All posts by Costa Riccio

Trump Seeks Review of Foreign Hiring By Federal Contractors

On August 3, 2020, President Trump signed a new Executive Order (“Aligning Federal Contracting and Hiring Practices With the Interests of American Workers”) directing federal agencies to conduct a review of federal contractors’ and subcontractors’ use of nonimmigrant workers and overseas labor on federal contracts. The agencies are directed to review the nature of the work performed by temporary foreign labor on such contracts; whether opportunities for United States workers were affected by such hiring; and any potential effects on the national security caused by such hiring. After the review, the agencies are required to recommend improvements to their procurement processes within 120 days. The Order also directs the Department of Labor and the Department of Homeland Security to take action within 45 days to ensure that the wages and working conditions of U.S. workers are not adversely affected by the hiring of H-1B workers.

It is important to note that the Order does not have an immediate impact on H-1B workers. At this point, other than imposing a reporting requirement on the contracting agencies, it is unclear what the Order will accomplish. We must wait and see if any changes will result from this latest Executive Order.

 

 

USCIS Suspends Implementation of Final Rule on Inadmissibility on Public Charge Grounds

As a result of an injunction issued by the U.S. District Court in the Southern District of New York on July 29, 2020, USCIS will not apply the enhanced “public charge” requirements that went into effect on February 24, 2020.

Pursuant to this decision, USCIS has indicated that applications or petitions filed on or after July 29, 2020 will not be adjudicated under the expanded public charge requirements. As such, at this time, the Declaration of Self Sufficiency (Form I-944) with its onerous documentation requirements need not be filed with an I-485 Application for Adjustment of Status. Additionally, applications or petitions for extension of stay or change in nonimmigrant status (Form I-129 and Form I-539/I-539A) need not include additional information regarding receipt of public benefits.

This could change at any time and the requirement could be reinstated depending on what happens with the litigation.

We will continue to keep you updated regarding any further developments.

 

USCIS Adjusts Filing Fees for Applications and Petitions

For the first time since 2016, USCIS is adjusting the fees required to file applications and petitions with the Service.  They have calculated that the weighted average of the change is an increase of approximately 20%.  Some fees have increased dramatically, and others have actually decreased.

Some of the changes impacting cases frequently filed by our office include the following:

  • H-1 Visa Petitions increased from $460 to $555
  • O-1 Visa Petitions increased from $460 to $705
  • L-1 Visa Petitions increased from $460 to $805
  • B-2, H-4, and L-2 Applications for Extension or Change of Status increased from $370 to $400 *
  • Fiancé Visa Petition decreased from $535 to $510
  • Family-based immigrant visa petition increased from $535 to $560
  • Adjustment of Status application decreased from $1,140 to $1,130*
  • However, the fee for an accompanying child is now increased to $1,130
  • Employment-based immigrant visa Petition decreased from $700 to $555
  • Reentry Permit Application increased from $575 to $590*
  • Advance Parole Application increased from $575 to $590*
  • Employment Authorization Application Increased from $410 to $550
  • Application for Naturalization increased from $640 to $1,170

For a complete list of all the changes and the reasons given for those changes, click on:

https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs

*these applications also require payment of the “Biometrics” fee.  This fee has been reduced from $85 to $30

 

 

Update on USCIS Reopening Plans

Beginning June 4, 2020, certain USCIS field offices resumed non-emergency face-to-face services to the public. USCIS has indicated that it has enacted precautions to prevent the spread of COVID-19 in reopened facilities. We have seen some Naturalization Oath Ceremonies scheduled recently but have not received any new interview appointment notices since the closure of USCIS offices in early March.Per a recent presentation, USCIS announced that Application Support Centers (which provide biometrics collection and fingerprinting services) will begin reopening on July 13. The opening date for different locations around the country will depend upon local guidelines, ability to prepare space, etc. Please note that it could take several weeks to receive appointment notices even after reopening.

Please also note the following changes to ASC policies/procedures:

·     No more walk-ins will be allowed, with limited exceptions for US military members.

·     Appointment numbers will be reduced to allow for social distancing.

·     Only those called for appointments should appear, with some exceptions for attorneys, interpreters, disability accommodations, parents, etc.; see appointment notice for details.

·     All must wear face covering if over 2 years old. You must call to make arrangements, if for any reason, you cannot cover your face (health/disability).

·     COVID screening questions will be asked at points of entry.

·     USCIS may ask people to remove face coverings briefly to confirm identity or photograph.

We will continue to provide you with updates as they become available.

 

 

 

Trump Proclamation on Entry of Nonimmigrant Workers

President Trump has issued a Proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States. The Proclamation takes effect on June 24, 2020 at 12:01 AM ET. It will remain in effect through December 31, 2020 and may be continued or modified, as necessary.

The Proclamation suspends the entry of any foreign national who is seeking to enter the U.S. pursuant to a(n):

  • H-1B visa or H-2B visa, and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

  • Outside the United States on the effective date of the Proclamation;
  • Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and
  • Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

Exemptions – The Proclamation will not apply to the following individuals:

  1. a)     lawful permanent residents;
  2. b)    spouse or child of a U.S. citizen;
  3. c)     any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  4. d)    any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  1. a)     are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  2. b)    are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  3. c)     are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  4. d)    are necessary to facilitate the immediate and continued economic recovery of the United States; or
  5. e)     are children who would age out of eligibility for a visa because of this Proclamation or Proclamation 10014.

