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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