Greenspoon Marder Immigration Alert: New Developments - June 1, 2020

Premium Processing Will Resume On June 1st In Phases

U.S. Citizenship and Immigration Services (USCIS) announced it will resume premium processing service in phases over the next month for nonimmigrant visa petitions, Form I-129, and eligible I-140 immigrant visa petitions.

Per the announcement, premium processing will be made available as follows:

June 1st: USCIS begins accepting premium processing requests for all eligible Form I-140 petitions.

June 8th: USCIS will accept premium processing requests for:

• H-1B petitions filed before June 8th that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners who are cap exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).
• All other I-129 petitions (non-H1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8th that are pending adjudication.

June 15th: USCIS plans to resume premium processing for H-1B petitions requesting premium processing by filing an I-907 concurrently with the I-129 (or request for a petition filed on or after June 8th) and are exempt from the cap because:

• The employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization (such as an institution of higher education, a nonprofit research organization, or a governmental research organization); or
• The beneficiary is cap exempt based on a Conrad/IGA waiver under INA section 214(l).

June 22nd: USCIS plans to resume premium processing for all other Form I-129 petitions, including:

• All H-1B cap-subject petitions (including those for fiscal year 2021), 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 nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with the I-129.

Presidential Proclamation Restricting Entry of Certain F-1 and J-1 Nonimmigrants from China

President Trump signed a proclamation suspending admission of certain F-1 students and J-1 researchers from China seeking to enter the U.S. on an F or J visa to study or conduct research in the U.S. if they have connections to an entity in China that implements or supports the country’s “military-civil fusion strategy.” The proclamation includes a number of exceptions to this rule, including Chinese nationals coming to the U.S. to pursue undergraduate study.

The proclamation will take effect on June 1, 2020 at 12 p.m. ET and will remain in effect until terminated by the president.

Employment I-9 Verification Extended

U.S. Immigration and Customs Enforcement (ICE) announced that it is extending until June 18, 2020, deferring the requirement to physically inspect the original documents presented by new hires during the I-9 process and thus allow eligible employers to continue to implement remote I-9 verification in certain circumstances during the COVID-19 emergency.

Under the interim policy, employers with employees working remotely due to COVID-19 will not be required to review identity and employment authorization documents in the employee’s physical presence until the emergency is over. This accommodation is not permitted for work places that are not operating entirely remotely and where some employees are still physically reporting to a work location. ICE may also permit the use of these remote verification procedures on a case-by-case basis where newly hired employees are subject to quarantine or lock-down protocols (such as the stay-at-home orders issued by certain state and local governments). Employers taking advantage of these procedures must provide written documentation of their remote onboarding and telework policy for each employee.

Employers who are eligible for and elect to use the interim guidelines will be able to inspect Section 2 documents remotely, by video, fax or email, and must retain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 must be completed by the employee’s start date and Section 2 must be completed within 3 business days of the start date.

Once normal operations resume, all employees who were on-boarded 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. 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.

The DHS remote guidelines are not mandatory. Employers may continue to follow standard Form I-9 procedures, including the use of agents to complete verification on the employer’s behalf.

The interim procedures were originally in effect through May 19, 2020, but have been extended until June 18, 2020 because of the ongoing emergency. They are expected to remain in place through the extended date or until 3 days after the national emergency is over, whichever comes first. Further extensions are possible depending on the COVID-19 emergency.

June Visa Bulletin: Advancement in India EB-1, EB-3 categories other than China, India

The U.S. Department of State (DOS) has released the June Visa Bulletin. Priority-date cutoffs will advance in some employment-based categories and more modestly in others.

USCIS has announced that in June it will only accept employment-based adjustment-of-status applications with a priority date that is earlier than the Final Action Dates listed in the State Department’s June Visa Bulletin. For Family-sponsored filings, the Dates for Filing chart should be used, except for the F2A category. The F2A category has a cutoff date on the Dates for Filing chart and is “current” on the Final Action Dates chart, therefore the F2A category may use the Final Action Dates chart.

Key movements in the June Visa Bulletin:

Employment-Based, First Preference (EB1) Category

The EB1 cutoff date for India moves ahead by more than ten months, to June 8, 2016. Meanwhile, EB1 China moves up to August 15, 2017. The category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

The EB2 category remains current for all countries of chargeability except India and China. EB2 China moves forward to November 1, 2015. EB2 India advances to June 12, 2009.

