U.S. Citizenship and Immigration Services announced today that the filing period is now open for fiscal year 2021 H-1B cap-subject petitions.

Key points:

  • Employers may begin filing H-1B petitions today on behalf of candidates whose registrations were selected in the lottery.
  • The filing period will remain open for at least 90 days.
  • USCIS also announced that it received nearly 275,000 registrations during the mandatory electronic registration period last month, about 46% of which were for candidates with U.S. advanced degrees.
  • Employers must follow the instructions in their Selection Notices regarding the 90-day filing window and the appropriate USCIS service center for filing purposes.

Background: The agency also announced that Indian nationals represented 67.7% of registration candidates and Chinese nationals made up 13.2%. USCIS did not provide numbers for other nationals.

BAL Analysis: Employers are reminded that though the filing period will remain open until at least June 30, they should prioritize time-sensitive H-1B candidates, such as F-1 students who can benefit from cap-gap status and others whose status may expire soon. USCIS suspended premium processing of all employment-based petitions as of March 20 because of COVID-19, and has not indicated when the expedited service will become available. BAL clients can access the latest H-1B cap updates, resources and analysis by logging onto BAL’s H-1B Electronic Registration Resource Center.

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 May 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 were already extended once before.
  • Offices are now scheduled to reopen May 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 cancelation 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. Citizenship and Immigration Services today announced a flexible measure that will allow the agency to process certain applications to extend employment authorization documents (EADs) during the COVID-19 related closures of USCIS Application Support Centers (ASCs).

Key points:

  • USCIS will use previously submitted biometrics to process EAD extension applications.
  • Applicants who had a biometrics appointment scheduled at an Application Support Center on or after March 18 will have their applications processed using their previously submitted biometrics.
  • Applicants who have filed a valid Form I-765 extension application for employment authorization will also have their applications processed using their previously submitted biometrics.
  • This policy will remain in effect until ASCs are open for appointments to the public. The agency is scheduled to reopen ASCs on April 7, unless the closures are extended.

BAL Analysis: The measure gives employees the ability to have their employment authorization documents extended without sitting for a new biometrics appointment. However, it does not apply to new applicants for EADs who have not previously submitted their biometrics. Companies are reminded that USCIS Service Centers, where immigration petitions and applications are adjudicated, remain operational, but they should expect ongoing delays in processing. Updated information about USCIS’s response to COVID-19 can be found on the USCIS website.

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 has conducted the H-1B lottery after having received enough registrations to meet or exceed the allotted H-1B quotas during the electronic pre-registration period.

Key points:                

  • USCIS intends to notify petitioners whose registrations have been selected no later than March 31.
  • MyUSCIS H-1B registrant accounts will show the status of each registration as either “submitted,” “selected,” or “denied.” Selected indicates that the registration for the candidate has been selected in the lottery and a full H-1B petition may be filed on his or her behalf. Submitted status may continue to display until the end of the fiscal year for registrations that were not selected in the lottery. “Denied” indicates that either duplicate registrations were submitted or payment was declined. If duplicates are detected, all registrations submitted for that individual are invalid for the fiscal year.
  • Petitioners may begin to file H-1B cap-subject petitions for selected candidates April 1, and the filing period is expected to run for 90 days.

BAL Analysis: Companies should anticipate status updates to each of their H-1B candidates in their myUSCIS accounts and begin preparing to file full petitions for selected candidates. Companies are reminded that while the filing period will remain open for 90 days, they should prioritize time-sensitive candidates such as F-1 students on cap-gap and others whose status may expire soon. BAL clients may access all the latest updates and analysis on the H-1B Electronic Registration Resource Center.

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 will extend deadlines for responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs).

Key points:                                                                                                                                                       

  • Petitioners responding to RFEs and NOIDs dated between March 1 and May 1, 2020 will have an additional 60 calendar days past the stated deadline to submit their responses.
  • USCIS will consider responses submitted within the new deadline before taking action on the case.
  • The agency will provide further updates as the COVID-19 situation develops.

BAL Analysis: The longer deadline provides flexibility to employers and individuals who receive an RFE or NOID, following several temporary measures that extend deadlines and make common-sense exceptions to certain immigration requirements. BAL is closely monitoring COVID-19 developments and will continue to report additional measures when 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 Department of Homeland Security has announced it will extend the deadline for REAL ID compliance by one year, because of the COVID-19 national emergency.

Key points:                

  • The Oct. 1 deadline for REAL ID compliance will be extended for one year, until Oct. 1, 2021.
  • States will have an additional one year to implement issuance of driver’s licenses that comply with requirements under the REAL ID Act.
  • DHS is expected to publish a notice in the Federal Register with additional details in the coming days.

Background: The REAL ID Act requires states to meet certain standards for issuing driver’s licenses and IDs, and prohibits federal agencies and airlines from accepting IDs issued by states that are not in compliance with the REAL ID standards.

BAL Analysis: Numerous states have temporarily closed DMV offices or restricted services during the current national emergency and are not processing applications for REAL IDs. The deadline extension gives applicants additional time to apply for REAL IDs, and DHS indicated that it intends to work with Congress after the national emergency to implement changes that will expedite the issuance of REAL IDs.

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 its office closures and suspension of in-person services until at least April 7.

