Latest Updates: US Immigration Changes Due To Coronavirus (COVID-19)

Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China

May 29, 2020

You can view the full Presidential Proclamation regarding this suspension of entry by clicking here.

 

USCIS Resumes Premium Processing for Certain Petitions

May 29, 2020

U.S. Citizenship and Immigration Services today announced that it will resume premium processing for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, in phases over the next month. 

Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service for all eligible Form I-140 petitions.

Effective June 8, USCIS will accept premium processing requests for: 

  • H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations). 

  • All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.

Effective June 15, USCIS plans on resuming premium processing for: 

  • H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because: 

  • The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or 

  • The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

Effective June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions, including: 

  • All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s. 

  • All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.

All dates are subject to change as USCIS continues to take on more premium processing requests and USCIS will announce any changes to these dates accordingly.

On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19). USCIS continues to process any petition with a previously accepted Form I-907, in accordance with the premium processing service criteria. Petitioners who had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, but received no action and a refund, may refile their Form I-907 consistent with the timeline above, barring any changes USCIS may announce in the future.

USCIS Preparing to Resume Public Services on June 4

May 27, 2020

U.S. Citizenship and Immigration Services is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4. On March 18, USCIS temporarily suspended routine in-person services at its field offices, asylum offices and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS is following the Centers for Disease Control and Prevention’s guidelines to protect our workforce and the public. For the latest information on the status of individual offices, check our office closures page.

While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services. Please call the USCIS Contact Center for assistance with emergency services. 

As services begin to reopen, offices will reduce the number of appointments and interviews to ensure social distancing, allow time for cleaning and reduce waiting room occupancy. Appointment notices will contain information on safety precautions that visitors to USCIS facilities must follow.

If you are feeling sick, please do not go to your appointment. Follow the instructions on your appointment notice to reschedule your appointment for when you are healthy. There is no penalty for rescheduling your appointment if you are sick.

Asylum Offices

USCIS asylum offices will automatically reschedule asylum interviews that were canceled during the temporary closures. When USCIS reschedules the interview, asylum applicants will receive a new interview notice with the new time, date and location for the interview and information about safety precautions.

In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter and representative can fully and safely participate in the interview while maintaining social distancing.

For affirmative asylum interviews, applicants must bring all immediate family members listed as dependents on the application and an interpreter, if the applicant does not speak English.  Additionally, a representative, witness, individual providing disability accommodations or “trusted adult” if an applicant is a minor, may attend the interview.

For non-detained credible or reasonable fear interviews, individuals must bring any family members listed on the interview notice. Representatives may attend credible and reasonable fear interviews but are encouraged to participate telephonically. USCIS will provide contracted, professional interpreters for credible and reasonable fear interviews.

Naturalization Ceremonies

USCIS will send notices to applicants to reschedule postponed naturalization ceremonies. The ceremonies may be shorter to limit exposure to those in attendance. Instead of playing videos during naturalization ceremonies, attendees will receive a flyer with information and links directing them to the videos on the USCIS website. Under the shortened format, all legally required portions of the ceremony will take place. 

Attendance is limited to the naturalization candidate and individuals providing assistance to disabled persons.

Interviews and Appointments

USCIS will send notices to applicants and petitioners with previously scheduled appointments and interviews. Those attending appointments should follow the safety guidelines outlined below.

Those who had other appointments must reschedule through the USCIS Contact Center once field offices are open to the public. Please check our office closure page to see if your respective office has been reopened before calling the Contact Center.   

Visitors are limited to the applicant, one representative, one family member and one individual providing disability accommodations. The applicant should arrange to have their interpreter available by phone. 

Application Support Centers

USCIS will automatically reschedule any necessary ASC appointments that were canceled due to the temporary office closure. Individuals will receive a new appointment letter in the mail with specific safety requirements. Individuals who appear at a date or time other than what is listed on the ASC appointment notice may encounter significant processing delays, except for military members. 

Guidelines for Entering USCIS Facilities

  • Visitors may not enter a USCIS facility if they: 

    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;

    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or

    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.

  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).

  • Hand sanitizer will be provided for visitors at entry points. 

  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.

  • Individuals are encouraged to bring their own black or blue ink pens.

More information on visiting USCIS facilities can be found at uscis.gov/visitorpolicy.

 

DHS Acting Secretary Announces Extension of Border Restrictions

May 19, 2020

DHS Acting Secretary Chad Wolf announced that “Non-essential travel will not be permitted until this administration is convinced that doing so is safe and secure.” Advance copies of the notifications of temporary travel restrictions applicable to land ports of entry and ferries service note that restrictions along the U.S.-Canada border and the U.S.-Mexico border have been extended until 11:59 pm (ET), June 22, 2020. 

DHS Extends Flexibility in Requirements Related to Form I-9 Compliance

May 14, 2020

DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic by an additional 30 days. These include prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act, and an additional 30-day extension for NOIs served in March 2020.

COVID-19 Temporary Policy for I-9 List B Identity Documents

May 1, 2020

Because many areas are under stay-at-home orders due to COVID-19 and some online renewal services have restrictions, employees may experience challenges renewing a state driver’s license, a state ID card, or other Form I-9, Employment Eligibility Verification, List B identity document. Considering these circumstances, DHS is issuing a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.

Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

 

When your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

  • Record the document information in Section 2 under List B, as applicable; and,

  • Enter the word “COVID-19” in the Additional Information Field.

 

Within 90 days after DHS’s termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired.

Note: It is best if the employee can present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and record the new document information in the Additional Information Field.

When the employee later presents an unexpired document, you should:

In the Section 2 Additional Information field:

 

  • Record the number and other required document information from the actual document presented; 

  • Initial and date the change.

Procedure for List B Documents extended by an Issuing Authority

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority.

When your employee provides an acceptable expired List B document that has been extended by the issuing authority you should:

  • Enter the document’s expiration date in Section 2; and,

  • Enter “COVID-19 EXT” in the Additional Information Field.

 

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles’ website.

Note: For extended documents, the employee is not required to later present a valid unexpired List B document.

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

DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated guidance as needed.

USCIS Extends Flexibility for Responding to Agency Requests

May 1, 2020

In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30 to assist applicants and petitioners who are responding to certain:

  • Requests for Evidence;

  • Continuations to Request Evidence (N-14);

  • Notices of Intent to Deny;

  • Notices of Intent to Revoke;

  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and

  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

 

Notice/Request/Decision Issuance Date: 

This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and July 1, 2020, inclusive. 

Response Due Date: 

USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking action. USCIS will consider a Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.

USCIS is adopting several measures to protect our workforce and community and to minimize the immigration consequences for those seeking immigration benefits during this time.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection.

 

USCIS June 4 Extension Of Closure

April 24, 2020

On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS is readying offices to re-open in compliance with local and state orders, on or after June 4. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public while the offices are temporarily closed. During this time, individuals may still submit applications and petitions to USCIS. Online filing remains the most convenient and interactive way to submit forms, check the status of your case, and receive notices.

Field Office and ASC Appointments, Naturalization Ceremonies, InfoPass
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the temporary office closure. Individuals will receive a new appointment letter in the mail. Those who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again.

Asylum Office Interviews
USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. 

Please check to see if the respective office has been reopened before calling the USCIS Contact Center. 

In-Person Public Engagements
Additionally, USCIS is postponing all in-person public engagement and outreach events for the duration of the temporary office closure. Please contact public.engagement@uscis.dhs.gov if you have an immediate engagement question during this time.

