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U.S. Citizenship and Immigration Services announced Wednesday that between now and Dec. 1 it will permit employers to accept certain employees’ Form I-797 Notice of Action showing approval of an Employment Authorization Document (EAD) (Form I-765) application as a List C employment authorization document for Form I-9 compliance.
Key Points:
Background: The temporary change was made because of what USCIS called the “extraordinary and unprecedented COVID-19 public health emergency” and related delays in the production of Employment Authorization Documents (Form I-766/EADs).
BAL Analysis: The change is a significant development that eases I-9 requirements during the pandemic for those that have been eagerly awaiting the delivery of their EAD months after their approvals have arrived. It will allow affected employees to begin working sooner before receiving their EAD card, if they received the required notification that their EAD application was approved between Dec. 1, 2019 and Aug. 20, 2020. Employers are reminded that if an employee presents an approval notice in reliance on this announcement, they must re-verify the employee’s work authorization by Dec. 1, 2020. BAL continues to monitor the administration’s response to the COVID-19 pandemic and will provide additional information as it becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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.
Priority-date cutoffs remain the same next month for all countries under the EB-2 and EB-3 categories next month, according to the State Department’s September Visa Bulletin. China EB-1 and India EB-1 will advance by three weeks.
Key dates:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for September. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once officials confirm whether the chart can be used.
The Department of Homeland Security has extended restrictions on nonessential travel across land borders with Canada and Mexico.
Key points:
Additional Information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.
U.S. Immigration and Customs Enforcement has again extended certain flexible Form I-9 procedures for employers operating remotely because of the COVID-19 national emergency.
Background: ICE introduced the temporary measures on March 20 and has extended them in 30-day increments.
U.S. Citizenship and Immigration Services has conducted a second H-1B lottery for the 2021 fiscal year and began notifying employers Friday that they will be eligible to submit petitions for some H-1B registrations that were submitted in March but were not initially selected.
Background: USCIS conducted the initial H-1B lottery in late March; those who were selected were given 90 days to submit a petition beginning April 1. The agency conducted the second lottery because the number of petitions received was below the 85,000 annual quota for cap-subject petitions, 20,000 of which are set aside for advanced degree holders. It is not yet known how many additional registrations were selected in the second lottery.
BAL Analysis: Employers with newly selected registrations should work closely with BAL to make sure petitions are submitted on time. BAL will provide more information on the second round of H-1B cap filing as it becomes available.
The U.S. Court of Appeals for the Second Circuit has significantly reduced the scope of a preliminary injunction blocking the Department of Homeland Security (DHS) from enforcing its public charge rule.
Additional Information: The ruling does not affect the injunction on the State Department’s public charge rule. The State Department said last week that it would not require applicants to submit forms required by the new public charge regulations so long as the injunction remains in place.
BAL Analysis: BAL is closely following the public charge litigation and will provide information on significant developments as it becomes available.
The State Department issued guidance Wednesday on national interest exceptions to President Donald Trump’s proclamation restricting the entry of foreign nationals on new nonimmigrant work visas.
Background: President Trump issued the proclamation on June 22. The guidance the State Department released on Wednesday was drafted in order to more clearly define who would be eligible for an exception on the basis that their entry would be in the national interest.
BAL Analysis: The guidance will make it easier for H-1B and L-1 visa holders to enter the United States if they are returning to the same employer in the same position. Employers are encouraged to work with BAL in determining whether specific employees may be eligible for a national interest exception under the applicable scheme. BAL continues to monitor the administration’s response to the COVID-19 pandemic and will alert clients to any significant changes.
The Department of Homeland Security and the Labor Department have announced a Memorandum of Agreement to exchange information and records regarding labor certifications and labor condition applications for purposes of conducting joint fraud investigations and enforcement.
Background: President Donald Trump’s June 22 work-visa ban ordered the agencies to enhance enforcement of the H-1B program and ensure that H-1B workers are not undercutting American workers.
BAL Analysis: The agreement signals the administration’s increased enforcement and scrutiny of employers’ use of immigrant and nonimmigrant visa categories during the COVID-19 economic recovery. Employers should ensure that all information on labor certifications, petitions and labor condition applications, including wages, hours and work location, is accurate and consistent with the terms of employment.
Flexible Form I-9 temporary measures for employers who are operating remotely are currently set to expire Wednesday, Aug. 19. The government has not said whether the measures will be extended.
Background: The temporary measures were put into effect on March 20 and have been extended several times, most recently in July.
BAL Analysis: The government has not yet indicated whether the measures will be extended again, but employers are encouraged review the original ICE guidance on the measures in case they are allowed to lapse. BAL will continue to monitor developments and will alert clients if there is an extension or any other significant changes.
The State Department has released a statement regarding visa applications in light of a federal court order last Wednesday blocking the government from enforcing the public charge rule.
Background: On July 29, a federal judge issued a preliminary injunction, ordering the government to stop enforcing the public charge rule during the COVID-19 national emergency. U.S. Citizenship and Immigration Services (USCIS) responded on July 31 by announcing that it will comply with the injunction for immigration applicants in the U.S. Today’s announcement by the State Department applies to visa applicants applying at U.S. consulates abroad.
This week, two appeals courts issued divergent rulings on nationwide injunctions against the public charge rule, but they do not affect the July 29 court injunction at this time, and USCIS and the State Department will continue to comply with it while it remains in effect.
BAL Analysis: At this time, the State Department and USCIS are not requiring applicants to submit new forms required by the new public charge regulations, while the injunction remains in place. BAL is monitoring for additional guidance from the State Department and developments in the multiple lawsuits challenging the regulation and will report any changes as information becomes available.