Priority-date cutoffs will advance in most employment-based categories, according to the State Department’s May Visa Bulletin. U.S. Citizenship and Immigration Services confirmed that Final Action Dates will control filing eligibility next month.

Key movements in the May Visa Bulletin:

EB-1

• China EB-1 will advance a little more than one month to July 15, 2017.
• India EB-1 will advance three months to Aug. 1, 2015.
• All other countries under EB-1 will become current.

EB-2

• China EB-2 will advance one month to Oct. 1, 2015.
• India EB-2 will advance one week to June 2, 2009.
• All other countries under EB-2 will remain current.

EB-3

• China EB-3 will advance one month to May 15, 2016.
• India EB-3 will advance a little more than one month to March 1, 2009.
• The cutoff for all other countries will remain at Jan. 1, 2017.

Final Action Dates for Employment-Based Preference Cases:

Preference	All Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB-1	Current	July 15, 2017	Current	Aug. 1, 2015	Current	Current	Current
EB-2	Current	Oct. 1, 2015	Current	June 2, 2009	Current	Current	Current
EB-3	Jan. 1, 2017	May 15, 2016	Jan. 1, 2017	March 1, 2009	Jan. 1, 2017	Jan. 1, 2017	Jan. 1, 2017

Trump Proclamation on Immigration: The State Department released the Visa Bulletin two days after President Donald Trump issued a proclamation temporarily suspending the entry of immigrant-visa applicants for 60 days. Since U.S. consulates have already suspended routine visa operations abroad because of COVID-19, the order will have a minimal immediate impact. In addition, a number of categories of people are excluded from the suspension, including:

• U.S. lawful permanent residents.
• Spouses and unmarried children under 21 of U.S. citizens.
• Foreign physicians, nurses or other healthcare professionals (and accompanying spouses and unmarried children under 21) applying for immigrant visas to perform research to combat the spread of COVID-19, or to perform work essential to combatting, recovering from or alleviating the effects of the COVID-19 outbreak.
• Those applying for EB-5 immigrant Investor visas.
• Individuals whose entry is in the national interest.
• Individuals who would further U.S. law enforcement objectives.
• Certain classes of Special Immigrant Visa applicants and their family members.
• Members of the U.S. Armed Forces and their spouses and children.

BAL has produced an analysis of the proclamation, including its practical impact on U.S. companies. Read the analysis paper 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 announced today that it is extending office closures and suspension of in-person services until June 4.

Key points:

• USCIS temporarily closed its field offices, asylum offices and Application Support Centers on March 18 to slow the spread of COVID-19. The closures have twice been extended.
• Offices are now scheduled to reopen June 4 unless the closures are extended again.
• The closures do not affect USCIS Service Centers, where immigration petitions are processed.

Additional information: The closures affect in-person services, including interviews, biometric appointments and naturalization ceremonies. USCIS will send cancellation notices to applicants and petitioners with scheduled appointments affected by the closures. The agency will automatically reschedule Application Support Center appointments, and affected individuals will receive a new appointment letter in the mail. Applicants who had InfoPass or other appointments at a field office must reschedule through the USCIS Contact Center when field offices reopen. The agency continues to provide limited emergency services, and those with emergencies should call the Contact Center. USCIS also posts updates to its COVID-19 webpage.

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. Customs and Border Protection (CBP) has announced that Visa Waiver Program travelers who have been granted satisfactory departure will be able to apply for an additional 30-day extension of their stay in the country if they are unable to depart because of COVID-19. VWP travelers can apply for satisfactory departure by contacting the USCIS Contact Center or any CBP Port of Entry or Deferred Inspection Site.

