With the closure of Social Security Administration (SSA) offices in the wake of COVID-19, we are receiving questions concerning the impact on work authorization for individuals who may have recently entered the U.S. in a temporary work authorized visa status, i.e. H-1B, L-1, TN, E etc.

While the Social Security Number (SSN) is used and required, in a variety of areas, it is not mandatory to be presented as proof of work authorization. Continue Reading SSA Office Closures and the Impact on SSN Issuance For Foreign Nationals

In response to the COVID-19 pandemic, and the difficulties applicants and petitioners are facing in meeting immigration related deadlines, U.S. Citizenship and Immigration Services (USCIS) announced that it has extended response deadlines by 60 days for certain types of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). It is important to note that this accommodation does not change individual status expiration dates, or auto extension dates for employment authorizations. Continue Reading A Step in the Right Direction: USCIS announce RFE AND NOID Extensions

Virtual Coffee on Virtual I-9s: Immigration Compliance in the Wake of COVID-19

Monday, March 30, 2020  at 11am EDT

Hosted by Seyfarth Shaw and the US Chamber of Commerce

The Department of Homeland Security (DHS) recently issued I-9 and E-Verify guidance in relation to the COVID-19 pandemic. The panel, which includes a former head of US Immigration and Customs Enforcement and is moderated by the Executive Director of Immigration Policy at the US Chamber of Commerce, will provide much needed insight and information regarding what employers’ Form I-9 obligations will be as DHS implements this temporary guidance that relaxes certain regulatory requirements in the wake of this emergency. The panel will also discuss the future of worksite enforcement.

Speakers

Dawn M. Lurie, Senior Counsel, Co-Chair Immigration Enforcement & Compliance Practice, Seyfarth Shaw
Jon Baselice, Executive Director, Immigration Policy, US Chamber of Commerce
Julie Myers Wood, CEO of Guidepost Solutions LLC

Register for the webinar here

 

Seyfarth Synopsis: E-Verify has offered guidance to employers to address concerns with expiring State Drivers’ Licenses and Identification Documents. The guidance, though, fails to address the situation where states have not granted temporary Driver’s Licenses or IDs extensions.

In response to queries sent by Seyfarth and other groups, E-Verify provided additional guidance addressing the COVID-19 National Emergency. We expect E-Verify to release a full  FAQ in the next week. Today’s guidance addresses the expiration of State Drivers’ Licenses and Identification Documents where employees are unable to renew these documents because of closures or limited services at Department of Motor Vehicles (DMVs).  In light of the National Emergency many states have extended the validity of these documents. Continue Reading E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs

Seyfarth Synopsis: The outbreak of the Novel Coronavirus (COVID-19) has resulted in unprecedented travel restrictions, U.S. consular appointment cancellations, and changes to USCIS operations. To help navigate these challenges, Seyfarth is providing a brief summary of recent developments from the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Department of Labor.

Updates from the U.S. Department of Homeland Security Continue Reading COVID-19 Immigration Updates From the Agencies

Seyfarth Synopsis: On March 20, 2020, the U.S. Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) issued Frequently Asked Questions in response to the COVID-19 global pandemic, providing guidance and extending certain filing, notice, and response deadlines for employers of foreign nationals.

Highlights 

  • Employers will have thirty (30) days to post Labor Condition Application (LCA) notices for employees moving to a different worksite within the same intended area of employment, such as a home office. 
  • For employers unable to physically post LCA notices, DOL reminds employers of the option to electronically post, and the stringent requirements. 
  • Employers will benefit from a sixty (60) day extension of PERM recruitment and Notice of Filing (“NOF”) requirements for PERM applications filed by May 12, 2020, where recruitment began between September 15, 2019 and March 13, 2020. 
  • Employers may respond to DOL requests by May 12, 2020, where the original response deadline falls within the period from March 13, 2020 through May 12, 2020. 

Continue Reading Department of Labor Extends Deadlines during the Novel Coronavirus (COVID-19) Pandemic

Seyfarth Synopsis: On March 20, 2020 USCIS announced that the agency will temporarily suspend premium processing for all Form I-129 and I-140 petitions beginning on March 20, 2020 and until further notice due to the Coronavirus (COVID-19). 

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing for all Form I-129 and I-140 petitions. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service. However, USCIS also announced that the agency would refund the $1,440 filing fee if the agency does not take action on a petition previously filed via premium processing within the 15-calendar-day period, thus leaving open the possibility that even those already in queue for adjudication may not receive premium treatment.

Please find below a list of frequently asked questions with our insights.

1. What is the effective date of the suspension?

The premium processing suspension is effective on March 20, 2020.

2. How long will the suspension last?

USCIS states that the suspension will last until further notice, and that the agency will notify the public with a confirmed date for resuming premium processing service.  In the past, premium processing suspensions have lasted up to six (6) months.

3. Does the suspension apply only to H-1Bs or other visa categories?

The suspension includes petitions filed for the following nonimmigrant categories:  E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket), 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.

The suspension also includes all types of I-140 petitions, including EB-1, EB-2 and EB-3.

