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Employees in the green card process are seeing additional flexibility in processing as the COVID-19 national emergency continues to complicate the normal steps, and the government appears to be relaxing certain requirements.
All U.S. Citizenship and Immigration Services (USCIS) offices have been closed to the public since March 18 and are not scheduled to reopen until at least May 4, creating delays for applicants needing to attend biometrics appointments and green card interviews.
However, in recent days the agency announced flexible rules on biometrics and appears to be waiving green card interviews in some cases where interviews have been canceled because of the office closures. On March 30, USCIS announced that it will process certain requests to extend employment authorization documents without a biometrics appointment by using the applicant’s previously submitted biometrics. This temporary measure, in place for the duration of the office closures, will mitigate delays and help prevent lapses in employment authorization.
Though the agency has not announced whether it will relax the interview requirement, some green card applicants whose appointments were canceled because of the COVID-19 office closures have seen their case status updated to indicate their adjustment of status application has been approved and have received their green cards in the mail shortly thereafter.
Additionally, green card applicants who file their application without the medical exam form or with an expired medical exam form normally receive a courtesy notice indicating that they should bring their medical form to the USCIS interview. More recently, however, USCIS has been issuing Requests for Evidence instructing green card applicants to mail the medical form to USCIS directly—another signal that the agency may be adopting a policy of waiving green card interviews for the time being for some applicants.
For employees in earlier stages of the green card process, the Labor Department is also taking temporary steps to ease the PERM labor certification process. On March 25 the department began issuing labor certifications and final determinations via email and will continue to do so at least through June 30. However, applicants and employers must still sign the labor certification with an original wet signature before filing the I-140 petition with USCIS. Unlike USCIS, which is accepting electronically reproduced original signatures on USCIS forms for the duration of the national emergency, the Labor Department has yet to authorize submission of photocopies of original wet signatures on labor certifications.
What should employers and employment-based immigrants expect from these agencies in the coming weeks? DHS Acting Secretary Chad Wolf indicated this week that USCIS is considering additional options to give flexibility to petitioners and applicants, but BAL anticipates that the agency will take a piecemeal approach rather than make wholesale changes (such as automatic extensions of status).
The Labor Department is likely to release guidance in the coming days that should clarify additional procedures during the national emergency and provide greater flexibility in requirements and timelines for employees in the green card process.
Heather Oh is a Senior Associate in the New York City office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
Cobalt® Earns Prestigious Industry Recognition
Dallas, March 31, 2020 – BAL, one of the world’s leading corporate immigration law firms and a legal tech groundbreaker, today announced that Cobalt® was named a 2020 SIIA CODiE™ Award finalist in the Best Legal Solution category. Finalists represent the best products, technologies, and services in software, information and business technology.
Cobalt is BAL’s proprietary, and second to none, immigration case management system, providing real-time visibility into clients’ immigration programs. Cobalt is a single platform that enables centralized program management to power companies’ business initiatives. With Cobalt, BAL offers features such as the industry’s first mobile app, allowing employees to monitor their cases anywhere, anytime. With advanced application of Optical Character Recognition (OCR), employees can upload documents, check case status, view milestones, and send secure messages from their phones. As a leader in legal technology, BAL and Cobalt are ahead of the curve in enhancing client experience through Robotic Process Automation (RPA), OCR and Computer Vision (CV) technologies.
Acknowledged as the premier awards program for the software and information industries for 35 years, the SIIA CODiE Awards are produced by the Software & Information Industry Association (SIIA), the principal trade association for the software, education, media and digital content industries. Cobalt was honored as one of 150 finalists across the 40 business technology categories.
BAL CIO Vince DiMascio stated, “It is our honor to be recognized as a 2020 CODiE Award finalist. BAL is proud to have the opportunity to represent great clients and support their efforts around the world through an exceptional group of people in both our Legal and Products teams. Working together we can take on bigger and more meaningful challenges as we push ourselves to innovate and accomplish amazing things. This award is a credit to the relationships we keep and the hard work our people do every single day.”