Key Points:

• The extension of satisfactory departure will allow VWP travelers an additional 30 days to remain in the U.S. if they are unable to depart because of COVID-19-related illness, travel restrictions or the unavailability of commercial flights. Generally, travelers must apply for satisfactory departure before the date on which their current period of admission expires. Travelers should be prepared to provide their passport number and other information if requested.
• CBP has confirmed that applications for satisfactory departure will be accepted at any CBP Port of Entry or Deferred Inspection Site. Previously, only some CBP ports of entry were processing satisfactory departure requests. Exact protocols may differ depending on location, and applicants are encouraged to contact their local CBP port of entry or deferred inspection site before submitting an application.

BAL Analysis: VWP travelers are reminded that even though they entered the U.S. on the Visa Waiver Program, remaining in the U.S. beyond the departure date on their I-94 constitutes an immigration violation that carries consequences, including ineligibility for future visa-free travel. Grants of satisfactory departure are made at the discretion of the reviewing government officer. Travelers who are unable to depart on time because of COVID-19 travel restrictions or other emergency circumstances should avail themselves of the satisfactory departure process.

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.

Employers seeking alternative visa paths for H-1B candidates who were not selected in the cap lottery are having to consider a number of additional factors in light of the COVID-19 national emergency.

Travel restrictions and consulate closures will cause significant delays for applicants outside the United States. Currently COVID-19 travel restrictions apply to 30 countries, including China, Iran, Ireland, Schengen Area countries, and the United Kingdom. The proclamation signed by President Trump Wednesday restricts only applicants outside the U.S. who are applying for immigrant visas (i.e., permanent residency), and does not apply to those applying at U.S. consulates for temporary work visas, such as H, L, J, O, E and other visa categories classified as “nonimmigrant.”

Nevertheless, routine visa processing remains suspended at most U.S. consulates worldwide at this time. After consular operations resume, companies should anticipate ongoing delays in visa processing because of large backlogs that have developed during the closures and the likelihood that it will take time for consulates to restaff with personnel returning to their posts.

U.S. Citizenship and Immigration Services (USCIS) continues to process applications at Service Centers, but field offices and application support centers, where interviews and biometrics appointments are conducted, remain closed until at least May 3. While USCIS has introduced some temporary measures, it has declined to offer broad relief such as automatic extensions of status or postponement of filing deadlines. A lawsuit has been filed asking a court to order USCIS to suspend all deadlines and allow foreign nationals to maintain their status during the national emergency.

Employers should keep these considerations in mind when exploring alternative routes such as the following categories.

• F-1 Optional Practical Training (OPT) is available for recent foreign graduates of U.S. institutions working in a role directly related to their field of study. The 12-month OPT may be extended an additional two years for students in STEM fields.
• J-1 exchange visitors may be sponsored to work in the U.S. as trainees for up to 18 months or as interns for up to 12 months, but they may not fill a job for full- or part-time employees. Exchange visitors also must intend to return to their home country and some nationalities must return home for two years at the end of their J-1 status. The State Department is posting current procedures during the COVID-19 emergency here.
• O-1 visas are an option for individuals of “extraordinary ability” in business, science, education, art or athletics. Applicants must present evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
• L-1 intracompany transfers are for employees in managerial or specialized knowledge roles who have worked in the company’s foreign branch, affiliate, parent or subsidiary office for at least one year in the previous three years. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter.
• Country-specific nonimmigrant visas are available for certain nationalities of countries with a bilateral agreement with the U.S. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens and TN classification for Canadian and Mexican nationals in designated professional categories under the United States-Mexico-Canada Agreement (formerly the North American Free Trade Agreement).
• E-2 Treaty Investor visas may be available for nationals of countries holding a treaty with the U.S. Traditionally used by individuals and small employers, E-2 visas have been leveraged by large established companies in recent years to hire and retain executives, managers and other essential employees in the U.S., though both the employer and employee must be nationals of treaty countries. Read this BAL Perspective for more detail.

BAL Analysis: Employers should allow for significant delays and prioritize any cases that establish “essential” work in light of COVID-19 restrictions. Companies should consult with their BAL attorney for best strategies in the current environment.

