFICATIONS

The new guidance (1) expands on how officers determine whether an O-1 petitioner has satisfied the evidentiary criteria and established in the totality of the evidence that a beneficiary has extraordinary ability, or extraordinary achievement in the motion picture and television industry, as applicable; and (2) clarifies the circumstances under which a petitioner may rely on "comparable evidence" to meet the evidentiary requirements for certain O-1 beneficiaries.

1. October Visa Bulletin Shows Major Movement in Employment-Based Cases; USCIS Applies Filing Date Rather Than Final Action Date to Certain Adjustment Applications

On September 24, 2020, the Department of State released the October 2020 Visa Bulletin, which shows major movement in employment-based cases.

Among other things, the Filing Date for an EB-3 from India has advanced nearly five years to January 1, 2015, from February 1, 2010, while the Filing Date for an EB-1 from India advanced to September 1, 2020, from July 1, 2018. By contrast the Filing Date for EB-2 India advanced to only May 15, 2011, from August 15, 2009.

USCIS issued guidance the same day stating that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status (AOS) applications. The Alliance of Business Immigration Lawyers (ABIL) said that in the past, USCIS has been reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.

As an example, ABIL noted, since USCIS will accept I-485 filing, a new I-140 would need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3. If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional” or “skilled worker” category would need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2 and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice.

ABIL also recommends that AOS applicants also file applications for an employment authorization document (EAD) and advance parole (AP), to enable work and travel in the event of a disruption in the applicant’s current immigration status, ability to obtain a visa, or position.

Contact your ABIL attorney for advice in specific situations.

Details:

2. ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Nonimmigrant Students, Exchange Visitors, Foreign Media Representatives

U.S. Immigration and Customs Enforcement (ICE) proposes to amend its regulations by changing the admission period of F, J, and I individuals from duration of status to admission for a fixed time period. ICE said that admitting individuals in those categories for a fixed period will require those who wish to remain in the United States beyond their authorized admission period to apply for an extension of stay with U.S. Citizenship and Immigration Services or to leave the United States and apply for admission with U.S. Customs and Border Patrol at a port of entry.

If finalized without change, the rule would make the biggest changes to regulation of international students and scholars in 20 years. Written comments on the proposed rule are due by October 26, 2020, via the method identified in the notice.

Details:

3. EAD Delays Due to COVID-19: E-Verify/I-9 Guidance

U.S. Citizenship and Immigration Services (USCIS) issued a notice on September 23, 2020, stating that issuance of certain employment authorization documents (EADs) may be delayed due to the COVID-19 pandemic.

To complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization, USCIS said. For the notice to be acceptable, it must include a Notice Date issued between December 1, 2019, and August 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete the I-9 until December 1, 2020. New employees must also present an acceptable List B identity document.

USCIS said that by December 1, 2020, employers must reverify employees who presented the notice as a List C document. Those employees must present new evidence of employment authorization—either their new EADs or any other acceptable documentation they choose—from either List A or List C.

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4. DOL Announces Permanent Adoption of Electronic Issuance of PERM Labor Certifications

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced on September 25, 2020, that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.

On March 24, 2020, OFLC announced that due to the impact of the COVID-19 pandemic, it would electronically issue PERM labor certifications to employers and their authorized attorneys or agents through June 30, 2020. On June 16, 2020, OFLC announced that it was extending that period through September 30, 2020. On July 30, 2020, DOL signed a memorandum of agreement (MOA) providing access to the Department of Homeland Security (DHS) to all applications for permanent labor certification submitted to OFLC through the PERM online system, including the ability to verify that a PERM application has been certified. OFLC said the MOA “eliminates the need for duplicate certification requests and increases the integrity of the PERM program by supporting efforts to combat instances of fraud and abuse in connection with labor certification and employment-based immigrant and nonimmigrant programs.”

Details:

5. CBP Publishes Notices Extending Travel Restrictions at Land Ports of Entry Between the United States and Canada, Mexico

U.S. Customs and Border Protection (CBP) issued notices extending temporary restrictions on travel of individuals from Canada and Mexico into the United States along land ports of entry at the border. Such travel is limited to “essential travel,” as defined in the notice, effective through October 21, 2020.

CBP said the restrictions were necessary to lower the risk of transmission and spread of the virus associated with COVID-19.

