U.S. Immigration and Customs Enforcement (ICE) has agreed to rescind a policy that would have barred foreign students on F or M visas from remaining in the country if they attended universities that only offered online courses in the fall.

Key points:

  • In March, ICE adopted temporary measures that allowed foreign students to take more online courses than normally permitted because of the COVID-19 pandemic.
  • In July, ICE announced that it would rescind the temporary measures and force students at schools that only offered online classes to depart the U.S. or find alternatives, such as transferring to a school with in-person courses. Students at universities that offered a mix of online and in-person classes would have been required to take at least one in-person class.
  • States and universities filed lawsuits challenging the new policy. At a hearing Tuesday in a case filed by Harvard University and the Massachusetts Institute of Technology, Judge Allison Burroughs announced that the universities and the government had reached a settlement under which ICE will not implement the July guidance, and will return to the policy it announced in March.

Analysis & Comments: The rescission of the policy ICE announced last week means that international students will continue to be afforded measures put in place in March that allow them to take more online classes than normal this fall. These measures will apply nationwide until further notice. BAL is closely monitoring for any additional policy changes relating to international students and will continue to provide updates on developments.

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.

The State Department announced on Twitter this morning that it has begun the “phased resumption” of routine visa services at U.S. consulates, but did not provide information for individual countries.

Key points:

  • The dates that visa services will resume in individual countries will depend on conditions on the ground.
  • Travelers are directed to individual U.S. consulates for details and dates when visa services intend to resume, as conditions vary from location to location.

Background: Routine visa services have been suspended at U.S. consulates since March because of COVID-19.

BAL Analysis: The State Department tweet confirms that U.S. embassies and consulates are beginning the phased resumption of routine services, but does not provide specific information about when individual locations will reopen. While the U.S. consulate in Auckland, New Zealand has announced it will resume nonimmigrant processing July 20, most consulates have not said when they will resume visa services. Visa applicants should monitor individual consulate websites for status updates, and should be mindful of travel restrictions to the U.S. that remain in place.

The restrictions on travel to the U.S. for travelers who have been physically present in Brazil, China, Iran, Ireland, the Schengen area, or the U.K., may limit the reopening of U.S. consulates in those countries, and resumption of visa processing in other countries will depend on health conditions in individual locations. Even when consulates begin to reopen, visa applicants should prepare for significant delays due to backlogs and new physical distancing protocols.

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.

U.S. Immigration and Customs Enforcement (ICE) has modified its COVID-19 temporary exemptions for the fall 2020 semester for foreign students regarding attending online courses.

Key points:

  • Foreign students on F or M visas who are attending schools operating entirely online are not permitted to take a full online course load and remain in the U.S. They must depart the U.S. or find alternatives, such as transferring to a school with in-person courses, in order to remain in lawful status; if they do not, they face immigration consequences including initiation of deportation proceedings.
  • The State Department will not issue visas to students enrolled in schools that are fully online for the fall 2020 semester, and Customs and Border Protection will not permit them to enter the U.S.
  • F-1 students attending schools operating with in-person courses are bound by existing regulations and are eligible to take a maximum of one class or three credit hours online.
  • F-1 students attending schools operating with a combination of online and in-person classes may take more than one class or three credit hours online. The school must certify to the Student and Exchange Visitor Program (SEVP) using Form I-20 that the program is not entirely online and that the student is not taking a full online course load and is taking the minimum number of online classes to make normal progress in their degree program.
  • F-1 students in English language training programs and M-1 students in vocational programs are not permitted to enroll in any online courses.
  • The guidance released Monday sets deadlines by which universities must report their operational plans for the fall semester to SEVP.
  • The Department of Homeland Security stated that it will publish the procedures and responsibilities described in the new guidance as a Temporary Final Rule in the Federal Register.

Background: ICE permitted exemptions for online study during the spring and summer semesters because of COVID-19. The temporary measures allowed students to take more online courses than normally permitted in order to maintain their nonimmigrant status.

Schools that begin the fall semester with in-person classes but later need to switch to online-only classes should update the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change. Similarly, if a nonimmigrant student changes his or her course selections and ends up taking an entirely online course load, the school must note this change within 10 days. For additional information, please see BAL’s summary of the ICE guidance.

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.

The Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of June 30, the department was adjudicating applications filed in March and earlier, conducting audit reviews on applications filed in September and earlier, and reviewing appeals for reconsideration filed in May and earlier.

Average PERM processing times in June:

  • Adjudication – 121 days.
  • Audit review – 298 days.

PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in March and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in May and earlier for H-1B cases and for PERM cases. Center Director Reviews were being conducted on appeals filed in June for H-1B and PERM cases.

Average times for issuance of prevailing wage determinations in June:

  • H-1B – 87 days (OES), 98 days (non-OES).
  • PERM – 87 days (OES), 83 days (non-OES).

The Labor Department reports PERM and PWD processing time frames on its Foreign Labor Application Gateway website.

BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in March and earlier, and is seeing PWDs for requests filed in March and earlier for H-1B cases and PERM cases.

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.

The Department of Homeland Security (DHS) published its semi-annual regulatory agenda this week, outlining priorities that would include significant changes to the H-1B, Optional Practical Training, H-4 and B-1/B-2 visa programs.

