New Presidential Proclamation Expands Temporary Bar on Entry to Certain Nonimmigrants

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By Donald W. Parker and John J. Gallini, Immigration Attorneys

The Proclamation further extends an earlier bar imposed on April 22, 2020 that suspended the entry of certain individuals who are outside the U.S. and are seeking to enter as immigrants to become lawful permanent residents of the U.S.  This new Presidential Proclamation (“Nonimmigrant Travel Ban”) became effective at 12:01am on June 24th and will remain in effect until December 31, 2020.  You can find the Proclamation here.

Who is affected?

The temporary ban only applies to persons seeking to enter the U.S. as an H-1B, H-2B, L-1, or J-1 nonimmigrant (as specified above), and their accompanying or following-to-join dependent family member spouses and children, and only if the each of the following three conditions are met:

  1. The individual is outside of the U.S. on June 24th;
  2. The individual does not have a nonimmigrant visa stamp in his/her passport that was valid on June 24th; and
  3. The individual does not have an official travel document in lieu of the visa (such as advance parole travel document, a transportation letter, or an appropriate boarding foil) that is valid on June 24th or issued on any date thereafter and that permits the individual to enter the U.S.  

Who is exempted?

Exempted from the ban are the following groups of people:

  • Foreign nationals who are outside of the U.S. on June 24th, who have already been issued a valid H-1B, L-1, J-1 or H-2B visa in their Passport – foreign nationals with a valid visa in one of these categories (and their spouses and children who also hold a valid dependent visa) can reenter the U.S.  
  • Foreign nationals who are in the U.S in H-1B, L-1, J-1 or H-2B visa status.  These individuals will be able to remain in the U.S., continue working, extend their visa status and change to other visa status.  
  • Foreign nationals who are in the U.S. and seek to change their status from their current visa status to H-1B, L-1, J-1 or H-2B status.  This group includes foreign nationals who were selected this year in the H-1B lottery process and whose H-1B petitions included a request for change of status from their current visa status (commonly F-1 student status) to H-1B.

The Proclamation also exempts from the ban foreign nationals who are –

  • lawful permanent residents; or 
  • the spouse or child of a U.S. citizen.

Further, the Proclamation exempts from the ban foreign nationals who –

  • will provide temporary services essential to the maintenance of the U.S. food supply chain; or 
  • whose admission is in the national interest of the U.S.  

The Proclamation indicates that the above two exemptions will be adjudicated by Consular Officers at US Consulates abroad pursuant to standards that may be promulgated by relevant government agencies.  The Proclamation provides as examples of activities that would be in the national interest of the U.S. the following: 

  1. activities involving defense, law enforcement, diplomacy, and national security in the U.S.; 
  2. the provision of medical care to hospitalized COVID-19 patients; 
  3. medical research to help the U.S. combat COVID-19; and 
  4. activities that will facilitate economic recovery in the U.S.

Possibility of Appeal

This latest Proclamation may be challenged in Federal Court in the weeks ahead and that process may put the Proclamation on hold.  We will update our web site as additional information becomes available about the Proclamation and its implementation.

Frequently Asked Questions about the Nonimmigrant Travel Ban

Effective June 24th, 2020

Q: I am currently in the U.S. in valid H-1B or L-1 visa status and I also have a valid H-1B or L-1 visa in my Passport – does the Nonimmigrant Travel Ban apply to me?  

A: No.  Persons in the U.S. in valid H or L – as well as those in J-1 or H-2B status – can remain legally in the U.S. and continue to work during the validity of that status and can extend their status at the end of the validity period.  In addition, because you have a valid H or L visa in your Passport, you can leave the U.S. and seek to reenter the U.S. using that visa during its validity.  However, international travel is risky at this time, particularly with the COVID-19 pandemic, restrictions that the U.S. government has placed entry into the U.S. following travel to certain countries greatly affected by the pandemic, and also restrictions that other countries may impose on individuals who are seeking to enter their country from the U.S.  Additionally, there is always the lingering possibility that the President will issue a new and more expansive proclamation or Executive Order to further restrict the entry of individuals who are not U.S. citizens, U.S. permanent residents. It will take some time before we know how U.S. Customs and Border Protection will deal with returning foreign nationals with valid H and L visas in the short term.

Q: I am currently in the U.S. in valid H-1B or L-1 visa status as reflected on my latest Form I-797.  I do not yet have a new H-1B or L-1 visa in my passport.  Does the Nonimmigrant Travel Ban apply to me?  

A: Maybe.  Persons in the U.S. in valid H, L, J-1 or H-2B status can remain legally in the U.S. and continue to work during the validity of that status and can extend their status at the end of the validity period.  However, if you leave the U.S., the only way that you could return would be to apply for an H or L visa at a U.S. Consulate abroad.  By its terms, the Nonimmigrant Travel Ban appears only to apply to persons who were physically outside of the U.S. when it went into effect (June 24, 2020) and who did not have a visa issued at that point.  Since you were in the U.S. when the Travel Ban went into effect, it may be that the Nonimmigrant Travel Ban simply does not apply to your facts.  It should be noted that because of COVID-19, U.S. Consulates are currently closed to most visa applicants, which makes securing a new visa nearly impossible.  It is also possible that the U.S. State Department will interpret the Nonimmigrant Travel Ban to prohibit a visa application under these circumstances.  As a result, we recommend that before you travel outside of the U.S. you contact your HR Team or legal counsel to confirm whether there are any risks in applying for the visa and returning to the U.S.     

Q: I have an approved H-1B or L-1 visa petition and am outside of the U.S., but have not been able to apply for an H or L visa because of COVID-19.  Can I apply for a visa once the U.S. Consulates open?  

A: No.  Unfortunately because you were outside of the U.S. when the Nonimmigrant Travel Ban took effect (on June 24th) and because you did not have at that time a valid H or L visa stamp in your passport, or otherwise possess a valid Advance Parole travel document, appropriate boarding foil or transportation letter) the Nonimmigrant Travel Ban would apply to you.  You would not be able to apply for an H or L visa and come to the U.S. until the Nonimmigrant Travel Ban is lifted.

