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President Donald Trump signed a proclamation today restricting immigrant visa issuance for nationals of six countries. The proclamation is entitled “Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry.”
Key points:
BAL Analysis: Employers whose employees may be impacted are encouraged to consult with their BAL professional. The State Department and Department of Homeland Security may release guidance on how the proclamation will be implemented. BAL will continue to monitor these new restrictions and will report additional developments as they 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.
The U.S. State Department has advised Americans not to travel to China, and major airlines have suspended air travel between the United States and the Chinese mainland amid growing concern about the spread of coronavirus.
Key Points:
Background: The coronavirus causes flu-like symptoms and double pneumonia. Thousands of people in China have been infected and some travel-related cases in the U.S. have been detected. The World Health Organization called the outbreak a Public Health Emergency of International Concern, and a number of countries are moving to impose travel and immigration restrictions to stop the virus’ spread.
BAL Analysis: Those planning travel to China are urged to reconsider their plans amid growing concern about the coronavirus and new travel limitations. Employers and visa applicants in both China and the United States should expect continued processing delays. Employers must be prepared to be flexible with employee schedules and start dates. The response to the coronavirus is evolving rapidly, and BAL will alert clients to additional restrictions as information becomes available.
This alert has been provided by Berry Appleman & Leiden LLP. For additional information, please contact berryapplemanleiden@bal.com.
U.S. Customs and Border Protection and the Centers for Disease Control are conducting screenings for Novel Coronavirus (2019-nCoV) of travelers entering the U.S. from Wuhan, China, where the virus is believed to have originated.
Background: The virus causes flu-like symptoms and double pneumonia. More than 1,000 individuals in China have been infected and several travel-related cases in the U.S. have been detected.
BAL Analysis: Travelers from China, including business travelers and U.S. residents returning from China, should be aware of U.S. protocols at airports and prepare for screening and potential diversion to one of the airports where screenings are in place.
As a result of the United States withdrawing from a bilateral treaty with Iran, Iranian nationals are no longer eligible for E-1 Treaty Trader or E-2 Treaty Investor visas. The two categories allow nationals of countries that are party to a treaty with the U.S. to apply for visas for the purposes of engaging in trade or investing a substantial amount of capital in a U.S. business.
Background: On Oct. 3, 2018, the Trump administration terminated the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran. The treaty provided the basis for Iranian nationals to be eligible for E-1 and E-2 visas.
BAL Analysis: As a practical matter, Iranian nationals have not been eligible for E-1 visas for some time because of economic sanctions prohibiting U.S. trade with Iran, which also restricted some, but not all, Iranians from E-2 eligibility. However, the U.S. withdrawal from the bilateral treaty with Iran will now preclude all Iranian nationals from obtaining or extending E-2 investor visas status.
The Supreme Court has ruled in a 5-4 decision that the Department of Homeland Security may implement the new public charge rule while litigation challenging the regulation proceeds.
Background: DHS published the final public charge rule last August with an effective date of Oct. 15, 2019, but the rule was enjoined just before the planned effective date, and the agency has not yet been able to implement it. The regulation redefines “public charge” under the Immigration and Nationality Act and significantly tightens rules used by U.S. Citizenship and Immigration Services adjudicators when determining whether an applicant may become a public charge in the future and is therefore inadmissible. The agency also released new and updated forms that require applicants to answer questions about their past or potential use of public benefits and other indicia of whether they could become a public charge.
The State Department issued a similar public charge rule for visa applicants applying at U.S. consulates abroad, which has not yet been enforced as the accompanying public charge visa questionnaire has yet to be finalized. The Supreme Court case did not address that regulation.
BAL Analysis: USCIS has not yet republished the new and updated forms, nor has it provided guidance on when those forms will be required or whether the agency will provide a grace period. Employers and applicants for green cards and extensions or changes of nonimmigrant status in the U.S. should anticipate longer case processing timelines and factor in additional preparation time to complete updated or new USCIS forms. Employees should be prepared to furnish documentation and other information requested on the new forms pertaining to their finances, prior use of public benefits, or potential future reliance on public benefits. BAL is closely monitoring this issue and will provide updates as more information becomes available.