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.

President Donald Trump has issued a proclamation temporarily suspending the entry of immigrant-visa applicants for 60 days.

Key points:

• The suspension will take effect April 23 at 11:59 pm Eastern Daylight Time (EDT) and will last for 60 days unless extended or modified.
• The order applies to immigrant visa applicants, and does not apply to temporary visa applicants, such as H-1B, L-1 or other nonimmigrant categories.
• The order only applies to immigrant visa applicants who are outside the U.S. when the suspension takes effect and do not already have a valid immigrant visa as of the effective date and who do not have another type of travel document (such as advance parole, transportation letter or boarding foil) that permits them to travel to the U.S.
• The order specifically excludes:
  • U.S. lawful permanent residents.
  • Spouses and unmarried children under 21 of U.S. citizens.
  • Foreign physicians, nurses or other healthcare professionals (and accompanying spouses and unmarried children under 21) applying for immigrant visas to perform research to combat the spread of COVID-19, or to perform work essential to combatting, recovering from or alleviating the effects of the COVID-19 outbreak.
  • Those applying for EB-5 immigrant Investor visas.
  • Individuals whose entry is in the national interest.
  • Individuals who would further U.S. law enforcement objectives.
  • Certain classes of Special Immigrant Visa applicants and their family members.
  • Members of the U.S. Armed Forces and their spouses and children.
• Within 30 days, the proclamation requires the Secretaries of Labor, Homeland Security and State to review nonimmigrant visa programs and recommend to the president other measures “appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
• The proclamation will be reviewed no later than 10 days before the current expiration date to determine whether it should be extended or modified.

BAL Analysis: Since U.S. consulates have already suspended routine visa operations abroad due to COVID-19, the order will have a minimal immediate impact, but employers with affected employees should plan for additional delays even after consulates resume routine visa operations. Notably, the executive order does not affect nonimmigrant visa applicants outside the U.S., such as H-1B, L-1 or other temporary workers. It also does not affect USCIS’s processing of immigrant petitions (Form I-140 and Form I-130) and adjustment of status applicants who can apply for their green cards from within the U.S. and do not need to obtain an immigrant visa at a consulate abroad. However, the proclamation directs the federal agencies to review nonimmigrant programs and recommend additional measures within 30 days. BAL is closely following developments and will provide additional analysis in the coming days.

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. Customs and Border Protection (CBP) announced it is extending the closures of Trusted Traveler Program enrollment centers until at least June 1, because of the COVID-19 national emergency. The enrollment centers have been closed since March 19 and had been scheduled to reopen May 1.

Key points:

• The closures apply to Global Entry, NEXUS, SENTRI and FAST enrollment centers. Global Entry mobile enrollment centers are also closed until further notice.
• Applicants who are conditionally approved and seek an interview at an enrollment center must reschedule after June 1.
• The Enrollment on Arrival program remains operational for Global Entry applicants who are conditionally approved and seeking to complete enrollment when arriving on an international flight at one of the 60 airports that offer the program.
• CBP has also temporarily extended the period of time that Trusted Traveler Program applicants have to complete enrollment; they will now have 485 days from the date of application to complete the enrollment process.
• The agency will also extend Trusted Traveler Program benefits for up to 18 months for members who apply for renewal before their current membership expires.

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.

 

President Donald Trump announced during the press briefing today that he will sign an executive order to restrict immigrants seeking permanent residency from entering the U.S., but will not restrict temporary visa applicants, such as H-1B workers or other nonimmigrant categories, at this time.

Key points:

• Trump stated that the restrictions will apply only to individuals seeking permanent residency (i.e., green cards) and will not apply to those entering the U.S. on a temporary basis.
• The restrictions will be in effect for 60 days, after which the government will evaluate whether they should be extended or modified.
• The administration will examine whether additional immigration-related measures should be put into place to protect U.S. workers.