For More Information 
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance in response to this situation. 

Education and precautions are the strongest tools against infection. Get the latest facts by visiting the CDC’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and clean hands and surfaces appropriately. 

DOS Provides Update Regarding Presidential Proclamation Suspending Entry of Certain Immigrants

April 24, 2020

On Wednesday, April 22, President Trump signed a proclamation suspending entry into the United States of certain immigrants who present risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak. The "immigration ban", as it is being called, is effective at 11:59 p.m. EDT on Thursday, April 23 and expires in 60 days. Unless the moratorium is continued by the President. 

U.S. citizens, lawful permanent residents, and those holding valid immigrant visas on the effective date of the Proclamation, are not subject to the proclamation. The Proclamation is not retroactive. No valid visas will be revoked under this Proclamation. The proclamation provides exceptions to its restrictions for certain categories of immigrants, including: certain healthcare professionals, aliens seeking to enter the United States pursuant to an EB-5 investor visa, spouses and children (categories IR2, CR2, IR3, IH3, IR4, IH4) of U.S. citizens, members of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces, and aliens seeking to enter the United States pursuant to an Afghan and Iraqi Special Immigrant Visa. Please refer to the proclamation for a full list of exceptions. Routine visas services have been suspended at U.S. posts worldwide, but as resources allow, embassies and consulates will continue to provide emergency and mission critical visa services for applicants who are not subject to this presidential proclamation.

The full text of the presidential proclamation is available below.

Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

April 22, 2020

Regarding the most recent Presidential Proclamation issued on April 22nd:

President Trump just issued a proclamation: "Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." (See below)

This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

It is important to note that the proclamation does not include any nonimmigrants, which means that it does not apply to anyone entering the U.S. on a temporary basis.  It also does not include anyone who is in the U.S. applying for any nonimmigrant or immigrant status. 

Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who:

1.      are outside the United States on the effective date of this proclamation;

2.      do not have an immigrant visa that is valid on the effective date of this proclamation; and

3.      do not have an official travel document other than a visa (such as a transportation letter, an appropriate

         boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or

         issued on any date thereafter that permits him or her to travel to the United States and seek entry or

         admission.

 

In light of the proclamation, it is important to keep in mind the following facts that already existed before the proclamation:

 

  • Routine visa services at all U.S. embassies and consular posts around the world have been suspended as of March 20, 2020. U.S. embassies and consulates continue to provide urgent and emergency visa services as resources allow. The Department of State (DOS) intends to continue to process visa applications for farm workers and medical professionals assisting with COVID-19.

  • U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended in-person services through at least May 3, 2020, including in-person interviews and biometrics processing. USCIS staff will continue to perform duties that do not involve contact with the public and will provide emergency services for limited in-person situations. 

  • The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020.

  • Despite these limitations, USCIS continues to accept and process applications and petitions for nonimmigrants and immigrants, including applications requesting an extension, change, or adjustment of status

 

Please contact our office here at Savitz Law if you have any questions. We are here to help!

Presidential Proclamation Issued 4/22/2020: 
Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

The 2019 Novel Coronavirus (COVID-19) has significantly disrupted the livelihoods of Americans.  In Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak), I declared that the COVID–19 outbreak in the United States constituted a national emergency, beginning March 1, 2020.  Since then, the American people have united behind a policy of mitigation strategies, including social distancing, to flatten the curve of infections and reduce the spread of SARS–CoV–2, the virus that causes COVID-19.  This needed behavioral shift has taken a toll on the United States economy, with national unemployment claims reaching historic levels.  In the days between the national emergency declaration and April 11, 2020, more than 22 million Americans have filed for unemployment.

In the administration of our Nation’s immigration system, we must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor.  We must also conserve critical State Department resources so that consular officers may continue to provide services to United States citizens abroad.  Even with their ranks diminished by staffing disruptions caused by the pandemic, consular officers continue to provide assistance to United States citizens, including through the ongoing evacuation of many Americans stranded overseas.

I have determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.  Excess labor supply affects all workers and potential workers, but it is particularly harmful to workers at the margin between employment and unemployment, who are typically “last in” during an economic expansion and “first out” during an economic contraction.  In recent years, these workers have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and the disabled.  These are the workers who, at the margin between employment and unemployment, are likely to bear the burden of excess labor supply disproportionately.

Furthermore, lawful permanent residents, once admitted, are granted “open-market” employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy.  There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply.  Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak.  The vast majority of immigrant visa categories do not require employers to account for displacement of United States workers.  While some employment-based visas contain a labor certification requirement, because visa issuance happens substantially after the certification is completed, the labor certification process cannot adequately capture the status of the labor market today.  Moreover, introducing additional permanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population.  In light of the above, I have determined that the entry, during the next 60 days, of certain aliens as immigrants would be detrimental to the interests of the United States.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

Section 1.  Suspension and Limitation on Entry.  The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.

Sec. 2.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:

(i)    are outside the United States on the effective date of this proclamation;

(ii)   do not have an immigrant visa that is valid on the effective date of this proclamation; and

(iii)  do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

(i)     any lawful permanent resident of the United States;

(ii)    any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii)   any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

(iv)    any alien who is the spouse of a United States citizen;

(v)     any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi)    any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii)   any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

(viii)  any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix)    any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Sec. 3.  Implementation and Enforcement.  (a)  The consular officer shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation.  The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion.

(b)  An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

(c)  Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Sec. 4.  Termination.  This proclamation shall expire 60 days from its effective date and may be continued as necessary.  Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.

Sec. 5.  Effective Date.  This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.

Sec. 6.  Additional Measures.  Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

Sec. 7.  Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec. 8.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or,

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-second day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP

(https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/)

Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus

April 21, 2020

In order to limit the further spread of coronavirus, the U.S. has reached agreements with both Canada and Mexico to limit all non-essential travel across borders. Working closely and collaboratively, the Department of Homeland Security is part of a North American approach to stop the spread of the virus.

Additionally, CBP will no longer detain illegal immigrants in our holding facilities and will immediately return these aliens to the country they entered from – Canada or Mexico. Where such a return is not possible, CBP will return these aliens to their country of origin.

These measures were implemented on March 21, 2020 and will be in place for 30 days, at which point it will be reviewed by both parties.  On April 20, 2020, these measures were extended for an additional 30 days.

The U.S., Mexican, and Canadian governments are taking necessary action to fight against this pandemic together.

Northern Border

The US-Canada land border serves as an economic engine that supports over $1.7 billion (USD) dollars in daily cross-border trade. As a result of the COVID-19 pandemic, the United States and Canada are temporarily restricting all non-essential travel across its borders. In each of our countries, we are encouraging people to exercise caution by avoiding unnecessary contact with others. This collaborative and reciprocal measure is an extension of that prudent approach.

“Non-essential” travel includes travel that is considered tourism or recreational in nature.
The United States and Canada recognize it is critical we preserve supply chains between both countries. These supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border. Supply chains, including trucking, will not be impacted by this new measure. Americans and Canadians also cross the land border every day to do essential work or for other urgent or essential reasons, and that travel will not be impacted.

This decision will be implemented on March 21, 2020, at which time the US and Canada will temporarily restrict all non-essential travel across the US-Canada land border. The measure will be in place for 30 days, at which point it will be reviewed by both parties.  On April 20, 2020, all parties extended these measures for an additional 30 days.