U.S. Citizenship and Immigration Services announced today that it will hold a webinar on the new H-1B online registration process for employers filing cap petitions this season.
Background: USCIS announced earlier this month that it is implementing the new H-1B online registration process for the upcoming cap season. The registration period opens March 1 and is expected to end on March 20. During this period, H-1B petitioners must submit an online registration for each prospective H-1B candidate. Before submitting registrations, employers must set up an online account on myUSCIS, and USCIS will post on its website the date when they may begin that process. Employers intending to register H-1B cap candidates for the upcoming cap season are encouraged to attend the webinar.
The State Department plans to publish a regulation tomorrow that targets “birth tourism” by foreign visitors seeking to confer U.S. citizenship on their child by giving birth while visiting the U.S. A prepublication version of the rule was published today.
BAL Analysis: U.S. consular officers already have wide latitude to deny applications for visitor visas, and the regulation signals greater scrutiny on new applicants for visitor visas. Although the State Department is issuing this rule without a companion regulation from the Department of Homeland Security, travelers should note that Customs and Border Protection officers at land borders and airports (who fall under DHS) may also increase their scrutiny of pregnant women entering the U.S. on visitor visas.
U.S. Citizenship and Immigration Services has announced that in February it will follow the State Department’s Dates for Filing chart for most employment-based categories when determining whether applicants are eligible to file for adjustment of status. The chart was published last week in the February Visa Bulletin.
The only categories for which the Dates for Filing chart will not apply are the EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Countries. This is because these categories are listed as “current” in the Final Action Dates chart, but have a cutoff date in Dates for Filing. For these nationals in the EB-3 category, the Final Action Date chart will apply.
Cutoff dates that will control filing in February:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the February Visa Bulletin.
BAL Analysis: February will mark the fifth straight month that USCIS will use the Dates for Filing chart. This is good news for a number of employment-based immigrants, as the Dates for Filing chart generally contains more progressive cutoff dates than the Final Action Dates chart, especially in EB-1. Because Vietnam is not included on the Dates for Filing chart, adjustment of status applicants from Vietnam should use the dates listed under “All Other Countries.”
U.S. Citizenship and Immigration Services is expected to reopen and extend the public comment period for a proposed regulation that would significantly increase immigration-related government filing fees.
Background: The proposed rule, published Nov. 14, 2019, would increase USCIS fees, charge different fees for different categories of nonimmigrant workers, and impose significant new fees on companies with a high proportion of H-1B or L-1 employees. In December, USCIS made changes to the proposal and extended the comment period to Dec. 30. The agency has already received more than 29,000 comments on the proposal, and the final rule is likely to be challenged in court as it makes significant changes across multiple immigration benefit categories.
BAL Analysis: Petitioners may anticipate that the higher fees are not likely to apply to H-1B cap filings that are submitted in April, early in the 90-day filing window, and can plan accordingly. However, it cannot be ruled out that new fees could be in place for H-1B cap petitions filed later in the 90-day filing period. Employers are encouraged to submit comments during the extended comment period if they have not already done so. BAL is continuing to monitor the progress of this rule, including potential litigation that could further delay implementation, and will provide updates on developments.
The Labor Department has posted processing times current as of Dec. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: The department has announced that it is now adjudicating applications filed in September and earlier, is conducting audit reviews on applications filed in April and earlier, and is reviewing appeals for reconsideration filed in July and earlier.
Average PERM processing times in December:
PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in September and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in November and earlier for H-1B cases and for PERM cases. Center director reviews were being conducted on appeals filed in December and earlier for H-1B cases, with no reviews of PERM cases pending.
Average times for issuance of prevailing wage determinations in December:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
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 September and earlier and is seeing PWDs for requests filed in September and earlier.
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.