DHS Issues COVID-19-Related Temporary Final Rule Easing H-2A Agricultural Work Requirements
The Department of Homeland Security (DHS), with the support of the Department of Agriculture, announced that it will publish a temporary final rule on April 20, 2020, to temporarily amend the regulations regarding temporary and seasonal H-2A nonimmigrant agricultural workers, and their U.S. employers. The rule is effective from April 20, 2020, through August 18, 2020.
The summary to the temporary final rule says that DHS will allow H-2A employers whose extension of stay H-2A petitions are supported by valid temporary labor certifications issued by the Department of Labor to begin work immediately after U.S. Citizenship and Immigration Services (USCIS) receives the extension of stay petition. H-2A workers will be allowed to stay in the United States beyond the 3-year maximum allowable period of stay. DHS said it will apply this temporary final rule to H-2A petitions requesting an extension of stay and, if applicable, to any associated applications for an extension of stay filed by or on behalf of an H-2A worker if they were received on or after March 1, 2020, and remain pending as of the effective date of the temporary final rule, ending on the last day the rule is in effect.
DHS said the temporary final rule is in response to the COVID-19 public health emergency, and is intended to provide agricultural employers with an “orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation’s food supply chain and decreasing possible reliance on unauthorized aliens” while encouraging agricultural employers’ use of the H-2A program. DHS will issue a new temporary final rule to amend the termination date of these new procedures if the agency determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.
Meanwhile, the White House is also looking at other options to aid agricultural employers, some of which are controversial, such as lowering farmworker pay.
- Temporary final rule, https://bit.ly/2VCSiii
- USCIS announcement, https://www.uscis.gov/news/news-releases/dhs-and-usda-move-protect-american-farmers-and-ensure-continued-flow-americas-food-supply
National Public Radio, “White House Seeks to Lower Farmworker Pay to Help Agriculture Industry,” https://www.npr.org/2020/04/10/832076074/white-house-seeks-to-lower-farmworker-pay-to-help-agriculture-industry
DHS Issues Advice on Options for Nonimmigrants During COVID-19 Emergency
The Department of Homeland Security (DHS) said it recognizes that nonimmigrants may unexpectedly need to remain in the United States beyond their authorized periods of stay due to COVID-19 issues. If that occurs, DHS noted several available options, including applying for an extension, flexibility for late applications, and flexibility for visa waiver entrants.
DHS noted, among other things, that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances. The petitioner or applicant must submit credible evidence to support the request, which U.S. Citizenship and Immigration Services (USCIS) will evaluate on a case-by-case basis. DHS noted that such evaluations have been used in the past, “including for natural disasters and similar crises.” DHS also noted that if an emergency (such as COVID-19) prevents the departure of a Visa Waiver Program entrant, USCIS in its discretion may grant a period of “satisfactory departure” for up to 30 days. USCIS can grant an additional 30-day period of satisfactory departure if warranted.
- DHS/USCIS notice, https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings
- Related USCIS notice, https://bit.ly/2XMiM3i
- USCIS Response to COVID-19 page, https://www.uscis.gov/about-us/uscis-response-covid-19
State Dept. Announces Limited U.S. Passport Processing
The Department of State (DOS) announced on April 15, 2020, that it is limiting U.S. passport operations in response to the COVID-19 pandemic as of March 20, 2020. In-person service at agencies or centers is available only for those with a “qualified life-or-death emergency and who need a passport for immediate international travel within 72 hours.”
People can still apply in person for a U.S. passport at some acceptance facilities and renew through the mail, but DOS said it will not be able to meet its commitment of 6 to 8 weeks door-to-door for routine service. “You should expect significant delays” for passports and citizenship evidence documents, the agency said. “Please consider waiting to apply until we resume normal operations.” Expedited service is not being offered, although DOS is still working on a “small number” of expedited applications submitted on or before March 19.
- DOS announcement, which includes details on what constitutes a “life-or-death emergency” for purposes of passport processing, https://travel.state.gov/content/travel/en/traveladvisories/ea/passport-covid-19.html
State Dept. Advises on Emergency Visa Appointments, J-1 Extensions, for Medical Professionals
The Department of State (DOS) recently announced that U.S. embassies and consulates will continue to provide emergency and mission-critical visa services “to the extent possible, given resource constraints and local government restrictions.” Medical professionals with an approved U.S. nonimmigrant or immigrant visa petition (I-129 or I-140 with a current priority date, or similar), or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, should review the website of their nearest U.S. embassy or consulate for procedures to request an emergency visa appointment, DOS said. Local government restrictions may limit the ability of some embassies/consulates to process emergency visas now. Applicants’ travel may also be subject to restrictions.