4. How does this affect the H-1B cap lottery?

 USCIS indicates that it will still notify registrants selected in the lottery by March 31.  However, in the absence of premium processing, petitioners will likely not receive decisions on petitions filed on behalf of selected registrants until late May at the earliest, assuming a filing in early April.  In addition, companies that filed H-1B petitions with premium processing were able to easily communicate with USCIS representatives regarding case status updates and corrections to errors on the approval notice.  The suspension of premium processing will prevent companies from leveraging this benefit.

5. I am in F-1 status, my Optional Practical Training (OPT) will expire before October 1st, and I require H-1B cap gap to extend my work authorization through October 1st. What happens if I do not receive a decision on my H-1B cap case by October 1st?

If you will rely on H-1B cap gap and USCIS has not issued a decision on your H-1B petition as of October 1st, you may continue to remain in the U.S. until USCIS issues a decision.  However, you will not possess work authorization from October 1st until USCIS ultimately approves the H-1B petition.  If USCIS lifts the premium processing suspension early, which may occur prior to the six-month mark, your employer will have the option of submitting a premium processing request to accelerate processing of your H-1B petition.

6. Can a premium processing request be submitted for a pending I-129 or I-140 petition once the suspension is lifted?

Yes, once the suspension is lifted, a premium processing request may be submitted at any time.

7. I am currently in a nonimmigrant status (e.g. H-1B, L-1, TN, E-3) status and my status will expire this summer/fall. My employer will file an extension on my behalf.  How will the suspension of premium processing affect my work authorization and ability to travel internationally?

If you are in the U.S. in a valid nonimmigrant status and your company seeks to extend your status, you will remain eligible for an up to 240-day extension of your status beyond the date of your I-94 admission record.  Therefore, the premium processing suspension should not affect your continued work authorization.  However, if you have international travel plans after the expiration of your current status and/or your visa stamp is expired, you will need your new approval notice to apply for a visa stamp before returning to the U.S.  In this case, the premium processing suspension may require you to delay your travel plans or remain abroad until USCIS approves your petition and you secure a new visa stamp.

8. Are there any other issues that may come up?

Yes, in some states, you may have an issue renewing your driver’s license.  Some states will allow you to extend your license by presenting evidence of a timely filed extension while other states require evidence confirming that your nonimmigrant status has been approved.  You will need to check with your local motor vehicle department to explore this issue.

Continue Reading USCIS Suspends Premium Processing For I-129 and I-140 Petitions Beginning March 20, 2020

In-Person Services Suspended Until At Least April 7

In response to Coronavirus Disease 2019 (COVID-19) developments, as of March 25, U.S. Citizenship and Immigration Services (USCIS) has suspended routine in-person services.

What does this mean for cases in progress?

Foreign nationals with permanent resident (green card) interviews, naturalization interviews and naturalization ceremonies will be rescheduled after USCIS local offices resume in-person services.

Applicants requiring biometrics to be completed through Application Support Centers (ASC) will have their appointments rescheduled automatically, rescheduling notices will be sent by mail.

Final decisions will be delayed for applications that require in-person interviews or the completion of biometrics. This includes Form I-485 applications for adjustment of status and Form I-539 applications to change or extend the nonimmigrant status (H-4, L-2, etc. for dependent spouse and children), as well as the Form I-765 employment authorization application.

What is not impacted by this notice?

As of the date of this posting, operations at USCIS Service Centers where most immigration benefit petitions are adjudicated are not impacted by these changes.

Seyfarth Shaw is closely monitoring ongoing developments impacting USCIS, DOL and DOS operations as COVID-19 developments continue.

USCIS Premium Processing Suspension

As of March 20, 2020, USCIS will not be accepting premium processing request for any filings.

By: Randy Johnson and Scott Mallery

President Signs Coronavirus Legislation. Wednesday night, the President signed the “Families First Coronavirus Response Act” (H.R. 6201), which will require employers with less than 500 employees to provide two weeks of paid sick leave for six itemized categories of leave related to the coronavirus crisis. The Act also provides for 10 weeks of paid family and medical leave if the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable due to a public health emergency. Some of the cost of the leave would be reimbursed through tax credits up to certain caps. These provisions are effective 15 days from yesterday and expire on December 31, 2020. Businesses with less than 50 employees could gain an exemption through rulemaking, depending on the type of leave category in question. Enforcement goes through the Department of Labor or a private cause of action, with some unique rules. Special rules cover multi-employer plans. There are many issues of interpretation with the bill, and the Department of Labor, knowing things are moving quickly, is holding a listening session on 10 AM Friday morning in a virtual town hall. Click here to join the webinar. For audio access, dial: 888-791-5525; Participant passcode: 6860607. We invite you to participate and provide your views. There is now some talk that the huge economic stimulus package may include labor provisions which could expand existing employment law and or revisit parts of H.R. 6201. Stay tuned. H.R. 6201 of course also contained many other provisions relating to UI, health care, school lunches and other areas. Just minutes ago, Sen. McConnell introduced the Coronavirus Aid, Relief and Economic Security Act which contains several labor provisions which we will be reviewing. See Title III.