Q: I am currently in the U.S. in L-1B status valid until June of 2022.  My wife is outside of the U.S. currently and she does not have a valid L-2 visa in her Passport.  Does the Nonimmigrant Travel Ban apply to her?  

A: Yes, it does apply.  Even though you maintain your legal status in the U.S., because your wife does not have a valid L-2 visa in her Passport, she cannot apply for the visa now – and even if it were to be granted, she could not use it to enter the U.S. until the Nonimmigrant Travel Ban is lifted.

Q: I am currently in a working visa status other than H-1B, L-1, J-1 or H-2B.  For instance, if I am in the US in O-1, TN, H-1B1 or E-3 status – does the Nonimmigrant Travel Ban apply to me?  

A: No, the Nonimmigrant Travel Ban does not apply to these types of visas.  However, as noted previously, international travel is risky at this time and immigration admission policies are constantly changing – usually for the worse, particularly during COVID-19.  It may take some time for U.S. Customs and Border Protection and the U.S. State Department to implement their own procedures and policies. 

Q: I am currently in the U.S. in H-1B status and although I don’t have a valid H-1B visa in my Passport, pursuant to a Green Card sponsorship by my employer and a pending I-485 Adjustment of Status Application, I have a valid Advance Parole document.  Does the Nonimmigrant Travel Ban apply to me?  

A: The Travel Ban specifically exempts from its application, foreign nationals traveling on an Advance Parole document.  So while the Nonimmigrant Travel Ban may prevent you from applying for a new H-1B visa and/or reentering the U.S. on that visa (see Question #2), you could use your Advance Parole in place of the H-1B visa.  But Note: The decision to move away from your H-1B status and enter the U.S. in Advance Parole may have other implications for your overall immigration case – accordingly, if you are in this situation, we advise that you contact your HR Team or legal counsel in advance of any travel using your Advance Parole.

Q: I am a Canadian national applying for admission in H-1B status to the United States, based on an approved H-1B petition obtained on my behalf by my employer – does the Nonimmigrant Travel Ban apply to me?

A: U.S. Customs, in response to written questions from the American Immigration Lawyers Association, has indicated that because Canadian nationals seeking to come to the U.S. in H-1B, L-1 or J-1 status do not need a visa in their Passport,  they are not subject to the Nonimmigrant Travel Ban.  It should be noted that this response was from one office of U.S. Customs & Border Protection and until there is a more official statement from the Department of Homeland Security or U.S. Customs, it is reasonable to expect that there may be differing interpretations of the application of the Nonimmigrant Travel Ban at different U.S./Canada border posts and international airports.

Q: The Travel Ban applies to me.  Do I have any options to enter the U.S. before January 1, 2021?

A: Maybe.  If you have a valid B-1/B-2 visa stamp or are eligible for visa-free travel to the United States using the Electronic System for Travel Authorization (ESTA) then you may be able to make brief business trips to the United States.  During these trips, the normal visitor status and ESTA rules would apply, including the requirement that you not receive any U.S. remuneration other than a reimbursement for basic expenses like travel, lodging, food, and transportation.  However, travelers from a number of countries, including many that qualify for ESTA, are currently banned from entering the US unless they have quarantined in a ‘safe’ third country for 14 days before attempting to enter the United States. If you are in this situation, we advise that you contact your HR Team or legal counsel in advance of any travel using a B-1/B-2 visa or ESTA.

Please contact any Parker Gallini immigration attorney to discuss this or any immigration issues at (781) 810-8990.

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Premium Processing Resumes

Phased Premium Processing begins for I-140 Immigrant Visa Petitions and I-129 Visa Petitions for Temporary Workers, including the H-1B and L- visa categories

By Donald W. Parker, Immigration Attorney

Donald Parker - Immigration AttorneyOn May 29, 2020, the USCIS announced the phased resumption of Premium Processing for I-140 Immigrant Visa Petitions and I-129 Visa Petitions for Temporary Workers, including the H-1B and L- visa categories. The USCIS had suspended Premium Processing for 2021 H-1B cap cases on March 16th, and then on March 20th, as a result of the COVID-19 situation for all other eligible I-140 and I-129 visa petitions. Under Premium Processing, a petitioning employer or a sponsored employee can pay a special USCIS fee of $1,440 to ensure processing of the Form I-140 or I-129 within 15 calendar days — without Premium Processing, these visa petitions can take anywhere from 1 to 6 months, or longer, to be processed.

The resumption of Premium Processing will proceed in the following phases:

  • Effective June 1, 2020, USCIS will accept Premium Processing for all eligible Form I-140 petitions.
  • Effective June 8, USCIS will accept Premium Processing for all pending (i.e., cases filed prior to June 8th) H-1B extensions, H-1B amendments, H-1B change of employer filings and all other pending non-H-1B Form I-129 visa petitions for which Premium Processing was available prior to its suspension.
  • Effective June 15, USCIS plans on resuming Premium Processing for all H-1B visa petitions filed on or after June 8thwhere the employer is cap-exempt, where the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization) or where the beneficiary is cap-exempt based on a Conrad/IGA waiver.
  • Effective June 22, USCIS plans on resuming Premium Processing for all other Form I-129 petitions, including H-1B cap-subject petitions and all other Form I-129 petitions for nonimmigrant classifications eligible for premium processing.

The USCIS announcement states that these dates are subject to change as it continues to take on more premium processing requests.

For more information please contact any of our immigration attorneys at Parker Gallini LLP.

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COVID-19 IMMIGRATION UPDATE – 04/23/2020

What You Need to Know about the President’s Recent Proclamation Temporarily Suspending the Entry of Immigrants into the U.S. 

