I-9 Update: I-797 Approvals Can Be Accepted in Lieu of EAD Cards

Citing COVID-19, USCIS has been experiencing significant delays in issuing EAD cards. USCIS has therefore announced that I-797 approvals with a notice of action date from December 1, 2019 to August 20, 2020 are acceptable as documentation to satisfy work eligibility for I-9 purposes.

 

Employers should note that I-797 approvals can only be used to satisfy work eligibility, and not identity. If an I-797 approval is used for work eligibility, the employee must also present a List B document to prove identity. By December 1, 2020, employers must re-verify any employee who presented an I-797 approval.

 

We will continue to provide updates on changes to the I-9 process due to the pandemic. In the meantime, please contact your Graham Adair attorney with any questions.

Clarifications to Suspension of the Entry of Immigrants and Nonimmigrants

On June 22, 2020, President Trump signed Presidential Proclamation 10052, which suspends the entry to the United States of certain foreign nationals who present a risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.  The Proclamation included an exception for individuals whose entry is in the national interest as determined by the Secretary of State and the Secretary of Homeland Security.

The State Department recently enumerated a non-exhaustive list of the types of travel by H-1B, L-1A, L-1B and J-1 nonimmigrants that may be considered to be in the national interest and thus exempt from application of P.P. 10052.

The following national interest travel exceptions apply for H-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when AT LEAST TWO of the following five indicators are present:
    • The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States – this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
    • The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:
  • Senior-level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR
  • The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
  • The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.
  • The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
  • Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer, i.e., the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

The following national interest travel exceptions apply for L-1A applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when AT LEAST TWO of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
    • Will be a senior-level executive or manager;
    • Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; OR
    • Will fill a critical business need for a company meeting a critical infrastructure need

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

The following national interest travel exceptions apply for L-1B applicants:

  • Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.
  • Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.
  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if ALL THREE of the following indicators are present:
    • The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
    • The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
    • The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

National interest exceptions are available for H-4, L-2, and J-2 dependents who will accompany or follow to join a principal applicant who has been granted a national interest exception to P.P. 10052.

Applicants who are subject to this Proclamation, but who believe they may qualify for a national interest exception or other exception, should contact their Graham Adair attorney to request an emergency appointment. We will need to articulate specific details as to why the employee should qualify for an exception.  While a visa applicant subject to the Proclamation might meet an exception, the applicant must first be approved for an emergency appointment request, and a final determination regarding visa eligibility will be made at the time of visa interview. Travelers who are subject to a regional COVID-19 restriction but who do not require a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also contact us for how to request consideration for a national interest exception.

New Executive Order to Review H-1B Impact on U.S. Workers

Today’s executive order does not create any immediate change to H-1B workers.

 

This most recent executive order on immigration brings H-1Bs under scrutiny in two different respects:

 

  • It directs federal agencies to review instances where H-1B workers provided services, whether through contract or subcontract, that may have negatively impacted U.S. workers. Agencies have 120 days to submit their report. Depending on the findings, further action may be taken to restrict the hiring and employment of H-1B workers by federal agencies.

 

  • It tasks the Department of Labor and the Department of Homeland Security with ensuring adequate protection of U.S. workers. While the executive order does not detail what this directive entails specifically, based on previous measures this may involve LCA audits, an increase in H-1B worksite visits, and increased requests for evidence based on LCA conditions, including job classifications and wage levels. The Secretaries of Labor and Homeland Security have 45 days to take action to implement any protections that are deemed necessary, so we will likely see some changes soon.

 

We are closely monitoring this situation and will provide updates as we have them. In the meantime, please contact your Graham Adair attorney with any questions.

USCIS Announces Final Filing Fee Adjustments

Effective October 2020, USCIS will implement fee adjustments for certain immigration and naturalization benefit applications. One of the most notable adjustments is that Form I-129 is no longer a uniform rate. Rather, the fee will depend on the type of non-immigrant status. For example, the I-129 fee for an H-1B is changing to $555, while the I-129 fee for an L-1 is now $805.