Background: Late Monday night, Trump tweeted that he would be signing an executive order “temporarily suspending immigration to the United States,” because of COVID-19 and to protect American workers.

BAL Analysis: President Trump indicated he will sign the order tomorrow. The text is not yet available, so details about the scope of the restrictions, and any exemptions, are not yet known. BAL is continuing to monitor developments and will provide analysis when the official order is published.

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.

 

President Trump said in a tweet late Monday that he will be signing an executive order to “temporarily suspend immigration” into the United States because of COVID-19 “as well as the need to protect American jobs.”

Key points:

• The White House is expected to release an executive order in the coming days.
• The text has not yet been released. The scope of the executive order is not yet clear, and should not be assumed from the tweet. In the past, the president has made public statements that did not fully describe the substance of a subsequent official order.
• BAL has produced an analysis in anticipation of the executive order, including practical impact and corporate strategies. Read the analysis paper here.

BAL Analysis: Rumors have been circulating for some time regarding additional executive action restricting immigration, and BAL’s Government Strategies and COVID-19 Task Force teams have been mapping out scenarios for weeks in anticipation of potential additional immigration restrictions. BAL is closely monitoring this development and will provide additional analysis of any new restrictions when the White House issues the executive order.

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 United States, Canada and Mexico have agreed to extend the current COVID-19 border restrictions for another 30 days, the Department of Homeland Security announced Monday.

Key points:

• The travel restrictions, which took effect March 20 and were scheduled to end April 20 at 11:59 p.m. EDT, will remain in place for an additional 30 days. The terms remain the same.
• Only “essential travel” is permitted at all land ports of entry along the U.S.-Canada and U.S.-Mexico border.
• The list of individuals permitted to engage in “essential travel” includes U.S. citizens and lawful permanent residents (LPRs) returning to the U.S., people traveling to work in the U.S. (e.g., agricultural workers), engaging in lawful cross-border trade (e.g., truck drivers transporting goods), or traveling to attend school, receive medical treatment, for public health purposes, or a limited number of other reasons.
• Air and sea travel are excluded from the restrictions.

BAL Analysis: Individuals traveling across the U.S.-Canadian border for essential work are exempt from the restrictions, but travelers should be prepared for delays and increased scrutiny, as well as possible changes in how U.S. Customs and Border Protection officers interpret “essential travel.”

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 now accepting requests for satisfactory departure from travelers who entered the U.S. through the Visa Waiver Program (VWP) under an Electronic System for Travel Authorization (ESTA) and are unable to depart on time because of COVID-19.

Satisfactory departure allows ESTA travelers to request an extension of the I-94 departure date of up to 30 days in emergency situations, so that they do not exceed their authorized period of stay.

Procedure for remote Satisfactory Departure request:

• ESTA travelers may request satisfactory departure remotely by contacting the USCIS Contact Center at 1-800-375-5283. Travelers will be asked to send an email to the Contact Center and include information about their travel dates, reason for requesting satisfactory departure, copies of their passport biographic pages and contact information.
• The Contact Center will forward the e-mail to the appropriate USCIS Field Office where a designated “Satisfactory Departure” officer will process the request and email a decision to the traveler.

Background: On Monday, USCIS reiterated its discretion to allow flexibility for certain applicants, including granting satisfactory departure for up to 30 days to ESTA travelers who are unable to depart before their I-94 departure date because of an emergency such as COVID-19. The announcement also stated that if an ESTA traveler who is granted a 30-day satisfactory departure is unable to depart within that time because of continued COVID-19-related issues, USCIS has the authority to temporarily grant an additional 30 days of satisfactory departure.

BAL Analysis: The procedures allow ESTA travelers to request satisfactory departure remotely with USCIS. U.S. Customs and Border Protection is also reviewing satisfactory departure requests, but procedures vary according to location, and requests are only accepted within days of the traveler’s I-94 departure date.

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.