By John Gallini and Amy Tran, Parker Gallini LLP

john-j-galliniamy-tran18There has been much speculation since President Trump’s late-night tweet on Monday that he would be signing an Executive Order to temporarily suspend immigration into the United States. It had been rumored that the President’s order would temporarily bar the issuance of new green cards and temporary work visas and that he would stop approving applications by and on behalf of foreign nationals to live and work in the U.S.  After the President’s long-awaited announcement last night, we now know the reach of his Proclamation falls short of what was speculated.

Through Proclamation that is effective Thursday April 23rd at 11:59 pm EST, the President is temporarily suspending for an initial period of 60 days the ability of any individual who seeks to enter the U.S. as an immigrant who:

  1. Is outside the U.S. on the effective date of the Proclamation;
    •  The Proclamation only applies to individuals who are applying for an immigrant visa through a U.S. Embassy or Consulate – an immigrant visa is an application for U.S permanent resident status that is processed abroad through a U.S. Consulate and where the individual becomes a U.S. permanent resident upon entry and admission to the U.S.
    • The Proclamation does not suspend the admission of individuals seeking entry under a previously issued and valid temporary (“nonimmigrant”) visa or individuals who are applying for U.S. permanent resident status in the U.S. through the Adjustment of Status process.
  2. Is not in possession of a valid immigrant visa on the effective date of the Proclamation; and
    • Individuals who have attended an immigrant visa interview at a U.S. Embassy or Consulate and are awaiting visa stamping will be affected.
  3. Is not otherwise in possession of an official travel document (such as a transportation letter, boarding foil or advance parole travel document) that is valid on the effective of the Proclamation or issued thereafter that permits travel to the U.S. to seek entry for admission.
    • The Proclamation does not apply to individuals who have pending Adjustment of Status applications with the USCIS and are in possession of an advance parole travel document or valid H-1B, L-1, H-4 or L-2 visa. However, all individuals with pending Adjustment of Status applications should consult with their immigration counsel before undertaking international travel, as there may be other factors that could impede or prevent their readmission to the U.S.

This Proclamation does not apply to the following individuals:

  • U.S. Lawful permanent residents (LPR);
  • Physicians, nurses, or other healthcare professionals (as well as their accompanying spouses and children under 21) who are entering as immigrants to perform medical research or other research intended to combat the spread of COVID-19, or to perform essential work to combat COVID-19, alleviate the effects of COVID-19 outbreak or aid in recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees);
  • EB -5 Immigrant Investor Visa applicants;
  • Spouses and children under 21 of U.S. citizens;
  • Children under 21 who are prospective adoptees seeking to enter on an IR-4 or IH-4 visa;
  • Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of State and Homeland Security (DHS), based on the recommendation of the Attorney General (AG), or their respective designees);
  • Members of the U.S. Armed Forces and their spouses and children;
  • Individuals (and their spouses or children) eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification); and
  • Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

An important provision of this Proclamation is that within 30 days of its effective date, the Secretaries of Labor and Homeland Security, in consultation with the Secretary of State, will review the existing nonimmigrant visa programs and recommend to the President other measures appropriate to stimulate the U.S economy and “ensure the prioritization, hiring and employment of U.S. workers.”  The Proclamation also states that within 50 days from its effective date the President may extend the suspension of immigrant visas beyond the current 60-day period.
In short, the immediate impact is that persons hoping to immigrate to the U.S. from abroad could face further delays — particularly considering that all routine immigrant visa services have been suspended by the Department of State since March 20, 2020. It will also likely have the ripple effect of increasing the overall processing times that individuals will face when applying for their immigrant visas. Unfortunately, the biggest wildcards will be how the COVID-19 pandemic will evolve and how fast the U.S. and the global community at large can implement sufficient measures to safely reopen businesses and international travel.

For more information on immigration issues, please call Parker Gallini immigration attorneys at (781) 810-8990. Visit our main website at parkergallini.com.

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COVID-19 TRAVEL UPDATE – 03/13/2020

What You Need to Know about the Most Recent Restrictions on Reentry to the U.S. and Quarantine Procedures

By Immigration Attorneys Grant W. Godfrey, Donald W. Parker and John Gallini

international airport

On December 31, 2019 an outbreak of a novel coronavirus was first reported in Wuhan, China. The virus, which has since been renamed “SARS-CoV-2”, causes the disease COVID-19. The virus is now a global pandemic and has spread to 118 countries, territories and areas, with well over 125,000 confirmed cases of COVID-19 and more than 4,600 deaths caused by the virus reported worldwide.

On January 30, 2020, the World Health Organization (“WHO”) initially declared the outbreak a “public health emergency of international concern.”

On March 11, 2020, the WHO declared that COVID-19 is now a global pandemic, yet emphasized that “[i]f countries detect, test, treat, isolate, trace, and mobilize their people in the response, those with a handful of cases can prevent those cases becoming clusters, and those clusters becoming community transmission.”

Between the WHO’s initial declaration and its recent declaration on Wednesday March 11th that that COVID-19 is a global pandemic, the President of the United States has issued three separate Presidential Proclamations to try to limit the spread of SARS-CoV-2 and COVID-19 into the U.S.

  1. On January 31, 2020, President Trump issued a Proclamation ordering the suspension of entry of certain foreign nationals into the U.S. if they had traveled to China within the past 14 days. The order went into effect at 5:00pm EST on February 2, 2020 and remains in effect until the President terminates the order.
  2. On February 29, 2020, President Trump issued a second Proclamation suspending the entry of certain foreign nationals from entering the U.S. who had traveled to Iran within the past 14 days. The order went into effect at 5:00pm EST on March 2, 2020 and remains in effect until the President terminates the order.
  3. On March 11, 2020, President Trump issued a third Proclamation expanding the reentry ban to certain foreign nationals who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the U.S. This new restriction applies to anyone who departs the Schengen Area after 11:59PM EDT on March 13, 2020. Like the prior Presidential Proclamations, the order remains in effect until the President terminates the order.