 

Along with the proposed fee adjustments, USCIS will also be extending the time to adjudicate premium processing petitions from 15 calendar days to 15 business days.

 

Additionally, Adjustment of Status (I-485) applicants seeking an Employment Authorization Document and an Advanced Parole document will be required to pay a separate fee for each application and each renewal. A separate part of the I-485 fee adjustment removes the fee discount for minor children under 14 years; their cases will now require the full I-485 filing fee.

 

The fee changes for certain immigration and naturalization applications are below:

 

Immigration Benefit Request Current Fee Final Fee Change ($)
I-129 (H-1B) $460 $555 +$95
I-129 (L-1) $460 $805 +$345
I-129 (O) $460 $705 +$245
I-140 $700 $555 -$145
I-539 $370 $400 +$30
I-765 (EAD) $410 $550 +$140
I-131 (Advance Parole) $575 $590 +$15
I-485 (Adjustment of Status) $1,140 $1,130 -$10
N-400 (Naturalization) $640 $1,170 +$850

 

Please contact your Graham Adair representative with any questions.

DHS Further Extends Flexibility in I-9 Verifications

On March 20th, DHS deferred the physical examination requirement of work authorization documents for Form I-9.? This allowed employers to inspect Section 2 documents via video link, fax, or email, as long as specific notation is entered in the “Additional Information” field on Section 2.? You can find our news alert on the initial guidance here.

 

Due to continued precautions related to COVID-19, DHS extended this flexibility for another 30 days to August 19th.

 

If you have any questions on how to complete the Form I-9 during these times, please contact your Graham Adair representative.

New Guidance on Visa Applications for H-4 and L-2 Dependents

Today, the Department of State (DOS) issued a clarification on the June 22 executive order that restricted entry against those applying for H-1B, H-4, L-1, L-2, H-2B, and J visas. As we previously reported, the executive order impacted individuals currently outside the United States who are waiting for U.S. consular posts to reopen in order to apply for visas in one of the newly restricted categories.

 

Today’s clarification by DOS alleviates the burden on some would-be visa applicants. Specifically, H-4 and L-2 dependents can apply for and receive visas if their H-1B or L-1 spouse or parent is currently in the United States.

 

Some families have been separated for months due to the shutdown of U.S. consulates and embassies around the world, and the June 22 executive order appeared to move the finish line out to the end of the year, and potentially longer. But with today’s clarification, some families can now start planning to be reunited in the near future as U.S. consular posts begin the slow process of reopening.

 

Please contact your Graham Adair attorney with any questions.

U.S Will Rescind SEVP Rule Restricting Online Curriculum for Foreign Students

On July 14, 2020, the U.S. Department of Homeland Security and Immigration and Customs Enforcement, as part of a resolution reached pursuant to a lawsuit, agreed to rescind the July 2020?Student and Exchange Visitor Program (SEVP) policy change. As we?previously reported, the SEVP policy change would have required?foreign students in F-1 or M-1 status in the U.S. to take at least some in-person coursework in the fall 2020 semester. According to the resolution, the federal government will rescind the July 6, 2020 SEVP Policy Directive and the July 7, 2020 SEVP FAQ (as well as the implementation of the same).

 

Based on this update, the prior COVID-19-related SEVP guidance issued in March 2020 continues in effect, which will allow F-1 and M-1 students taking only online courses in the fall 2020 semester to continue to lawfully reside in the United States.

 

Please contact your Graham Adair attorney with any questions.

New Rule Impacts International Students Who Take Online Courses

Due to the COVID-19 pandemic, the Student and Exchange Visitor Program (SEVP) instituted a temporary exemption for the spring and summer semesters that allowed non-immigrant students to take more online courses than normally permitted. On Monday, July 6th, SEVP modified these temporary exemptions; the modifications will be effective for the fall 2020 semester. DHS will be publishing these modifications in the Federal Register as a Temporary Final Rule.

