UPDATE: March 31, 2020
Rapid changes are taking place in the laws affecting all US employers. Unfortunately, business immigration law and policy has continued to lag behind in adapting to the “new realities” affecting US companies and their international talent. However, we are starting to see what we hope are a few bright spots emerging:
Relaxation of Biometrics Requirements: During its first 3 years, the Trump administration implemented several procedural changes that contributed significantly to extending processing times on various employment-based applications. One of those procedural changes included the new requirement that many applicants appear for “biometrics appointments” in person at Application Support Centers (ASC’s) to have their pictures and fingerprints taken. This new procedural requirement significantly increased the processing times of H4 (spouses and family of H1b visa holders) and I-765 Employment Authorization Document applications, among others. In response to the pandemic, however, USCIS canceled all ASC biometrics appointments, leaving many wondering how extensions and change of status applications may be impacted. On March 30, however, USCIS announced that it will start to waive the ASC biometrics requirement for I-765 renewal applications. Instead, USCIS will rely on the previously gathered biometrics data. No word yet on whether the USCIS will expand this to H4 applications, or to applications for new EADs instead of simply applying it to renewals. Nonetheless, this is at least a step in the right direction.
Healthcare Worker Cases: As we previously reported, Consulates around the world have been largely closed for business for individuals needing new visa stamps. The Department of State, however, recently announced that it would welcome visa appointments for physicians and other health care workers seeking to come to the US to assist in the country’s response to the COVID-19 crisis. At the same time, we are seeing cases for change of status and extension of stay for H1b physicians within the US starting to be approved more quickly, even though the USCIS suspended premium processing earlier this month. No official policy announcement has been made, but it is starting to become a noticeable trend that we surely hope continues. The USCIS has had a history of exercising its discretion to expedite cases for humanitarian purposes even without premium processing. If there was ever a time for the USCIS to exercise that discretion, now is the time.
Flexibility on RFE and other responses Also on March 30, USCIS announced it would relax filing and response requirements for certain Request for Evidence, Notice of Intent to Deny, Notice of Intent to Revoke, Notice of Intent to Terminate, and Notice of Appeal or Motion (I-290B) cases where the issuance date of the request, notice or decision is between March 1, 2020 and May 1, 2020. Responses to these requests will still be considered up to 60 calendar days after the normal response due date set forth in the request or notice.
H1b Lottery: Another bright spot, at least for some, is the new H1b lottery registration process still went forward despite the massive interruption the COVID-19 pandemic has caused for all US businesses. This week, USCIS began announcing cases that have been selected for the lottery, giving employers 90 days from the date of the notice issued to file full H1b petitions for inclusion in the 2021 fiscal year H1b count that commences October 1, 2020. Some cases were rejected if employers violated the terms of the registration by registering duplicate applications, or there was a payment error, or other issue. The remaining cases not initially selected will stay in “submitted” status for the duration of the fiscal year (through September 30, 2020) in event more numbers become available. This may be more than a remote possibility if successful lottery applicants decide they can no longer go forward with sponsorship for economic or other reasons.
REAL ID deadline suspended 12 months: In good news that affects potentially all US travelers regardless of nationality, the government has delayed the requirement of using REAL ID Act compliant driver’s licenses for domestic airport security purposes until October 1, 2021, recognizing that most individuals may not be able to obtain new, compliant drivers licenses due to various shut down orders in response to the current crisis.
We will continue to monitor and keep you updated on changes affecting US business immigration policy.
The current National Emergency is resulting in rapid changes to US immigration law and policy. We are monitoring those changes and will continue to update these FAQs with new developments:
- Consular Processing: US Consulates around the world are canceling visa appointments for almost all cases. Exceptions may be made, in theory at least, for critical cases, but for now there is no real guidance from the US Department of State on criteria to be used by issuing posts. We are aware of a few physician “test cases” currently seeking visa appointments. But no word yet on whether they will be accepted. The takeaway, of course, is not to travel.
- Borders: The US, Mexico and Canada are the latest to restrict the flow of non-essential travel. Bottom line: don’t travel
- I-9 Compliance: The rules have relaxed a bit during this time. Employers are no longer required to check I-9 documents in the presence of newly hired employees. Instead, employers may inspect the documents remotely, and must then within 3 business days obtain, inspect and make copies of the documents. The employer can note “COVID-19” on the I-9 as the reason for the delay. Here is the Department of Homeland Security announcement:
- Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA). 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 also should enter “COVID-19” as the reason for the physical inspection delay in 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 the date of this notice 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.
- Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
- 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 verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. 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.”
- Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
- USCIS Visa Processing:
- For now, the USCIS is still adjudicating petitions, with some offices working remotely. We continue to receive approvals this week, so that is good news. But all ASC biometrics appointments are being rescheduled. We are seeing notices come out now for pending appointments.
- Effective March 20, 2020: No more premium processing cases will be accepted. Premium processing cases already on file will be allowed to continue.
- Copies of signatures will now be allowed on H1b and other visa petitions. In the past, the USCIS required wet signatures. 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 electronically reproduced original signatures for the duration of the National Emergency.
- DOL/PERM: The Department of Labor has announced a 60-day extension of filing PERM applications for cases who began recruitment within 180 days of March 13, 2020. The normal regulatory requirements state that recruitment must have begun no more than 180 days before the filing of the PERM application, and that the last advertisement must have been completed at least 30 days before the filing of the PERM application. So for those employers who started their PERM recruitment within 180 days of March 13, the employer can have an additional 60 days from their normal regulatory filing obligation in which to submit their PERM application. However, if the 180-day recruitment window would have been completed by March 13, then no 60-day extension would apply. In other words, recruitment must have been started on or after September 15, 2019 to take advantage of the 60-day extension. Also, the filing must take place by May 12, 2020.
- H1B Change of Worksite: COVID-19 has made us all reassess our workplaces – this firm included as we are adapting to working remotely. Normally the H1b visa grants work authorization for a specific employer, in a specific position, and for a specific job. For changes of worksite within the area of intended employment (i.e., within the same MSA or other location covered by the prevailing wage and the approved LCA), then the employee can work in a different location provided the employer posts the required LCA notice at the unintended worksite as soon as practicable, but no later than 30 days after the H1b employee commenced work at the new location. So H1b employees working remotely at home, but in the same area of intended employment originally contemplated by the H1b petition, should post the LCA at their homes for 10 days as soon as practicable from commencement of the telework arrangement, up to 30 days after they start. For unintended worksites outside of the area of intended employment, the normal H1b rules for temporary placement would apply.