Employment-Based, Third Preference (EB3) Category

The cutoff date for EB3 China moves forward to June 15, 2016. EB3 India moves ahead to April 1, 2009. All other cutoff dates for the EB3 category are set at November 8, 2017.

EB3 Other Workers

With the exception of China, the cutoff dates for EB3 other workers are the same for each country as its respective EB3 cutoff dates. For China, the cutoff date for EB3 other workers progresses to July 15, 2008.

Employment-Based, Fourth Preference (EB4) Category

The cutoff date for EB4 Mexico moves forward to June 8, 2018. Meanwhile, the cutoff date for El Salvador, Guatemala, and Honduras moves to December 15, 2016. This category remains current for all other countries of chargeability.

Employment-Based, Fifth Preference (EB5) Category

The EB5 category remains current for all countries of chargeability except China, India, and Vietnam. For China, the cutoff date moves to July 15, 2015. EB5 India advances to January 1, 2020. For Vietnam, the EB5 cutoff date moves to April 22, 2017.

COVID-19: USCIS Allows Specific Extensions

In its ongoing response to the COVID-19 pandemic, USCIS agreed to extend its 60-day deadline extension policy for responses to various agency actions to July 1, 2020. The accommodation will continue to be available to stakeholders responding to or filing the following:

• Requests for Evidence (RFE),
• Notices of Intent to Deny (NOID),
• Notices of Intent to Revoke (NOIR),
• Notices of Intent to Terminate EB-5 Regional Investment Centers (NOIT), as well as Notices of Intent to Rescind, and
• Form I-290B appeals/motions to reopen an adverse USCIS decision.

Trusted Traveler Programs Extended

U.S. Customs and Border Protection (CBP) announced on May 26, 2020 that it will extend the temporary closure of the Trusted Traveler Programs (TTP) until at least July 6, 2020 as a precautionary measure due to COVID-19. Due to the suspension of TTP, the following enrollment centers will remain closed:

• Global Entry, including mobile enrollment events
• NEXUS
• SENTRI
• FAST

All applicants who have been conditionally approved will need to reschedule their interviews after July 6, 2020 using the online scheduling tool.

The Temporary closure of the TTP will not affect CBP’s Enrollment on Arrival program; as such, Global Entry applicants who arrive into the United States on an international flight can complete the enrollment process with CBP at any of the airports across the United States that offer this program.

Finally, due to COVID-19, CBP has extended the duration of how long a TTP application remains active to 485 days from the date the applicant completes the enrollment process. CBP also increased the application renewal period for current TTP members to 18 months to all current members to apply for renewal well in advance of their current TTP membership expiration.

High Unemployment – Senators asking for changes to key Visas

On May 7, 2020, four U.S. senators wrote a letter to President Trump, requesting that he suspend “all new guest worker visas” for 60 days, and others for a year “or until unemployment has returned to normal levels.” The requested changes to the guest worker program come amid all-time high unemployment in the United States due to the COVID-19 pandemic.

The senators, who include Tom Cotton (R-Arkansas), Josh Hawley (R-Missouri), Ted Cruz (R-Texas), and Chuck Grassley (R-Iowa), argue that the Presidential Proclamation issued April 22, 2020, was not insufficient. The Presidential Proclamation became effective April 23, 2020. Although this 60-day moratorium on immigration was limited to immigrant visas for applicants outside the United States, there was an expectation when it was issued that the Trump administration planned on releasing a second executive order or proclamation centered around non-immigrant visas since the proclamation included language giving the president and relevant agencies 30 days to review non-immigrant programs.

The letter urges the president to expand his Executive Order and impose additional restrictions on U.S. guest-worker programs. Specifically, the letter requests that the administration halt all new guest-worker visas for 60 days, after which time the senators say the President should continue to suspend new non-immigrant guest-worker visas for a year or until national unemployment figures bounce back to “normal levels.” Among the visas they would like to suspend are H-2Bs, which allow non-agricultural seasonal workers into the United States; H-1Bs, which are for highly skilled applicants in specialty occupations; and the Optional Practical Training (OPT) program, which grants certain foreign students work authorization and extends their status for one to three years after completing their degrees. The senators also request that President Trump immediately suspend, or at least until reforms are adopted, EB-5 visas – a program allowing foreigners to become green-card holders by investing a threshold amount of funds in a qualified business in the United States.

https://www.lexology.com/library/detail.aspx?g=0e0247f5-cf8a-4341-8c94-c1d5fe682b2e

Mentions

• U.S. Citizenship and Immigration Services

States

• New York