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.
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Department of Homeland Security
E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs
By Dawn Lurie on
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.…
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COVID-19 Immigration Updates From the Agencies
By Steven Brouillard, Gabriel Mozes, Dawn Lurie & Mahsa Aliaskari on
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…
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USCIS Suspends Premium Processing For I-129 and I-140 Petitions Beginning March 20, 2020
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.
USCIS Office Closures Updates- as of March 25, 2020
By Mahsa Aliaskari on
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…
USCIS Publishes EB-5 Modernization Rule: the Impact on the EB-5 Program
By Seyfarth Shaw LLP on
By Dawn Lurie, Mark Katzoff, Angelo A. Paparelli and Randy Johnson
Seyfarth Synopsis: On July 24, 2019, U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits component of the Department of Homeland Security (DHS), published a final regulation on “EB-5 Immigrant Investor Program Modernization” (the “Rule”) to reform the EB-5 program in the Federal Register. Absent successful court challenges, or the passage by Congress of EB-5 legislation, the Rule will take effect on November 21, 2019. The Rule makes pronounced changes to the EB-5 program, including a significant increase in the investment threshold, conferral of exclusive authority to USCIS to designate Targeted Employment Areas (TEAs), and retention of priority dates for petitioners. The text of the Rule can be found here.
ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide
This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.
Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool. ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers. It is expected that over 5000 NOIs will be issued during this round of audits
What is an NOI?
An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law. U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers. The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.
Houses Passes Bill Lifting “Per-Country Caps”
By Seyfarth Shaw LLP & Dawn Lurie on
By Randy Johnson and Dawn Lurie
Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.
The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.” For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.
TPS Update: Last Minute Automatic Extensions For El Salvador and Three Other Countries
By: Dawn M. Lurie and Greg Morano*
On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.
E-Verify Thawed: The Government Reopens but Guidance is Messy
By Dawn Lurie on
By: Dawn Lurie
Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th. The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS). Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown. USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it. We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.
With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics. Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.
Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown. If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames. For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems. Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.…
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