Department of State Provides Information for Exchange Visitors Impacted by Coronavirus

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The Department of State’s (DOS) Office of Academic Exchanges has provided information for exchange visitors whose travel may be affected by the Novel Coronavirus 2019 (COVID-19). In an email to sponsors, the office describes USCIS’s discretion to extend or change status, and in some cases provide student work authorization, for individuals who cannot depart the United States at the appropriate time due to extreme circumstances.

In the email, the DOS office reiterates that any exchange visitors subject to the home residency requirement will need a 212(e) waiver, but notes that expedited waiver processing may be requested for cases with urgent humanitarian need. Additionally, DOS notes that exchange visitors can request a “No Objection Statement” from their home country government and submit it as an update to their application once they have a waiver case number. For more information concerning applying for a J visa waiver, please review the information included here.

Public Charge Rule Implementation with both USCIS and Department of State

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On February 22, 2020, USCIS confirmed that it will implement the Inadmissibility on Public Charge Grounds final rule on February 24, 2020, nationwide after the Supreme Court granted the government's motion for a stay of the Illinois-based injunction. USCIS will now determine whether a person is inadmissible to the United States based on the prospective “likelihood of becoming a public charge at any time in the future” and this includes a requirement that those seeking a nonimmigrant extension of stay or change of status “demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.”

At the same time, the Department of State (DOS) will implement the new public charge standards pursuant to the DOS Interim Final Rule  for overseas applications on the same date, including the new DS-5540, DOS Public Charge Questionnaire. DOS has indicated that it may apply the DS-5540 to applicants who have previously been found documentarily qualified for a visa before February 24, 2020.

These polices apply to immigrants applying for immigrant visas abroad or green cards processed inside the United States, including green card holders that leave for 180 days or more and seek to reenter the US as well as those seeking a change of status or extension of nonimmigrant status (such as H-1B, F-1, J-1, O-1 visa status).

The following are additional resources regarding the public charge policy:

If you have received public benefits in the past or could require public assistance, we recommend that you contact Iandoli Desai & Cronin to schedule a consultation.

I-9 Updates

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USCIS announced the release of its revised Form I-9 (Employment Eligibility Verification) with a version date of ‘‘(Rev. 10/21/2019)’’ is available for use starting January 30, 2020 to replace the form currently in use.   Employers may continue using the prior version of the form, with a version date of “(Rev. 07/17/2017 N),” until April 30, 2020. After this date, the prior version of the form will no longer be valid for use. 

Employees who have already completed the Form I-9 on the previous version of the Form I-9, including employees who have accepted their offer of employment, but have not yet begun working, do not need to complete a new Form I-9 using the newly released version.

Employers can download the newest version of the Form I-9 at www.uscis.gov/I-9.

SEVP Broadcast message concerning Novel Coronavirus

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On January 29, 2020, the Student and Exchange Visitor Program (SEVP) broadcast a message concerning Novel Coronavirus and how the nationwide response to the 2019 novel coronavirus (2019-nCoV) will impact F and M students and their accompanying dependents.

SEVP highlighted that the Center for Disease Control (CDC) is the primary resource for up-to-date information on all diseases and biological threats. CDC information about this virus is available at About 2019 Novel Coronavirus (2019-nCoV).

Additionally, many state and local government public health agencies are developing directions, and state educational systems are incorporating this information into their messaging for schools. Identify and refer to these resources in the management and enrollment of students traveling from 2019-nCoV impacted places. Additionally, advise students traveling from 2019-nCoV impacted places to refer to guidance from the CDC and U.S. Customs and Border Protection about specific port of entry screening processes.

If your school has international students who are currently outside of the United States in impacted places or who are exhibiting symptoms of 2019-nCoV:

1. Initial students:

a. Delay their program start date and issue a new initial Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.”

2. Active students:

a. You may authorize a medical reduced course load. The student will need to provide medical documentation from a doctor. The DSO would then register the student in the Student and Exchange Visitor Information System (SEVIS) for a medically reduced course load with no course load.

b. You may terminate their SEVIS records for authorized early withdrawal upon the student’s request.

3. Students on temporary absence:

a. You may advise them not to travel to the United States until they can re-enroll in a full course of study.

b. If the delay in a student’s return from a temporary absence exceeds the five-month limit, you should provide details to the SEVP Response Center at SEVP@ice.dhs.gov. SEVP will resolve these on a case-by-case basis.