Key points:

  • H-1B reform. DHS proposes to revise the definition of specialty occupation to “increase focus on obtaining the best and the brightest foreign nationals.” The proposal would also revise the definition of employment and employer-employee relationship “to better protect U.S. workers and wages.” The agency will also propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
  • Optional Practical Training. Immigration and Customs Enforcement (ICE) plans to amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.
  • H-4 EAD rescission. DHS proposes to remove H-4 spouses of H-1B workers who are in the green card process from being eligible to apply for employment authorization. The proposed rule has been pending final review by the Office of Management and Budget since February 2019.
  • B-1/B-2 visitors. DHS proposes to modify the period of admission and extensions of stay for tourists and business visitors to “better align” with the Immigration and Nationality Act.
  • Maximum period of stay for students. ICE plans to set maximum periods of stay for students and exchange visitors and to eliminate the grant of stay based on their “duration of status.”
  • Unlawful presence. USCIS plans to propose a regulation to “enhance the integrity of” unlawful presence inadmissibility provisions. The administration previously issued a policy memorandum that changed the way unlawful presence was calculated for foreign students and exchange visitors, but implementation was blocked by a federal court.
  • Fee rule. USCIS is finalizing a fee rule, and is expected to make a final rule available for public inspection in the coming months. While the agency is likely to increase fees, it is not known how substantial the increases will be. The rule is moving forward as USCIS faces a funding crisis that could force significant cutbacks.

BAL Analysis: DHS continues to pursue an aggressive agenda to tighten key immigration routes for foreign high-skilled workers. Many of the proposals, however, have been in the works for months, if not years, and it is not clear how many of them the agency will be able to complete before the November election. BAL is closely monitoring regulatory developments and will release 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.

The Department of Homeland Security (DHS) has posted instructions for employers on notating the Form I-9, Employment Eligibility Verification when conducting remote inspection under temporary measures due to COVID-19.

Key points:

  • The temporary measures are set to expire July 19 unless they are further extended.
  • Under the measures, employers who are operating 100% remotely because of COVID-19 may conduct remote inspection of employee documents, e.g. via email, fax or video link. The measures also require employers to follow certain procedures after reopening, including physical inspection of documents that were reviewed remotely within three days.
  • The DHS examples demonstrate how employers should fill out the Form I-9 when conducting remote inspection and performing the mandatory physical inspection.

BAL Analysis: Employers should ensure that their Form I-9 policies are in full compliance. BAL has created an Executive Analysis of immigration considerations as businesses begin to reopen, including I-9 protocols. Read the full Executive Analysis here.

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.

 

U.S. Citizenship and Immigration Services (USCIS) announced today it is extending certain flexible measures for petitioners and applicants.

Key points:

  • Petitioners and applicants have an additional 60 days beyond the due date to respond to certain requests and notices issued by USCIS.
  • The deadline extension applies to the following documents with an issuance date between March 1 and Sept. 11, 2020.
    • Requests for Evidence.
    • Continuations to Request Evidence (N-14).
    • Notices of Intent to Deny.
    • Notices of Intent to Revoke.
    • Filing date requirements for Form I-290B, Notice of Appeal or Motion.
    • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.
    • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers.
  • USCIS will consider responses received within 60 days after the due date in the notice before it takes action on the case.

Additional information: The agency first introduced the temporary measures on March 30 and extended them once before on May 1.

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.

The Department of Homeland Security (DHS) published its annual regulation that increases civil monetary penalties for inflation.

Key points:

  • Most civil penalties will increase by less than 2%. Relevant increases for employers are the Form I-9 Employment Eligibility Verification inspection violation penalties. Civil penalties imposed on employers who knowingly hire, recruit, refer or retain unauthorized workers will increase from a range of $573-$4,586 per worker to a range of $583-$4,667 for a first offense. Fines for Form I-9 paperwork violations will increase from a range of $230-$2,292 to $234-$2,332.
  • The new amounts apply to penalties assessed after June 17, 2020 for violations that occurred after Nov. 2, 2015.

BAL Analysis: Employers should be aware of the increases in civil penalties and conduct regular reviews and audits of their Form I-9 procedures to ensure they are in compliance with their legal obligations.

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.

Late Monday night, the White House posted an amendment to the June 22 proclamation to clarify the scope of the order.

Key points:

  • The “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” took effect on June 24 and is scheduled to expire Dec. 31, 2020.
  • Last night, the White House amended that proclamation to clarify that foreign nationals who were outside the U.S. on June 24 and held valid nonimmigrant visas in unrestricted categories (e.g., B-1/B-2, F-1), are subject to the proclamation and may not obtain visas in suspended categories (e.g., H-1B, H-2B, L-1, J-1) unless they qualify for an exemption.

BAL Analysis: The government has not yet provided official guidance on how the federal immigration agencies will implement the new proclamation. Statements by agency representatives on social media platforms suggest that certain key issues remain unresolved. BAL is continuing to monitor for guidance on implementation of the new restrictions and will provide additional analysis as more information 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.

U.S. Citizenship and Immigration Services is facing a massive shortfall in revenue that will affect operations, as the agency seeks ways to plug the gap. The agency is funded by fees on petitions and states that it has seen a dramatic reduction in the number of immigration petitions amidst the COVID-19 pandemic.

Key points:

  • USCIS continues to press Congress for $1.2 billion in emergency funding, while proposing to impose a 10% surcharge on all immigration petitions.
  • The agency is also working to finalize a regulation that would raise immigration benefit application fees across the board. Under the proposed version (before the pandemic), H-1B petitions would increase by up to 22% and L petitions by up to 77%, but the final regulation could contain changes to those figures.
  • Without an infusion of cash, the agency is reportedly prepared to furlough a large portion of its workforce later this summer.

BAL Analysis: Companies should be aware that USCIS fees are likely to increase in the coming months. The fee regulation is currently under review at the Office of Management and Budget (OMB). Once OMB clears the rule, USCIS will make the final rule available for public inspection and then publish it in the Federal Register. Since the regulation makes significant changes, including policy changes that are typically not accomplished through a fee rule, it may face litigation. Additionally, if USCIS officers are furloughed, petitioners and applicants are likely to see delays and longer processing times. BAL is closely following the USCIS funding issues and will report new developments as information become 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.