- USCIS to Defer to Prior Determinations of Eligibility in Requests for Petition Extensions
- All Immigrants are Eligible for COVID-19 Vaccines in the United States
- H, L and J Visa Processing Resumes; Presidential Proclamation 10052 Expires
- COVID and Telecommuting Implications on Immigration Compliance
- DOS Provides Information on National Interest Exceptions for Regional COVID Proclamations
- President Biden Keeps Refugee Numbers at Record Lows Due to Political Pressure
- USCIS Announces Flexibilities for Certain F-1 Applicants Filing for OPT
- Certain Regulatory Requirements Suspended for Syrian and Venezuelan F-1 Students
- News in Brief
USCIS to Defer to Prior Determinations of Eligibility in Requests for Petition Extensions
For more than a dozen years, USCIS directed its officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as an initial petition or application. The deference policy was most often exercised in the context of extensions of Form I-129 work-related visa petitions. In practice, this meant that if the facts and circumstances of the individual’s work remained the same, the extension would be approved, thus providing employers and their foreign national personnel with predictability in the workplace. However, in 2017, USCIS rescinded this practice, and directed officers “to not be constrained by any prior petition approval” or “constrained in requesting additional documentation in the course of adjudicating a petition extension” because, it noted, “the deference policy may, in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case” and “ likely had the unintended consequence of officers not discovering material errors in prior adjudications.” Basically, USCIS was trying to find new ways to deny cases.
Not anymore. USCIS is reverting in substance to its prior long-standing policy of deference consistent with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. Theis executive order directs the Secretary of Homeland Security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits.
All Immigrants are Eligible for COVID-19 Vaccines in the United States
On April 19, 2021, all adult persons in the United States are eligible for COVID-19 vaccines, regardless of nationality or immigration status, including undocumented immigrants. The vaccines are free for all recipients, even those who do not have medical insurance. Each of the available vaccines for distribution in the United States have been proven to be safe and highly effective.
The CDC and U.S. Department of Health and Human Services have assured that personal data gathered from vaccine appointments will not be used for civil or criminal prosecution, including immigration enforcement. Indeed, the CDC guidelines prohibit vaccination workers from even inquiring about immigration status or turning away persons who cannot produce specific identification documents.
Undocumented persons need not fear being placed into removal proceedings for receiving a vaccine. The Department of Homeland Security has encouraged equal access to the vaccine to undocumented persons and indicated that there will not be enforcement operations conducted at or near vaccination sites and clinics, consistent with the “sensitive locations” policy.
H, L, and J Visa Processing Resumes; Presidential Proclamation 10052 Expires
Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J, and L nonimmigrants, expired on March 31, 2021. Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance. Visa applicants who were previously refused visas due to the restrictions of this proclamation may reapply by submitting a new application including a new fee.
COVID and Telecommuting Implications on Immigration Compliance
COVID-19 has led to a shift by employers toward more permissive telecommuting policies. Given that certain regulations in both the H-1B and PERM contexts are location-specific, compliance is not always apparent. For F-1 foreign students, issues have arisen due to online and in-person study.
Telecommuting in the H-1B Context
All H-1B petitions require an employer to file an LCA with DOL. As stated in the regulations, one of the fundamental requirements of the LCA is that the employer provides notice to employees “in the occupational classification in which H-1B nonimmigrants will be employed or are intended to be employed in the area of intended employment.”
The “area of intended employment” is defined as: the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance that constitutes a normal commuting distance or normal commuting area because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment.
In determining whether an employer needs to prepare and file a new LCA and thus file an H-1B amendment, the question is whether exercising the telecommuting option takes the employee outside of the “area of intended employment.”
If the new work location, i.e., the telecommuting location, is still within the same area of intended employment, then an employer does not need to file a new LCA. Nonetheless, notice must still be provided at the particular worksite. In addition, it is good practice to maintain evidence of why this worksite meets the regulatory requirements of the “area of intended employment.” As an alternative to posting a physical notice, employers have the option of electronic notification, which would avoid the need to have to repost notice of the LCA. If the employee is working from home for a very short duration, the short-term placement rule offers an alternative option if the worksite falls outside of the area of intended employment listed on the LCA.
If an employer finds that the new work location does not fall within the regulatory definition of “area of intended employment,” and the short-term placement rule does not apply, then the employer will need to file a new LCA covering the new location and also file an amendment to the H-1B petition.