Southern Border

The strong partnership and close cooperation between the United States and Mexico has allowed us to maintain a productive border environment. We value the health and safety of our citizens and keep that at the forefront of joint decisions made by our respective leaders regarding cross-border operations.

Recognizing the robust trade relationship between the United States and Mexico, we agree our two countries, in response to the ongoing global and regional health situation, require particular measures both to protect bilateral trade and our countries’ economies and ensure the health of our nations’ citizens. We agree to the need for a dedicated joint effort to prevent spread of the COVID-19 virus and address the economic effects resulting from reduced mobility along our shared border.  

The U.S. and Mexican governments further recognize critical services such as food, fuel, healthcare and life-saving medicines must reach people on both sides of the border every day. Essential travel must therefore continue unimpeded during this time.  In order to ensure that essential travel can continue, the United States and Mexico are also temporarily restricting all non-essential travel across its borders.

“Non-essential” travel includes travel that is considered tourism or recreational in nature. Additionally, we are encouraging people to exercise caution by avoiding unnecessary contact with others.

This collaborative and reciprocal initiative is an extension of our nations’ prudent approach that values the health and safety of our citizens in the joint decisions made by our respective leaders regarding cross-border operations.

This joint initiative will commence at 00:01 Saturday March 21 throughout the US-Mexico land border for a period of 30 days subject to extension upon review.  On April 20, 2020, all parties extended these measures for an additional 30 days.

Detention Facilities

CBP is the first line of defense of our nation’s borders. To help prevent the introduction of COVID-19 into our border facilities and into our country, aliens subject to the order will not be held in congregate areas for processing by CBP and instead will immediately be turned away from ports of entry.


Those encountered between ports of entry after illegally crossing the border similarly will not be held in congregate areas for processing and instead, to the maximum extent feasible, will immediately be returned to their country of last transit. These aliens are processed in stations designed for short-term processing, where distancing is not a viable option, creating a serious danger of an outbreak.  


The Centers for Disease Control and Prevention (CDC) has determined that these conditions present a serious infection control challenge and are a risk to public health. Should an outbreak occur at these facilities, local medical facilities would be forced to devote extensive resources and may become overwhelmed.   

This action will also protect the health of our country’s dedicated border agents and other law enforcement personnel, who are vital to the security of our Nation.

Apprehension of illegal immigrants along both borders between POEs:

  • Migrants from Coronavirus Impacted Areas: Since the beginning of the FY20 fiscal year in October 2019 through the end of February 2020 (over the period of October 1, 2019 to February 29, 2020), foreign nationals from 122 separate countries have been apprehended or denied entry (inadmissible) at the U.S. Southwest border, for a total of over 190,000 apprehended or inadmissible migrants from countries currently with confirmed COVID cases.

  • Size and Scale: Every week, CBP apprehends between 7,000 – 9,000 individuals between ports of entry —the equivalent of 2.5 Diamond Princess cruise ships per week.

  • Human-to-human Spread: The spread of coronavirus is exacerbated by human-to-human transmission and the need for detention. CBP law enforcement facilities are for short-term holding and do not provide for needed large-scale isolation, diagnosis, or treatment of such a novel disease.

  • CBP Facilities: CBP facilities are not structured or equipped to effectively quarantine an infected population. CBP would be forced to rely on state and local hospitals to provide longer-term medical care for individuals who fall ill, further burdening our strained healthcare system and depriving Americans of key medical resources.

 

Although CBP has policies and procedures in place to handle transmittable diseases, COVID-19 will impact already strained holding capacities and place an extreme burden on what is forecasted to be a stretched healthcare system and the nation’s critical medical professionals who are needed to attend to U.S. citizens and legal residents.  

Migrants should shelter-in-place in their homes and communities, rather than attempting a long and dangerous journey to the United States borders at the hands of traffickers and smugglers.

U.S. Citizens:

U.S. citizens, lawful permanent residents and certain other travelers are exempt from this action. They will receive the same processing, evaluation and potential CDC medical screening that all entrants undergo at U.S. Ports of Entry.

Authority:

Effective at March 21, 2020 at 12:00 a.m. EDT, CBP will, as authorized, implement CDC authority under 42 U.S.C. § 265 to prohibit entry of certain persons into the United States. CBP will assist the Department of Health and Human Services’ (HHS) and U.S. Centers for Disease Control and Prevention (CDC) to protect against the spread of the novel coronavirus (COVID-19) by implementing the emergency authorities under 42 U.S.C. § 265 at the nation’s land borders to prohibit the introduction of certain persons in the interest of public health.

CBP Offers Flexibility to Departing Visa Waiver Program Travelers

April 20, 2020

Travelers Affected by Coronavirus May Apply for Extended Term of Admission 

 

U.S. Customs and Border Protection (CBP) announced today that Visa Waiver Program travelers who have been granted satisfactory departure may apply for an additional 30-day extension of their admission period if they remain unable to depart the United States because of the novel coronavirus (COVID-19).

The extension grants flexibility to Visa Waiver Program travelers who have difficulty returning to their countries due to COVID-19 related travel restrictions, flight cancellations or illness. Travelers who are granted satisfactory departure will have an additional 30 days to depart the United States after their lawful period of admission concludes.

Visa Waiver Program travelers may seek satisfactory departure by contacting:

  1. Any local CBP Port of Entry or Deferred Inspection Site; or

  2. The U.S. Citizenship and Immigration Services Contact Center.

Travelers should be prepared to provide their passport number when submitting their request.

Travelers generally must apply for satisfactory departure before their current period of admission expires. Grants of satisfactory departure are made at the discretion of the reviewing CBP Officer.

Travelers who remain in the United States beyond their lawful period of admission lose their eligibility to travel under the Visa Waiver Program and may be subject to additional penalties under U.S. law.

The Visa Waiver Program enables eligible nationals of 39 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Visa Waiver Program travelers generally are not eligible to extend their stay or change their status after arriving in the United States. Under current regulations, however, CBP in its discretion may grant periods of satisfactory departure of up to 30 days if an emergency prevents the departure of a Visa Waiver Program traveler.

Acting Secretary Chad Wolf's Statement on Non-Essential Travel

April 20, 2020

Restrictions On Non-Essential Travel Extended For Additional 30 Days

 

In close collaboration, the US, Mexico, and Canada have each agreed to extend restrictions on non-essential travel across their shared borders for 30 additional days. As President Trump stated last week, border control, travel restrictions and other limitations remain critical to slowing the spread and allowing the phased opening of the country.

 

USCIS Announces Delay in Data Entry and Receipt Notice Generation for FY 2021 H-1B Cap-Subject Petitions Due to the Coronavirus Pandemic

April 13, 2020

U.S. Citizenship and Immigration Services today announced that petitioners should expect a delay in data entry and receipt notice generation for fiscal year (FY) 2021 H-1B cap-subject petitions until at least May 1, 2020, due to the impacts of the coronavirus (COVID-19).

Beginning with the first day of filing, April 1, 2020, we will not immediately enter data for FY 2021 cap-subject petitions due to the COVID-19 pandemic and required health and safety protocols. Data entry and notice generation will be delayed until at least May 1, 2020. 

Once USCIS begins data entry, we will complete intake processing in the order in which we received petitions at the service centers. Petitions will be stamped received on the date they arrive at the service center. Petitions, if otherwise properly filed, will retain the receipt date that corresponds with the date the petition is received at the service center.

Due to delayed data entry and notice generation, there will be a general delay in processing FY 2021 cap-subject petitions. We are mindful of petitions with sensitive expiration and start dates, such as cap-gap petitions, and will strive to process these petitions as efficiently as possible. 

