New Administration Halts Implementation of Pending Regulations, Withdraws Travel Ban

The incoming administration has issued an order halting the implementation of all proposed rules that are not yet final for 60 days (so until March 20, 2021). This includes the DOL wage change rules as well as the USCIS changes to the H-1B process (see a description of these rule changes here). Hopefully, the rule changes will be withdrawn, but we will keep you updated on that.

Another USCIS change in terms of H-1B’s is now withdrawn. USCIS had a proposed amendment that had not yet been published in the Federal Register, which would have changed the rules in terms of the employer-employee relationship and third party placements (a description of the rule can be found here). However, the executive action by the Biden administration has automatically withdrawn all rules not yet published. Hence, this rule will not be implemented.

Additionally, through an executive order, the Biden administration has withdrawn the executive order and Proclamations that banned the entry of people from certain countries (mostly Muslim) and allowed for heightened scrutiny in many cases. In addition, the order has also included a provision requiring the Embassies to re-open cases denied because of these Executive orders and re-adjudicate them as well as ordering the Embassies to clear out their backlogs quickly. However, as of yet, the ban on issuance of immigrant visas and some temporary visas because of the Covid pandemic is still in place, as are the travel restrictions from Europe and other countries with high infection rates. If you have any specific questions about whether a particular order affecting your immigration or a family member is still in effect please contact me and I am happy to help.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

DOS to begin Reopening Consulates

ea34b40d2ef21c3e81584c04e4444f96fe76e7d610b9114291f6c1_1921.jpg The Department of State announced yesterday that it would begin a phased reopening of Consulates across the world. Please note, they will NOT be reopening all consulates at once, and cannot give specific dates as to when certain consulates will open or not. Each Consulate will announce their plans and re-opening dates on their individual websites. Please see below for the full press release:

Phased Resumption of Routine Visa Services

Last Updated: July 14, 2020

Phased Resumption of Routine Visa Services

The Department of State suspended routine visa services worldwide in March 2020 due to the COVID- 19 pandemic. As global conditions evolve, U.S. Embassies and Consulates are beginning a phased resumption of routine visa services.

The resumption of routine visa services will occur on a post-by-post basis, in coordination with the Department’s Diplomacy Strong framework for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.

We are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre- Covid workload levels. See each individual U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.

Unfortunately, this is about all the information the Department of State gave. Please do note that ALL Executive orders regarding immigration that have not yet expired are still in place. This includes the travel ban, the H-1B, J-1, visa ban as well as the immigrant visa bans as well as any Covid-19 bans.

Please call us with any questions. And please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New Executive Order and Possible Furloughs at USCIS

executive_order__1_ The US President issued a new executive order on Monday evening. The order did several things. First, it extended the April 22, 2020 order limiting the ability for those overseas to get immigrant visas. Second, it expanded that order to include certain non-immigrant visas as well. Lastly, it required USCIS and DOL to review processes and procedures regarding EB-2 and EB-3 cases. Before providing a summary of the provisions, there are a couple points to highlight.

First, and most importantly, the non-immigrant visa suspensions affect only those NOT IN THE United States. This is also true of the immigrant visa suspension. Second, the J-1 visa suspension does NOT include all categories of J visas. For example, the Research Scholar category, and the Visiting Scholar categories are NOT included in the suspension. Lastly, those outside the US with a currently VALID H-1B visa may still be able to return on that visa as the suspension only halts the issuance of new visas. Here is a slightly more expansive summary of the provisions:

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

H-1B visa and any foreign national accompanying or following to join them;

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:

lawful permanent residents;

spouse or child of a U.S. citizen;

any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;

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:

are critical to the defense, law enforcement, diplomacy, or national security of the United States;

are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;

are necessary to facilitate the immediate and continued economic recovery of the United States; or

are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Fraud: Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Additional Review: Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 Prevention: The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

Additional Measures:

Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.

