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.
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Latest Updates on Coronavirus Impact on Immigration Processing

SUSPENSION OF IN-PERSON OPERATIONS AT USCIS
As of March 18, U.S. Citizenship and Immigration Services has suspended routine in-person services nationwide until at least April 1 to help slow the spread of Coronavirus Disease 2019 (COVID-19). This includes biometrics appointments, interviews and naturalization ceremonies. USCIS staff will continue to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations.
USCIS will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. When USCIS again resumes normal operations, USCIS will automatically reschedule appointments due to the office closure. You will receive a new appointment letter in the mail.
                   TEMPORARY CLOSURE OF U.S.-CANADA BORDER
According to the latest news reports, the US-Canada border will close to non-essential travel to slow the spread of COVID-19. There is no official word yet as to when this will take effect but we expect it will be soon.
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

Coronavirus on Immigration Processing

By now you are all aware of the dramatic impact the virus is having on business as usual. The normal operations of the Immigration Service in the U.S., the U.S. Consulates abroad, and our office are not exempt from these disruptions.
Beginning tomorrow our attorneys and support staff will primarily be working from home, like many of our clients. This is obviously not ideal but we will make every effort to adjust as seamlessly as possible to the new reality. Our focus in the coming days will be on matters that require immediate attention, and we are confident we can take care of these matters.
Email continues to be the best way to communicate with us. Clients can also continue to call our office and leave messages for any of our staff. These voice messages are converted to emails and can be responded to from our homes.
We expect that USCIS will soon begin to cancel interviews at the local District Offices, though there has been no announcement to this effect yet. In the meantime, we are encouraging clients to consider rescheduling upcoming interviews, and we are prepared to assist them in making that request. Unfortunately, whether the request is initiated by our clients or USCIS edict, we cannot estimate when interviews may resume.
Several U.S. Consulates have already suspended visa interviews and we fully expect this trend to continue.
Processing times for cases filed at USCIS Service Centers may well increase, since Service employees may also be given the opportunity to work from home.
Please stay in touch with our office if you have any questions or comments. We appreciate your patience, and we trust you will take all necessary precautions to protect yourselves and your families in this trying situation.
Please contact our office if you have any questions.
Visit our website at www.costariccio.com

USCIS Imposes Stringent New “Public Charge” Requirements

Effective February 24, 2020, USCIS will begin imposing much more stringent requirements related to “public charge”. An individual who is deemed likely to become a “public charge” will be found inadmissible to the U.S.

USCIS defines a “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” In determining whether an individual meets this definition for public charge inadmissibility, a number of factors will be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

These new requirements will apply to all applicants for admission to the U.S., individuals who are seeking to adjust their status to that of lawful permanent resident (“green card”) in the U.S. and those who hold a nonimmigrant visa and are seeking to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

In order for USCIS to make a determination as to whether an individual will likely become a “public charge”, the government will now require the completion of a new, burdensome form (Form I-944) and the submission of extensive supporting documentation (including, but not limited to, the individual’s financial and educational documents) with any adjustment of status application. For applications for extension of stay or change of non-immigrant status, USCIS has revised existing forms to include specific questions regarding public charge. Supporting evidence will also be required for these applications.

We understand that these new requirements will make the already complex U.S. immigration process even more difficult and frustrating but we pledge to do our best to develop efficient practices and procedures to help our clients deal with these matters in the most efficient and cost-effective way possible.

Please contact our office if you have any questions.

 

Trump Administration Expands Travel Bans to Six Additional Countries 

On January 31, 2020, President Trump signed a Presidential Proclamation that expands the current travel ban to include certain nationals from Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The Proclamation is due to go into effect on February 21, 2020.

Nationals of Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria, with some exceptions, will be barred from entering the U.S. as immigrants.  With respect to Sudan and Tanzania, the ban applies only to immigrants under the Diversity (“green card”) Lottery. Immigrants refers to those who are seeking admission to the U.S. on a permanent basis through family, employment or through the Diversity Lottery program.

The expanded travel ban does not apply to nonimmigrants, such as business visitors, tourists, students, exchange visitors, or temporary workers (e.g. H or L visa holders) from these countries.

The expanded ban applies to persons who are outside the U.S. on the effective date and who do not already have a valid U.S. immigrant visa that was issued before February 21, 2020.

Please contact our office if you have any questions.

 

USCIS Announces Registration Program for Cap-Subject H-1B Petitions

USCIS has confirmed that employers seeking to file cap-subject H-1B Petitions for employment to begin on October 1, 2020 must first complete an online registration providing basic information about the employer and the prospective worker.