Seyfarth has already held webinars on the new law and will be hosting a firm-wide webinar next Wednesday. Stay tuned for details. For more general information related to the coronavirus, see Seyfarth’s COVID-19 Roundup. Hang in there everybody!

Government Agencies Shutter Doors in Light of COVID-19. Hundreds of government institutions have closed their doors to the public. The following federal agencies and institutions, all of which bear importance to the labor and employment world, have implemented restrictive policies to prevent the spread of COVID-19. For example, the NLRB has closed its NYC, Chicago, and Detroit offices; the EEOC first ordered workers in its DC headquarters to work remotely, it has now expanded that dictate to all offices and required, and is now requiring that all EEOC bias charges be filed over the phone; and SCOTUS has continued all oral arguments. In California, for example, the four federal district courts in the state have implemented drastic measures to combat spread of the virus. Additionally, almost every state court in California, including the largest court system in the nation – Los Angeles Superior – have implemented similarly restrictive measures. Indeed the Chief Justice of the California Supreme Court has issued an order suspending oral arguments.  Finally, the Administration has announced that it has reached an agreement with the government of Canada to close the lengthy border between the countries to all non-essential travel. Many other, similarly important institutions have implemented disruptive restrictions to prevent the spread of the virus; this space, however, is too small to mention all of them.

State and Local Responses to COVID-19. On Monday, six bay area counties in California issued shelter in place orders for all residents. New York Governor Andrew Cuomo, despite his antipathy toward the move, issued Executive Order 202.6 that, among other things, required non-essential businesses to reduce their in-person workforce at any work location by 50%. As we discussed here, Governor Murphy of New Jersey signed Executive Order 104, which limits gatherings of persons to 50 persons or fewer, with few exceptions. Following suit, a significant number of states and localities have issued similarly restrictive dictates. The city of Philadelphia limited all commercial activities and issued a halt to all non-essential City government operations. The California Legislature—the bane of many employers—has voted to suspend its 2020 session for nearly a month. Public universities across the country have curtailed academic and operational activities, while many are also requiring remote instruction and testing. The County of San Diego’s Epidemiology department recently joined the fray, issuing an order banning all gatherings of 50 or more persons. Hundreds of state and localities have implemented restrictive measures to prevent spread of the virus; again, this space is not large enough to mention them all.

Mulvaney out, Vought in. President Trump plans to nominate Russell Vought to serve as the permanent director of the Office of Management and Budget (OMB). Vought has held the top spot at the OMB for over a year, while Mick Mulvaney was the acting Chief of Staff. Vought still faces confirmation in the Senate, which, as noted earlier has been very busy crafting its response to the Coronavirus. Now that the COVID-19 response bill has left the Senate chambers, we can expect the Senate to take up his nomination well before the election in November. This is not the first time Vought has faced Senatorial confirmation—the Senate narrowly confirmed Vought as Trump’s deputy OMB director with a 50-49 vote in February 2018.

US’ Largest Labor Union Endorses Joe Biden for President. Before the presidential primary shellacking on Tuesday, March 17, the National Education Association endorsed Joe Biden’s presidential campaign over his last remaining primary rival, Bernie Sanders. While exit polling cannot measure the efficacy of a political endorsement, this one surely did not hurt. Should Joe Biden win the Democratic presidential primary, that union will almost assuredly endorse him over Donald Trump, the presumptive Republican nominee.

Is Virginia the New California? As we recently reported here, employers have long counted on California and New York to annually pass employee friendly legislation. The same could not be said of the Commonwealth of Virginia, but that is changing quickly. A diverse sampling of the measures the Virginia Legislature passed this session include, but are certainly not limited to the following: a new private right of action relating to the “misclassification of workers”; anti-retaliation provisions for reporting misclassification of workers; Virginia will now define discrimination “because of race” to include discrimination because of or based on traits historically associated with race, including hair texture, hair type, and hairstyles such as braids, locks and twists. The Governor now has until April 11, 2020 to approve and sign legislation.

By Jason E. Burritt and Michelle Gergerian

Seyfarth Synopsis: President Trump expanded the order restricting travel to the United States from most European countries — the Schengen Area, specifically —  to now include the UK and Ireland.

On Saturday, March 14, 2020, President Trump revised the proclamation to suspend travel to the US by all foreign nationals (with limited exceptions), immigrant or nonimmigrant, who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry to include the UK and Ireland.  The addition of the UK and Ireland will take effect at midnight EST on Monday, March 16, 2020.

The Schengen Area travel restriction will now affect the majority of Europe, including the following twenty-eight (28) European countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the UK.

Certain foreign nationals will not be subject to the Schengen Area travel restriction. Notable exceptions include lawful permanent residents (“green card” holders); spouses of US citizens or lawful permanent residents; parents or guardians of US citizens or lawful permanent residents who are unmarried and under the age of 21 years old; and US military personnel, along with their spouses and children. The Trump administration has also reserved an exception for any foreign national who has received an invitation from the US government to enter the United States for a cause related to the containment or mitigation of the virus. Further exceptions are detailed in the proclamation.

Seyfarth Shaw will issue subsequent alerts as the situation continues to develop. Should you have any questions, please alert your Seyfarth Shaw contact.