If the employee is currently working from home, but the employer anticipates having the employee physically return to the office once the pandemic is over, an employer would be well-advised to include all of the possible places of employment when filing the LCA. For each place of employment, the employer must consider and comply with the notice requirement, required wage evaluation, and any other required WHD steps that dependent and nonexempt employers must perform based on the geographic area in which the home office and any anticipated places of employment are located.
Telecommuting in the PERM Context
In the PERM context, the guidance is less clear. Because labor certification employment is prospective, if telecommuting is available only temporarily, one need not consider it for PERM purposes. If the future is unknown, the employer must decide whether telecommuting should be considered.
When it comes to the PERM process, employer should anticipate and permit telecommuting as they might for cases in which worksites are unanticipated and that must be clearly stated in the PERM related documentation. Recruitment should be conducted, Notice of Filing posted, and prevailing wage determination requested at the employer’s headquarters location.
For those cases where an employer already has obtained a prevailing wage determination or even has conducted the recruitment, the best practice would be to seek an updated prevailing wage determination and re-run recruitment to include telecommuting.
Telecommuting for F-1 Students
ICE has announced that the Student and Exchange Visitor Program (SEVP) will extend its guidance originally issued in March 2020 for the 2021-22 academic year, which allowed schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19. Active F and M students are permitted to temporarily count online classes toward a full course of study even though such online classes exceed regulatory limits.
ICE had originally issued guidance in March 2020 that applied to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and were otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country are able to re-enter the United States, even if their school is engaged solely in distance learning. However, new or initial F and M students who were not previously enrolled in a program of study as of March 9, 2020, will not be able to enter the United States as an F-1 student for the 2021-22 academic year if their course of study is 100 percent online. New students, however, can enter the United States if they are engaged in a hybrid program, with some requirement for in-person learning.
DOS Provides Information on National Interest Exceptions (NIE) for Regional COVID Proclamations
On April 8, 2021, the DOS announced that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots/aircrew traveling for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under the geographic proclamations restricting travel due to COVID-19. These proclamations restrict the entry of individuals physically present, within the 14-day period prior to their attempted entry into the United States, in China, Iran, Schengen Area, United Kingdom, Ireland, Brazil, or South Africa.
National Interest Exceptions for Immigrants and Fiancé(e)s
DOS determined that travel on an immigrant or fiancé(e) visa is in the national interest for purposes of granting exceptions under the geographic COVID proclamations. Immigrant visa processing posts may now grant immigrant and fiancé(e) visas to eligible applicants, notwithstanding these proclamations. Immigrant and K fiancé visa applicants now eligible should review the website of the nearest embassy or consulate which processes immigrant visas to verify which visa services are currently available. At posts where immigrant visa processing is available, immigrant visas will be prioritized in accordance with DOS guidance on the phased resumption of visa services. An embassy or consulate will resume adjudicating all routine visa cases only when it is safe and adequate resources are available. After meeting demand for services for U.S. citizens, embassies and consulates will continue to prioritize immediate family members of U.S. citizens, including intercountry adoptions and spouses and minor children of U.S. citizens, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.
National Interest Exceptions for Certain Exchange Visitors
DOS also determined that travel by certain exchange visitors is in the national interest for purposes of granting exceptions under the geographic COVID Presidential Proclamations. Under certain circumstances, the Secretary determined national interest exceptions under these proclamations may be approved for au pairs, travel for an exchange program, travel by interns and trainees on U.S. government agency sponsored programs, travel by specialized teachers in accredited educational institutions with a program number beginning with G-5 or an exchange visitor where he or she will teach full-tome, or travel in support of critical foreign policy objectives.
On April 26, DOS made yet another national interest determination regarding categories of travelers eligible for exceptions under other Presidential Proclamations related to the spread of COVID-19. As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations (due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland), who are seeking to provide vital support for critical infrastructure, journalists, students, and certain academics covered by exchange visitor programs, may now qualify for a National Interest Exception (NIE). Students and academics subject to these proclamations due to their presence in China, Iran, Brazil, or South Africa, may qualify for an NIE only if their academic program begins August 1, 2021 or later.