Key points:

  • On March 18, USCIS temporarily closed its field offices, asylum offices and Application Support Centers until April 1 to mitigate the spread of COVID-19.
  • Today’s announcement extends the current closures, and says that offices will reopen April 7 unless the closures are further extended.
  • The announcement only applies to in-person services at public USCIS offices, and does not affect USCIS Service Centers, where immigration petitions are processed.

Additional information: The closures affect in-person services, including interviews, biometric collection appointments and naturalization ceremonies. USCIS will send cancelation 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. Those seeking emergency appointments may contact the USCIS Contact Center. USCIS also has a COVID-19 webpage where it is posting updates.

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.

PERM labor certification documents will temporarily be issued electronically because of the COVID-19 national emergency, according to an announcement the Office of Foreign Labor Certification (OFLC) issued Tuesday.

Key points:

  • From March 25 through June 30, the National Processing Center will issue PERM labor certification documents electronically to employers and their attorneys or agents.
  • During this temporary period, employers and their authorized agents will receive the certified Form ETA-9089 and Final Determination letter via email. If they are unable to receive them by email, the documents will be sent via UPS regular delivery (two to eight days depending on location).
  • The form must be printed then signed and dated by the employer, the employee and the preparer, if applicable, before the immigrant petition is filed. The OFLC announcement states that USCIS may consider the printed and signed form as evidence of an “original labor certification” issued by the Labor Department.

BAL Analysis: To ensure that they receive electronic PERM documents from the OFLC, employers should make sure that the email address for the National Processing Center (plc.atlanta@dol.gov), is added to their address book and safe listed to avoid being blocked or sent to their spam folders.

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.

 

E-Verify is introducing temporary measures during the COVID-19 National Emergency that ease certain timelines for employers and employees.

Key points:

  • Employers are still required to create an E-Verify case for new employees within three business days of the date of hire, using the date of hire on the Form I-9. If the E-Verify case creation is delayed, the employer should select “Other” from the drop-down list and enter “COVID-19” as the specific reason for the delay.
  • Employers who receive a Tentative Nonconfirmation (TNC) must notify the employee as soon as possible and enter the employee’s decision whether to take action in the E-Verify system.
  • Employers may not take adverse action against an employee because the E-Verify case is in interim case status, including extended interim case status.
  • E-Verify is extending the timeframe for employees to take action to resolve a TNC with the Social Security Administration due to office closures. For Department of Homeland Security TNCs, E-Verify is extending the time frame to take action in limited circumstances when an employee cannot resolve the TNC because of office closures.
  • Last week, Immigration and Customs Enforcement issued guidance regarding the Form I-9 process.
  • The E-Verify Contact Center remains open for employers who have questions about current requirements.

BAL Analysis: Employers should still be able to access their E-Verify accounts and perform most functions within the system. Employers who have questions about the temporary measures should contact the E-Verity Contact Center. The Social Security Administration has a COVID-19 webpage where updates and office closures are posted.

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 and Department of Labor are introducing temporary measures for companies filing immigration-related petitions, applications and documents in light of the COVID-19 National Emergency.

Key points:

  • Form I-9 procedures. Employers that are operating remotely and requiring workers to telecommute because of COVID-19 may be eligible to conduct I-9 employment eligibility procedures remotely, rather than in person, according to a DHS announcement today. Employers must provide written documentation of all remote onboarding requirements and a telework policy for each employee, and follow additional procedures, including completing in-person verification once normal operations resume.
  • USCIS to accept copies of forms. USCIS announced today that it will accept copies (scanned, faxed, photocopied, or similarly reproduced) of all petitions, including the Form I-129, starting with submissions dated March 21, 2020, in light of the National Emergency. The copy must be of an original document containing an original handwritten signature, unless otherwise specified. Individuals or entities that submit documents bearing a reproduced original signature must retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
  • Labor Department measures. The department’s Office of Foreign Labor Certification (OFLC) issued several temporary measures today.
    • Deadlines. The OFLC guidance stated that the agency will allow extensions for employers to respond to requests for information and documentation. If the deadline falls on March 13, 2020 through May 12, 2020, the employer’s response will be considered timely if received by May 12, 2020.
    • Recruitment. Employers sponsoring employees for PERM labor certification are required to begin recruitment within 180 days before filing for PERM and to complete recruitment at least 30 days before filing. Under temporary measures, the OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to give employers enough time, provided the employer initiated recruitment within the 180 days before the president declared the National Emergency on March 13, 2020, i.e., on or after Sept. 15, 2019. Employers who have already completed recruitment during the required 180-day period should continue to file their PERM applications under normal requirements.
    • LCA posting. If employers need to move an H-1B worker to a worksite location that was not intended at the time they submitted the Labor Condition Application (LCA), and the new worksite is within the same area of intended employment, the employer does not need to file a new LCA unless other material changes have occurred. Normally, notice of the LCA must be posted on or before the day the H-1B worker begins work at the new worksite location. Under temporary measures, the DOL guidance states that the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations.
    • PERM posting. Under temporary measures, employers may post the Notice of Filing for PERM applications within 60 days after the deadlines have passed, provided that the employer initiated recruitment within the 180 days before the emergency declaration of March 13, 2020.

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.