Understandably, these Presidential Proclamations and the increasing impact of the COVID-19 global pandemic are making international travel confusing at best and more often than not a gamble. While U.S. citizens and Lawful Permanent Residents are exempted from these reentry restrictions, if they are deemed a risk of transmitting COVID-19 they may be prevented from boarding a plane to enter the U.S. or placed in quarantine upon arrival. Further, other countries may impose similar restrictions on foreign nationals seeking entry into their countries. Thus, no person should assume that other countries throughout the world will allow entry of international travelers, even if a visa has been issued or the traveler is exempt from needing a visa to enter.

I. Individuals Who Are Temporarily Barred from Entering the United States following Travel to/Stay in the Following Countries

Unless otherwise exempted, the following is a summary of who is currently barred from entering/re-entering the U.S. and for how long:

CHINA

Temporarily Barred
All foreign nationals seeking to enter the U.S. as Immigrants or Nonimmigrants who were physically present in China during the 14-day period preceding their entry or attempted entry into the United States. Physical presence in SAR Hong Kong and Macau are exempted.

IRAN

Temporarily Barred
All foreign nationals seeking to enter the U.S. as Immigrants or Nonimmigrants who were physically present in Iran during the 14-day period preceding their entry or attempted entry into the United States.

SCHENGEN AREA

Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, San Marino and Vatican City.

Temporarily Barred
All foreign nationals seeking to enter the U.S. as Immigrants or Nonimmigrants who were physically present in any of the Schengen Countries during the 14-day period preceding their entry or attempted entry into the United States.

Foreign Nationals Who Are Exempted from the Temporary Bar

  1. Lawful Permanent Residents (LPR) of the U.S.;
  2. Spouses of U.S. citizens or LPRs;
  3. Parents or legal guardians of U.S. citizens or LPRs who are under the age of 21 and unmarried;
  4. Siblings of U.S. citizens or LPRs, if both are unmarried and under the age of 21;
  5. Children or Foster Children, or wards of a U.S. citizen or LPRs, provided the child is under the age of 21 and unmarried;
  6. Prospective adoptees seeking to enter the U.S. pursuant to the IR-4 or IH-4 visa classifications;
  7. Persons traveling at the invitation of the U.S. Government who are helping to contain or mitigate the spread of the virus;
  8. Crewmembers or any foreign nationals otherwise traveling to the U.S. as air or sea crew under a C or D temporary visa;
  9. Persons seeking entry into or transiting the U.S. under an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), an E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
  10. Persons whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
  11. Persons whose entry the Centers for Disease Control (CDC) Director, or his designee, deems would not pose a significant risk of introducing, transmitting, or spreading the virus;
  12. Persons whose entry the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee deem would further important United States law enforcement objectives;
  13. Persons whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees; and
  14. Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces.

Please note: President Trump has already imposed separate entry restrictions on foreign nationals of certain countries seeking to come to the U.S. (Travel Ban 3.0) and these restrictions could bar entry into the U.S. regardless of whether the individual had traveled to one of the designated countries significantly impacted by SARS-CoV-2 and COVID-19.

With the exception of Travel Ban 3.0, one’s country of citizenship is irrelevant to the analysis of whether one may be temporarily barred from entering the U.S. For example, a Chinese national who holds a temporary visa and who traveled to a country that is not included in the temporary reentry bar may still be able to return to the U.S. The primary question is whether the individual who is returning to the U.S. entered one of the affected countries during the 14 days preceding their return to the U.S. – and unless otherwise exempted that individual would be denied entry into the U.S.

The net result is that if an affected foreign national can gain entry into a third-country that is not subject to a bar, and remain there for at least 14 days, they could conceivably then travel to the United States. Similarly, if one traveled through several countries over the course of 14 days, none of which is subject to the bar, this would also qualify. Ironically, South Korea is a not subject to the bar but has been given a Level 3 Travel Health Notice (“widespread, ongoing transmission”) just like China, Iran and Italy.

The U.S. Centers for Disease Control (“CDC”) is currently listing other countries where travel to them could possibly result in the future in a temporarily ban that would prevent a foreign national from returning to the United States – this list can be found at https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-other-countries.html. Note that as of publication of this article the only country in the Schengen Area that has been issued a Level 3 Travel Health Notice is Italy.

II. Individuals Who May Be Subjected to Quarantine

U.S. citizens, LPRs, and other foreign nationals who are otherwise exempted from these temporary bars to reentry will be assessed and may still be subjected to quarantine procedures upon their return to the U.S. for up to 14 days from when they left an affected country.

U.S. citizens, LPRs and other exempt foreign nationals who are returning from a trip where they have been physically present in one of the designated countries from which re-entry to the U.S. is barred will be redirected to one of a limited number of airports (currently 11) where the CDC has quarantine stations. The CDC will screen the individual for signs of sickness and collect information about their health and travel. Depending on the results, the government may place restrictions on their movement for a period of 14 days from when they departed from one of the affected countries. It is not clear what those restrictions will be – though they likely could range from home quarantine, home quarantine with monitoring/tracking, to forced quarantine at a government location, or other designated facility.

Additionally, the CDC has stated that all individuals who are returning to the U.S. from Italy or South Korea, both of which have a Level 3 Health Travel Notice issued by the CDC, will be requested to self-quarantine at home for 14 days from the time they left either of these countries. Individuals who are returning from China and Iran, which also have Level 3 Health Travel Notices, are subjected to higher scrutiny as return travel will be redirected to one of the limited number of airports. As of the date of publication, the countries in the Schengen Area (other than Italy) have not yet, as noted above, been added to the Self-Quarantine list, though we expect that they may very well be added in the near future. It is also possible that they will be subjected to the same heightened scrutiny that individuals who traveled to China or Iran currently receive. Finally, U.S. citizens and LPRs traveling to other countries that have a Level 3 Health Travel Notice, may also be made subject to this self-quarantine requirement.