The SIIA CODiE Awards are the industry’s only peer-recognized awards program. Business technology leaders including senior executives, analysts, media, consultants and investors evaluate assigned products during the first-round review. Their scores determine the SIIA CODiE Award finalists which account for 80% of the overall score. SIIA members then vote on the finalist products and the scores from both rounds are tabulated to select the winners. Business Technology category winners will be announced May 18 during an online winner announcement ceremony.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
COVID-19 is slowing immigration processing, with U.S. consulates suspending routine visa services abroad and U.S. Citizenship and Immigration Services (USCIS) temporarily suspending premium processing and in-person services during the national emergency.
Nevertheless, companies that sponsor H-1B, labor certification and other immigration procedures for employees in the U.S. will be able to keep several processes moving and remain in compliance, thanks to new measures introduced by the Department of Homeland Security and the Labor Department.
Relaxed signature requirements
Employers who are enforcing social distancing in the workplace by mandating work-from-home policies are now permitted to file copies of signed USCIS forms during the national emergency. Although the original petition must still be printed and signed with a handwritten “wet” signature and retained, employers will be able to scan or copy (or use a scanner app on a mobile phone) the original signed petition containing the wet signature for submission to USCIS.
Relaxed I-9 verification procedures
Form I-9 verification procedures will also be temporarily eased for certain employers who have implemented telecommuting because of COVID-19. Usually, employers must inspect an employee’s documents in the employee’s physical presence. During the crisis, employers may inspect identity and employment authorization documents remotely via video, fax or email. DHS is allowing remote inspection for employers operating remotely. Notably, however, if any employees are physically present at a work location, the employer must follow normal in-person procedures. Employers who are eligible for the virtual inspection option should strictly adhere to procedures set out in the guidance to ensure that they are in full compliance during the National Emergency and after normal operations resume.
Longer deadlines
The agencies have also automatically extended several deadlines for immigration-related procedures. Employers will have more time to respond to a Notice of Inspection (NOI) issued by DHS. Companies who have not yet responded to an NOI that was issued this month are automatically allowed a 60-day extension from the effective date. At the end of the extension, DHS will decide whether to extend further. Employers now have until May 12, 2020 to respond to certain inquiries by the Labor Department’s Office of Foreign Labor Certification, such as a request for information, notice of deficiency, or notice of audit, if their original deadline to respond fell between March 13, 2020 and May 12, 2020.
Employers will also have more flexible deadlines for completing labor certification application (PERM) recruitment and H-1B Labor Condition Application (LCA) posting requirements. DOL issued guidance giving employers an additional 60 days to complete PERM-related recruitment, provided that the employer started recruitment on or after Sept. 15, 2019, and the PERM application is filed by May 12, 2020. This extension does not apply to employers who already completed recruitment within the normal deadline. Additionally, employers who started recruitment on or after Sept. 15, 2019 have an additional 60 days to post the PERM notice of filing.
Employers may be moving H-1B employees to new locations, such as work-from-home arrangements, because of COVID-19. Normally, the LCA must be posted on or within 30 days before the day the H-1B worker begins working at the new work location, but under temporary measures, employers have up to 30 days after the worker begins work at the new location to post the LCA.
These temporary measures, though modest, are a promising development in that they allow companies flexibility in meeting the competing obligations of social distancing and immigration compliance. It is hoped that the agencies will consider implementing additional measures that would ease immigration processes and compliance during these extraordinary times.
BAL will continue to engage with policymakers and advocate for measures to help clients mitigate delays and protect the health of their employees.
As governments continue to grapple with concerns over the COVID-19 virus, and policies around international travel are still in flux, the State Department recently expanded its recommendations that will limit travel for most J-1 international exchange visitors.
U.S. employers that sponsor J-1 exchange visitors should plan to adjust their training schedules and take other actions to comply with new guidelines for affected individuals. Employers who administer their own J-1 program, should pay close attention to upcoming program start and end dates in SEVIS so that appropriate revisions can be made to an exchange visitor’s status and new forms can be generated, as needed.
