On Wednesday, July 29, 2020, a New York federal judge blocked the Trump administration from implementing its Public Charge rule, nationwide. U.S. District Judge George Daniels found that the states and nonprofits challenging the public charge rule had provided “ample evidence” that the policy deters immigrants from seeking out COVID-19 testing and could threaten efforts to curb the spread of the disease. “As a direct result of the rule, immigrants are forced to make an impossible choice between jeopardizing public health and personal safety or their immigration status,” Judge Daniels wrote.
The cases are State of New York et al. v. U.S. Department of Homeland Security et al. (1:19-cv-07993), and, Make the Road et al. v. U.S. Department of Homeland Security et al. (1:19-cv-11633), both in the U.S. District Court for the Southern District of New York.
Please contact SPS Immigration if you have questions on how this will impact your immigration case.
Monday, July 7, 2020, Immigration and Customs Enforcement (“ICE”) announced that international students who attend universities that are exclusively online this fall may not enter the U.S. ICE provided these updates for Fall Semester 2020:
Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.
Nonimmigrant 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.
Nonimmigrant F-1 students attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online. These schools must certify to SEVP, through the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” certifying that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. The above exemptions do not apply to F-1 students in English language training programs or M-1 students pursing vocational degrees, who are not permitted to enroll in any online courses.
This decision not only harms the students trying to earn a U.S. education, but it continues to erode the U.S. system of higher education. International students represent the fifth largest U.S. service export, and international students, staff, and faculty ensure the academic viability of our system of higher education in the U.S. International students bring significant money into our system of higher ed, which helps supply grants and scholarships to U.S. students.
If you have questions about how this impacts your immigration system, please contact SPS Immigration.
On Monday, June 22, 2020, President Trump released a Presidential Proclamation and an accompanying fact sheet that suspends the entry into the U.S. of several nonimmigration classifications. The Presidents stated objective is to ensure that U.S. workers are hired first due to the current high unemployment rate. This proclamation is effective through December 31, 2020.
This proclamation does not apply to individuals who are currently in the U.S. so they should still be able to travel outside the U.S. in the future and apply for and receive the necessary visa (assuming Consulates are still not closed due to COVID-19 concerns). The key provisions include:
Temporary suspension of entry for individuals who are seeking to immigrate permanently and are currently located outside the United States.
The proclamation applies to foreign nationals who seek to enter the United States in H-1B/H-4, H-2B, L-1/ L-2 status.
The proclamation also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.”
This EO is effective at 12:01 a.m. eastern on June 24, 2020 and will remain in effect until 12/31/20, and may continue as necessary
There are several exceptions to this proclamation stating that the following individuals are NOT covered:
Anyone already in the United States on June 22, 2020
Certain J-1 visas for Physicians, short term or long term scholars, or students (specifically included in the proclamation as being impacted are “an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien”)
Anyone who hold a valid visa stamp in their passport on June 22, 2020
Anyone who have an authorized travel document on June 22, 2020
Anyone “whose entry would be in the national interest” as determined by the Secretary of State or Secretary of Homeland Security, The Secret of State, the Secretary of Labor, and the Secretary of Homeland Security will establish the standards to define “national interest,” including those 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 United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.
Anyone seeking entry in O-1 or P status
Green card holders (lawful permanent residents)
The spouse or minor child of a US citizen
There are several areas that require clarification, including:
Are Canadians entirely exempt as they do not require a visa?
Does the visa have to be in the same non-immigrant category?
It is very likely that this proclamation will be litigated and if a court issues a temporary injunction, this could impact the enactment just like we saw with the various versions of President Trumps travel bans.
If you have questions about how this applies to your employees, please contact SPS Immigration.
On Friday, May 29, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it will resume premium processing in phases for the following two forms:
Form I-129, Petition for a Nonimmigrant Worker: Effective in Phases as detailed below, and,
Form I-140, Immigrant Petition for Alien Workers: Effective June 1, 2020
On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19).
For H-1B Petitions, this is the phase-in dates, which USCIS indicated that these dates may change and that it will announce any updates accordingly.
