ICE Extends I-9 Compliance Flexibility
On May 26, 2021, US Immigration and Customs Enforcement (“ICE”) announced that due to continued precautions related to the pandemic, the US Department of Homeland Security (“DHS”) would extend the policy of flexibility related to Form I-9 compliance that began in March 2020. The policy has been further extended from June 1, 2021, until August 31, 2021.
This extension has guidance for employees hired on or after June 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
(Link to USCIS announcement: https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/temporary-policies-related-to-covid-19)
(Link to ICE announcement: https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0)
USCIS Suspends Biometrics Requirement for Certain I-539 Applicants
In a declaration that was submitted by Acting Associate Director of Service Center Operations Connie Nolan in the Edakunni v. Mayorkas litigation (a class-action lawsuit filed by AILA and Wasden Banias to challenging H-4 and L-2 adjudication delays), USCIS stated that beginning on May 17, 2021, it would be implementing a new policy suspending the biometrics requirements for H-4, L-2, and E-1, E-2, and E-3 nonimmigrants.
This new policy applies to the previously mentioned nonimmigrant categories if their Form I-539 was pending on May 17, 2021, and they haven’t received a biometrics notice yet, and 2) to any new I-539 applications received by USCIS between May 17, 2021 and May 23, 2022. This policy will be in place for 2 years and should automatically expire after May 17, 2023, but may be extended or revoked by the USCIS Director. Applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. However, USCIS will not refund any biometrics payments already made.
(Credit to: Practice Alert: USCIS to Suspend Biometrics Requirement for Certain I-539 Applicants Beginning May 17, 2021)
US Citizens Able to Return to US on Expired Passports
US Customs and Border Protection and the US Department of State have announced that as of May 21, 2021, US citizens with expired passports may use those expired passports to return to the US through December 31, 2021.
To do this, they have to meet certain requirements: 1) the person must be a US citizen who is currently abroad and trying to return to the US; 2) their flight back to the US must be direct or with only a connecting flight through a foreign country; 3) the expired passport must have expired on or after January 1, 2020, and must have originally been valid for 10 years (unless the person was 15 years old or younger when it was issued); and finally 4) the person must have the expired and undamaged passport in their possession.
(CBP announcement link: https://www.cbp.gov/document/bulletins/travel-us-citizens-expired-passports)
(Department of State announcement link: https://www.state.gov/return-travel-on-recently-expired-u-s-passports/)
National Interest Exemption Updates
The Secretary of State has determined that the entry of the following travelers is in the national interest for purposes of exceptions to all four proclamations. The Secretary may revise these national interest determinations as circumstances warrant.
immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
fiancé(e)s of U.S. citizens and their dependents (K visas);
certain exchange visitors as detailed within this article;
students (F, M, and certain J visas) as described here. New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT);
academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
journalists (I visas);
travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains, as outlined at https://www.cisa.gov/critical-infrastructure-sectors;
travelers providing vital support or executive direction for significant economic activity in the United States
pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance;
those whose purpose of travel falls within one of these categories:
lifesaving medical treatment for the principal applicant and accompanying close family members;
public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research);
humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member;
medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States;
national security; and
derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.
The Department of State recommends that any individuals who are present in the 33 affected countries who do not fall under any of the categories currently listed check the website of the closest US embassy or consulate to find instructions on how to apply for an individual NIE.
Please consult your embassy for specific information and procedures if you need to apply for an NIE.
If you are in need of travel to the U.S. from one of the countries listed above and have additional questions about your immigration options, please contact Iandoli, Desai, and Cronin P.C. (info@iandoli.com) to schedule a consultation.
Travel Bans Updates
There are now four presidential proclamations suspending entry into the US of noncitizens who were physically present in any of the 33 countries listed in the proclamations during the 14-day period immediately preceding their entry into the US.
They are:
Presidential Proclamation 9984 (China);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/
Presidential Proclamation 9992 (Iran);
Link to proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus/
Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil, and South Africa);
and, most recently added;
Presidential Proclamation 10199 (India);
The exceptions to these proclamations, notably include (but are not limited to):
US citizens;
Lawful permanent residents;
Spouses and children of US citizens or lawful permanent residents;
Parents or legal guardians of a US citizen or lawful permanent resident unmarried minor child;
Siblings of a US citizen or lawful permanent resident child (as long as both are unmarried and under the age of 21);
Travelers for the purpose of the containment or mitigation of COVID-19; and
Those whose entry would be in the national interest.
IDC News
Iandoli, Desai and Cronin, P.C. is pleased to announce the addition of three new associate attorneys at our firm: Erin C. Murphy, Meghan Parker-Johnson, and Marissa A. Rosenberg. Attorneys Murphy, Parker-Johnson and Rosenberg join us with significant experience in the field. We welcome them to our firm.
Visa Bulletin Updates
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For May 2021, USCIS has indicated that for Employment-Based immigration, the “Final Action” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].
In May, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in April.
The EB-2 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The Visa Bulletin for June 2021 has not yet been released.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
New I-90 Receipt Notices Can Serve as Evidence of Status and Work Authorization
U.S. Citizenship and Immigration Services (USCIS) has replaced the sticker that was currently issued to lawful permanent residents to extend the validity of their Form I-551, Permanent Resident Card (“Green Card”). The revised Form I-797 notice will serve as a receipt notice for the Form I-90. The notice will serve as evidence of identity and employment authorization when presented with an expired green card.
DOL Announces Additional Proposed Delay in Effective Date of Final Rule Affecting Wages for H-1B and PERM Workers
The Department of Labor announced a delay to the effective date of the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, for a period of eighteen months or until November 14, 2022. The DOL has also proposed corresponding delays to the rule’s transition dates. Under the law, an employer must pay an H-1B worker the actual wage or the prevailing wage, whichever is higher. The new rule will change how the DOL applies its four-level wage approach to prevailing wage determinations, resulting in considerably higher wage requirements for H-1B workers and PERM applicants.
AILA submitted a comment to the DOL on April 20, 2021, stating “Prevailing wages should not reflect political priorities or desires. Congress's role is to make or modify laws affecting the country’s approach to immigration preferences, not that of the federal agencies…The Wage Rule continues to be based upon the flawed presumption that the amount a worker is paid, and that element alone, determines the value that worker brings to the United States. To this end, the Wage Rule attempts to increase required wages for foreign national workers well above what science shows the market indicates, thus changing the prevailing wage calculation from a mathematical one to a political one.”
F-1 Students Seeking Optional Practical Training Can Now File Form I-765 Online
USCIS announced on April 12, 2021 that F-1 students seeking optional practical training (OPT) can file Form I-765, Application for Employment Authorization, online if they are filing under the following categories:
(c)(3)(A) Pre-Completion OPT
(c)(3)(B) Post-Completion OPT
(c)(3)(C) 24-Month STEM Extension
Online filing of Form I-765 is restricted solely to F-1 students filing Form I-765 for OPT. Any Form I-765 application that is filed for an ineligible employment category will be denied and the fee retained. Online filing allows students to check the status of their case and receive notices from USCIS online as opposed to waiting for a notice to arrive in the mail. Students must first crate a USCIS online account at myaccount.uscis.gov. The online version of Form I-765 can be found on the USCIS Forms Available to File Online page.
International students are encouraged to check with their international offices regarding the filing of their OPT applications.