Since Feb. 7, the agency’s Bureau of Educational and Cultural Affairs (ECA) has recommended restricted travel to the U.S. for exchange visitors who had been in China within the previous 14 days and for those planning to travel back to China before April 1. As of March 6, however, the guidance was expanded to additional exchange visitors who are currently outside the U.S. and those already in the country.
For new exchange visitors who are currently outside the U.S., and who have traveled to China or a country affected by COVID-19 in the past 14 days, sponsors should delay their start date until at least April 1 or later. Sponsors should also issue them a new initial certificate of eligibility (Form DS-2019), which allows them to request an interview at a U.S. consulate abroad. If the exchange visitor has already secured a J-1 visa stamp, the sponsor should issue an amended Form DS-2019 with a start date after April 1. Sponsors should delay the start date of new exchange visitors until they have been outside of the affected country (and are not exhibiting symptoms of the COVID-19 virus) for at least two weeks.
Current exchange visitors who are outside the U.S. may have their records kept in SEVIS until they are able to return to the U.S. and continue with their original program objectives. However, depending on the validity dates of their J-1 visa, they may need to renew their visa before they are able to return to the U.S. If an exchange visitor requests withdrawal, the sponsor may shorten their SEVIS records accordingly.
Employer sponsors should also take action to extend the programs of exchange visitors who are currently in the U.S., but this may require more attention to compliance. According to the State Department guidance, sponsors should reinstate (if necessary) and extend the program for current exchange visitors with a new end date of April 1, 2020. Extensions, however, require that the exchange visitor’s activities remain consistent with the original purpose of travel to the U.S. and should be documented in the extension. Program extensions must also be supported with funding by the exchange visitor, sponsor or other third parties.
It is important that J-1 exchange visitors do not overstay their authorized period of stay as indicated on their Form I-94 record by U.S. Customs and Border Protection. Most exchange visitors are granted J-1 status as long as they remain in status as an exchange visitor, but this is not always the case, and border officials sometimes denote an expiration date on the I-94. The State Department has also said that it is aware that a significant number of exchange visitors who are currently in the U.S. have reached the maximum duration of their program and are not permitted to extend it. Exchange visitors facing these circumstances are encouraged to consider applying for special measures that U.S. Citizenship and Immigration Services offers for those in the U.S. seeking to extend or change their visa status in special humanitarian or extenuating circumstances. Exchange visitors who are subject to the two-year home residency requirement may also be eligible for such relief. As exchange visitors are permitted to remain in the U.S. for up to 30 days beyond their program end date, an extension or change of status should be filed before the 30-day grace period lapses.
Employers with exchange visitor programs should anticipate significant delays in start dates for new exchange visitors, including the need to reschedule visa interviews. Employers sponsoring current exchange visitors should move to extend their programs with appropriate documentation of funding and compliance with program requirements. Additionally, sponsors should review and assess I-94 expiration dates and determine whether their current exchange visitors will need to apply to USCIS to extend or change their visa status under special humanitarian measures.
Lucrecia Davis is Senior Counsel in the Houston office of Berry Appleman & Leiden LLP.
Super Lawyers® recognizes five Berry Appleman & Leiden LLP lawyers as “Rising Stars” for 2020. The BAL attorneys listed by the publication are:
Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list.
Ask Congress, Not Courts, For Immigration Reform
The presidential race has brought heightened attention to immigration policy. One of the most important immigration issues has been quietly playing out in the courts and few people have noticed. Yet this one issue will have a ripple effect across the U.S. economy.
In approving the Trump administration’s application to lift an injunction in U.S. Department of Homeland Security v. New York last month, the U.S. Supreme Court sent a clear signal that a majority of the justices seriously question the viability of nationwide district court injunctions.