For those foreign medical professionals already in the United States, DOS noted that J-1 physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years, the agency noted.
DOS update, https://travel.state.gov/content/travel/en/News/visas-news/update-on-h-and-j-visas-for-medical-professionals.html
The situation is rapidly evolving, and changes to the information above are possible. Please contact your Klasko attorney for advice in specific situations.
President Bans Immigrants From Entry Into the United States for 60 Days, With Exceptions
President Trump issued a proclamation suspending the entry of immigrants into the United States for 60 days, with some exceptions. The proclamation notes that it may be extended or modified. The proclamation states that the rationale is to address “excess labor supply” and displacement of U.S. workers. The proclamation took effect late Thursday, April 23, 2020.
The entry ban applies to those who (1) are outside the United States as of April 22; (2) do not have an immigrant visa that is valid on the effective date; and (3) do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date or issued on any date after the effective date that permits him or her to travel to the United States and seek entry or admission.
Excluded from the ban are lawful permanent residents; those seeking to enter the United States as physicians, nurses, or other healthcare professionals, to perform medical or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of, the COVID-19 pandemic; those applying for visas to enter the United States as EB-5 immigrant investors; spouses and children of U.S. citizens; members of the U.S. armed forces; and some others.
Other key points include:
- Additional measures regarding nonimmigrant visas are possible. The proclamation directs the Secretaries of Labor and Homeland Security, in consultation with the Secretary of State, to review nonimmigrant programs and recommend to the President “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
- Stephen Miller, President Trump’s senior policy adviser, confirmed to White House supporters on a private call that the proclamation is intended to open the door to additional restrictions for the longer term and that “the most important thing is to turn off the faucet of new immigrant labor.” He also said, “In terms of dealing with some of these seasonal flows of guest workers and developing a strategy for that, that’s what the president directed us to do.”
- “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/
- CNN, “Acting Homeland Security Chief Suggests Additional Immigration Measures Could Be Coming,” https://www.cnn.com/2020/04/23/politics/chad-wolf-immigration-coronavirus/index.html
- CNN, “Trump Says Immigration Order Will Apply Only to Green Cards and Will Last 60 Days,” https://www.cnn.com/2020/04/21/politics/donald-trump-immigration-coronavirus/index.html
- Washington Post, “Stephen Miller Has Long-Term Vision for Trump’s ‘Temporary’ Immigration Order, According to Private Call With Supporters,” https://www.washingtonpost.com/immigration/stephen-miller-audio-immigration-coronavirus/2020/04/24/8eaf59ba-8631-11ea-9728-c74380d9d410_story.html
- New York Times, “Trump’s Temporary Halt to Immigration is Part of Broader Plan, Stephen Miller Says,” https://www.nytimes.com/2020/04/24/us/politics/coronavirus-trump-immigration-stephen-miller.html
USCIS Offices Reopening ‘On or After June 4’
After a shutdown that began March 18, 2020, of in-person services at its field offices, asylum offices, and application support centers (ASCs) due to the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) said it is readying offices to reopen on or after June 4, 2020.
USCIS said that when it again resumes in-person operations, it will automatically reschedule ASC appointments that were canceled due to the temporary office closures. Those individuals will receive new appointment letters in the mail. Those who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again.
- USCIS announcement, https://www.uscis.gov/news/alerts/uscis-offices-preparing-reopen-june-4
- USCIS Contact Center, https://www.uscis.gov/contactcenter
- USCIS coronavirus/COVID-19 updates, https://www.uscis.gov/about-us/uscis-response-covid-19
- USCIS Office Closings, https://www.uscis.gov/about-us/uscis-office-closings
Class Action Lawsuit Challenges USCIS’ Denial of H-1B Petitions Filed by U.S. Businesses
The American Immigration Council (Council), the American Immigration Lawyers Association (AILA), and the law firms Van Der Hout, LLP, Joseph & Hall P.C., and Kuck Baxter Immigration LLC filed a nationwide class action lawsuit on April 16, 2020, challenging U.S. Citizenship and Immigration Services’ (USCIS) pattern and practice of denying H-1B nonimmigrant employment-based petitions for market research analysts positions filed by businesses in the United States.
The lawsuit, filed in federal court in the Northern District of California in San Jose, seeks to “rein in the unlawful adjudication practice USCIS uses in determining whether a market research analyst job qualifies as a ‘specialty occupation,’ and the agency’s misinterpretation of the Occupational Outlook Handbook [OOH]—a publication of the U.S. Department of Labor’s Bureau of Labor Statistics that profiles hundreds of occupations in the United States’ job market,” AILA said.
