November 29, 2020

Volume X, Number 334

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August 2020 Immigration Alert

USCIS Will Increase Filing Fees as of October 2, 2020

On July 31, 2020, the U.S. Citizenship and Immigration Service (“USCIS”) announced it will increase filing fees effective October 2, 2020. The fee increases will impact U.S. employers that hire foreign national workers by adding to the cost of sponsoring employment. The increases most applicable to U.S. employers are:

  • H-1B sponsorship: Fee raised an additional $95.

  • L-1 sponsorship: Fee raised an additional $345.

  • O-1 sponsorship: Fee raised an additional $245.

  • TN, H-1B1, and E-3 sponsorship: Fee raised an additional $235.

  • EAD application: Fee raised an additional $140.

State Department Provides Further Guidance Regarding Exceptions to the June 24, 2020, Presidential Proclamation Suspending New H-1B, H-2B, J-1, and L-1 Visa Issuance

Last month, our office detailed President Trump’s Proclamation suspending visa issuance to all new H-1B, H-2B, J-1, and L-1 visa applicants, including their family derivatives. That same proclamation provided several exceptions where these visas can still be issued by U.S. Embassies and Consulates if they meet the requirements under these exceptions.

On July 30, 2020, the State Department published further guidance regarding the “national interests” category exception. In the original Proclamation on June 24, 2020, the following were identified as what entails a “national interest” exception:

  1. Critical to defense, law enforcement, or diplomacy.

  2. Involved with the provision of medical care to individuals who have contracted COVID-19 and are hospitalized.

  3. Involved with the provision of medical research at U.S. facilities to help combat COVID-19.

  4. Necessary to facilitate the economic recovery of the U.S.

The following summarizes the details in the State Department’s guidance elaborating on its “national interest” exception, as well as the additional information it has provided about the other exceptions to the June 24, 2020, Proclamation:

  • H-1B Exceptions

    • COVID-19 Healthcare Provider or Researcher:  Any health care professional or researcher that will alleviate the effects of the COVID-19 pandemic or will conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research).

    • Positions Supporting U.S. Government Agencies:  Any U.S. government agency or entity requiring the H-1B applicant to support its objectives or satisfy a treaty or contractual obligations. This includes H-1B applicants performing research, providing IT support/services, or engaging in other similar projects essential to a U.S. government agency.

    • Was Physically in the U.S. Under H-1B Status:  Any H-1B employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new H-1B visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.

  • H-2B Exceptions

    • Positions Supporting U.S. Government Agencies:  Same requirements as the H-1B exception above under the same title.

    • Was Physically in the U.S. Under H-2B Status:  Any H-2B employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new H-2B visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.

  • J-1 Exceptions

    • Travel by an au pair to provide care for a minor U.S. citizen, permanent resident (i.e. green card holder), or nonimmigrant in lawful status that has particular need (e.g., medical, special education, or sign language).

    • Travel by an au pair that prevents a U.S. citizen, permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state.

    • Childcare services provided for a child whose parents are involved with COVID-19 medical care or research.

    • An exchange program conducted pursuant to a valid agreement between a foreign government and any U.S. federal, state, or local government entity that promotes U.S. national interests, provided the agreement was in effect on or prior to June 24, 2020.

    • Interns and trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on the Form DS-2019).

    • Specialized teachers in accredited educational Institutions with a program number beginning with “G-5” on Form DS-2019.

    • Programs that fulfill critical and time-sensitive foreign policy objectives.

  • L-1 Exceptions

    • COVID-19 Healthcare Provider or Researcher:  Same requirements as the H-1B exception above under the same title.

    • Was Physically in the U.S. Under L-1 Status:            Any L-1 employee physically in the U.S. on June 24, 2020, and then leaves the U.S. thereafter is allowed to apply for and be issued a new L-1 visa at any U.S. Embassy/Consulate that has jurisdiction over their visa application.