In addition to the above, USCIS announced that their revenues are down over 50% and that, unless Congress allocates more funding to the agency they will be required to furlough almost 70% of their staff, causing huge delays in adjudications if it were to occur.

If you have any questions, or wish to discuss the above, please do not hesitate to call or email me. And please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Update on Office Closures due to Covid-19

960x0 USCIS has issued an update regarding office closures due to the Covid-19 pandemic. USCIS is preparing to reopen CERTAIN offices starting June 4, 2020. To see if your local office is opening you can go to this page.

As USCIS re-opens they have put out a list of precautions they are taking:

Beginning June 4, 2020, certain USCIS field offices and asylum offices will resume non-emergency face-to-face services to the public. Application support centers will resume services later. USCIS has enacted precautions to prevent the spread of COVID-19 in reopened facilities:

Visitors may not enter a USCIS facility if they:

Have any symptoms of COVID-19, including cough, fever or difficulty breathing;

Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or

Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.

Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).

Hand sanitizer will be provided for visitors at entry points.

Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. If they do not have one, USCIS may provide one or the visitor will be asked to reschedule their appointment.

There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.

Individuals may also have to answer health screening questions before entering a facility.

Individuals are encouraged to bring their own black or blue ink pens.

Appointment notices will include further instructions for visiting USCIS facilities. For more information, see the web alert.

Please note, not all offices will be re-opening at once, and, as the above mentions, Application Support Centers, where most biometrics are taken, will be opening at a later date.

Any questions, please call our office. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

HHS expands J-1 Waivers for Clinical Care Physician

Doctor and patient high fiving in office The Department of Health and Human Services has a program to grant J-1 2 year home residency waivers for clinical care physicians. Under this program, the physician must be working in a Federally Qualified Community Health Centers (CHC), as designated by the government. Because of the current pandemic, however, and the great need for primary care physicians, HHS has decided to expand the pool of doctors eligible to apply for a waiver through HHS (this does NOT affect eligibility for such a waiver through a state HHS agency).

Under the revised rules, any facility, such as a hospital or private practice, can apply for an HHS waiver as long as they have an HSPA score of at least 7 and the physician will provide primary care treatment. HPSA scores are developed by the National Health Service Corps to determine the areas in most need of assigned physicians. The higher the score, the greater the need. Primary care and mental health clinicians are scored between 1-25. The waiver is not available for specialists but for extremely limited exceptions for those with a 1 year fellowship in a primary care field, such as geriatrics.

Those interested in the requirements for a clinical care waiver request, they can be found under the Supplement B section on the HHS website here. If you are interested in determining if you would qualify for such a waiver, or to get more information, you can also contact me at adam.frank@fdimmigration.com.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

How does the new Proclamation from the President Affect you?

On April 22, 2020. President Trump issued a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who:

are outside the United States on the effective date of this proclamation;
do not have an immigrant visa that is valid on the effective date of this proclamation; and
do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Exclusions include:

(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i) any lawful permanent resident of the United States;

(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv) any alien who is the spouse of a United States citizen;

(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

By the above terms, the proclamation only affects those coming to the US as “immigrants”, not those coming as non-immigrants. It also only affects those not in the United States, so it does not affect the adjustment of status process either.

We are happy to answer any additional questions about the application of the above, but please do understand, as of this writing, no formal guidance has been released so we can only base our answers on what is written in the above proclamation, and that may change once USICS, DOS and ICE issue their guidance documents.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Upcoming Executive Order Regarding Immigration

images-1_Fotor As most, if not all, of you, have heard, our President is preparing an executive order to limit immigration into the United States. At this time, as the order has not been finalized, we cannot say what the impact will be on individual cases. Below is a list of what we have heard may, or may not, be included in the order:

The reports are that it will only place limits on immigrant visas (definitely affecting consular processing and, maybe affecting the adjustment of status in the US as well). It is reported that it will not affect non-immigrant visa issuance.
The reports are that the immigration halt will be in place for 60 days and then will be re-evaluated.
There have been reports that it will only apply to employment-based cases and will not affect family-based cases.
There have been reports that there will be other exceptions as well for essential employees, which could include health care workers, researchers, farmworkers, and, perhaps, others.