We caution that information is changing daily and encourage you to check the websites provide in this article before, during, and after any contemplated international travel to remain up-to-date on current procedures. Below are additional resources to access for more information and updates:

These rules are complicated and are changing on a frequent basis. The immigration attorneys at Parker Gallini LLP are available to answer questions you have on the U.S. implications of foreign travel.

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2021 H-1B Cap Lottery Process – Update

USCIS Provides Important Details on the Process for the Upcoming Electronic H-1B Registration Process

By Grant W. Godfrey and Donald W. Parker

Grant Godfrey Immigration Attorney Boston photo Donald Parker - Immigration AttorneyIn January 2020, we wrote a post discussing the new H-1B lottery process this year, which will require that employers utilize an electronic registration system for foreign employees (called beneficiaries) that the company would like to sponsor. It provided background on the H-1B cap process in general, detailed how the previous system worked, and described what we knew at that time of how the new system would work.

USCIS has now provided important details on how this new system will work which are discussed in detail in this article.

How the Electronic H-1B Registration System Will Work

The new electronic registration system requires that attorneys create an account on the myUSCIS website. During the H-1B Registration period, which runs from 12PM eastern time on March 1, 2020 to 12PM eastern time on March 20, 2020, the attorney will be able to create an H-1B Registration Application profile for an employer client and then, within that Application, attach individual foreign workers that the employer seeks to sponsor for an H-1B visa in the lottery this year. Attorneys can combine up to 250 foreign workers for one employer on a single Application.

After the attorney has completed the employer profile and created one or more H-1B Registrations, the H-1B lottery system will have them draft an electronic Form G-28, which is the form that the Department of Homeland Security uses to confirm that the company has agreed to have the attorney represent it. Once the H-1B Registration Application and the electronic Form G-28 are completed by the attorney, they will have to be reviewed and approved for submission by the employer. Specifically, the H-1B lottery system will generate an employer-specific code that the attorney will need to send to the employer so that the employer can complete its own review.

In order to conduct this review of an employer’s H-1B Registration, an authorized representative of the employer will need to create their own H-1B account on the myUSCIS website – note that employers will not be able to create their own accounts until February 24, 2020. If the company already has a myUSCIS petitioner account, they will need to create a second account specifically for H-1B registrations as the old account will not have the needed functionality to complete the review process.

Note that a company can create more than one account if there will be more than one person at the organization reviewing and approving the H-1B Registration. Each H-1B Registration account is limited to one entity, so employers that will have several different entities acting as H-1B sponsors/employers will need to create separate H-1B accounts for each employing entity. Moreover, an email address can only be associated one account – accordingly, in a situation where there will be multiple employing entities each utilizing a separate H-1B account, either different company representatives must set up each account under their own separate email, or multiple email addresses will have to be created for a single company representative to use with each separate account.

The Company Review Process for the H-1B Registration System

After the company has set up its H-1B account and after the attorney has created the employer’s H-1B Registration Application, the company representative will log into their account and enter the special code sent to them by their attorney. This will allow them to access the electronic Form G-28 and the H-1B Registration Application (including the separate entries for each sponsored employee) that the attorney has created for them.

The company representative will first review the attorney’s Form G-28 and, assuming that the information on the Form is correct, consent to the release of information to the attorney, confirm that they have reviewed the Form G-28, and accept the Form by typing their name. The company representative will then be taken to the company information page and the separate entries for each sponsored employee. As with the Form G-28, the company representative must accept this information as accurate. Note that in the event that the company representative has questions about or corrections to any of this information, they can reject it and the attorney can then make any required changes to the Form G-28 and the H-1B Registration Application. Note also that the attorney will not receive automatic notification that the Form G-28 and H-1B Registration Application have been accepted or rejected, so the company representative will need to tell the attorney that it has completed review, especially if the they have rejected some portion of the Application.

Once the G-28 and H-1B Registration Application have been accepted by the company, the attorney will then be able to pay the nonrefundable $10 registration fee for each foreign worker that is included on the Application. Payment of the fee (which is done by credit card or bank transfer) automatically causes the H-1B Registrations to be submitted. On both the attorney’s and the company’s account, each foreign worker listed on the H-1B Registration Application will be designed as “Submitted” which means that the foreign worker is in the queue for the lottery. Note that if the attorney or the company determines prior to March 20th that there was an error in an H-1B Registration, the attorney can delete the foreign worker from the H-1B Registration and submit a new corrected one.

At 12PM Eastern Time on March 20, 2020 the H-1B Registration period will close, and the attorney and company will no longer be able to submit or pay for applications, so the company and attorney should double check that all beneficiaries have a “Submitted” status before then to ensure that the beneficiary is included in the lottery.

Sometime between when the H-1B Registration period ends and March 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) will conduct the lotteries in the manner described in ourJanuary 2020 post. Any foreign worker who is selected in the lottery will have their status updated from “Submitted” to “Selected” and the company and attorney will have 90 days to prepare and submit a paper-based H-1B filing to USCIS. Any foreign worker who is not selected in the lottery will remain in “Submitted” status and will be eligible for subsequent lotteries conducted against the Fiscal Year 2021 H-1B cap if, for example, USCIS rejects or denies enough H-1B filings that it is unable to issue all of the 78,200 cap-subject H-1B visas that Congress has allocated for each fiscal year. Once the 2021 fiscal year ends, i.e. on September 31, 2021, all beneficiaries that are in “Submitted” status will be removed from the system.

Please let us know if you have any questions about submitting an H-1B lottery registration this year. Call Parker Gallini immigration attorneys at (781) 810-8990.

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2021 H-1B Cap Lottery Process: Changes Ahead

USCIS Announces Upcoming H-1B Lottery Will Be Done Under the New Electronic Registration System — But Much Remains Unclear

By Donald W. Parker, Immigration Lawyer

Background on The New Law

Donald Parker - Immigration AttorneyOn January 31, 2019, the US Department of Homeland Security published a final regulation that establishes an electronic registration system to be used for the selection of new H-1B visa petitions under the existing H-1B Cap Lottery process. On December 6, 2019, the USCIS announced that it is requiring that the electronic registration system be used for the 2021 H-1B Cap Lottery process that will ultimately dictate who may file a petition for a cap-subject H-1B visa on or after April 1, 2020. This Article describes the information that we have about this significant change in process as well as questions that still need to be answered. Note that the USCIS has also indicated that it will be issuing additional guidance in this process in the next several weeks. We will up-date you on the guidance once it is published.