The specified filing window on the registration selection notices will not be changed. A petitioner who has a valid selected registration notice must file their H-1B cap-subject petition for the beneficiary named in the selected registration notice during the filing window indicated in their selection notice, or USCIS will reject or deny the petition.

We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice.

Additionally, we may transfer some Form I-129 H-1B cap-subject petitions for adjudication between the Vermont Service Center, California Service Center, Nebraska Service Center and Texas Service Center to balance the workload and enhance efficiencies. However, petitioners should still file their FY 2021 H-1B cap-subject petitions at the service center named in their selection notice. If we transfer your case, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition. 

COVID-19 Delays in Extension/Change of Status Filings

April 13, 2020

The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic. We continue to carefully analyze these issues and to leverage our existing resources and authorities to effectively address these challenges. DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.

Generally, nonimmigrants must depart the United States before their authorized period of admission expires.  However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19.  Should this occur, the following options are available to nonimmigrants: 

Apply for an Extension.  Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS).  U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.

If You File in a Timely Manner.  Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances.

Under current regulations, and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.  To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center at 1-800-375-5283. 

For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance.

USCIS Temporary Office Closure Extended through May 3

April 13, 2020

On March 18, U.S. Citizenship and Immigration Services temporarily suspended routine in-person services to help slow the spread of coronavirus (COVID-19). USCIS plans to begin reopening our offices on May 4, unless the public closures are extended further. USCIS staff are continuing to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations. To schedule an emergency appointment, contact the USCIS Contact Center.

USCIS domestic field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location for the interview. When USCIS resumes normal operations, USCIS will automatically reschedule application support center appointments due to office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments at the field office must reschedule through the USCIS Contact Center, once field offices reopen to the public. Please check the USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.

Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please visit uscis.gov/coronavirus for more information.

 

Office Of Foreign Labor Certification 
COVID-19 Frequently Asked Questions: Round 3

April 9, 2020

 

1. Due to the impact of the COVID-19 pandemic, can I move my H-1B workers to a new worksite that is located outside the area of intended employment on my certified Labor Condition Application?

An employer with an approved Form ETA-9035, Labor Condition Application for Nonimmigrant Workers (LCA), may place an H-1B worker at a new worksite located outside of the area(s) of intended employment certified by the Department’s Office of Foreign Labor Certification (OFLC), without having to file a new LCA, if the employer meets the conditions for short-term placement. The conditions are fully discussed in the H-1B regulations at 20 CFR 655.735 and summarized as follows:

  • The employer’s in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA;

  • The employer’s short-term placement is not at a worksite where there is a strike or lockout;

  • For every day the H-1B worker is placed outside the area of intended employment, the employer continues to pay the required wages; and

  • The employer pays lodging costs, costs of travel, meals, and expenses (for both workdays and non-workdays).

     

Under the short-term placement provisions, an employer may place the H-1B worker at the new worksite location for up to 30 workdays in one year and, in certain circumstances, up to 60 workdays in one year. Employers will need to determine, on a case-by-case basis, whether the 30-workday and/or 60-workday provisions may apply. Employers should be aware that, if the worker’s place of residence is outside the area of intended employment, the 60-workday provision would not apply. The short-term placement provisions only apply to H-1B workers; not H-1B1 or E-3 workers.

The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.” Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the employer filing a new LCA and without the employer relying on the short-term placement provisions. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended or new petition with USCIS.

Important Reminder: Certain notice requirements would apply, as explained in

separate Frequently Asked Questions concerning the COVID-19 pandemic, which OFLC published on March 20, 2020. (SEE BELOW)

Additionally, employers retain the option of filing a new LCA, at any time, covering new worksite(s) that are located outside the area(s) of intended employment or to make other changes to the terms and conditions of the original LCA. Under the Department’s H-1B regulations at 20 CFR 655.760, employers must document and retain evidence in their files demonstrating compliance with all LCA requirements. If an employer files a new LCA covering additional worksites outside the area of intended employment listed on the original LCA, or materially changes the terms and conditions of employment, the employer would need to file an amended or new H-1B petition with USCIS. Employers should consult DHS regulations and USCIS guidance regarding when an amended or new petition must be filed: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015- 0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

Further, employers are reminded that they attest on the Form ETA-9035, section G(2), that the employment of H-1B, H-1B1 or E-3 nonimmigrant workers in the named occupation will not adversely affect the working conditions of similarly employed U.S. workers, and that nonimmigrant workers will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers similarly employed. See 20 CFR 655.732. This means that if an employer is offering H-1B workers the flexibility to telework from their home that is within the area of intended employment, the employer must offer those same flexibilities to its U.S. workers similarly employed. Additionally, if the employer is offering to move the H-1B worker to a new location outside of the area of intended employment, the employer must offer the same option to its U.S. workers similarly employed.

Workers or employers who have questions, or would like to file complaints with the Wage and Hour Division (WHD) should visit www.dol.gov/whd/, submit an inquiry online at webapps.dol.gov/contactwhd/, or call 1-866-487-9243. Callers will be directed to the nearest WHD office for assistance. WHD staffs offices throughout the country with trained professionals who have access to interpretation services to accommodate more than 200 languages. Specific information on how to file a complaint is available on WHD’s website. All assistance from WHD is free and confidential.

        

2. Due to the impact of the COVID-19 pandemic, can I use alternative housing that was not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of the virus within my community or during a quarantine period?

The Department understands that agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers, while taking appropriate steps to slow the spread of the virus. In some cases, COVID-19 containment measures may require an employer to find alternative housing for some of its workers due to social distancing measures that reduce the maximum occupancy of approved housing, to accommodate quarantine periods, or both.

In some areas of the country, COVID-19 containment measures may require an employer to find alternative housing for some of its workers due to reduced occupancy standards (i.e., to increase social distancing) or quarantine workers for a temporary period of time. In effect, part of the employer’s approved housing has become temporarily unavailable after certification due to the impact of the COVID-19 pandemic (i.e., an unforeseen reason outside the employer’s control). Where certified housing becomes unavailable, in whole or in part, the employer must promptly notify the State Workforce Agency (SWA) in writing of the new housing situation. As COVID-19 measures require flexibility and immediate action, an employer may place workers in other employer-provided housing or rental or public accommodation housing that complies with applicable local, State, or Federal housing standards upon notice to the SWA and, then, work with the SWA to provide documentation demonstrating compliance and/or schedule an inspection of the alternative housing following the procedures outlined in 20 CFR 655.122(d)(6).

Please contact us here at Savitz Law today if you need clarification on any of these latest changes or have any further questions.  

 

Office Of Foreign Labor Certification COVID-19 Frequently Asked Questions: Round 2

 

April 1, 2020

1. Due to the impact of the COVID-19 pandemic, can I permit workers to perform other agricultural labor or services that were not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of the virus within my community?

The Department understands that, while responding to the disruptive impacts of the COVID- 19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may permit H-2A workers and domestic workers employed in corresponding employment to perform limited duties that are not specifically listed in the job order, but only as necessary due to the COVID-19 pandemic and related measures, and provided that the additional duties:

(1) constitute agricultural labor or services, as defined at 20 CFR 655.103(c); and

(2) are performed at worksite locations covering the same area of intended employment certified by the Department.