If your school has students currently inside the United States who are exhibiting symptoms of 2019-nCoV:

1. If it is not possible for the student to enroll for this term, please follow step 2a above to authorize a medically reduced course load.

2. Please have the student follow the directions from the CDC: What to do if you are sick with 2019 Novel Coronavirus (2019-nCoV).

Check-in with Department of State’s Charlie Oppenheim regarding the February 2020 Visa Bulletin

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EB-1:

In February, the final action date for EB-1 Worldwide advances two months to December 1, 2018. Based on currently available information, it remains possible--yet too early to confirm--that this category could become current in the summer of 2020. The final action dates for EB-1

China and EB-1 India continue to hold at May 22, 2017, and January 1, 2015, respectively in February.

EB-2:

EB-2 Worldwide is current for February 2020. Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.

EB-2 China advances two weeks in February to July 15, 2015, and EB-2 India advances one day to May 19, 2009.

EB-3:

Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020. Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.

EB-3 China advances one month to January 1, 2016, in February 2020, slightly widening the final action date spread between EB-3 China's and EB-2 China's final action dates, placing EB-3 China 5.5 months ahead of EB-2 China. Evidence of significant downgrades from EB-2 to EB-3 have not yet materialized, but Charlie continues to watch these categories closely.

EB-3 India advances one week to January 8, 2009, in February 2020, narrowing the gap with EB-2 India, final action date of May 19, 2009, to about four months.

February 2020 Visa Bulletin

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Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. 

For February 2020, USCIS has again indicated that the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions for all categories except for applicants in the Employment 3rd and Other Worker categories from all chargeability areas other than China, India, and the Philippines may file for adjustment of status using the Final Action Dates chart for February 2020.  In February, the EB-1 preference category on the Dates of Filing Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140.  China and India remain backlogged to October 1, 2017 and March 15, 2017, respectively.

The EB-2 preference category also remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged to August 1, 2016 and July 1, 2009, respectively. 

Because of the difference in dates on the two charts, I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now. 

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

H-1B Registration is Nearing

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H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor's degree (or the equivalent in education and experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

USCIS has just announced they will implement the new e-registration tool this upcoming H-1B cap season.  As such, employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions. 

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.

E-Visa Eligibility Update for Iranians

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On January 22, 2020, USCIS announced that due to the termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran, Iranian nationals are no longer eligible for E-1 and E-2 visas or extensions of status.

The E-1 and E-2 nonimmigrant visa classifications allow a national of a treaty country to be admitted to the United States for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business. E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.

Due to the termination of the treaty, USCIS will send Notices of Intent to Deny (NOID) to affected applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement.

Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires, but should plan accordingly thereafter.

B-visa (Tourist) Updates to Combat “Birth Tourism”

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On January 23, 2020, the Department of State (DOS) posted for public inspection a final rule in the Federal Register amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure.” The rule became effective as of January 24, 2020. According to DOS, this rule is exempt from notice or comment based on the foreign affairs exemption of the Administrative Procedure Act (APA) and is necessary to address national security and law enforcement concerns related to the “birth tourism industry.”

The new guidelines will not prohibit pregnant women from obtaining visas, but will extend discretion to consular officers, who will have to determine whether a woman is planning a visit to the United States solely for the purpose of giving birth. It is unclear how they would make that determination or whether they will try to verify pregnancies.

Summary of Rule

The rule amends 22 CFR 41.31 to include three paragraphs.

The first paragraph, amends the Department of State’s regulations on B nonimmigrant visas to clarify that tourism for the purpose of obtaining U.S. citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa, or B visa.

The second paragraph codifies current standards for obtaining a B nonimmigrant visa for the primary purpose of obtaining medical treatment, requiring such individuals to provide documentation showing that a physician and/or hospital has agreed to provide the treatment and that the applicant has the means to provide payment for all expenses, including incidentals, either independently or with prearranged assistance of others.

Lastly, in 22 CFR 41.31(iii), the Department creates a rebuttable presumption “that any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is traveling for the primary purpose of obtaining U.S. citizenship for a child.” This assumption is considered fact until disproved. In order to rebut this assumption, the applicant must establish that her primary purpose for entering the United States is not to give birth to a U.S. citizen child. The Department does acknowledge that medical treatment for a complicated pregnancy, when demonstrated, may be sufficient to overcome this assumption, though it is not a guarantee.