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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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
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.
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
President Trump’s October 9, 2019 overtures landed as music to the ears of many a grizzled immigration lawyer who persistently suffers battle fatigue from the culture of virtually never. On that day the President released a double album, each with artfully penned liner notes:
The songs of TAFCAEA and IAGD, resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:
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.
[Blogger’s Note: Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services
By: Angelo Paparello
Seyfarth Synopsis: Employers take note. The April 18, 2017 “Presidential Executive Order on Buy American and Hire American,” has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.
Seyfarth Synopsis: The Department of Homeland Security (DHS) published its regulatory plan for 2018, which aligns with President Trump’s Executive Order, Buy American Hire American.
Although the specifics of each proposed rule will remain confidential until published in the Federal Register, the Regulatory Agenda does provides insight on what is likely ahead. Changes to the
Seyfarth Synopsis: This blog post is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2019. We recommend that employers identify any such candidates as soon as possible, as on April 2, 2018, United States Citizenship and Immigration Services (USCIS) will begin