Consistent with the employer’s recordkeeping requirements at 20 CFR 655.122(j), the employer must retain records showing the nature and amount of the work performed, including any other agricultural work performed in response to the impacts of the COVID-19 pandemic. The employer must continue to pay H-2A workers and workers in corresponding employment the highest applicable wage rate in effect at the time the work is performed and must offer U.S. workers no less than the same benefits, wages, and working conditions the employer will offer or provide to H-2A workers.

2. My workers may need to be quarantined and not able to perform work for several continuous weeks in order to slow the spread of the COVID-19 virus. Do I need to invoke contract impossibility?

Given the unforeseen and disruptive impacts of the COVID-19 pandemic, the employers may be afforded some degree of flexibility before requesting a determination of contract impossibility from the Department under 20 CFR 655.122(o) (i.e., “for reasons beyond the control of the employer ... that makes the fulfillment of the contract impossible”). Accordingly, employers who must temporarily suspend agricultural operations due to the COVID-19 pandemic, whether in whole or part, may do so for a period of up to 21 calendar days without advance CO approval.

Consistent with the recordkeeping requirements at 20 CFR 655.122(j), the employer retains records for each worker of the number of hours of work offered each day, the number of hours actually worked, and, if applicable, the reason(s) why the number of hours worked is less than the number of hours offered. In order for the Department to take into account the disruptive impacts of the COVID-19 pandemic on the employer’s business while still ensuring the three-fourths guarantee protection for workers, employers may note for each worker the specific time period in which fewer hours or no work was offered and the reason(s) why (e.g., business closure or worker quarantine due to COVID-19 pandemic).

3. Due to the impact of the COVID-19 pandemic, my workers may not be permitted to perform work at some worksites listed on my certified Application for Temporary Employment Certification and job order. However, there are other work sites within the certified area of intended employment where work can be performed. Can I place workers at other worksites not specifically listed in the certified Application for Temporary Employment Certification but are still within the same area of intended employment?

The Department understands that, while responding to the disruptive impacts of the COVID- 19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may place H- 2A workers and domestic workers employed in corresponding employment at other worksite(s) that are not specifically listed in the certified H-2A application and job order, but only as necessary due to the COVID-19 pandemic and related measures, and provided that: the worksite(s) are located in the certified area(s) of intended employment and workers will perform only agricultural labor or services listed on their H-2A job orders at those worksite(s) (or as provided in the separate FAQ addressing the performance of other agricultural labor or services that were not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of COVID-19). The employer should provide an amended work contract to any workers who will be performing work at another worksite.​

The Department must be assured that essential worker protections (e.g., safe and compliant housing and daily transportation, as well as meals) will be provided to all workers performing duties at the worksites not covered by the certified H-2A application and job order. For worksites that are outside of the area of intended employment on the certified application, and where the COVID-19 pandemic may constitute good and substantial cause, the employer must file a new H-2A application and job order, but should request emergency processing under 20 CFR 655.134.

Important Reminders:

  • An employer that obtained temporary labor certification as a fixed-site employer may place workers only at other worksite(s) the employer owns or operates.

  • An employer must provide workers with a copy of any approved extensions or modifications to the work contract, as soon as practicable.

4. I’m concerned that some or all of my workers will not arrive on my certified start date of work due to the COVID-19 pandemic and related measures. Should I request an amendment to my certified start date or file a new H-2A Application for Temporary Labor Certification with a later start date for those workers whose arrival will be delayed? If not, what do I need to do?

The Department recognizes that employers are making every effort to ensure that all workers arrive in time to commence work on the start date listed on the H-2A Application for Temporary Employment Certification or as soon as possible thereafter, consistent with the health and safety parameters related to the COVID-19 pandemic response. The Department also understands that, while responding to the disruptive impacts of the COVID-19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, employers will not be required to file a new H-2A Application for Temporary Employment Certification with a later start date for workers whose arrival is delayed due to the COVID-19 pandemic, or to request amendment of the start date on their certified application provided they comply with the following conditions:

An employer experiencing temporary delays in the arrival of H-2A workers must notify the State Workforce Agency (SWA) to which it submitted the job order and the Chicago National Processing Center (NPC) that, due to the delayed arrival of H-2A workers based on the COVID-19 pandemic and related measures, the employer’s positive recruitment period is extended. See 20 CFR 655.158. Under these circumstances, the SWA and Chicago NPC will continue to recruit for U.S. workers and satisfy as much of the employer’s need as close to the employer’s actual start date of need as possible.

In some cases, however, the impact of the COVID-19 pandemic and any delayed worker arrival(s) may change the employer’s need for labor to such an extent that a new H-2A Application for Temporary Employment Certification is required for the resulting job opportunity. For example, a new H-2A Application for Temporary Employment Certification may be necessary if: the duties the employer needs workers to perform have substantially changed as a result of the unforeseen circumstances; the timing of the need for labor has shifted such that a new labor market test is necessary; or if the employer is unable to reasonably anticipate when labor will be needed.

5. My H-2A Application for Temporary Labor Certification is pending with the Chicago NPC. I’m concerned that some or all of my workers will not arrive on the start date I listed on my application due to the impact of the COVID-19 pandemic and related measures. Should I request an amendment to my start date before certification?

The Department recognizes that employers are making every effort to ensure that all workers arrive in time to commence work on the start date listed on the H-2A Application for Temporary Employment Certification or as soon as possible thereafter, consistent with the health and safety parameters related to the COVID-19 pandemic response. The Department also understands that, while responding to the disruptive impacts of the COVID-19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may request a minor amendment to the start date listed on its H-2A Application for Temporary Employment Certification, consistent with 20 CFR 655.145(b). For example, an employer’s request to amend the period of need should include a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the change in the period of employment could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted.

Although the general impact of the COVID-19 pandemic and related measures may be more focused on the health and movement of people and not crop conditions, the employer’s H-2A Application for Temporary Employment Certification identified the first date of need on which it required workers to begin performing agricultural labor or services. In most cases, an employer’s need for the agricultural labor or services work to begin on the date specified in its H-2A Application for Temporary Employment Certification will remain unchanged and the employer will need as many of the workers to begin work on the listed start date. In such cases, a start date amendment would not be appropriate.

In some cases, however, an employer anticipating widespread delays in workers arriving due to the COVID-19 pandemic, and related measure, may sufficiently demonstrate to the Chicago NPC that a minor delay will increase the likelihood of more workers arriving to begin work together (e.g., as a crew,) and perform large-scale planting. Where a minor amendment to the start date could increase the likelihood of more workers arriving together on the later start date (e.g., as the result of changes to travel restrictions or availability of other domestic workers based on an extended labor market recruitment), a start date amendment may be appropriate.

To the extent an employer anticipates more than a minor start date delay or is unsure whether or when work will begin, an amendment to the start date would not be appropriate. In those circumstances, once a new start date is certain, the employer may file a new H-2A Application for Temporary Employment Certification.

Important Reminder: If the employer requests a delay in the expected start date of work, please remember to include, in the written notification to the Chicago NPC, a statement indicating whether any U.S. workers have already departed for the place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

6. I am an employer with a pending H-2A application and job order, and the housing I intend to provide to workers requires an inspection from the State Workforce Agency (SWA). What should I do in the event that the SWA temporarily closes its public offices or suspends operations due to the impact of the COVID-19 pandemic?

Employers should consult the appropriate state government website and/or office for the latest information concerning the SWA’s operating status. Although some states may decide to temporarily close physical offices to the general public due to the impact of the COVID-19 pandemic, SWAs in those states may have the capability to continue to perform housing inspections on a case-by-case or emergency basis, to leverage technologies to conduct inspections remotely under specific conditions, or to implement other alternative methods for ensuring housing meets applicable standards. The Department encourages employers to proactively consult their SWAs to obtain information on available procedures to complete their housing inspections.