By statute, the number of new H-1B visas that can be issued by the USCIS during a fiscal year (beginning on October 1st) is capped at 85,000 (the “H-1B Cap”). Cap-subject H-1B visas are given out each year in two primary tranches – 20,000 visas reserved for foreign nationals with a U.S.-earned Master’s (or higher) degree (the “U.S. Master’s Degree Tranche”) – and an additional 58,200 visas reserved for all foreign nationals who otherwise qualify for H-1B classification (the “Regular Tranche”). The USCIS also reserves 6,800 visas for citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. Each year for the past several years, many more H-1B visa petitions have been filed under the H-1B Cap than the number of H-1B visas available in both the U.S. Master’s Degree Tranche and the Regular Tranche, and as a result, the USCIS has selected cases that may be processed for an H-1B through a lottery selection process. Note that H-1B1 visas have historically been under-utilized and remain available throughout the fiscal year.

How the Previous System Worked

The H-1B Cap Lottery system in effect in prior years required employers to submit a complete H-1B visa petition filing package to the USCIS for each foreign national that they were sponsoring during the first 5 business days of April of each year. After 5 business days, the USCIS would stop accepting cap-subject H-1B petitions and conduct the two H-1B Cap lotteries. Those selected in the H-1B Cap lotteries would be issued Receipt Notices and their cases would be adjudicated by the USCIS over the course of the next 6 months. Those whose petitions were not selected in the lotteries would eventually receive a rejection package containing the return of their petition, filing fee checks and a notice that they were not selected in the lottery.

How the New System Will Work

The new electronic registration process will change the H-1B Cap Lottery system in the following ways:

  • Beginning on March 1, 2020 and ending on March 20, 2020, employers will need to register their intended sponsorship of cap-subject H-1B workers with the USCIS through an online registration portal. At the end of the registration period, the USCIS will use a computer-generated lottery to select sufficient registrations for the 58,200 Regular Tranche visas. This lottery will include registrations on behalf of foreign nationals who have a U.S.-earned Master’s or higher degree and all other qualifying foreign nationals. The USCIS will then run a second computer-generated selection process for all U.S.-earned Master’s Cap applicants who weren’t selected in the first lottery to select sufficient registrations for the 20,000 U.S. Master’s Degree Tranche visas.
  • Shortly after the registration process closes on March 20th, USCIS will notify employers and their attorneys of selected registrations, and the employer will then have 90 days to file the actual H-1B visa petition with the USCIS.
  • The employer (or their attorney) must pay a registration fee of $10 for each registration either by credit card or bank transfer.
  • Registrations will be submitted by the employer’s attorney through the attorney’s myUSCIS on-line portal. The attorney will have to up-load, as part of the registration process, a Form G-28, Notice of Entry of Appearance as Attorney for each registration or a group of registrations.
  • While we don’t yet have a final list of the information required to register a case, the USCIS has previously stated that it will include the following: (1) the employer’s name, address, and EIN, (2) the employer’s authorized representative’s name, job title, telephone, and email, (3) the foreign national’s name, date of birth, country of birth, country of citizenship, gender, and passport number and (4) whether the foreign national has obtained a U.S.-earned Master’s (or higher) degree.
  • Once submitted, a registration cannot be amended. If changes to the registration need to be made, the registration will have to be deleted and a new registration resubmitted, provided that it is resubmitted between March 1st and March 20th. As in the past, only a single case or registration can be filed by an employer for an individual and if more than one is filed, all of them will be denied.
  • USCIS will not require that employers obtain a certified Labor Condition Application (“LCA”) with the Department of Labor prior to submitting the electronic registration.

Uncertainties and Unanswered Questions

At this stage in the process, a number of unanswered questions remain about this process including the following:

  • Will the electronic registration system work? If it crashes, what will happen then? The track record of the USCIS rolling out effective electronic systems is spotty at best. The USCIS has indicated that if it finds problems in the system – arguably even after it has been launched – it can suspend the process and return to the traditional process involving the filing by employers of full H-1B cases prior to a certain date. If this were to happen, would the USCIS stick to a filing window of the first 5 business days or April or move the date back?
  • Because of uncertainty around these issues and because even if the electronic registration system works, it will mean that 78,000+ cases will have to be prepared and filed within a 90-day period, we are recommending that employers plan on obtaining a certified Labor Condition Application and any required education or experience-based credential evaluations prior to registration. These two items potentially are subject to significant delays given the high volume of cases and we think it would make sense to have them done in advance even for cases that may not be accepted in the lottery.
  • How exactly will the creation of an electronic registration work? Ideally, we would like to complete draft registrations prior to March 1st for review by both us and by our clients to ensure that they are accurate and complete, and we don’t know whether that will be possible. In addition, if registrations can be prepared in draft form in advance, how can they be shared with the employer?
  • How will attorneys up-load their Forms G-28, Notice of Entry of Appearance as Attorney into the electronic registration system? While the USCIS says that we can aggregate multiple registrations under a single Form G-28, there is a question at this stage as to what happens if, after completing the registration, a change has to be made to one of the cases – will that mean that all registrations tied to that Form G-28 will also have to be deleted and resubmitted? As a result, our intention at this point is to have each registration tied to its own individual Form G-28. This of course places greater emphasis on how the Form G-28 up-load process will work.
  • What happens if there are glitches in the registration system? One common glitch we have seen over the years in a system that the USCIS operates for the electronic submission of certain types of applications is that after completing and submitting the application, the fee payment system crashes or otherwise won’t work. Will the USCIS provide a meaningful and practical way to address these types of situations when and if they occur?

