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.

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.

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.

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.

USCIS to Resume Services at Local Offices on June 4th

USCIS plans to reopen certain offices and resume non-emergency services on Thursday, June 4, 2020. The agency temporarily closed offices and suspended in-person services on March 18th to slow the spread of COVID-19.

 

New safety measures will be implemented once offices reopen, including requiring visitors to wear facial coverings when entering buildings, providing hand sanitizer at entry points, and limiting early visitor arrival to no more than 15 minutes before a scheduled appointment. The agency asks that applicants not attend scheduled interviews if they are ill, but rather reschedule appointments per the instructions on the appointment notice. Applicants will not be penalized for rescheduling an appointment due to illness.

 

USCIS specified the following plans:

 

USCIS will send notices to applicants with previously scheduled appointments and interviews, and will automatically reschedule necessary Application Support Center appointments that were canceled by issuing a new appointment letter in the mail. This includes biometrics appointments and interviews for Adjustment of Status.

 

The agency will reschedule postponed naturalization ceremonies. Naturalization ceremonies will be shortened to limit exposure and visitors permitted to attend ceremonies will be limited.

 

Asylum interviews that were canceled due to temporary office closure will be rescheduled and will be video-facilitated to maintain social distancing.

 

If you have any questions about the status of your canceled interview or appointment, please contact your Graham Adair representative.

275,000 H-1B Cap Cases Registered

On April 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it had received?approximately 275,000 submissions for H-1B applications in the electronic lottery that was conducted at the end of March.? They reported that 46% of applications?were for individuals who hold advanced U.S. degrees. This was an increase of approximately 74,000 cases over the number that was received?last year in the H-1B cap.

 

In total numbers, this means that beneficiaries had less than a 31% chance of selection. Cases filed under the advanced U.S. degree cap had a higher chance, although we don’t know the total number of these applicants so we cannot say for sure what the likelihood of success was. We estimate that the chances of selection for cases filed under the advanced U.S. degree cap was somewhere between 40% and 50%.

 

It seems that the lower cost threshold of $10 per registration lowered the barrier to entry enough to result in a surge of submissions.

 

Registrations that have not been selected will be held in reserve. Between March 31, 2020 and Oct. 1, 2020, in the event that USCIS needs to select registrations from the reserve to meet the H-1B regular cap and the advanced U.S. degree cap, it may select from registrations held in the reserve to meet such allocations.

 

Graham Adair will be checking unselected cases regularly until USCIS sends out rejection notices. If you have any questions, please contact your Graham Adair representative.

USCIS To Accept Reproduced Signatures During COVID-19 National Emergency

For petitions filed on March 21, 2020 and beyond, USCIS will begin accepting reproduced original signatures on forms and documents, including Form I-129. A document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. USCIS will not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device. The signatory must have authority to sign on behalf of the petitioning entity.

 

Petitioners or applicants who submit an electronically reproduced original signature must keep copies of the original documents containing the “wet” signature. At their discretion, USCIS may request the original documents at any time. Failure to produce the original document can negatively impact the application.

 

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

USCIS Suspends Premium Processing Due to COVID-19

Effective March 20, 2020, USCIS cited staffing concerns due to COVID-19 in announcing it will temporarily suspend premium processing for all Form I-129 and I-140 petitions until further notice. The suspension applies to the following categories:

 

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.

 

  • I-140: EB-1, EB-2 and EB-3.

 

Premium processing will remain suspended for all FY 2021 H-1B cap petitions.

 

USCIS will process any previously accepted premium processing (Form I-907) requests, but will not be able to send notices using pre-paid envelopes. Petitioners who have filed Form I-129 or Form I-140 via premium processing but have not received any agency action within the 15-calendar-day period will receive a refund.

 

Premium processing requests that were mailed before March 20, 2020, but accepted after this date, will be rejected. USCIS will send an announcement once premium processing is available.

 

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

USCIS Closes All Field Offices

Today, USCIS announced the closing of all field offices. As of yesterday, only field offices in the Bay Area were impacted. However, USCIS has expanded closures to include all field offices. It should be noted that USCIS regional centers currently remain open and will continue processing petitions for the time being.

 

The closure of field offices impacts Naturalization ceremonies, Adjustment of Status interviews, pushing back approvals of Lawful Permanent Residence and the issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

 

When normal operations resume, USCIS will affirmatively reschedule biometrics appointments. A new appointment letter will be sent by mail. Individuals who had InfoPass or other appointments must reschedule

 

As for the H-1B Cap, as long as Regional Centers remain open, USCIS should accept filings starting April 1st, although as we reported yesterday, USCIS has suspended premium processing on H-1B Cap filings.

 

This is a very fluid situation, so we will continue providing updates as they become available.

 

To receive the latest updates on this issue, please follow us on Twitter (@GrahamAdairLaw).

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