IMPORTANT NOTES

It is important to note that the Proclamation does NOT suspend all entry of individuals who hold nonimmigrant visas. The Proclamation specifically applies to individuals who must apply for nonimmigrant visas outside the country and subsequently travel to the U.S. and who do not have an alternative travel document (such as Advance Parole) that permits them to travel to the U.S. and seek entry or admission.

TN, E-1 E-2, E-3, and O-1 nonimmigrant worker visas remain unaffected. Employees currently in the U.S. seeking to change their nonimmigrant status or apply for extensions within the U.S. will not be affected by this Proclamation.

Given this Proclamation and additional COVD-19 related travel restrictions that are currently in effect, all current H-1B, H-2B, L-1, and J-1 nonimmigrant visa holders should avoid international travel. If travel is absolutely necessary, it is strongly advised that you discuss with our office first and that you ensure the validity of your current nonimmigrant visa prior to leaving the U.S.

At this early stage, there is still uncertainty regarding how the Proclamation will be implemented and who may be exempted. We are awaiting clarification from the government and will update you as we receive more information.

Visit our website at www.costariccio.com

 

 

Continuing Obligation to Pay Offered Wages to H-1B Workers

This is a reminder to all employers of H-1B foreign nationals.
The filing and approval of an H-1B Petition requires the employer to pay the H-1B worker no less than the wages offered in the H-1B Petition filed with USCIS. This requirement exists even for nonproductive time (i.e. time during which employee is not working) caused by conditions related to employment, such as lack of assigned work. However, no payment is required under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker’s voluntary absence from work.
Any reductions in salary contemplated in light of the current economic situation which would lower the H-1B worker’s salary below the offered amount would constitute a violation of the employer’s obligations agreed to at the time of filing.
If the employer wishes to proceed with a salary reduction, they must file an amended Labor Condition Application and H-1B Petition, and must continue to offer wages which equal or exceed the “Prevailing Wage” for the occupation. Doing so will incur additional fees and costs including legal fees and government filing fees.
If the H-1B worker is now earning more than the wages offered in the H-1B Petition, the employer can reduce the wages to an amount no less than the amount offered in the Petition without filing an amendment.
Visit our website at www.costariccio.com

USCIS Extends Temporary Suspension of In-Person Appointments

On March 18, USCIS temporarily suspended all routine face-to-face services with applicants at all offices, including all interviews, biometrics appointments, and naturalization ceremonies. The temporary suspension is extended, and USCIS offices will re-open on May 3, 2020 unless the public closures are extended further. USCIS will continue to provide emergency services during this time.
USCIS will send de-scheduling notices to applicants and petitioners with scheduled appointments impacted by the public closure. USCIS will reschedule all applicants when USCIS resumes normal operations.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
Visit our website at www.costariccio.com

DHS Announces Flexibility with I-9 Requirements During COVID-19 Pandemic

ue to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced some flexibility with respect to I-9 compliance requirements.
Employers with employees taking physical proximity precautions due to COVID-19 will NOT be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
These provisions may be implemented by employers for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person documentation verification requirement. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
Visit our website at www.costariccio.com

USCIS Announces Important Processing Changes During COVID-19 Pandemic

IMMEDIATE SUSPENSION OF PREMIUM PROCESSING
U.S. Citizenship and Immigration Services (USCIS) has announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will continue to process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria.
Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). USCIS will notify the public with a confirmed date for resuming premium processing.
USCIS ANNOUNCES FLEXIBILITY IN SUBMITTING REQUIRED ORIGINAL SIGNATURES
USCIS has announced that it will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.
This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, per form instructions, USCIS will accept reproduced original signatures for the duration of the National Emergency.
Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
Visit our website at www.costariccio.com

Immigration Compliance During COVID-19 Pandemic

Given the current global pandemic, the closure of workplaces raises numerous questions regarding how employers can comply with normal Department of Labor and USCIS requirements, particularly with respect to H-1B employees. As of today, there has been no official guidance from the government. Leadership at the American Immigration Lawyers Association (AILA) has reached out to USCIS and DOL to request guidance and flexibility with respect to normal compliance requirements and are awaiting a response. However, in the interim, given the possibility that the government may not be so generous when reviewing work at home parameters, AILA recommends that you keep in mind the following:
DOL guidance does provide that an employer need not file a new LCA or amended petition for the new worksite not contemplated when initially filed (home address) if it is within the same metropolitan statistical area (“MSA”). An MSA is defined as “the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting areas (e.g. normal commuting distance might be 20, 30 or 50 miles…). The LCA posting associated with the initial filing is still required to be posted at the person’s home for ten consecutive business days, and the posting notices must be placed in the Public Access File when taken down.
If the employee’s home is outside the MSA in which worksite is located, the following rules apply:
Consider using the “Short Term Placement” option: you may place an H-1B worker at a worksite not listed on approved LCA for up to 30 workdays each year. That would equal 6 weeks of work at home.  If the quarantine lasts longer than 30 workdays, you would be required to file a new LCA to cover your employee’s home address and comply with the LCA notice requirements. An amended petition would also be required.
Please note that the American Immigration Lawyers Association has specifically requested that USCIS suspend or waive the requirement that employers must file an amended or new H-1B petition under the above circumstances. We will provide an update as soon as a response is received.
We will continue to provide you with updates as we receive them. Please note that our staff is currently working remotely. Please contact our office via email if you have any questions.
Visit our website at www.costariccio.com