In the event that the SWA provides notification that it has or will fully suspend all operations due to the impact of the COVID-19 pandemic, employers should be aware that this may prevent or significantly delay the issuance of a final determination on their H-2A applications and job orders. A certification that housing meets applicable safety and health standards is a prerequisite for the Certifying Officer to grant temporary labor certification.

7. I am an employer operating as an H-2A Labor Contractor (H-2ALC). Due to the impact of the COVID-19 pandemic, I may not be able to provide the OFLC Chicago NPC an original surety bond associated with my H-2A application 30 days before the start date of work, as required by the Department’s regulations. Can the Chicago NPC grant temporary labor certification based on its review of a scanned copy of the original surety bond in this unique circumstance?

Yes. Under 20 CFR 655.132(b)(3), an H-2ALC must include, with its H-2A application, the original surety bond serving as proof of its ability to discharge financial obligations under the H-2A program. Under normal circumstances, an employer may scan and upload a copy of the surety bond in the Foreign Labor Application Gateway (FLAG) at the time of filing the H-2A application electronically, and send the original surety bond to the Chicago NPC for receipt at least 30 days before the employer’s start date of work. Consistent with the Frequently Asked Questions, Round 1, issued on March 20, 2020, OFLC is making accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for labor certification due to the COVID-19 pandemic.

For employers operating as H-2ALCs and impacted by the COVID-19 pandemic, if the deadline to submit an original surety bond falls within the period from March 13, 2020 through May 12, 2020 (i.e., 30 days before the start date of work), the Chicago NPC will review the scanned copy of the original surety bond uploaded in FLAG and, provided that the employer will submit the original surety bond by May 12, 2020, the Chicago NPC may grant temporary labor certification.

8. Due to the impact of the COVID-19 pandemic, I may not be able to pay the fees associated with my H-2A labor certification within 30 days after the date certification was granted. Will OFLC make accommodations for the delayed payment of H-2A labor certification fees?

Yes. Consistent with the Frequently Asked Questions, Round 1, issued on March 20, 2020, OFLC is making accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for labor certification due to the COVID-19 pandemic. Accordingly, for certifications issued from March 13, 2020 through May 12, 2020, the employer’s H-2A labor certification fee will be considered timely if received by the Chicago NPC no later than June 11, 2020.

Important Reminder: An employer who is issued an H-2A labor certification, but requests post-certification withdrawal of that H-2A labor certification and/or decides not to proceed with the filing of a Petition for a Nonimmigrant Worker (Form I-129) with the United States Citizenship and Immigration Services, must still pay the required labor certification fee in a timely manner. Failure to do so can result in debarment from the H-2A program, in accordance with 20 CFR 655.182.

Please contact us here at Savitz Law today if you need clarification on any of these latest changes or have any further questions.  

USCIS Expands Flexibility for Responding to USCIS Requests

 

March 30, 2020

In response to the Coronavirus (COVID‐19) pandemic, U.S. Citizenship and Immigration Services announced that it adopted measures to assist applicants and petitioners who are responding to certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). This alert clarifies that this flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I‐290B, Notice of Appeal or Motion.

Notice/Request/Decision Issuance Date:

This flexibility applies to an RFE, NOID, NOIR, NOIT or appealable decision within AAO jurisdiction and the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.

Response Due Date:

Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I‐290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

USCIS is adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID‐19 infection. 

USCIS Announces Flexibility for RFEs and NOIDs

 

March 27, 2020

In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced today that it is adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020.

Requests for Evidence and Notices of Intent to Deny

For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.

For More Information

Education and precautions are the strongest tools against infection. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance. Please visit uscis.gov/coronavirus for the latest facts and other USCIS updates.

 

OFLC Announces Issuance of Electronic PERM Labor Certifications in Response to the Impact of the COVID-19 Pandemic

 

March 24, 2020

Due to the impact of the COVID-19 pandemic, the Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders that, beginning March 25, 2020, and through June 30, 2020, the Atlanta National Processing Center (NPC) will issue PERM labor certification documents electronically to employers and their authorized attorneys or agents.

Department of Homeland Security (DHS) regulations provide that, in order to file a USCIS Form I-140, Immigrant Petition for Alien Workers, with United States Citizenship and Immigration Services (USCIS), for certain employment-based immigrant visas, an employer must concurrently submit an original labor certification issued by the Department of Labor (DOL), unless the original labor certification was already provided to USCIS in support of a different petition. Currently, when a permanent labor certification is granted, OFLC sends an original certified Form ETA-9089, Application for Permanent Employment Certification, and a Final Determination letter on security paper to the employer or, if applicable, the employer's authorized attorney or agent who submitted the application. To be valid, the certified Form ETA-9089 contains a completed:

  • Section O, signed and dated by the OFLC Certifying Officer;

  • Footer on each page identifying the validity period of the certification;

  • Section L, signed and dated by the foreign worker;

  • Section M, signed and dated by the form preparer, if applicable; and

  • Section N, signed and dated by the employer

The employer or, if applicable, its authorized agent or attorney, then submits the original, signed paper Form ETA-9089, along with the USCIS Form I-140 and all other supporting documentation and appropriate fees, to USCIS.

Beginning March 25, 2020, and through June 30, 2020, employers or their authorized attorneys/agents who file the application and are granted a permanent labor certification by OFLC will receive the certified Form ETA-9089 and Final Determination letter by email. In circumstances where employers or, if applicable, their authorized attorneys or agents, are not able to receive the certified Form ETA-9089 documents by email, OFLC will send the original security paper Form ETA- 9089 and Final Determination letter using UPS regular delivery (i.e., approximately 2 to 8 days depending on delivery location).

Upon email receipt of an electronic copy of the certified Form ETA-9089, the form must be printed, and then signed and dated by each of the following prior to filing the Form I-140 with USCIS: the foreign worker, preparer (if applicable), and the employer. USCIS may consider this printed Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.

Based on potential service disruptions due to the COVID-19 pandemic, OFLC's electronic issuance of permanent labor certifications, during this temporary period, will help ensure employers and their authorized attorneys or agents are able to receive final determinations in a timely and cost effective manner.

Important Reminder: Similar to other electronic correspondence issued by the Atlanta NPC, and to ensure proper receipt of electronic permanent labor certification documents, OFLC reminds stakeholders to add plc.atlanta@dol.gov to their Address Book or "Safe List" within email system(s) to avoid being filtered as SPAM.

 

Office Of Foreign Labor Certification COVID-19 Frequently Asked Questions: Round 1

 

March 20, 2020

The U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) remains fully operational during the federal government’s maximum telework flexibilities operating status – including the National Processing Centers (NPCs), PERM System, and Foreign Labor Application Gateway (FLAG) System. OFLC continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements. If employers are unable to meet all statutory and regulatory requirements, OFLC will not grant labor certification for the application. These frequently asked questions address impacts to OFLC operations and employers.

1. How will OFLC NPCs communicate with employers and their authorized attorneys or agents affected by the COVID-19 pandemic?