While the court’s ruling had the immediate effect of allowing the Trump administration to begin implementing its new wealth test for immigrants, the unusual written opinion by two of the justices expresses a viewpoint on the impropriety of this remedy that may have long-lasting effects on all jurisprudence, regardless of whether this particular immigration regulation survives legal challenge.
In a written concurrence, Justice Neil Gorsuch, joined by Justice Clarence Thomas, slammed nationwide injunctions for sowing confusion in the courts and foreshadowing that the court will have to deal with them.
This opinion, presaged by an op-ed article written by U.S. Attorney General William Barr in the Wall Street Journal titled, “End Nationwide Injunctions,” is not the first time members of the court have signaled that they are fed up with nationwide injunctions. And it will not be the last.
For several years now, it’s been a race to the courthouse to get a judge to slap an injunction on a disfavored policy. Conservatives seeking to block the Obama administration’s Deferred Action for Childhood Arrivals or Deferred Action for Parental Accountability initiatives, look for sympathetic judicial ears from federal judges in Texas; liberals trying to stop Donald Trump’s executive actions run to Massachusetts or Northern California. As a result, a single federal judge has been able to dictate national policy.
This trend has been particularly glaring in the context of immigration law. Why? Congress — which has plenary power over immigration law— has failed to act. The demise of the bipartisan Gang of Eight’s comprehensive immigration reform bill left a vacuum of leadership on immigration issues.
President Barack Obama used executive orders to initiate much-needed reforms (or sidestep Congress, depending on your viewpoint).
While eschewing Obama’s use of executive orders on the campaign trail, Trump has been even more prolific in exercising executive power, starting with the initial travel ban issued weeks after taking office. His administration has continued to issue executive orders and presidential proclamations on immigration at a breathtaking pace and volume with no apparent input from Congress.
The controversial nature of these developments has meant that immigration advocates have increasingly resorted to what they consider friendly jurisdictions to try and put a hold on these executive actions. And, the fact that the Trump administration too often has issued and sought to implement executive orders immediately, with no warning and no transition period, has created an urgency that many courts have found compelling in placing a temporarily hold on the proposed action while the lawsuit proceeds.
In a few cases, such as the travel ban executive orders, businesses have joined litigation filed to maintain the status quo so they could buy time to figure out the impact on their employees and develop policies necessary to adapt to the proposed changes. An estimated 40 nationwide injunctions have been issued over Trump’s policies in slightly over two years, more than double the number issued during the entire eight years of the Obama administration.
While your view of nationwide injunctions as good or bad may depend on whether you favor or disapprove of the underlying policy that is challenged, the reality is that these injunctive requests often place courts in difficult positions because they essentially are being asked to develop policy that would be a Congressional responsibility in a normal political climate.
This can take pressure off Congress to promptly do its job and take the steam out of efforts to build public consensus to support legislative action.
As Barr pointed out, Congress has been silent on the DACA issue since the court enjoined the Trump administration’s termination of DACA. Now, 800,000 dreamers wait anxiously for the Supreme Court to address the legality of the actions taken by the Trump administration when momentum had been building for a possible legislative fix before the courts got involved.
This pattern of increasing reliance on the judicial system to fix national immigration policy issues is not sustainable. The U.S. business community has a significant interest in this country’s ability to attract and retain the best and the brightest so we can remain competitive.
Global mobility solutions cannot rest on the whim of the judicial process. The issues often are not well-framed for judicial resolution and the process takes far too long. Also, there is a distinct potential for policy advocates to try and expand this injunctive remedy to other areas covered exclusively by federal law.
In this context, businesses should be more active advocates for long-term legislative cures — not just asking courts to treat the symptoms. Companies cannot continue to rely on the possibility of nationwide injunctions whenever the executive branch rolls out an immigration or other policy that runs counter to their economic interests.
Nor can the economy sustain an exodus of U.S. businesses to Canada or other countries that offer more predictable immigration policies to attract high-skilled global talent. U.S. business faces skills shortages and fierce competition for talent (over 2 million jobs in the STEM fields remain unfilled in the U.S.) and restrictive immigration measures that can’t be blocked in court will only create greater unpredictability for the U.S. economy.
