President Trump tweeted late Monday that he will sign an executive order temporarily suspending immigration to the United States. His announcement cited the coronavirus pandemic, as well as the millions who have become unemployed in recent weeks.  There are significant questions that are yet to be answered around this announcement: exactly when and how this will be implemented, who it will cover, and how long it will be in effect.  It does seem to indicate that the President plans to extend immigration restrictions beyond those already in place to travelers coming from most of Europe, China, Canada, Mexico and Iran.

Graham Adair will continue to monitor the situation and provide updates here as they become available. If you have any questions, please contact your Graham Adair representative.

On April 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it had received approximately 275,000 submissions for H-1B applications in the electronic lottery that was conducted at the end of March.  They reported that 46% of applications were for individuals who hold advanced U.S. degrees. This was an increase of approximately 74,000 cases over the number that was received last year in the H-1B cap.

In total numbers, this means that beneficiaries had less than a 31% chance of selection. Cases filed under the advanced U.S. degree cap had a higher chance, although we don’t know the total number of these applicants so we cannot say for sure what the likelihood of success was. We estimate that the chances of selection for cases filed under the advanced U.S. degree cap was somewhere between 40% and 50%.

It seems that the lower cost threshold of $10 per registration lowered the barrier to entry enough to result in a surge of submissions.

Registrations that have not been selected will be held in reserve. Between March 31, 2020 and Oct. 1, 2020, in the event that USCIS needs to select registrations from the reserve to meet the H-1B regular cap and the advanced U.S. degree cap, it may select from registrations held in the reserve to meet such allocations.

Graham Adair will be checking unselected cases regularly until USCIS sends out rejection notices. If you have any questions, please contact your Graham Adair representative.

The Department of Homeland Security announced that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9).  As employers and employees observe social distancing precautions, employers can now inspect Section 2 documents remotely via video link, fax or email, etc.  However, please note the following important steps:

• Employers must view Section 2 documents, even if remotely, within 3 business days of hire date;
• Documents submitted via email/fax/etc. must be retained;
• Once physical examination is conducted:
  • Employers should enter “COVID-19” in the “Additional Information” box on Section 2;
  • Employers should add “Documents physical examined [INSERT DATE]” in the “Additional Information” field on Section 2.
  • The explanation for the delay should also be added on a memo attached to the employee’s I-9 file.
  • Once normal operations resume, employees must present the original documents used during remote verification within 3 business days.  Employers should add the date in which in-person verification took place in the “Additional Information” field on Section 2.

Employers may implement the above provisions for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.

The above rules only apply to employers and workplaces that are operating remotely.  If employees are physically present at a work location, normal I-9 verification rules apply.

If you have any questions regarding I-9 compliance, please contact your Graham Adair representative.

For petitions filed on March 21, 2020 and beyond, USCIS will begin accepting reproduced original signatures on forms and documents, including Form I-129. A document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. USCIS will not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device. The signatory must have authority to sign on behalf of the petitioning entity.

Petitioners or applicants who submit an electronically reproduced original signature must keep copies of the original documents containing the “wet” signature. At their discretion, USCIS may request the original documents at any time. Failure to produce the original document can negatively impact the application.

If you have any questions, please contact your Graham Adair representative.

Effective March 20, 2020, USCIS cited staffing concerns due to COVID-19 in announcing it will temporarily suspend premium processing for all Form I-129 and I-140 petitions until further notice. The suspension applies to 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.

Premium processing will remain suspended for all FY 2021 H-1B cap petitions.

USCIS will process any previously accepted premium processing (Form I-907) requests, but will not be able to send notices using pre-paid envelopes. Petitioners who have filed Form I-129 or Form I-140 via premium processing but have not received any agency action within the 15-calendar-day period will receive a refund.

Premium processing requests that were mailed before March 20, 2020, but accepted after this date, will be rejected. USCIS will send an announcement once premium processing is available.

If you have any questions, please contact your Graham Adair representative.

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

In fact, there is language on USCIS’s  Special Situations webpage that states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

2. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

3. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

4. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

5. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

6. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

7. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

8. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

9. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

• Create a file memo. This provides a record for future possible enforcement action.
• Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
• Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents attached to the Form I-9.
• Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
• Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
• Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

As of March 20, 2020, The Dept. of State is temporarily suspending routine visa services at U.S. embassies and consulates worldwide due to the COVID-19 pandemic.  All visa appointments are cancelled as of this date.  Paid Machine Readable Visa (MRV) fees will remain valid within one year of the date of payment, so those who have already paid MRV application fees will still be able to use them for a future appointment.