Following standard operating procedures, OFLC will continue to contact employers and their authorized attorneys or agents primarily using email and - where email addresses are not available - will use U.S. mail. OFLC does not anticipate significant disruptions in its communications with employers and their authorized attorneys or agents in areas affected by the COVID-19 pandemic since email serves as a reliable form of communication to support the processing of applications for prevailing wage determinations and labor certification. Further, OFLC reminds stakeholders that email addresses used on applications must be the same as the email address regularly used by employers and, if applicable, their authorized attorneys or agents; specifically, the email address used to conduct their business operations and at which the employers and their authorized attorneys or agents are capable of sending and receiving electronic communications from OFLC related to the processing of applications.

If the U.S. Postal Service or other private courier services delay or discontinue delivery of U.S. mail to certain areas affected by the COVID-19 pandemic, OFLC’s NPCs will not send correspondence to geographic areas where there is either no mail service or partial mail service, as shown on the Service Alerts page of the U.S. Postal Service website. Normally, when correspondence related to the processing of applications must be sent by U.S. mail, OFLC uses the mailing address for the employer and, if applicable, the authorized attorney or agent named on the application. If some geographic areas have no or partial U.S. mail delivery and no planned restoration date, OFLC will then contact employers and their authorized attorney or agent via email, if that information is disclosed on the application, to arrange for the delivery of correspondence using alternate delivery services or to a mailing address not affected by U.S. Postal Service delivery disruptions.

2. How should employers and/or their authorized attorneys or agents provide updated contact information to OFLC when their business operations are temporarily affected by the COVID-19 pandemic?

OFLC understands that some employers and/or their authorized attorneys or agents may take necessary precautions due to the COVID-19 pandemic, such as temporarily closing offices or requiring employees to telework, and will need to update their contact information to ensure receipt of correspondence related to an application. In these circumstances, employers and/or their authorized attorneys or agents should contact the applicable OFLC NPC using the following methods:

Prevailing Wage Programs: General questions related to the processing of applications for prevailing wage determination, requests for extensions in replying to Requests for Information and other official correspondence, and changes of contact information (mailing or email addresses, phone number) should be directed to the OFLC National Prevailing Wage Center using the following contact methods:

Online: 

For pending applications, please access your Foreign Labor Application Gateway (FLAG) System account   and upload a change request or responsive document using the “Ad Hoc Document” function.

Email:

FLC.PWD@dol.gov

Include the phrase “PWD COVID-19” followed by the full case number in the email subject line.

 

Phone: 

202-693-8200
Please have the full case number ready for the OFLC helpdesk staff.

  

H-2A, H-2B, and CW-1 Temporary Visa Programs: General questions related to the processing of applications, requests for extensions in replying to audits and other official correspondence, and changes of contact information (mailing or email addresses, phone number) should be directed to the OFLC Chicago NPC using the following contact methods:

Online:

For pending applications, please access your Foreign Labor Application Gateway (FLAG) system account and upload a change request or responsive document using the “Ad Hoc Document” function for the specific application.

Email:

TLC.Chicago@dol.gov

Include the phrase “COVID-19” followed by the full case number in the email subject line.

Phone:

312-886-8000

Please have the full case number ready for the OFLC helpdesk staff.

H-1B, H-1B1, and E-3 Temporary Visa Programs: General questions related to the processing of applications, business verifications, and changes of contact information (mailing or email addresses, phone number) should be directed to the OFLC Atlanta NPC using the following contact methods:

Email: 

LCA.Chicago@dol.gov
Include the phrase “COVID-19” followed by the full case number in the email subject line.

Phone: 404-893-0101
Please have the full case number ready for the OFLC helpdesk staff.

Permanent Labor Certification Program: General questions related to the processing of applications, requests for extensions related to audits and supervised recruitment instructions, and changes of contact information (mailing or email addresses, phone number) should be directed to the OFLC Atlanta NPC using the following contact methods:

Online:

For changes of address, phone number, or email address, etc. please access your PERM system account via the Helpdesk Inquiry module via the “My Account” tab or by modifying the ETA Form 9089.

 

Email:

PLC.Atlanta@dol.gov

BE.RFI.Atlanta@dol.gov (Business Existence Registration extensions)

Include the phrase “COVID-19” followed by the full case number in the email subject line.

Phone:

404-893-0101
Please have the full case number ready for the OFLC helpdesk staff.

  

3. Will OFLC permit requests for extensions to deadlines or make other reasonable accommodations for employers and/or their authorized attorneys or agents impacted by the COVID-19 pandemic?

Yes. OFLC recognizes that the COVID-19 pandemic may have a significant impact on businesses and understands that some employers and/or their authorized attorneys or agents may not be able to timely respond to requests for information and other correspondence regarding the processing of applications for prevailing wage determinations and labor certification (e.g., Requests for Information, Notices of Deficiency, Notices of Audit Examination). Accordingly, OFLC will grant extensions of time and deadlines for employers and/or their authorized attorneys or agents affected by the COVID-19 pandemic, including for delays caused by the COVID-19 pandemic and those that occurred as a result of businesses preparing to adjust their normal operations due to the COVID-19 pandemic.

Prevailing Wage, H-2A, H-2B, CW-1, and Permanent Programs:

As set forth below, OFLC will make accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for prevailing wage determinations and labor certification including requests for audit documentation, a response to a Notice of Deficiency, submissions of recruitment reports, business verification and sponsorship documentation, supervised recruitment, requests for reconsideration of a PWD, and any other request for information issued by OFLC containing due date deadlines.

For COVID-19: If the specific deadline falls within the period from March 13, 2020 through May 12, 2020, the employer’s response or submission of information or documentation will be considered timely if received by the appropriate NPC no later than May 12, 2020.

Permanent Program – Filing Date Extensions:

Under 20 CFR 656.17(e), employers are required to begin their recruitment efforts no more than 180 days before filing an Application for Permanent Labor Certification (Form ETA- 9089), and to complete most recruitment measures at least 30 days before filing. Due to service disruptions and other business operations temporarily affected by the COVID-19 pandemic, some employers may be prevented from completing these requirements within the 180-day time frame. Therefore, OFLC will accept recruitment completed within 60 days after the regulatory deadlines have passed to provide employers with sufficient time to complete the mandatory recruitment and file their PERM application; provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.

Important Note: Employers who have already completed the recruitment steps during the required 180-day timeframe should continue to file their application(s) under existing regulatory requirements.

For COVID-19: Delayed recruitment conducted in conjunction with the filing of an application for permanent labor certification must have started on or after September 15, 2019, and the filing must occur by May 12, 2020.

Administrative Review or Appeals:

Requests for extensions of time related to appeals of OFLC actions should be directed to the presiding administrative or judicial authority, including the Department’s Office of Administrative Law Judges (OALJ) for appeals of agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification. For more information concerning OALJ operations, please visit www.oalj.dol.gov/.

     

4. I am an employer with an approved Labor Condition Application (LCA). Due to the impact of the COVID-19 pandemic, I may need to move workers on an H-1B, H-1B1, and/or E-3 visa to worksite locations unintended at the time I submitted the LCA for processing by OFLC. Do I need to file a new LCA if the worksites are located in the same area of intended employment? If not, what are my notice obligations for moving the workers to the new worksite locations?

If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA. Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS.

Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E- 3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, 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.

Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions. As required for all short-term placements, the employer’s placement must meet the requirements of 20 CFR 655.735. The short-term placement provisions only apply to H-1B workers.

5. I intend to file a Labor Condition Application (LCA) for the H-1B, H-1B1, or E-3 program and I cannot provide a hard-copy notice of the LCA filing due to the COVID- 19 pandemic. How do I provide notice of the LCA filing?

