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.

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.

Executive Order Suspending Issuance of Immigrant Visas

Today, President Trump signed an executive order that will temporarily halt the issuance of immigrant visas to individuals outside the United States. The order goes into effect at 11:59 p.m. on April 23, 2020 and will be in effect for 60 days.

 

Immigrant visas are permanent residence visas issued to individuals who are outside of the United States when they apply for permanent residence.? The order is very limited in its scope and only appears to halt the consular processing of immigrant visas.? It does not appear to limit the approval of adjustment of status applications for individuals who are currently in the U.S. and in the green card process.? The order only applies to those who are outside the U.S. and do not currently have a valid immigrant visa or other valid travel document.

 

There are several exceptions to the suspension of issuance of immigrant visas including:

 

  • any lawful permanent resident of the United States;

 

  • anyone 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 or any such person who are accompanying or following to join the person;

 

  • any person applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

 

  • any person who is the spouse of a U.S. citizen;

 

  • any person 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;

 

  • any person whose entry would further important U.S. 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;

 

  • any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

 

  • any person 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

 

  • any person whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

 

The order directs the Secretary of State and the Secretary of the Department of Homeland Security to advise the President on whether this order should be extended no later than 50 days from now.? Further, they are directed to make other recommendations that the President can take on immigration to help protect U.S. workers.

 

For the time being, this order will largely not impact the clients of Graham Adair.? If you are going through the consular process for your immigrant visa, this will likely mean a delay in the issuance of the visa.? You should check in with your attorney at Graham Adair for further specifics on your situation.

President Trump Provides Additional Details on ?Pause? of Immigration to U.S.

On Tuesday, President Trump announced some details about what will be in an executive order related to U.S. immigration in light of the coronavirus pandemic. While the text of the executive order has yet to be made public, the President indicated that he would “pause” the issuance of green cards for a period of 60 days. This 60-day suspension could be extended depending on conditions at the end of the initial 60-day period.

The action is being described as an attempt to protect U.S. workers from new immigrants taking a diminishing number of open jobs. What is not yet clear is whether this will apply to both consular processing and adjustment of status applications. There also is not any clarity on whether there will be exceptions to the policy. Until we know for certain whether this will apply to would-be immigrants both in as well as outside the U.S., it is difficult to gauge the impact to our clients.

President Trump also indicated that there would be further review into other areas of immigration to determine whether additional restrictions should be implemented. Graham Adair will continue to monitor this situation and assess the impact on our clients. Please check back often for updates. When this policy is made public, we will provide more in-depth analysis.

Trump Announces Plans to Temporarily Stop All Immigration to U.S.

President Trump tweeted late Monday that he will sign an executive order temporarily suspending immigration to the United States. His announcement cited the coronavirus pandemic, as well as the millions who have become unemployed in recent weeks.? There are significant questions that are yet to be answered around this announcement: exactly when and how this will be implemented, who it will cover, and how long it will be in effect.? It does seem to indicate that the President plans to extend immigration restrictions beyond those already in place to travelers coming from most of Europe, China, Canada, Mexico and Iran.

 

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.

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.

I-9 Compliance During the COVID-19 Pandemic

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

 

In fact, there is language on USCIS’s??Special Situations?webpage that states, “All requirements for?Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

 

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

 

  1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

 

  1. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

 

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

 

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

 

  1. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

 

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

 

  1. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

 

  1. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

 

  1. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR ?274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

 

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

 

  1. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

 

  1. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

 

  1. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

  • Create a file memo. This provides a record for future possible enforcement action.
  • Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
  • Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR ?274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents?attached to the Form I-9.
  • Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
  • Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
  • Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

RELIEF Act Introduction Brings Both Senate Immigration Bills To Standstill

The?journey?of H.R.1044/S.386 through the Senate hit another roadblock as S.2603, the?Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act,?was brought up for a vote by unanimous consent. At least one senator objected, blocking the unanimous consent fast-track and stalling both bills for the time being. A unanimous consent vote on H.R.1044/S.386 was originally expected to be held on Thursday, October 17th.

The RELIEF Act was introduced to address the massive green card backlog, with the goal of eliminating the backlog over five years. Building on S.744, the 2013 bipartisan comprehensive immigration reform bill, the bill would clarify spouses and children of Legal Permanent Residents as immediate relatives and exempt ?derivative beneficiaries? of employment-based petitions from the annual caps that contribute to the backlog. It would also protect children who qualify based on a parent?s petition from ?aging out? while waiting for approval, helping to keep families together.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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