National Interest Exceptions for Pilots and Air Crew Traveling for Training and Aircraft Pickup, Delivery, or Maintenance
DOS determined that travel by pilots and aircrew for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of granting exceptions under the geographic Presidential Proclamations. This includes individuals who are traveling to the United States for training or aircraft pickup, delivery, maintenance on B-1/B-2, B-1, M-1 visas, Visa Waiver Program authorizations, and certain M-2 dependents when the principal’s necessary training is four weeks or more. Access by qualified pilots and other essential air crew to aircraft maintenance, simulator training, continuing education such as proficiency checks, and other vital safety certification courses offered in the United States are important components of safe skies.
The new DOS guidelines provide specific information related to each type of traveler listed above. However, U.S. consulates in each country subject to these proclamations have the discretion to interpret the guidance from DOS. Therefore, eligible travelers are strongly advised to contact the nearest U.S. embassy or consulate before traveling to determine if they qualify for an NIE .
President Biden Keeps Refugee Numbers at Record Lows Due to Political Pressure
On April 16, 2021, President Biden signed an order limiting U.S. refugee admissions to 15,000 despite previously promising to increase the refugee admissions to 62,500 in this fiscal year and promising in February to raise the admissions rate to 125,000. This cap on admissions matches President Trump’s historical low in 2020, where actual refugee admissions were 11,814, also a historical low.
In comparison, President Obama admitted 85,000 refugees in 2016, and the lowest total refugee admissions during his two terms occurred in 2011, where he admitted 56,424 refugees. Prior to President Trump, the lowest historical cap on refugee admissions was 67,000. The greatest numbers of refugees admitted was in 1980, where President Carter admitted 207,116 refugees. For the most part, both the ceiling and the actual admission rates of refugees have decreased over time.
Under Biden’s new plan, the 15,000 slots would be allocated the following way: 7,000 for Africa, 1,000 for East Asia, 1,500 for Europe and Central Asia, 3,000 from Latin America and the Caribbean, 1,500 for the Near East and South Asia, and 1,000 for an unallocated reserve.
Many have criticized the President Biden’s new plan. Refugee advocates have pointed out that over 35,000 refugees have already been vetted and cleared for entry to the United States. The White House has said that admitting any refugees is difficult due to the large influx of unaccompanied minors at the southern border. Since taking office in January, the amount of border apprehensions has been surging, reaching over 172,000 in March 2021. By comparison, there were only about 32,000 apprehensions at the border in 2020. Of the persons being apprehended in 2021, approximately 50,000 have been unaccompanied minors and over 90,000 have been members of a family unit.
The Department of Health and Human Service’s Office of Refugee Resettlement personnel handles both minors apprehended at the border and refugees relocating to the United States, which could have posed a logistical complication if refugee admissions were increased. However, Biden had other options available to him, and, by failing to increase refugee admissions, he could be compounding the crisis at the southern border. For starters, having restored President Obama’s Central American Minor’s (CAM) refugee program, President Biden could have chosen to expand upon it, offering a safer pathway for children abroad to apply for legal status in the United States. Instead, crossing the southern border will continue to be seen as the only viable path for Central American minors escaping gang violence, extreme poverty, domestic violence, extortion, and persecution on account of sexual orientation.
Flexibilities Announced for Certain F-1 Applicants Filing for OPT
USCIS has experienced delays at certain lockboxes in issuing receipt notices for Form I‐765 for optional practical training (OPT) for F‐1 students. These delays are due to COVID‐19 restrictions, a dramatic increase in filings of certain benefit requests, postal service volume and delays, and other external factors. In an effort to address the problem, USCIS announced on February 26 that it will extend flexibilities for certain foreign students affected by delayed receipt notices for Form I‐765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive.
F‐1 students may participate in up to 12 months of post‐completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14‐month period. To allow F‐1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14‐month period to commence from the date of approval of the Form I‐765 for applications for post‐completion OPT. F‐1 students requesting post‐completion OPT who receive an approval of Form I‐765 for less than the full amount of OPT time requested may request a correction of the EAD due to USCIS error.
Applicants for OPT must file Form I‐765 during certain timeframes. However, due to the lockbox delays, some applicants who timely filed Form I‐765 for OPT, and whose applications are later rejected, are unable to timely refile within the required application timeframes. USCIS will accept a refiled but previously rejected Form I‐765 for OPT and STEM OPT as filed on the original filing date if the original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021. Refiled applications must be received by May 31, 2021, but generally do not need to obtain a new Form I‐20 with an updated OPT recommendation from the DSO. Applicants are advised to include a copy of the rejection notice to facilitate review of the case.
