U.S. Citizenship and Immigration Services (USCIS) has asked Congress for $1.2 billion in emergency funding to make up for a shortfall in revenue due to the COVID-19 crisis.

Key points:

  • The agency told Congress Friday that it would run out of money this summer without an injection of funds. USCIS is primarily funded by fees for immigration petitions and applications rather than taxpayer funding.
  • The agency is reportedly considering imposing a surcharge on petitions and applications to cover the shortfall.
  • A regulation that the agency proposed in November would significantly increase filing fees. Fees for H-1B petitions would increase by up to 22% and for L-1 petitions by up to 77%. The public comment period closed Feb. 10 and the regulation could be finalized in coming months.

Background: Since March 18, USCIS Application Support Centers have been closed and in-person services, such as interviews and biometrics appointments, have been suspended. Those offices are scheduled to reopen June 4 unless the closures are extended. USCIS Service Centers, where immigration petitions and applications are processed, have continued to operate during the national emergency.

BAL Analysis: USCIS does not normally seek Congressional funding, and if Congress does approve emergency funding, it could attach strings, such as requiring USCIS to improve processing time frames or provide updates to Congress.

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.

Immigration and Customs Enforcement (ICE) announced today that it will extend certain flexible measures for Form I-9 compliance currently in place because of COVID-19.

Key points:

  • Temporary measures that allow certain employers to conduct I-9 verification procedures remotely were set to expire May 19. ICE is extending the measures for an additional 30 days.
  • Employers who were served notices of inspection (NOIs) by ICE during March 2020 who had not already responded were granted an automatic extension of 60 days from the effective date. ICE is granting these employers an additional extension of 30 days.
  • The Department of Homeland Security (DHS) will continue to monitor the national emergency and provide updated guidance as needed. Employers are required to monitor the ICE and DHS websites for additional updates regarding when the temporary measures will be terminated and normal operations will resume.

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 U.S. State Department published guidance this week for Americans currently in India who wish to return to the United States.

Key Points:

  • U.S. citizens wishing to depart India on a U.S. government-facilitated flight must fill out this form, including those who have previously registered, emailed, or otherwise contacted the U.S. Embassy.
  • U.S. citizens are asked not to contact the embassy or consulate regarding flight status, as they will receive an email with flight and seat confirmation if applicable. Only those who receive a flight confirmation from the U.S. Mission will be permitted to board flights.
  • Additionally, the U.S. Embassy in India has posted information for U.S. citizens who wish to return on one of the Air India flights traveling to the United States as part of the Indian repatriation operation. Those interested in returning on an Air India flight must contact the airline directly. Air India flight schedules are available here.

Additional information: The U.S. Embassy and Consulates are working to arrange additional chartered flights from India for U.S. citizens. The earliest flights are expected to begin next week and will depart from Mumbai and New Delhi for Atlanta and San Francisco. All adult passengers must sign a promissory note, agreeing to pay for the cost of the flight, before boarding.

BAL Analysis: The embassy and consulates have thus far successfully repatriated approximately 5,500 travelers from India to the United States. The response to the COVID-19 pandemic continues to develop, and BAL will provide additional updates as 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.

The Labor Department has posted processing times current as of April 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

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

Average PERM processing times in March:

  • Adjudication – 150 days.
  • Audit review – 279 days.

PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in February and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in March and earlier for H-1B cases and for PERM cases. Center Director Reviews were being conducted on appeals filed in March for PERM cases. The department reported no pending Center Director Reviews for H-1B cases.

Average times for issuance of prevailing wage determinations in March:

  • H-1B – 112 days (OES), 130 days (non-OES).
  • PERM – 111 days (OES), 112 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 December and earlier, and is seeing PWDs for requests filed in February 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.

 

Requests for Evidence (RFEs) for H-1B and L-1 petitions remained high while approval rates improved slightly in the most recent quarter, according to new statistics released by U.S. Citizenship and Immigration Services (USCIS) on the second quarter of fiscal year 2020 (January – March 2020).