 

Beginning in the fall 2020 semester:

 

1. F-1 and M-1 students attending schools operating entirely online may not remain the United States. The Department of State will not issue visas to such students, and Customs and Border Protection will not allow them to enter the United States. Active students currently in the U.S. must depart the country or take other measures, such as transferring to another school that provides in-person instruction. Otherwise, they may face initiation of removal proceedings.

 

2. F-1 students attending schools operating under normal in-person classes are bound by existing federal regulations. Eligible F students may take a maximum of one class or three credit hours online.

 

3. F-1 students attending schools?adopting a hybrid model (mixture of online and in-person classes) will be allowed to take more than one class or three credit hours online. But the school must certify to SEVP through an I-20 that the program is not entirely online. They must also confirm that the student is taking the minimum number of online classes required to make normal progress in their program.

 

Non-immigrant students within the United States are not permitted to take a full course of study through online classes.
Please contact a Graham Adair attorney with any questions.

E.U. Lifting Travel Restrictions for Select Countries; U.S. Travelers Excluded

The E.U.?s European Commission is actively planning to re-open its borders on July 01, 2020 for select countries and have noted countries otherwise not selected will be temporarily barred from entering E.U. member states. The countries that will be allowed in are: Algeria, Australia, Canada, Georgia, Japan, Montenegro, Morocco, New Zealand, Rwanda, Serbia, South Korea, Thailand, Tunisia, Uruguay, and China (Subject to reciprocity). Notable countries that are not on the list include travelers from the United States, Russia, and Brazil. The E.U. cites COVID-19 concerns as the reason for the temporary policy.

 

It appears that the most recent E.U. directive is an extension of the already-implemented E.U. travel restrictions that took effect on March 17, 2020. Currently and through June 30, 2020, the E.U. and Schengen Associated countries continue to suspend all non-essential travel from third countries into the E.U.+ area. The ?E.U.+ area? includes 30 countries: all 26 E.U. member states (including the UK) as well as the four Schengen Associated states: Iceland, Liechtenstein, Norway, and Switzerland.? Exemptions include all EU citizens, and citizens of the Schengen Associated states, and their family members for the purpose of returning home, and non-EU citizens who are long-term residents in the E.U. The newly implemented entry regulations, that will take effect on July, 01, 2020, lifts the travel restrictions to the above-mentioned countries.

 

The new E.U. directive continues to affect wide-spread travel into the E.U.+ entering from specific countries, including for both personal and business travel, while it exempts student visa holders, highly-skilled non-EU workers, and other work permit categories.

 

Companies should continue to consult with a Graham Adair attorney when coordinating any international travel for their employees to ensure country-specific entry requirements are met. Graham Adair will continue to closely monitor developments and provide updates accordingly.

New Executive Order Further Restricts U.S. Immigration

Today, President Trump issued an executive order further restricting immigration in light of the current Covid-19 pandemic.? This order extends the previous restrictions on new immigrant visas through the end of the year and adds certain nonimmigrant visa classifications to the list.

 

The new executive order will restrict new H-1B, H-2B, J, or L visas, and any dependents accompanying or following to join individuals in those classifications, which includes H-4 and L-2 spouses.? The order goes into immediate effect.

 

Individuals who hold valid H-1B, H-2B, J, or L visas as of today will be allowed to enter the U.S. This order will not impact our ability to file changes of status, extensions of status, change of employer petitions, adjustments of status, or amendments for those who are currently in the U.S.? Largely, this ban on new visas continues the status quo as U.S. consulates around the world continue to be closed and are not currently issuing new visas.

 

This will have an impact on those who are currently outside the U.S. and waiting for the consulates to reopen so that they can apply for visas, and those individuals will likely have to wait until next year to apply for their visas.? There are some limited exceptions to this rule for those who work in national security, health care or medical research directly related to Covid-19, or those who work in the food supply chain.

 

The order contains additional instructions to the secretaries of Homeland Security and Labor to investigate regulatory options to ensure that H-1B petitions and employment-based green card applications do not negatively impact U.S. workers.? We do not have any indication at this point as to what this would look like or when we can expect to see proposed regulations.

 

For further information please contact your Graham Adair attorney.

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