Embassies and consulates will provide urgent and emergency visa services, and services to U.S. citizens, as resources allow.  Emergency visa appointments can still be made. Each embassy has its own rules for requesting emergency visa appointments, so check the website for the embassy where you plan to apply. Requests based on business emergency generally need to be supported by a company letter attesting to the loss of a significant business opportunity.

The ESTA website (Visa Waiver Program) will remain active, but suspension of entry remains in place for travelers from countries listed in the Proclamation* as of March 16, 2020.

*Proclamation-Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus, as of March 16, 2020 covers the following countries: China, Iran, 26 countries in the Schengen Area, United Kingdom and Ireland.

If you have any questions, please contact your Graham Adair representative.

Today, USCIS announced the closing of all field offices. As of yesterday, only field offices in the Bay Area were impacted. However, USCIS has expanded closures to include all field offices. It should be noted that USCIS regional centers currently remain open and will continue processing petitions for the time being.

The closure of field offices impacts Naturalization ceremonies, Adjustment of Status interviews, pushing back approvals of Lawful Permanent Residence and the issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

When normal operations resume, USCIS will affirmatively reschedule biometrics appointments. A new appointment letter will be sent by mail. Individuals who had InfoPass or other appointments must reschedule

As for the H-1B Cap, as long as Regional Centers remain open, USCIS should accept filings starting April 1st, although as we reported yesterday, USCIS has suspended premium processing on H-1B Cap filings.

This is a very fluid situation, so we will continue providing updates as they become available.

To receive the latest updates on this issue, please follow us on Twitter (@GrahamAdairLaw).

• First phase: No later than May 27, 2020, cap-subject petitions including those eligible for the advanced degree exemption, requesting a change of status from F-1 status, will be eligible to upgrade to Premium Processing.

• Second phase: No earlier than June 29, 2020, Premium Processing will resume for all other cap-subject petitions. USCIS will announce the exact date for resuming Premium Processing at a later time.

Due to the current situation with COVID 19 and the Bay Area’s mandatory shelter in place, local USCIS Field Offices have made adjustments that will impact immigration benefits. Specifically, Adjustment of Status interviews will be impacted, pushing back approvals of Lawful Permanent Residence and issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

Local USCIS Field Offices in the Bay Area are taking the following actions:

San Francisco: Cancelling interviews from 3/17 to 4/6. Officers will be attempting to contact all scheduled interviewees and attorneys to advise interviews will be rescheduled.

The Appointment Services Center will be closed as of 3/17. USCIS will automatically reschedule Biometric appointments due to the office closure via mail. If a client had an InfoPass appointment they can reschedule by contacting USCIS Contact Center.

Requests for Evidence that are due during the closure for the San Francisco Field Offices will have a one-month extension.

San Jose: Cancelling interviews from 3/17 to 4/7. Clerks are calling applicants to advise they will be rescheduled. Rescheduled interviews are likely to be in late May or June.

The Appointment Services Center will be closed as of 3/17. USCIS will automatically reschedule Biometric appointments due to the office closure via mail. If a client had an InfoPass appointment they can reschedule by contacting USCIS Contact Center.

Requests for Evidence that are due during the closure for the San Jose Field Offices will have a one-month extension.

Sacramento: Cancelled Naturalization Oath Ceremony scheduled on 3/24 at the McClellan Conference Center. They will mail information regarding the rescheduled ceremony

Fresno: Remains open and continues to interview applicants. They are allowing applicants to reschedule without needing to provide documentation for the reason for rescheduling. To postpone an interview in Fresno requests that we please contact the 800 number (800-375-5238) and/or mail a letter requesting rescheduling to the Fresno Field Office at USCIS Fresno Field Office, 744 P Street, Suite 120, Fresno, CA  93721.

San Francisco Asylum Office: Closed to the public as of 3/17. Interviews will be rescheduled at a later date.

Santa Rosa Appointment Services Center: Closed as of 3/17

Oakland Appointment Services Center: Closed as of 3/17

Salinas Appointment Services Center: Closed as of 3/17

Graham Adair continues to closely monitor this ongoing situation and will provide updates as they become available. Please contact us with any questions or concerns.