Key points:

  • H-1B approvals. The H-1B approval rate was 87.1% in the second quarter of fiscal year 2020, up from 83.7% in the same quarter last year.
  • H-1B RFEs. 35.8% of H-1B petitions were subject to RFEs, slightly higher than 35.3% in the same period last year. The approval rate on H-1B petitions after RFE was 68.2%, moderately higher than 58.8% in the same quarter last year.
  • L-1 approvals. The approval rate for L-1 petitions filed with USCIS was 74.3%, up from 71.8% the same quarter last year.
  • L-1 RFEs. 53.6% of L-1 petitions received RFEs, slightly higher than 53% in the same quarter last year. The approval rate after RFE remains low at 55.3%, but higher than the rate (51.1%) in the same quarter last year.
Fiscal Year H-1B approval rate H-1B RFE rate H-1B approvals with RFEs
Q2 2020 87.1% 35.8% 68.2%
Q2 2019 83.7% 35.3% 58.8%
2019 84.8% 40.2% 65.4%
2018 84.5% 38.0% 62.4%
2017 92.6% 21.4% 73.6%
2016 93.9% 20.8% 78.9%
2015 95.7% 22.3% 83.2%

 

Fiscal Year L-1 approval rate L-1 RFE rate L-1 approvals with RFEs
Q2 2020 74.3% 53.6% 55.3%
Q2 2019 71.8% 53.2% 51.1%
2019 71.9% 54.3% 50.8%
2018 77.8% 45.6% 52.9%
2017 80.8% 36.2% 49.5%
2016 85.0% 32.1% 55.6%
2015 83.7% 34.3% 53.5%

BAL Analysis: The statistics are consistent with the Trump administration’s policies and directives to tighten visa eligibility following the Buy American and Hire American (BAHA) executive order in 2017. Though approval rates are ticking upward, they remain well below pre-BAHA approval rates as the agency continues to issue a high number of RFEs and interpret adjudication criteria narrowly.

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 has announced a temporary policy for employers completing Form I-9 Employment Eligibility Verification and acceptable identity documents that employees may be unable to renew because of COVID-19 stay-in-place orders and office closures.

The temporary policy applies to documents on List B, such as state driver’s licenses and state ID cards, which expire on or after March 1, 2020.

Key points:

  • For List B identity documents that are not extended by the issuing authority:
    • Employers may treat the document as if the employee has presented a valid receipt for an acceptable document.
    • Employers should record information about the document under Section 2 of Form I-9 and enter the word “COVID-19” in the Additional Information field.
    • Within 90 days after the temporary policy ends, the employee must present a valid unexpired document to the employer to replace the expired document (or provide a different valid document).
  • For List B identity documents that are extended by the issuing authority because of COVID-19:
    • The document is acceptable as a List B document (not as a receipt) during the extension period specified by the issuing authority.
    • Employers should enter the document’s expiration date in Section 2 of Form I-9 and enter “COVID-19 EXT” in the Additional Information Field.
    • Employers may also attach a copy of a web page or notice indicating that the issuing authority has extended the document, and they may confirm whether the state has automatically extended IDs and driver’s licenses by checking the relevant website.
    • The employee is not required to present a valid unexpired document after the temporary policy ends.

Employers who use E-Verify should use the employee’s expired List B document number from Section 2 of Form I-9 to create an E-Verify case as usual within three days of the date of hire.

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 announced today it is extending temporary flexible measures in place for certain applicants and petitioners because of the COVID-19 national emergency.

Key points:

  • Applicants and petitioners have an additional 60 days beyond the due date to respond to certain requests or notices.
  • This deadline extension applies to the following documents whose issuance date as indicated on the notice or request is between March 1 and July 1, 2020:
    • Requests for Evidence
    • Continuations to Request Evidence (N-14)
    • Notices of Intent to Deny
    • Notices of Intent to Revoke
    • Filing date requirements for Notice of Appeal or Motion (Form I-290B)
    • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers.
  • USCIS will provide further updates as the situation develops. The agency posts the latest facts and updates on its coronavirus page.

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 new version of the Form I-9 Employment Eligibility Verification will be required starting May 1, and the M-274 handbook for employers has been updated.