The conversation over immigration needs to shift from border walls and travel bans to how the constructive use of immigration is essential for making America more competitive globally.
As Bob Dylan put it, “You don’t need a weatherman to know which way the wind blows.” The court has clearly forecast that injunctions may not be a viable option for much longer.
Businesses should consider getting behind immigration reform and lobbying Congress more vigorously to exercise its plenary power and enact immigration legislation.
Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.
This article was originally published on Law360.com on Feb. 27, 2020.
One of the government’s recent attacks on business immigration is the whittling away of the H-1B status validity period for certain employees. When an H-1B worker is changing job locations, and therefore requires an amended petition to be filed, U.S. Citizenship and Immigration Services is taking that opportunity to shorten the worker’s H-1B status—even where the worker already holds an approved petition for a longer period.
This change in longstanding policy is especially affecting companies whose foreign national employees often move around the country from one project to the next.
H-1B workers are eligible for a maximum six years in H-1B status (with some exceptions), which is typically granted in two three-year increments. However, USCIS has recently taken the position that H-1B workers are no longer eligible for their current duration of H-1B stay when they intend to provide services to a third-party for a shorter period of time.
When an H-1B worker needs to change work locations, the petitioning company must first file an H-1B amendment, reflecting the worker’s new location. When the change in work site is pursuant to a contract between the petitioner and the petitioner’s client (a third party), the contract (or “statement of work”) is typically submitted as supporting evidence with the H-1B filing. If the contract indicates that the work assignment is shorter than the worker’s current H-1B status, USCIS is now only approving the status until the contract’s end date.
These shortened validity periods have created new challenges with some odd results. By the time USCIS approves the H-1B petition and notifies the petitioner of the approval, the worker’s H-1B status is typically soon to expire within months or even weeks. There have also been instances where the H-1B worker’s status had already expired by the time the petitioner received the approval notice.
As a result of this trend, companies are bearing increased costs in legal and government filing fees because they must now file extensions of stay requests for their employees more frequently. In addition to financial costs, companies are more at risk of losing talent, either to a competitor whose business model is less reliant on the worker’s immigration status or because the employee must leave the country when his or her status expires earlier than anticipated.
Now more than ever, foreign national employees are on edge about their immigration status, and companies are increasingly going to the courts to resolve these issues. A lawsuit filed in 2018 that challenges USCIS for shortening the normal three-year validity period of H-1B status has now reached a federal appeals court. While the legal case may provide relief in the long-term, in the meantime, companies are encouraged to work with their BAL professional to consider strategies to overcome shortened H-1B approvals.
Melissa Salvador is an Associate Attorney in the Dallas, Tex. office of Berry Appleman & Leiden LLP.
BAL is again ranked as a top firm in the Global-wide category in the newly released Chambers Global Guide, an annual ranking of the best international law firms based on independent research and interviews with lawyers and clients worldwide. BAL has received top-tier ranking in the publication since 2014.
Chambers recognizes BAL as an “acclaimed group of immigration specialists, evoking praise for its deep experience in corporate global mobility.” Chambers states that BAL offers a broad spectrum of services from application support and immigration program management to strategic advice on compliance and government relations. The firm’s impressive client base benefits from its ever-expanding U.S. footprint and alliance with Deloitte, combining centralized global mobility advice with on-the-ground expertise in more than 135 countries. Chambers calls out BAL for its innovative case management technology, with the operation of its Cobalt® mobile app and artificial intelligence engines.
Chambers sources enthuse that BAL “[is] an excellent firm with a good caliber of partners across the board, many of whom have been in the market a long time.” One client explained: “The firm’s key strength is its large size, combined with its close attention to client needs.”
Many distinguished attorneys lead BAL, and Chambers’ notable practitioners include Founding Partner David Berry, based in San Francisco, and Managing Partner, Jeremy Fudge, in Dallas.