The complaint alleges that USCIS erroneously denies H-1B petitions for market research analysts by concluding that the OOH does not establish that the occupation is a specialty occupation. According to the complaint, USCIS denied at least 66 market research analyst H-1B petitions in the last three years and six petitions in the first two months of 2020, all of which used the same reasoning. Based upon these annual statistics, the complaint estimates that since January 2019, at least 40 U.S. businesses had H-1B petitions for market research analysts denied and that there likely would be hundreds more denials on the same basis in the future.
- AILA press release, https://www.aila.org/advo-media/press-releases/2020/class-action-lawsuit-seeks-to-challenge-uscis
- Complaint (MadKudu, Inc., v. USCIS), https://www.aila.org/infonet/complaint-filed-in-district-court-challenging
U.S.-Canada Border to Remain Closed for Additional 30 Days
Canadian Prime Minister Justin Trudeau recently announced a mutual agreement with the United States to extend current border restrictions between the two countries by an additional 30 days due to the COVID-19 pandemic. The border was originally closed on March 21, 2020, restricting nonessential travel between Canada and the United States but allowing trade and commerce, emergency response, and public health-related travel. Mr. Trudeau commented that reopening the border would not happen “anytime soon.”
- Canadian Broadcasting Corporation News, https://www.cbc.ca/news/politics/trudeau-saturday-covid-19-update-1.5537251
Some Good News
Ronald Klasko of Klasko Immigration Law Partners, in partnership with HIAS Pennsylvania—awards two scholarships to college-bound, immigrant students to further their education and pursue the American Dream. These HIAS PA clients will be provided with a scholarship to attend the university of their choice.
IN THE NEWS
William A. Stock
Bill was interviewed by Forbes.com for his thoughts on how immigration could save American lives during the COVID-19 pandemic.
JD Supra published Klakso’s Immigration Update for April.
JD Supra republished Klasko’s blog post titled Investment Treaty Countries for E-2 Visa Applicants.
Ron announced the Ron Klasko Family Scholarships and awarded two college-bound, immigrant students with a scholarship to attend the university of their choosing. Read about the announcement published by SBWire and the Digital Journal.
William A. Stock
Bill was quoted in this Dice Insights article about COVID-19 delaying H-1B processing.
William A. Stock
Bill was mentioned in this Washington Post article about medical workers being excluded from the President’s executive order on suspending immigration.
RECENT SPEAKING ENGAGEMENTS
On April 15th, Ron spoke in a webinar hosted by Range Developments about an opportunity for a second citizenship in Grenada with the ability to invest and reside in the United States.
William A. Stock | Elise A. Fialkowski | Michele G. Madera
On April 16th, Bill, Elise, and Michele gave a webinar on breaking immigration management concerns for companies, universities, hospitals, and research organizations in the time of COVID-19.
Ron spoke in a webinar hosted by the Investment Migration Council discussing U.S. visa and permanent residence options for high-net-worth individuals and investors on April 23rd.
Anu Nair | Andrew J. Zeltner | Allie K. Dempsey
On April 30th, Anu, Drew, and Allie spoke in a Klasko webinar about current issues regarding O-1, EB-1, and EB-2.
UPCOMING SPEAKING ENGAGEMENTS
Elise A. Fialkowski | Andrew J. Zeltner
On May 19th, Elise and Drew will give a webinar on worksite compliance in the time of COVID-19.
ICYMI: RECENT BLOG POSTS AND ALERTS
How to Manage Hiring Needs during the Suspension of Premium Processing
In this blog, associate Maria M. Mihaylova covers common scenarios and frequently asked questions about managing hiring needs during the suspension of premium processing.
Resolving LCA Wage Issues During a COVID-19 Slowdown
Associate Jordan J. Gonzalez addresses LCA wage issues during COVID-19 and gives three options if the employer’s ability to pay the required wage rate during the term of an LCA is diminished.
Immigration Options for International Medical Graduates
The firm gives an overview of immigration options for international medical graduates who want to bring their medical talents to the United States.
Investment Treaty Countries for E-2 Visa Applicants
In this blog, the firm shares information on how pairing an E-2 Visa with a citizenship by investment (CBI) can be beneficial for some investors.
Client Alert: President Trump Signs Executive Order Limiting Most Inbound Immigration; Order Does Not Limit Temporary Visas or Immigration Processing Inside the United States
In this client alert, associate Jordan J. Gonzalez addresses President Trump’s latest executive order on suspending immigration into the United States.
Every day essential workers risk their lives to help flatten the curve. We would like to share our gratitude and celebrate our extended KILP family heroes who are on the front lines of the COVID-19 crises.
From the Klasko Immigration Law Partners family to yours, Thank you!
Stay Connected! Subscribe to our blog and follow us on Twitter, Facebook, and LinkedIn.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.