  • Family Derivative Exceptions of the Above Visas

    • If a family member spouse or minor child of an H-1B, H-2B, J-1, or L-1 was outside the U.S. or did not have a family derivative visa (i.e., H-4, L-2, or J-2 visa) on the June 24, 2020, Proclamation date—but the main principal H-1B, H-2B, J-1, or L-1  spouse/parent was either in the U.S. under that status or has a valid visa under that status on the June 24, 2020, Proclamation date—then the family derivative beneficiaries are not barred and can apply for their H-4, L-2, or J-2 visas at any U.S. Consulate or Embassy that has jurisdiction over their application. Also, if the main principal falls under any of the above exceptions for H-1B, H-2B, J-1, or L-1, then the spouse and/or minor children all will also fall under those exceptions.

  • H-1B1 and Canadian Exceptions

    • The June 24, 2020, Proclamation does not apply to H-1B1 visa applications for Chile and Singapore nationals.

    • Canadians are visa exempt. Therefore they are not subject to the Proclamation.

Please note the above exceptions are still subject to U.S. Consulate/Embassy closure due to COVID-19. If the any of the above exceptions qualify any H-1B, H-2B, J-1, or L-1 or their family derivative(s) for visa issuance but the U.S. Consulate/Embassy remains closed, then such principal and family members must await opening of that U.S. Consulate/Embassy’s visa operation section before applying for such visa.

Homeland Security and the U.S. Department of Labor Enter into Agreement to Police Employment Sponsorship of Foreign Nationals, While President Trump Signs an Executive Order to Monitor Federal Contracts Using Foreign National Workers

On July 31, 2020, both the U.S. Department of Homeland Security (“DHS”) through its U.S. Citizenship and Immigration Services Agency and the U.S. Department of Labor (“DOL”) entered into a Memorandum of Agreement (“MOA”) where both offices agreed to provide each other with access and shared information pertaining to employment-based immigrant and nonimmigrant petitions. Specifically, the MOA is to review records and data contained within the DOL’s OFLC agency that processes both PERM labor certifications under Form ETA-9089 and labor condition applications (“LCA”) under Form ETA-9035.  The MOA also establishes procedures for how USCIS can refer suspected employer violators to the DOL regarding H-1B sponsorship violations. Based on this announcement, it is even more important to ensure that all H-1B employers are paying their H-1B employees their required wage and are keeping their LCA public access files up-to-date.

In addition, President Trump signed Executive Order 13940, published under 85 FR 47879 on August 6, 2020, directing both the DOL and DHS to review federal contracts to assess any negative impact on U.S. workers of contractors’ use of foreign national workers or offshoring of work. If a negative impact does exist, then the Executive Order allows both departments to recommend appropriate corrective action. Further, the Executive Order requires both the DOL and DHS to take action, within 45 days, “to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites).” This includes assuring all H-1B employers are adhering to INA section 212(n)(1), which concerns LCA wage and posting requirements.

U.S. Embassies and Consulates May Gradually Reopen Visa Operations

Due to COVID-19, the U.S. State Department suspended most, if not all, visa operations as of March 20, 2020. However, on July 11, 2020, the Department of State via Twitter announced it may begin to resume visa operations in phases, depending on local conditions at U.S. Embassies and Consulates, starting July 15, 2020.

There is no centralized repository of information regarding the status of visa operations in U.S. Embassies or Consulates.  Therefore, anyone looking to apply for visas should monitor the local U.S. Embassy and Consulate’s website at usembassy.gov for updates regarding visa applications. Some U.S. Embassies and Consulates have already begun posting relevant guidance.

Visa applicants who are otherwise eligible to request an exception from the June 24, 2020, Presidential Proclamation suspending visa applications may explore making an online or e-mail request for exception directly with the local U.S. Embassy or Consulate.

