October 26, 2020

Volume X, Number 300


October 23, 2020

Subscribe to Latest Legal News and Analysis

June 2020 Immigration Alert

USCIS Resumes Premium Processing

USCIS has announced here that beginning the month of June 2020, it will again start accepting certain petitions for premium processing.  Premium processing was indefinitely suspended as of March 20, 2020, due to the Covid-19.

Premium processing allows (1) nonimmigrant petitions filed on Form I-129 that are reserved for H-1B, L-1A/B, O-1, and TN work authorization and (2) immigrant petitions filed by employers on behalf of foreign national employees on Form I-140 to be adjudicated within fifteen calendar days of USCIS receipt of the premium processing application request.  The application is filed on Form I-907 and requires payment of the $1,440 USCIS filing fee.

According to USCIS’s announcement, premium processing will resume in stages, as follows.

  • Beginning June 1, 2020, I-140 petitions already filed or about-to-be-filed;

  • Beginning June 8, 2020, nonimmigrant petitions filed before June 8, 2020, sponsoring either (1) H-1B workers not subject to this year’s cap or (2) all other nonimmigrant petitions such as L-1A/B, O-1 and TN;

  • Beginning June 15, 2020, H-1B nonimmigrant petitions filed by employers that are cap-exempt because the employer is or is connected to an institution of higher education, a nonprofit research organization, or a governmental research organization and employee’s being hired under Conrad/IGA waiver; and

  • Beginning, June 22, 2020, all other nonimmigrant petitions that were eligible for premium processing before March 20, 2020, including all H-1B petitions filed for or are ready to be filed for this year’s H-1B cap.

Please note the above is subject to change.  Should there be a change, we will advise with an update.

Trump Administration Adds Brazil to List of Countries Temporarily Banned into the US

As of 11:59 pm (ET) on May 28, 2020, President Trump’s recent May 24, 2020, Executive Order will be implemented as announced here. The proclamation bars the entry of any foreign national who was present in Brazil within 14 days of entering (or attempting to enter) the U.S. as of May 28, 2020.  Brazil has been added to the list of other travel-restricted countries that have been highly affected by the COVID-19 epidemic, including China, Iran, and many of the European countries.  Any non-US citizen or non-US permanent resident employee traveling from these countries will not be able to reenter the US should they have traveled to those countries within 14 days of attempting to reenter the US.

USCIS Plans to Reopen Local Offices Beginning in June 2020

In March 2020, the USCIS closed all their local offices because of mandatory shelter-in-place restrictions that had been ordered across the country. The closures have substantially impacted many pending matters that these local offices manage, including interviews for US naturalization and permanent residency, biometric appointments, asylum interviews, and special walk-in appointments for emergency requests.  On June 4, 2020, however, the USCIS will begin a gradual reopening of these offices.  USCIS will start sending new appointment notices for those that were canceled due to COVID-19.  Persons who will require a visit to a local USCIS office on or after June 4, 2020, should use the following link to make an Infopass appointment:  https://www.uscis.gov/contactcenter.

Homeland Security Extends Special Flexibility for Verifying Form I-9s

On March 20, 2020, we posted a Special Immigration Alert about the Department of Homeland Security (“DHS”) allowing special flexibility to verify Form I-9 documents without viewing the actual original documents, by following specific requirements.  On May 20, 2020, DHS extended this special flexibility for an additional thirty days, to June 19, 2020.  Unless extended again, beginning June 20, 2020, employer I-9 verification for new hires will revert to the pre-COVID-19 requirement to review original documents. We will advise if this special flexibility is again extended.

Homeland Security Will Temporarily Allow Certain Expired List B Documents to Be Used in Verifying the Form I-9

As of May 1, 2020, DHS began, temporarily, to allow List B identity documents specified on the Form I-9, expiring on or after March 1, 2020, to be treated the same as if the employee had presented a valid receipt for the extension of that document.  Accordingly, DHS will deem such documents acceptable for List B I-9 verification purposes, for the time being.  Within 90 days after DHS’ termination of this temporary allowance, however, the employee will be required to present a valid unexpired document to replace the expired document, which the employee presented when initially hired.

DHS has authorized this temporary exception because many COVID-19 closure and shelter-in-place orders are preventing states from issuing driver’s licenses, ID cards, or other Form I-9 List B identity documents.  If faced with an employee providing an expired List B identity document, the employer should enter the document information in Section 2 of the Form I-9 under List B and enter “COVID-19” in the Additional Information Field.

When the employee later presents an unexpired replacement document issued by the appropriate state authority, the employer should enter the document’s expiration date in Section 2 of the Form I-9 and add “COVID-19 EXT” in the Additional Information FieldLearn more here.

ICE Provides Guidance Regarding STEM OPT F-1 Employees Working Remotely

On May 21, 2020, ICE issued an updated FAQ announcing that students in both OPT and STEM OPT may work remotely if their employer has an office outside of the United States or the employer can assess student engagement using electronic means.  ICE further stated that STEM OPT F-1 graduates are not required to submit an updated Form I-983 to report this remote work relationship.  Additionally, the FAQ also allows part-time OPT employment that is less than 20 hours a week for maintaining F-1 OPT status during the COVID-19 emergency.

The same FAQ asked whether OPT or STEM OPT can be applied during the period the F-1 graduate is outside the US, or whether the 90-day rule for OPT and the 150-day rule for STEM OPT unemployment that terminates F-1 status will be suspended due to COVID-19.  ICE stated that it is reviewing this situation.  Accordingly, for now, all applicants should file their OPT and STEM OPT applications while physically in the US, and the 90/150 day rules still apply.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 154



About this Author

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

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 employees in the event that they want them to stay beyond the time limitations of their temporary visa classifications

Advises clients in immigration and employment visa matters involving various government departments and agencies, including the Department of Homeland Security, U.S. Citizenship and Immigration Services, the Department of Labor, and the U.S. Department of State

Assists clients with international business matters related to such laws as the European Safe Harbor Privacy mandates and foreign environmental statutes, including WEEE and RoHS

Advises clients about IRCA's employer sanctions, record-keeping (Form I-9's) and anti-discrimination provisions, and issue Special Immigration Alerts on a regular basis to keep them aware of current developments in the immigration area.