Stay Tuned and Get Ready

Time will tell whether the new H-1B Cap electronic registration system operates as expected and eases the process of participating in the H-1B Cap lottery process or simply complicates an already complex and time-consuming process. We will let you know as additional information is provided by the USCIS on this new system. In addition, this year, more than in the past, we strongly recommend that you begin working with your Immigration legal counsel as soon as possible after the new year to identify possible H-1B cases and begin the process of preparing them for registration in the H-1B Cap lottery.

You can contact Boston-area Immigration Attorney Don Parker directly for questions at (781) 810-8990.

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Immigration Services: USCIS Proposes Fee Increases and Processing Changes

By Victoria Morte, Immigration Attorney

Immigration Lawyer Victoria MorteThe Department of Homeland Security (DHS) has published a proposal to increase US Citizenship and Immigration Services (USCIS) filing fees by a weighted average of 21% across all nonimmigrant and immigrant classifications and to extend the timeline of cases filed with USCIS’ Premium Processing service. The proposed fees and processing changes come at a time when immigration practitioners and benefit applicants characterize USCIS’ adjudication policies as an “Invisible Wall” built by the President’s administration, with rates of Requests for Evidence (RFEs) and Denials on the rise and processing times extending to five-year highs for a number of employment-based classifications. Following a 30-day public comment period ending on December 16, and barring any court action or other delays, the proposed fees, listed below, could go into effect as early as January 2020.

See table of select proposed fees for immigration applications below.

The Fee Increase in Context

In 2003, USCIS assumed responsibility for the administration of immigration benefit applications following Congress’ enactment of legislation dismantling the legacy Immigration and Naturalization Service (INS). At the same time, other legacy INS immigration oversight functions, namely immigration enforcement and border security, were assigned to the newly-formed Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) respectively.

USCIS’ operations are fee-funded, with collected filing fees accounting for 96% of USCIS’ budget. Fees paid to USCIS cover the cost of adjudicating benefit requests, which includes the costs associated with detecting and determining immigration fraud and vetting applicants, petitioners, and beneficiaries. Federal law requires USCIS to review its fees every two years and recommend adjustments based on analysis of incoming and outgoing expenditures associated with its administration of immigration benefit applications. USCIS’ FY 2019 review concludes that current fees would underfund USCIS by approximately $1.3 billion annually, leading DHS to recommend a 21% increase in FY 2020 and 2021.

Despite USCIS’ current operating deficit and reliance on fees, DHS’ fee proposal also states that increased USCIS fees will be used to recover a $200 million transfer of collected fees to fund ICE enforcement operations included in the President’s FY 2019 and 2020 budget requests. In support of this unprecedented interagency transfer of funds, DHS asserts that USCIS shares responsibility for ensuring the integrity of the US immigration system beyond the approval or denial of a petition, including supporting ICE investigations of potential immigration fraud by those who have applied for immigration benefits adjudicated by USCIS.

Changes for H-1Bs and L-1s

Among the sweeping changes included in the proposal, DHS recommends changes to the fees and processing of H-1B and L-1 petitions. USCIS Form I-129, Petition for a Nonimmigrant Worker is used to support individual petitions for employees seeking H-1B, L-1, and other temporary classifications. Currently, the filing fee for Form I-129 is $460, consistent across each classification, with additional anti-fraud and workforce training fees required in certain H-1B and L-1 filings.

The new fee structure proposes different Form I-129 fees based on the nonimmigrant classification requested, raising the fee for H-1B filings by $100 to $560 (a 22% increase) and L-1 filings by $355 to $815 (a 71% increase), exclusive of Premium Processing and other required filing fees.

Under its current structure, USCIS allows petitioners to pay an additional filing fee to request Premium Processing service for expedited 15-calendar day processing of immigration filings in designated classifications. DHS has already announced an increased fee of $1440 effective December 2, 2019 and is now proposing to change the 15-day processing time from calendar days to business days, allowing USCIS additional time to complete adjudications on an expedited timeline without resorting to intermittent suspension of Premium Processing in certain categories as it has in the past. DHS cites an increase in premium processing requests as a core reason for relaxing the processing timeline. However, Premium Processing has become a business necessity for many employers in the face of increased RFEs and indeterminable non-premium processing times.

To put this fee increase in some context, over the last several years in the H-1B category, the rate of RFEs has nearly doubled from approximately 33% of filed petitions at the start of FY 2015 to 60% of petitions filed in FY 2019. The L-1 RFE rate was 38% at the start of FY 2015 and rose to nearly 52% in FY 2019. On the same timeline, the reported average processing time of non-premium Form I-129 filings has increased from 2.3 months in FY 2015 to 3.6 months by FY 2019. Actual processing times for non-premium H-1B filings currently range from 3.5 months to 10.75 months among the regional USCIS Service Centers adjudicating these filings, and L-1 processing times range from 1.5 to 7.5 months.

Contact USCIS

DHS is accepting public comments on the proposal through December 16, 2019. As USCIS proposes to raise fees and lower its own standards for expedited processing, employers are encouraged to submit comments detailing the impact of the “Invisible Wall” of increased fees, heightened scrutiny, and slower processing on American businesses and the economy. Submit comments online here.

Please contact any of our immigration lawyers with any immigration related matters.

Select Fees from USCIS Proposed Fee Schedule
Published November 2019

To download the table below as a PDF, select: Proposed Fee Schedule.

Screen Shot 2019-11-27 at 2.31.17 PM

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Public Charge Rule: Trump’s Proposed Changes Put on Hold by Courts

By Grant W. Godfrey, Immigration Attorney

Public Charge Fact Sheet

On October 11, 2019, judges in three separate cases before the following courts —

— enjoined the Department of Homeland Security (“DHS”) from implementing and enforcing its new final rule changing the interpretation of the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (the “INA”). The new rule was set to go into effect just four days later, but has been put on hold until there is a final resolution of these cases.