About Chambers Global Since 1990, Chambers has published an annual guide ranking the world’s best lawyers on the basis of technical expertise, business acumen, prompt delivery, and value for money. A team of over 200 researchers conducts thousands of interviews worldwide to produce the rankings. Lawyers cannot buy their way into Chambers rankings; as a result, its annual directories are considered among the most accurate and reliable.
BAL Partners Roberto D. Caballero and Frieda Garcia have been named to the Lawyers of Color Power List 2020. The Power List recognizes the most influential minority attorneys in the U.S. and represents the only comprehensive list of minority leaders in the legal profession. The nonprofit Lawyers of Color began compiling the list to encourage diversity in the legal community.
Rob Caballero is the Managing Partner for BAL’s Houston and Austin offices, and oversees the firm’s business development, marketing and social media strategies. His clients range from Global Fortune 100 corporations to regional companies within the U.S., and he is known for his expertise in the energy, engineering and technology industries.
“It’s an honor and privilege to receive this recognition. BAL is a tremendously diverse and dynamic law firm at every level. We don’t just tout the benefits of diversity—we live it,” said Caballero.
Frieda Garcia is a Senior Partner based in BAL’s San Francisco office, where she serves on the firm’s Management Committee and oversees and manages West Coast operations. Frieda also advises companies on global immigration initiatives and how to implement best-in-class global programs. She manages some of the largest immigration programs for companies in the technology, finance and travel services industries.
“It’s such an honor, and we are truly grateful to be recognized in this way,” Garcia said. “At BAL, our ability to nurture and promote diverse legal talent into top leadership roles is one of our greatest strengths. This commitment empowers us to connect with our clients and build meaningful relationships with them.”
For the past year, U.S. Customs and Border Protection (CBP) has been refusing to process L-1 petitions for Canadian nationals who have previously held L-1 status with the same employer. This abrupt and unannounced shift has caused major delays for companies transferring Canadian executive, managerial, and specialized-knowledge personnel to the U.S.
The situation, however, may be changing, at least for certain Canadian L visa holders who work less than six months per year in the U.S. At several ports of entry (POEs), CBP is now consistently allowing so-called “intermittent” Canadian L holders to renew their L-1 status at the border.
Under longstanding regulations, multinational companies have been able to move key Canadian staff to the U.S. quickly and reliably by having their L petition adjudicated by a CBP officer without prior approval by U.S. Citizenship and Immigration Services or applying for a blanket L from a U.S. Consulate. Furthermore, CBP has historically permitted Canadian L-1 holders to renew their status by simply returning to a POE and submitting another L-1 petition; again, without the need to file a lengthy petition with USCIS or wait for a consular appointment. This process allowed Canadian L visa holders to conveniently renew their L-1 status during business or holiday travel. CBP is now turning away Canadians seeking L renewals and instructing their employers to file an L-1 extension of stay petition with USCIS.
However, recent trends indicate CBP will now renew “intermittent” L-1 petitions. Initially this policy was applied inconsistently, though as of late, CBP officers at several ports of entry are adjudicating intermittent L visa renewals.
Intermittent L-1 status allows employees who reside in Canada to work in the U.S. for shorter periods not to exceed six months in any given year. An added benefit of being classified as intermittent is that the L status is not subject to the same five/seven-year maximum stay limits and may be extended indefinitely; again, as long as the employee spends less than six months per year in the United States. Canadians seeking to classify as intermittent L-1s must document all entry and exit dates during their previous L-1 visa validity period, demonstrating their total number of days in the U.S. during the preceding period of admission.
CBP border processing is an important option for companies to efficiently move their sales, engineering and other critical personnel between their Canadian and U.S. operations. Companies are encouraged to work with their BAL professional to determine whether their Canadian employees are eligible for border adjudication as intermittent L employees.
Timothy Thiel is an Associate Attorney in the Walnut Creek, Calif., office of Berry Appleman & Leiden LLP.