Key points:

  • Starting May 1, employers are only permitted to use the new version of Form I-9 (dated 10/21/2019) and can no longer use prior versions. The new version was phased in, and employers had been allowed to use either the new version or the previous version (dated 07/17/2017) since Jan. 31.
  • U.S. Citizenship and Immigration Services has also updated its M-274 Handbook for Employers, which is the primary source of guidance for employers on how to properly complete the Form I-9 and comply with other requirements related to employment eligibility verification.

BAL Analysis: As of Thursday, employers should make sure that they are no longer using the previous version of the Form I-9 and are only using the new, required version by confirming the date on the bottom left corner of the page. Employers should also refer to the updated version of the M-274 Handbook for guidance on completing the Form I-9.

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.

Results of the 2021 Diversity Visa (DV) lottery will be delayed by one month and will be available June 6. The registration period opened Oct. 2, 2019 and closed Nov. 5, 2019, and results were originally scheduled to be posted beginning May 5.

Key points:

  • Individuals who registered for the 2021 DV lottery may check their results on the U.S. State Department’s Entrant Status Check website beginning June 6 at noon Eastern Daylight Time (EDT).
  • Registrants must enter the confirmation number they received when they registered to view whether they have been selected, and should keep their confirmation number until at least Sept. 30, 2021. Those who are selected in the lottery will view instructions in Entrant Status Check about how to apply for immigrant visas for themselves and for eligible family members.
  • The U.S. government does not directly notify individuals of their selection in the DV lottery, and the Entrant Status Check website is the only official source where results are posted.
  • The presidential proclamation issued April 22 that temporarily suspends immigrant-visa applicants from entering the U.S. bars individuals currently selected for the DV program from receiving visas (but not from adjustment of status), but will only affect the 2021 lottery if the proclamation is extended beyond its current expiration date.

BAL Analysis: The delay in DV lottery results is related to slowdowns caused by COVID-19. Since mid-March, routine visa services, including processing of DV applications, at consulates worldwide have been suspended, and individuals who were selected in the DV lottery should anticipate delays in visa appointments as well as ongoing delays even after consulates reopen. While the entry ban on immigrant applicants is currently set to expire June 22, it is likely to be extended. If it extends beyond Oct. 1, 2020, when DV appointments would normally begin, 2021 DV immigrants would be subject to the entry ban.

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.

 

For the twelfth year in a row, BAL has been ranked as a “Band 1” firm in the Nationwide, California and Texas categories in the newly released Chambers USA 2020 Guide, an annual ranking of the best law firms based on independent research and interviews with lawyers and clients worldwide.

Chambers calls BAL, “A Powerful force in corporate immigration with the capacity to handle a range of highly complex matters, with substantial consular, auditing and compliance experience. The firm regularly advises multinational companies on their immigration programs and global mobility strategies, in addition to providing representation in investigations concerning allegations of visa abuses. They are particularly adept at assisting clients in the energy and technology sectors.” Interviewees remark that, “The team’s strengths are the speed of preparing and filing cases, thoroughness of legal advice and easy access to in-house subject matter experts.” One client says, “They are outstanding advisers who provide practical advice, telling us the law, the risks and common practice.” “The firm stands out due to its very experienced attorneys, use of technology and proactiveness in working through complex cases,” another impressed client reveals.

Managing partner Jeremy Fudge represents Fortune 500 clients in a host of immigration matters. Sources say he “sees the big picture” and is “a very good manager.” Lynden Melmed regularly handles federal government immigration investigations and internal audits on behalf of clients. Peers report: “He is excellent when it comes to special lobbying projects. “David Berry advises on business immigration matters and often works on behalf of those in the technology industry. Interviewees state: “He is very smart, very methodical and likes to go over all the options with clients so they are informed.” Robert Groban handles a variety of business immigration visa matters and is described as “a very good practitioner.”

About Chambers and Partners

Chambers, covering 185 jurisdictions, has ranked the best lawyers since 1990 and is known for its strength-in-depth editorial and research team. Chambers publishes an annual guide ranking the world’s best lawyers on the basis of technical expertise, business acumen, prompt delivery, and value for the money. A team of more than 170 researchers conducts thousands of interviews worldwide to produce the rankings. Lawyers cannot buy their way into Chamber’s rankings; as a result, its annual directories are considered among the most accurate and reliable.