I-9 Flexibility Extended

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. Because of ongoing precautions related to COVID-19, DHS has extended this policy until January 31, 2021.

This provision only applies to employers and workplaces that are operating remotely.

If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

Health Alert for Air Travelers from United Kingdom

Effective on December 28, 2020, air passengers arriving from the United Kingdom (U.K.) must present a negative COVID test, via PCR or Antigen test, no more than 72 hours before departure from the U.K. to the United States.

Passengers are required to get a viral test (i.e., a test for current infection) within the 3 days before their flight from the U.K. to the U.S. departs, and provide written documentation of their laboratory test result (in hard copy or electronic) to the airline. Airlines must confirm the negative test result for all passengers before they board. If a passenger chooses not to take a test, the airline must deny boarding to the passenger.

USCIS Provides Updates on Application Support Centers

In a December 29, 2020 Stakeholder Message, U.S. Citizenship and Immigration Services (USCIS) updated stakeholders on the status of appointments at Application Support Centers (ASCs) that collect biometrics for certain kinds of applications, including Form I-539 applications for change of status, extension of stay.

The notice states that "By late October, we increased ASC operations to approximately 65 percent of pre-COVID levels," but that delays in appointment scheduling and rescheduling remain and that "The wait time for appointments will vary geographically, based on capacity and varying demand at individual ASC locations."

Visa Restrictions Extended Through March

President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021.

The suspension applies to the entry of immigrants who were outside the US at the time of the April 2020 proclamation as well as to the issuance of nonimmigrant visas including, H-1B visas, H-2B visas, H-4 visas, L-1 visas and certain J-1 visas. If you have questions about a specific visa, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com). 

Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays

USCIS previously issued a notice indicating that certain Forms I-797, Notice of Action, are acceptable for Form I-9, Employment Eligibility Verification, through Dec. 1, 2020. DHS is now extending the validity of these Forms I-797. To complete Form I-9, new employees and current employees requiring reverification who are waiting for their EAD may continue to present a Form I-797 described below through Feb. 1, 2021 as a List C #7 document issued by the Department of Homeland Security that establishes employment authorization, even though the notice states it is not evidence of employment authorization. 

For the notice to be acceptable, it must include a Notice Date from Dec. 1, 2019, through and including Aug. 20, 2020, and indicate that USCIS has approved the employee’s Form I-765, Application for Employment Authorization. The last day that both new and current employees may present this notice to complete Form I-9 is Feb. 1, 2021. New employees will also need to present an acceptable List B identity document.

Employers who entered a Dec. 1, 2020 expiration date on Form I-9 for employees who presented this Form I-797 as a new hire or for reverification as directed in the original notification must update their employees’ forms to document continued employment authorization. To do so, write Employment Authorization Ext Until 02/01/2021 in the Additional Information box in Section 2 of Form I-9.

By Feb. 1, 2021, employers must reverify employees who presented this Form I-797 as a List C document. These employees must present new evidence of employment authorization -- either their new EAD or any other acceptable documentation they choose -- from either List A or List C.

District Court protects OPT in Washtech case again

A U.S. labor organization, Washington Alliance of Technical Workers Union (WashTech) has filed a lawsuit, contending that OPT harms U.S. workers and that the Department of Homeland Security (DHS) did not have statutory authority to grant work authorization to F-1 students for Optional Practical Training (OPT).  This is a lawsuit that has been in litigation in various stages for over 10 years, and in a July 2019 ruling, the court determined that the case could proceed.  After a long history in the courts, in a November 30, 2020 order, the district court denied Washtech motions of summary judgement and granted Department of Justice cross motions for summary judgement. This order includes the statement, “It is further ORDERED that this Order is not a final Order subject to appeal.” If the court's eventual final judgement is as expected consistent with the order on the motions and goes against Washtech, Washtech could file a notice of appeal within 60 days of the final judgement.

Iandoli Desai & Cronin will continue to monitor the situation and provide updates when available.

District Court sets aside the Department of Homeland Security and Department of Labor interim final rules on H-1B

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Department of Homeland Security (DHS) interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the Department of Labor (DOL) interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. (Chamber of Commerce, et al., v. DHS, et al., 12/1/20).  These proposed rules, discussed in last month’s newsletter, noted “These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.”

Department of State revises Guidance on Court Order in NAM vs DHS

The Department of State (DOS) issued revised guidance on November 18, 2020regardinga court order issued in National Association of Manufacturers v. Department of Homeland Security (NAM vs DHS). The revised DOS guidance clarified the court’s October 1, 2020, order enjoining the government from enforcing a Trump administration ban on H, L and J nonimmigrants under section 2 of Presidential Proclamation 10052.

Applicants are now considered covered by the NAM court’s order “if the applicant’s petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview. ”The court further ordered that DOS “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.

Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the DOS starts issuing visas.

Department of State Creating Visa Bond Pilot Program

Department of State (DOS) has issued a temporary final rule creating a six-month pilot program under which applicants for B-1/B-2 visas from countries with overstay rates of ten percent or higher and who have been approved by DHS for an inadmissibility waiver may be required to post a bond as a condition of visa issuance.

The Pilot Program is designed to apply to nationals of specified countries with high overstay rates to serve as a diplomatic tool to encourage foreign governments to take all appropriate actions to ensure their nationals timely depart the United States after making temporary visits. The Pilot Program will run for six months. During that period, consular officers may require nonimmigrant visa applicants falling within the scope of the Pilot Program to post a bond in the amount of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount of the bond, should a bond be appropriate, will be determined by the consular officer based on the circumstances of the visa applicant.

The temporary final rule is effective December 24, 2020.Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the program goes into effect.

Receipt Notice Delays for I-485s and I-140s Filed with USCIS

Due to the substantial amount of I-485, Applications to Register Permanent Residence or Adjust Status and I-140, Immigrant Petitions for Alien Worker, filed with USCIS in October and November, there currently are longer than normal delays in the issuance of receipt notices. Immigration attorneys nationwide report USCIS is taking upwards of 4 – 6 weeks to issue and mail receipt notices to applicants and their attorneys for adjustment of status cases the agency has received since late September.