What is the Public Charge Rule?

The concept of a public charge was first introduced into immigration law by the Immigration Act of 1882, which stated that an immigrant who would be “unable to take care of himself or herself without becoming a public charge” would not be permitted to depart their vessel and enter the United States. Since then, the legal language and interpretation of who is considered likely to become a ‘public charge’ has changed several times, most recently in 1999 by the legacy Immigration and Naturalization Service (now the U.S. Citizenship and Immigration Services, which is a part of the DHS). The 1999 guidance defined a public charge as someone who has or is likely to become ‘‘primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

Proposed Changes to Determine Public Charge

The new final rule would make several important changes to the public charge determination. For example, it increases the types of assistance programs that the federal government will consider in public charge determinations to include a number of public assistance programs that were previously not taken into consideration in this determination. It also explicitly directs immigration officers to take into account more qualitative factors that were always theoretically available for consideration but were often not considered in practice, including the individual’s age, health, family status, assets, resources, financial status, education, and skills. The new final rule would also change several common forms used in immigration proceedings (e.g. Form I-485, I-129, I-539, I-864, and I-864EZ) to ask direct questions related to this new interpretation.

Separately, on October 11, 2019, the Department of State published an interim final rule changing its interpretation of the public charge determination process, also broadening it and taking into account many of the same factors as DHS. This new rule was also supposed to be effective on October 15, 2019, but after the injunctions the State Department published a notice stating that it is awaiting approval to use a new form before it implements any changes to its rules or policies.

More Information

We will continue to monitor the situation regarding the Public Charge Rule and post updates as appropriate. In the meantime please do not hesitate to contact any of the immigration attorneys at Parker Gallini LLP should you have any questions.

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H-4 EADs: DHS Moves One Step Closer in Its Plan to Rescind H-4 Dependent Spouses from Eligibility for Employment Authorization

By Victoria Morte, Immigration Attorney

The Department of Homeland Security (DHS) has submitted a proposed rule for review by the Office of Management and Budget (OMB) to rescind H-4 dependent spouses from eligibility for an Employment Authorization Document (EAD). The proposed regulation, entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” is based on DHS’ Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan.  The removal of this benefit would substantially impact H-1B-H-4 couples and their families, and employers who now employ H-4 visa holders with valid EADs. 

As of December 2017, USCIS had approved 90,946 initial applications for H-4 EADs for dependent spouses when the principle H-1B holder is the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker or of an approved extension of H-1B status beyond the sixth year based on a filed Form I-140 or Labor Certification (PERM). While the proposed rule is under review, there is no immediate impact to the H-4 EAD application process, and qualifying individuals remain eligible to apply for the benefit. Consequently, any qualifying dependent spouses should consider filing an application as soon as possible before the rule rescinding H-4 EADs is finalized and implemented. Given the timeline of OMB review and the required notice and comment period, the opportunity to apply for an H-4 EAD is likely to be lost in the coming months. 

OMB is permitted up to 90 days to review the proposed rule, which DHS submitted on February 20th. Following OMB’s review of the proposed rule, a notice of proposed rule making will appear in the Federal Register and will be open for public notice and comment for a 30 to 60-day period. The proposed regulation will go into effect only after DHS finalizes the rule following the comment period. Unless DHS establishes good cause for faster implementation, the finalized rule must be published at least 30 days before it goes into effect.

Under current regulations, DHS maintains the authority to revoke employment authorization granted to H-4 dependent spouses prior to the expiration date on the EAD via written notice. DHS has not yet indicated if any transition period or final renewal opportunity will be offered to current H-4 EAD holders following publication of the final rule.

Further, DHS has not addressed its adjudicatory plan for H-4 EAD applications that remain pending when the final rule is published. However, according to USCIS’ current guidance, H-4 EAD validity begins on the date USCIS adjudicates a pending Form I-765 or on the date an applicant acquires qualifying H-4 status. H-4 EAD validity is not backdated to the time qualifying H-4 status is granted. 

As we await publication of DHS’ proposed rule, current H-4 EAD holders and/  their employers should immediately explore with immigration counsel whether H-1B sponsorship is viable or if there are potential alternative options including other available nonimmigrant classifications and immigrant visa processes that might facilitate the continuity of employment.

For more information about the proposed elimination of H-4 EADs, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini.

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USCIS Has Opened Premium Processing to All H-1B Petitions Filed on or before December 21, 2018

By Grant Godfrey and John Gallini

Effective today, the U.S. Citizenship and Immigration Services (USCIS) is accepting upgrades to premium processing service for all H-1B petitions filed on or before December 21, 2018.

The suspension of premium processing for H-1B filings originated on March 20, 2018 when USCIS announced that it would temporarily suspend premium processing for any Cap-Subject H-1B petition with the expectation that premium processing for those cases would resume by September 10, 2018.

On August 28, 2018 USCIS then announced that it was extending the suspension of premium processing for Cap-Subject H-1B filings and also expanding it to all H-1B petitions, except for those filed by cap-exempt organizations or for H-1B petitions that were for continuation of employment without change, with the expectation that premium processing would be returned by February 19, 2019.  On January 25, 2019, USCIS announced that it was resuming premium processing for Cap-Subject H-1B filings, and that it would make announcements about resuming premium processing for the remaining H-1B filings in the future.

While this announcement will be of some help to employers and H-1B workers, it is disappointing that the USCIS is not resuming premium processing for all H-1B filings as was promised over the summer.  When USCIS extended and expanded the suspension of premium processing, it stated that by doing so it would be able to reduce a significant backlog of long-pending H-1B petitions.  This goal has not been met and processing times for many H-1B petitions have actually lengthened to 12 months or more.  Hopefully USCIS will recognize that its policies are actually counterproductive to its own well-being as an agency and once again extend in the near future the premium processing option to all H-1B petitions, regardless of filing date.

For more information, please contact any of our immigration lawyers at Parker Gallini.

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