On or within 30 days before the date of an LCA filing, employers must provide notice of the LCA filing to its employees in the occupational classification in the area(s) of intended employment. Where a bargaining representative exists, the employer must provide notice of the LCA filing to the bargaining representative.

In the absence of a bargaining representative, the employer may provide hard-copy or electronic notice to its employees which must be available to employees for a total of 10 calendar days. The hard-copy notice must be posted in two conspicuous locations at each worksite (or place of employment). During this pandemic, and in general, employers should also be aware that the regulations allow employers to provide electronic notice of an LCA filing. For electronic notice, employers may use any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once and does not have to be provided for 10 calendar days.

The notice must be readily available to the affected employees. The notice must also contain the required content and comply with the notice provisions of 20 CFR 655.734. The employer must document and retain evidence of the notice that it provided in its public access file in accordance with 20 CFR 655.760. Further, the employer must provide a copy of the certified LCA to the H-1B, H-1B1, or E-3 worker(s) no later than the date the nonimmigrant worker reports to work at the worksite location.

6. I am an employer seeking to submit an Application for Permanent Employment Certification (Form ETA-9089). Due to the impact of the COVID-19 pandemic, I may need to temporarily close my offices or shift business operations to partial or full-time telework. How will my decision affect the requirement to post the Notice of Filing (NOF) under the Department’s regulations?

Under 20 CFR 656.10(d), the NOF must be posted for at least 10 consecutive business days and completed at least 30 days before the date on which the employer submits the Form ETA-9089. While the NOF is not part of the required recruitment activities, in 20 CFR 656.10(d)(3)(iv), it must be posted during the same period of time as the employer conducts its recruitment efforts; that is between 180 days and 30 days before filing the Form ETA- 9089. Accordingly, similar to the accommodations for recruitment activities due to the COVID-19 pandemic, OFLC will also accept NOFs posted within 60 days after the deadlines have passed in order to provide sufficient time for employers to file their applications, provided that the employer initiated its recruitment within the 180 days preceding the President’s emergency declaration on March 13, 2020.

7. Due to the impact of the COVID-19 pandemic, I no longer have a business need for the workers employed under the temporary labor certification I received. What do I do?

Employers who received temporary labor certification under the H-2A, H-2B, or CW-1 visa programs may request approval from the OFLC Chicago NPC Certifying Officer to terminate work under the job order and/or work contracts before the end date of work due to the impact of the COVID-19 pandemic. An employer may submit a request for “contract impossibility” to the Chicago NPC Certifying Officer using the following method:

Email: 

TLC.Chicago@dol.gov
Include the phrase “COVID-19” followed by the full case number in the email subject line.

Important Reminders:

  • An employer continues to be responsible for its obligations under the work contract

    until receiving a favorable “contract impossibility” determination from the Certifying

    Officer.

  • In the event that the Certifying Officer makes a finding of contract impossibility, the

    employer should document its efforts to comply with each aspect of the contract impossibility provision under the regulatory requirements applicable to the H-2A (20 CFR 655.122(o)), H-2B (20 CFR 655.20(g)), or CW-1 (20 CFR 655.423(g)) visa programs.

8. Due to the impact of the COVID-19 pandemic, my business has a critical need for H-2A workers to perform agricultural labor or services. However, I do not have sufficient time to prepare all required documentation in order to file a completed job order with the State Workforce Agency and H-2A application with OFLC within the regulatory filing timeframes. Can I file an emergency H-2A application with OFLC?

Yes. Under 20 CFR 655.134, the OFLC Certifying Officer may waive the time period for filing for employers who did not make use of temporary alien agricultural workers during the prior year's agricultural season or for any employer that has other good and substantial cause, provided that the Certifying Officer has sufficient time to test the domestic labor market on an expedited basis to make the determinations required by 20 CFR 655.100. Good and substantial cause may include the substantial loss of U.S. workers due to weather-related activities or other reasons, unforeseen events affecting the work activities to be performed, pandemic health issues, or similar conditions. Therefore, for employers whose business operations are impacted by the COVID-19 pandemic, OFLC considers this situation to qualify as good and substantial cause and, if these employers are unable to meet the regulatory filing timeframes, they should request a waiver of the regulatory filing timeframe for this reason under 20 CFR 655.134.

       

An employer that requests a waiver of the regulatory filing timeframe must submit a statement describing the good and substantial cause necessitating the waiver request, a completed Application for Temporary Employment Certification (Form ETA-9142A and appendices), a completed H-2A Agricultural Clearance Order (Form ETA-790/790A and addendums), and all applicable documentation meeting the requirements of 20 CFR 655.130-133. See 20 CFR 655.134(b). To ensure delivery of the highest quality customer service, OFLC strongly encourages all employers and their authorized attorneys or agents to electronically prepare and file emergency H-2A job orders and applications using the OFLC FLAG system.

9. Due to the impact of the COVID-19 pandemic, the Department of State recently announced that, effective March 18, 2020, the U.S. Embassy in Mexico City and all U.S. consulates in Mexico will cancel routine immigrant and nonimmigrant visa services. How does this announcement impact the processing of employer applications for H-2A and H-2B workers by the Department of Labor?

The Department understands the concern and remains committed to working with the U.S. Departments of Homeland Security (DHS) and State (DOS) to ensure the H-2A and H-2B programs function effectively during this challenging time. The Department’s Office of Foreign Labor Certification (OFLC) and its electronic application filing and processing system (Foreign Labor Application Gateway) remain open and continue to operate to support the processing of employer applications for temporary labor certification.

Although the Department does not have a role in the admission or issuance of visas to foreign workers, we maintain an open line of communication with our DHS and DOS colleagues to closely monitor this situation. To obtain current information on the status of U.S. Consulates and visa processing times in Mexico, please visit the website for DOS’s Mission Mexico at https://mx.usembassy.gov/.

 

DHS Announces Flexibility in Requirements Related to Form I-9 Compliance

 

March 20, 2020

Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA). Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I- 9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”

Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

Going forward DHS will continue to monitor the ongoing National Emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

US-Canada Joint Initiative: Temporary Restriction of Travelers Crossing the US-Canada Land Border for Non-Essential Purposes

 

March 20, 2020

The US-Canada land border serves as an economic engine that supports over $1.7 billion (USD) dollars in trade. As a result of the COVID-19 pandemic, the United States and Canada are temporarily restricting all non-essential travel across its borders. In each of our countries, we are encouraging people to exercise caution by avoiding unnecessary contact with others. This collaborative and reciprocal measure is an extension of that prudent approach.

“Non-essential” travel includes travel that is considered tourism or recreational in nature.

The United States and Canada recognize it is critical we preserve supply chains between both countries. These supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border. Supply chains, including trucking, will not be impacted by this new measure. Americans and Canadians also cross the land border every day to do essential work or for other urgent or essential reasons, and that travel will not be impacted.

This decision will be implemented on March 21, 2020, at which time the US and Canada will temporarily restrict all non-essential travel across the US-Canada land border. The measure will be in place for 30 days, at which point it will be reviewed by both parties.

 

USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency

 

March 20, 2020

U.S. Citizenship and Immigration Services today announced that, due to the ongoing COVID-19 National Emergency announced by President Trump on March 13, 2020, we will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.

USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.[1] For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also 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.

[1] See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].

USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus Pandemic

 

March 20, 2020

 

U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.

USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.

This temporary suspension includes petitions filed for the following categories:

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.

  • I-140: EB-1, EB-2 and EB-3.

This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.

For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.

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