Details:

6. USCIS Issues New Guidance on Application of Public Charge Rule

U.S. Citizenship and Immigration Services (USCIS) said it will apply the public charge final rule and related guidance in the USCIS Policy Manual to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For those who sent their applications or petitions by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.

USCIS released the guidance on September 22, 2020, on its application of the public charge final rule and related guidance to applications and petitions in light of a September 11, 2020, decision by the U.S. Court of Appeals for the Second Circuit (State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli) that allows the Department of Homeland Security (DHS) to resume implementing the rule nationwide, including in New York, Connecticut, and Vermont. The decision stays a July 29, 2020, injunction issued during the COVID-19 pandemic that prevented DHS from enforcing the public charge final rule during the national health emergency.

Details:

7. DOL Interim Final Rule Expected to Raise Wages for H-1B, H-1B1, E-3, and PERM Workers

According to reports, with no advance notice or publication in the regulatory agenda, the Department of Labor submitted an interim final rule on September 16, 2020, to the Office of Management and Budget (OMB) to change the wage minimums and related requirements for H-1B, H-1B1, E-3, and PERM workers. Expected to be included are the H-1B1 visa for Chile and Singapore professionals and the E-3 for Australia professionals.

This follows on the heels of another interim final rule sent to OMB by the Department of Homeland Security that will redefine the H-1B specialty occupation, the employer-employee relationship, and H-1B employment.

No description has been provided for the latest rule, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels,” but it is expected to raise the minimum wage for such workers. Publication as an interim final rule means that the rule will take effect without an opportunity for public comment beforehand, although comments can be made later. OMB has up to 90 days to review the rule before publication. Litigation is likely.

Details:

  • Law360, “Labor Dept. Preps Wage Level Changes for High-Skilled Visas,” https://bit.ly/3iQNdgA (available by registration)

8. USCIS Sends Reminder to Ensure Employees Choose the Correct Attestation on Form I-9

U.S. Citizenship and Immigration Services (USCIS) disseminated a reminder on September 17, 2020, noting that employers are not liable for any erroneous attestations an employee makes in Section 1 of Form I-9, Employment Eligibility Verification. Rather, an employer must ensure that the employee checks only one box to complete Section 1. To ensure employees can complete Section 1 accurately, the employer must provide them with the entire Form I-9, including the instructions for completing the form.

Employers must not treat any employee different from others because of their selected or perceived citizenship, immigration status, or national origin, USCIS said in its email. Employers should never demand that employees select a specific attestation or ask for or demand documents for completion of Section 1. Additionally, when completing Section 2 of Form I-9, the employer should never ask or require employees to show specific documents because of their national origin, ethnicity, immigration or citizenship status, race, color, religion, age, gender or disability, or because of any other protected characteristic, USCIS said.

Details:

9. I-9 Requirements Flexibility Extended for Additional 60 Days

On September 15, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification. This temporary guidance was set to expire September 19, but because of ongoing precautions related to COVID-19, DHS has extended the policy for an additional 60 days.

This provision only applies to employers and workplaces that are operating remotely. USCIS said employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume. 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.

Details:

10. USCIS Issues Policy Alert on O Nonimmigrant Visa Classifications

On September 17, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert and published a new section in its Policy Manual related to the “O” nonimmigrant visa classifications. The new guidance (1) expands on how officers determine whether an O-1 petitioner has satisfied the evidentiary criteria and established in the totality of the evidence that a beneficiary has extraordinary ability, or extraordinary achievement in the motion picture and television industry, as applicable; and (2) clarifies the circumstances under which a petitioner may rely on “comparable evidence” to meet the evidentiary requirements for certain O-1 beneficiaries.

O-1 nonimmigrant status is available to individuals of “extraordinary ability” in the sciences, arts, business, education, and athletics, and to those with a record of “extraordinary achievement” in the motion picture or television industry, who are coming to the United States temporarily to work in their areas of extraordinary ability or achievement. O-2 status is available for essential support personnel coming to the United States solely to assist an O-1 artist or athlete.

USCIS is also incorporating into the Policy Manual existing guidance relating to certain nonimmigrant athletes, coaches and entertainers (P-1, P-2, and P-3 nonimmigrant classifications), and their essential support personnel.

Details:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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