The initial registration period commences on March 1, 2020 and ends on March 20, 2020.  A $10 fee is payable in order to register. A random selection process (if needed) will then be conducted and successful applicants will be invited to submit a complete H-1B Petition with supporting documentation. If an insufficient number of registrations are submitted to utilize all 85,000 H-1B numbers, an additional registration period will be announced.

In the coming weeks, the Service will provide additional guidance on the information required to submit a proper registration, as well as further details about the process.  We will pass along additional information as soon as it becomes available.

Please contact our office if you have any questions.

 

Important Update on the December 2019 Visa Bulletin

USCIS has determined that the “Dates for Filing Chart” on the Department of State Visa Bulletin may be used to determine eligibility to apply for Adjustment of Status in the U.S.  in an Employment-Based category.  Visa numbers are “current” for all four Employment-Based categories (EB-1 through EB-4) in the Worldwide* column.  Therefore, potential applicants in any of these categories who are otherwise eligible** may apply for Adjustment of Status in the U.S. if:

They have a PERM Labor Certification approved and are ready to file the I-140 Visa Petition, or

They have already established a Priority Date by filing an I-140 Visa Petition and the Petition has been approved or is pending, or

They are prepared to concurrently file an I-140 “Self-Petition” in the Extraordinary Ability (EB-1A) or National Interest Waiver (EB-2) category.

A properly filed Adjustment of Status application (I-485) allows the applicant to remain in the U.S. until a decision is made on the application, obtain an Employment Authorization document, and obtain an Advance Parole authorization to travel abroad and reenter the U.S. while the application is pending.

However, there may be significant restrictions on international travel before and after filing depending on the applicant’s nonimmigrant visa status.  These factors must be carefully considered before taking steps to file the I-485.
Family Preference Categories

On the family side, visa numbers are currently available in December in the F2A Category (spouses and children of Lawful Permanent Residents) from all countries.

*in December, Dates for Filing are current for all countries except China and India.

**generally, the applicant must have been lawfully admitted to the U.S. and maintained lawful nonimmigrant status since last arrival.  There is an important exception which excuses status violations of less than 180 days since the last arrival (Sec. 245(k) I&N Act) in the employment-based categories only.

Please contact our office if you have any questions.

 

Trump And His Invisible Wall

We’re not prone to sending our clients links to published articles, but this one caught our attention.

Rachel Morris wrote about the challenges that immigrants and their advocates are facing in the Trump era in the most recent Huffpost online.

Her article perfectly captures the behind the scenes efforts the administration is making, without Congressional action, to make the immigration system less user friendly:

In the two years and 308 days that Donald Trump has been president, his administration has constructed far more effective barriers to immigration. No new laws have actually been passed. This transformation has mostly come about through subtle administrative shifts—a phrase that vanishes from an internal manual, a form that gets longer, an unannounced revision to a website, a memo, a footnote in a memo. Among immigration lawyers, the cumulative effect of these procedural changes is known as the invisible wall.”

https://www.huffpost.com/highline/article/invisible-wall/

We’re dealing with the results of these actions on a daily basis, and we’re committed to doing what it takes to help our clients successfully navigate the immigration system

Department of State Announces DV 2021 Visa Lottery

The Department of State has announced the procedures for the next Visa Lottery.  Detailed information is available on the Department of State website at:

https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-%20Instructions-English.pdf

The Visa Lottery enables 50,000 individuals from most countries of the world an opportunity to obtain a green card provided they meet certain minimal qualifications.  In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2021, 50,000 DVs will be available.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2021, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  Persons born in Hong Kong SAR, Macau SAR, and Taiwan ARE eligible to participate in the Lottery.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.”  Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

  • the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or
  • the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net Online database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S.  For example, an applicant with a criminal record may be barred.

Entries for the DV-2021 DV program must be submitted electronically between noon Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 2, 2019, and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 5, 2019. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at www.dvlottery.state.gov. Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 5, 2019.

We believe that anyone with access to the Internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process.   PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.

However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.

Please feel free to contact our office if you have any questions.

 

Updated USCIS Forms Required effective October 15, 2019

USCIS has finally published the much anticipated  new editions of Forms I‑485, I‑129, I‑539/I‑539A, I‑864, and I‑864EZ.  Also published is the new Form  I‑944, Declaration of Self Sufficiency, required by the updated “Public Charge” regulations.

They will accept the current edition of these forms if they are postmarked on or before Oct. 14, 2019.  However, note that October 14 is a federal holiday and the U.S. Postal Service will be closed.

The Service has confirmed that they will only accept the new editions of these forms if postmarked on or after October 15, 2019.

The Service has also confirmed that a dated receipt from the courier service such as UPS, FedEx, or DHL is equivalent to a U.S. Postal Service postmark.