Finally, applications with missing or deficient signatures are generally rejected at the lockbox. However, if the lockbox accepts a Form I‐765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application.
Certain Regulatory Requirements Suspended for Syrian and Venezuelan F-1 Nonimmigrant Students
Effective April 22, the DHS will provide relief to Syrian and Venezuelan citizens who are in the United States as lawful F-1 nonimmigrant status. DHS has recognized that due to the ongoing armed conflict and extraordinary and temporary conditions in Syria and the current humanitarian crises in Venezuela, F-1 nonimmigrant students who rely on financial support from Syria and Venezuela may be exempt from the typical nonimmigrant student visa requirements. Specifically, F-1 students may request employment authorization to work an increased number of hours when school is in session and to reduce their course load while maintaining F-1 status. This relief extends to students in private K–12, public school grades 9–12, and undergraduate and graduation education.
Here’s What You Need to Know
The suspension of the employment limitations is available through September 30, 2022, for Syrians, and September 9, 2022, for Venezuelans. To be eligible, the applicant must: (1) be a Syrian or Venezuelan citizen, regardless of country of birth; (2) be lawfully present in the United States in an F-1 nonimmigrant status as of April 22, 2021; (3) be enrolled in an academic institution that is SEVP—certified for enrollment of F-1 nonimmigrant students; (4) be maintaining F-1 nonimmigrant status; and (5) be experiencing severe economic hardship as a direct result of the ongoing civil arrest in Syria or be experiencing severe economic hardship as a direct result of the current humanitarian crises in Venezuela.
The minimum course requirements vary depending on education level. Undergraduates who receive on-campus or off-campus employment authorization must remain registered for a minimum of six semester or quarter hours of instruction per academic term. Graduate students who receive on-campus or off-campus employment authorization must remain registered for a minimum of three semesters or quarter hours of instruction per academic term. And, if the course is online, undergraduate and graduate students may count up to the equivalent of one class or three credits per session/term to meet the minimum course load requirement, unless the online course is in a language-study program. Private elementary school, middle school, and public or private high school students must attend class for the minimum number of hours a week required by their respective schools.
The new guidance includes other key facts for eligibility. Affected students should consult with their designated student officer (DSO) or an immigration attorney.
Finally, F-1 students may also consider applying for Temporary Protected Status. (See below)
News in Brief
TPS for Venezuelans: DHS has designated Venezuela for Temporary Protected Status (TPS) for 18 months, effective 3/9/21 through 9/9/22. The notice also provides information about Deferred Enforced Departure (DED) and DED-related EADs for eligible Venezuelans.
TPS Extended for Syria: USCIS announced the extension of the designation of Syria for TPS for 18 months, from 3/31/21 through 9/30/22. USCIS announced that it has automatically extended the validity of EADs issued under the TPS designation for Syria through 9/27/21.
TPS for Burma: DHS designates Burma for Temporary Protected Status (TPS) for 18 months. Individuals who can demonstrate continuous residence in the United States as of March 11, 2021, are eligible for TPS under Burma’s designation.
EB-1-1 Current for Indian and Chinese Nationals!
H-1B Cap Reached During Registration Period: USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (plus 20,000 Master’s cap visas) and ran its random selection lottery. While no figures were released for the total number of registrations received this year, last year there were over 275,000. Employer-petitioners selected have 90 days to submit their petitions.
Land Travel between the U.S. and Canada and Mexico Remains Restricted: CBP has continued the temporary travel restrictions limiting travel of individuals from Canada and from Mexico into the United States at land ports of entry along the United States–Canada border through 5/21/21 due to COVID-19. Such travel is limited to ‘‘essential travel,” which includes, but is not limited to U.S. citizens; LPRs; members of the U.S. Armed Forces and their family members; those traveling for medical purposes and to attend educational institutions; those traveling for emergency response and public health purposes; and some others. Travel by air is not limited.
NIV Interview Waiver Policy Extended: DOS has extended interview-waiver eligibility for individuals applying for a nonimmigrant visa in the same classification until December 31, 2021. Applicants whose nonimmigrant visa expired within 48 months are eligible.