Effective June 8, USCIS will accept premium processing requests for:
H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).
All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.
Effective June 15, USCIS plans on resuming premium processing for:
H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because:
The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or
The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).
Effective June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions, including:
All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s.
All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.
Please contact SPS Immigration should you have questions.
This USCIS memo addresses a few of the many issues currently facing International Medical Graduates (“IMG”) as a result of the COVID-19 pandemic, including:
In situations in which an H-1B foreign medical graduate is temporarily unable to work full-time due to quarantine, illness, travel restrictions, or other consequences of the pandemic during the declared Public Health Emergency period, USCIS officers will not consider such a failure to work full-time to be a failure to fulfill the terms of the contract under INA 214(l)(2)(B), as a matter of policy.
For those foreign medical graduates currently employed by an IGA or through the Conrad State 30 program, USCIS interprets current regulations to allow those physicians to provide telehealth services during the Public Health Emergency.
Provisions relating to the full-time work requirement will apply to any lapse in full-time employment related to COVID-19 that occurred from the beginning of the Public Health Emergency on January 27, 2020, through the end of the Public Health Emergency. Telehealth services provisions will be effective from the publication date of this policy memorandum through to the end of the Public Health Emergency.
However, this memo is strictly limited to 214(l)(2)(B) compliance (or, the three year, full-time compliance requirement of most J-1 waivers) so Employers may still be required to amend an H-1B Petition accordingly if there are wage/hour changes. USCIS very clearly clarifies that despite changes having no impact on the fulfillment of the three year service obligation, “It [the memo] does not affect a petitioning employer’s responsibilities under the statutes and regulations relating to H-1B nonimmigrants.”
USCIS also addresses a critical component of not only our current COVID-19 reality, but the reality of the provision of medicine generally, moving forward: Telemedicine. However, the telemedicine portion is also limited specifically to the provision of telemedicine in the designated area and only became effective May 11, 2020. USCIS states, “In no instance should the foreign medical graduate, other than a graduate employed by the VA, provide telehealth services to patients outside of the state of their contracting facility.”
Employers and practitioners should be aware that, despite this easing of two aspects of the J-1 waiver compliance, H-1B Petition amendments may be required if hours drop less that F/T and/or there are salary changes that impact the H-1B Petition. It also remains unclear if this memo will apply affirmatively to J-1 waiver cases moving forward as there are additional government agencies involved in the J-1 waiver process including the state departments of health and the DOS.
If you have questions on how this memo may impact your pending case, please contact SPS Immigration using our online contact form. Stay safe!
On March 20, 2020, the Department of Homeland Security (“DHS”) announced the following relaxation of I-9 document inspection protocols by permitting Employers with employees self distancing/remote working due to COVID-19 to not require review of the employee’s identity and employment authorization documents in the employee’s physical presence.
DHS provided this additional clarification:
Employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I- 9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.
Please contact SPS Immigration if you have specific questions in this regard.
UPDATE: Late in the day Tuesday, March 18th, 2020, USCIS announced that it has has suspended all in-person services until at least April 1 to help slow the spread of COVID-19. USCIS confirmed that staff will continue to perform duties that do not involve contact with the public, which for now, includes services provided at its regional service centers (including but not limited to nonimmigrant filings including H-1B’s, TN’s, L-1B’s, O-1’s, EAD’s and immigrant petitions, including I-140’s and I-130’s) Additionally, USCIS will provide emergency services for limited situations.
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We are starting to see USCIS offices and Consulates suspend services due to COVID-19. Because local USCIS offices act independently, there are currently different policies nationally. We will continue to update clients as USCIS announces ongoing closures, so please check back frequently. As of Tuesday, March 17th, we know of the following closures:
Late in the day Tuesday, March 18th, 2020, USCIS announced that it has has suspended all in-person services until at least April 1.
Wednesday, March 18th, in Minneapolis, ASCs will be closed and fingerprint appointments will be canceled through April 1st.
Beginning Wednesday, March 18th, in Minneapolis, all in-person interviews are canceled through April 3rd and will be rescheduled.