The 14-Day Travel Ban from COVID-19 Hotspot Countries Remains in Effect

As of the date of this alert, the Presidential Orders banning travel to the U.S. for foreign nationals who are not U.S. Citizens or Lawful Permanent Residents of the U.S. remains in effect. The Presidential Orders ban travel to the U.S. if a foreign national has traveled to any of the following countries within 14 days of their request to enter the U.S.: China (bar began as of January 31, 2020), Iran (bar began as of February 29, 2020), the Schengen Area (bar began as of March 11, 2020), Ireland and the UK (bar began as of March 14, 2020), and Brazil (bar began as of May 24, 2020).

Travel to the U.S. remains possible if the affected foreign national quarantines in a non-travel-ban country for a minimum of 14 days before traveling to the U.S. Travelers are cautioned, however, to verify various immigration and new COVID-19 related travel requirements for the country they are traveling to.

President Trump Issues Executive Order Affecting Visa Priority Dates for Hong Kong

On July 14, 2020, President Trump issued Executive Order 13936, which removes Hong Kong from participating in the Diversity Visa Program; removes Hong Kong from the Visa Waiver Program as it applies to Guam and the Commonwealth of the Northern Mariana Islands; and moves Hong Kong into the same visa preference category as China. The visa preference category change combining Hong Kong with China is significant because Hong Kong-born nationals are now subject to the same Employment-Based first (“EB-1”), second (“EB-2”), third (“EB-3”), and fifth (“EB-5”) categories as those born in mainland China, which is a category that has historically shown to be highly subscribed and backlogged for a current visa number. Hong Kong-born foreign nationals can expect longer wait times and delays in their employment-based U.S. permanent residency applications.

District Court Issues Nationwide Injunction on Public Charge Regulations Imposed on Both USCIS and the State Department

On July 29, 2020, the U.S. District Court for the Southern District of New York issued an order temporarily enjoining USCIS from enforcing, applying, implementing, or treating as effective its Public Charge Rule for any period during which the declared national COVID-19 health emergency is in effect.

The order states that “a nationwide injunction is both necessary to redress the harms caused by the Rule and appropriate given the strong federal interest in uniformity of the national health and immigration policies at issue here.”

The same court issued a separate order stating that the motion for preliminary injunction also applies to the Department of State to halt is enforcement of the 2018 FAM Revisions to the Public Charge Rule. There, the order notes “a geographically limited injunction would be especially unworkable in a case such as this, where consular officers on foreign soil would have to determine how to apply different rules to different applicants.”

In practical terms, when filing the Form I-485 Adjustment of Status application with USCIS, the Form I-944 is not required at this time. USCIS has removed Form I-944 from its website to conform with the Court’s ruling.

DACA Upheld by the U.S. Supreme Court but DHS Will Not Follow

On June 18, 2020, the U.S. Supreme Court upheld the Deferred Action for Childhood Arrivals (“DACA”) program. In a 5-4 majority opinion issued by Chief Justice Roberts, the Court ruled that DHS’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedures Act (“APA”).  The Court found DHS failed to address the heavy reliance interests by Dreamers and their families within the DACA program, weighing the agency’s termination against the required “sound policies” for government accountability codified under the APA to provide a reasoned explanation for terminating DACA. The Court remanded the issue to DHS to “consider the problem anew.”

However, following the Supreme Court decision, the White House announced it will try to wind down legal protections under DACA and will reject all initial DACA applications while limiting the protection for those renewing their DACA applications to one year, rather than two.

The White House announcement brings uncertainty to DACA applicants. Initial DACA applications filed before the USCIS guidance is issued, if any, run the risk of (1) DHS issuing a new memorandum rescinding DACA; or (2) USCIS rejecting initial applications or accepting them only to deny them later.

While the Supreme Court’s decision is a victory for Dreamers, DACA applicants will continue to face challenges and uncertainties under the Trump Administration as further restrictions or rescission of the DACA program may be attempted in the future.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 224
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About this Author

Jang Hyuk Im, epstein becker green, labor, employment
Member

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...

415-399-6067
Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm
Member

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
973-639-5226
Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...
415-399-6026
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