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.

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 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.

U.S. Supreme Court Blocks the Trump Administration from Ending DACA

This morning, in a 5-4 decision, the U.S. Supreme Court ruled that the DACA program could not be immediately rescinded by the Department of Homeland Security (DHS).

 

Deferred Action for Childhood Arrivals, or DACA, shields 1.7 million individuals brought to the United States as children from deportation proceedings and grants them temporary work authorization. It does not provide them a path to any kind of permanent status in the United States.

 

The Court’s decision leaves room for DHS to potentially revoke DACA by demonstrating how it would avoid harming those who have relied on DACA protections against deportation and the ability to work legally. President Trump had said previously that he would develop a different program for these individuals. Nonetheless, this could take several months and at this time it is unclear whether this effort will be undertaken.

 

For the time being, employers can count on maintaining employment for DACA beneficiaries.

 

If you have any questions, contact your Graham Adair representative.

ICE Flexibility on I-9 Rules Extended for Another 30 Days

On March 20, as we?previously reported, DHS announced that it would allow inspection of I-9 Section 2 documents remotely via video link, fax, or email due to physical proximity precautions related to COVID-19.? The?original announcement was valid for 60 days only, but was extended for 30 days until June 18.? Due to continued precautions related to COVID-19, DHS has further extended this flexibility for another 30 days until July 19.

If you have any questions, contact your Graham Adair representative.

Chinese Students and Researchers Suspended from Entry to U.S.

On Friday, May 29, 2020, President Trump issued a proclamation entitled, “Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China.” The proclamation suspends the entry of certain Chinese nationals pursuant to an F or J visa to study or conduct research in the U.S.

 

Starting Monday, June 1, 2020, the proclamation will bar entry of students and researchers from China who are associated with an entity in China that implements or supports China’s “military-civil fusion strategy.” According to the proclamation, “military-civil fusion strategy” means actions to acquire and divert foreign technologies to advance China’s military capabilities.

 

Undergraduate students will be exempted from the suspension of entry. The proclamation will also not?apply to lawful permanent residents; spouses of U.S. citizens and lawful permanent residents; members of the armed forces; spouses and children of members of the armed forces; students and researchers engaging in fields of study and research that do not contribute to “military-civil fusion strategy;” and students and researchers whose entry into the U.S. is in the U.S. national interest.

 

The proclamation shall remain in effect until terminated by the President.

USCIS to Lift Premium Processing Suspension in Phases in June 2020

On May 29, 2020, USCIS announced that the temporary suspension on premium processing requests for eligible Form I-140 employment-based immigrant petitions?such as EB-1, EB-2, and EB-3 petitions, and eligible Form I-129 nonimmigrant worker petitions?such as H-1B, O-1, TN, L-1, and E-3 petitions, will be lifted in phases during June 2020.

 

Back on March 20, 2020, USCIS had temporarily suspended new premium processing requests for eligible Form I-140 and Form I-129 petitions. As a result of the suspension, Form I-140 and Form I-129 petitions (normally eligible for premium processing) could only be filed with regular processing from the date of suspension. Regular processing entails a much lengthier processing time of several months, as opposed to the 15-day processing time that premium processing provides.

 

Based on the May 29, 2020 announcement, USCIS will resume accepting premium processing requests (Form I-907, Request for Premium Processing Service) for eligible petitions in the following phases in June 2020:

 

Phase 1 (June 1, 2020): Resumption of Premium Processing for Eligible Form I-140 Petitions

 

  • USCIS will accept premium processing requests for eligible Form I-140 petitions on/after this date.

 

Phase 2 (June 8, 2020): Resumption of Premium Processing for Certain Pending I-129 Petitions

 

  • USCIS will accept premium processing requests for pending cap-exempt Form I-129 H-1B petitions filed prior to June 8, 2020.

 

  • USCIS will accept premium processing requests for all other eligible, Form I-129 non-H-1B petitions (such as O-1, TN, L-1, E-1, and E-2) filed prior to June 8, 2020.

 

Phase 3 (June 15, 2020): Resumption of Premium Processing for Certain New/Recent Cap-Exempt H-1B Petitions

 

  • USCIS will accept premium processing requests for certain, cap-exempt H-1B petitions not filed prior to June 8, 2020, which includes premium processing requests for cap-exempt H-1B petitions due to cap-exempt employer; beneficiary is cap-exempt due to qualifying cap-exempt institution, entity or organization; or?the beneficiary is cap-exempt under INA section 214(l) based on a Conrad/IGA waiver.

 

Phase 4 (June 22, 2020): Resumption of Premium Processing for Cap-subject H-1B Petitions and All Other Form I-129 Petitions

 

  • USCIS will accept premium processing requests for H-1B cap-subject petitions (includes cap-subject H-1B petitions that were selected in the registration lottery in March 2020).

 

  • USCIS will accept premium processing requests for all other Form I-129 petitions that are eligible for premium processing.

 

For any pending or new Form I-140 or Form I-129 petition, the above filing date restrictions must be considered for any premium processing request as USCIS will reject a premium processing request that is not timely made within the above constraints.

 

Graham Adair will continue to monitor the situation and provide updates here as they become available. If you have any questions, please contact your Graham Adair representative.

CDC Extends and Amends Order Temporarily Suspending Travel of Certain Foreign Nationals from Canada and Mexico

CDC extends and amends order temporarily suspending travel of certain foreign nationals from Canada and Mexico.

On May 20, 2020, the Director of the Centers for Disease Control and Prevention (CDC) extended the temporary suspension of certain foreign nationals traveling to the United States through Canada and Mexico.

The CDC Director first ordered the temporary suspension for 30 days in March and extended the order for another 30 days in April to mitigate the spread of COVID-19. The orders have not applied to US Citizens, permanent residents and their immediate family members, military personnel and their immediate family members, foreign nationals who hold valid travel documents and arrive at a port of entry, or foreign nationals who arrive at a port of entry from countries in the visa waiver program who are not otherwise subject to travel restrictions. The May 20th extension expands the order?s reach to apply to land and coastal ports of entry and border patrol stations.

The order is extended for another 30 days until the CDC Director determines that the suspension is no longer needed to protect the nation?s public health.

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