So far, the above is all we know, and even that is not certain because there is no actual draft of the order as of yet. We will update you once the order is finalized and we have more facts.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Update on USCIS, DOS, SEVP and Covid-19

This is just an update on what is and is not happening with USCIS, DOS and SEVP during the Covid-19 pandemic. First, it is important to remember that things are changing so current USCIS policy may change very soon. To keep updated with current policies, you can go to the USCIS homepage at http://www.uscis.gov.

USCIS

Field Offices:

All USCIS field offices are closed to the public. This means that no biometrics appointments or interviews are being made at this time. This is in force through at least May 3, 2020 (we do not yet know if USCIS will extend this or not).

However, USCIS has made two important concessions during this period. First, they are allowing offices to reuse old biometrics for those who have applied to renew their EAD and AP status (Employment Authorization Documents and Advanced Parole). Second, USCIS has extended the time allowed to respond to Requests for Evidence (RFEs), Notices of Intent to Deny, Notices of Intent to Revoke, as well as the time to appeal decisions (this applies to all such notices with an issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.). USCIS policy now states:

Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

Service Centers:

USCIS service centers are open and adjudicating cases. Currently all service centers are open. However, it should be noted that some centers have closed temporarily in the past when a suspected case of Covid-19 has appeared in one of the employees. However, they have reopened the service centers within days.

Any applications that require biometrics appointments or interviews are on hold, however as the field offices are closed to the public (as are the biometrics centers). The only exception are EAD and AP applications for those who have had biometrics in the past. USCIS has issued a policy allowing those applications to go forward based upon the previous biometrics.

As stated above, USCIS has automatically extended the time to respond to requests for evidence, etc. for an additional 60 days after the due date.

Overseas Offices

Currently overseas offices are being closed on an as needed basis. Offices in Rome and Nairobi are currently closed, other offices are open if the Embassy itself is open. However, as most embassies are closed to the Public, so to are the USCIS offices at such embassies. They will continue to work and adjudicate cases as they can as long as in person interviews are not needed.

Department of State

Embassies

The Department of State has suspended routine immigrant and non-immigrant visa services at all Embassies and Consulates until further notice (No specific date was given). Here is a copy of their announcement:

A. Suspension of Routine Visa Services.

– In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.

– This does not affect the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.

– Although all routine immigrant and nonimmigrant visa appointments are cancelled, the Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.

– We are aware of the importance of the H-2 program to the economy and food security of the United States and intend to continue processing H-2 cases as much as possible. For further information about the H-2 program, please visit: https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-h2-visas.html

– Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment. Examples of an urgent matter include air and sea crew, and medical personnel, particularly those working to treat or mitigate the effects of COVID-19.

J-1 Program

DOS has extended (automatically) the end date for certain J-1 non-immigrants in the United States. According to their memo DOS:

will now push a two-month extension to program end dates in SEVIS on active records with a program end date between April 1 – May 31, 2020 in order to provide exchange visitors the opportunity to complete either their educational or training programs, or continue to finalize travel plans to return home.”

Please remember this ONLY applies to programs with end dates between April 1 and May 31, 2020.

ICE AND SEVP (F-1 and M-1)

Here is a Link to SEVP policies for students at schools that have closed/moved to online coursework.

In summary, they have loosened rules in this regard to protect the status of those on F-1 and M-1 visas in the US whose schools have closed or are now just offering online classes. SEVP has stated that, under the circumstances outlines in the linked document, the status of such students will remain current and active as long as the procedures are followed. We urge you to review their guidance carefully if you are in such a situation.

As more changes are made we will update you as soon as possible.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.