Due to a 50% drop in receipts and incoming fees, USCIS has announced that it is facing a $1.2 billion budget shortfall. The Agency has requested emergency funding from Congress to cover the shortfall. Since USCIS is fully fee-funded, with very limited Congressional appropriations, it has proposed a 10% fee surcharge on applications and petitions in order to repay the funds, should they be granted.

In the absence of these funds, USCIS has notified over 13,000 employees of furloughs to begin on August 3, as detailed in a Vice article here. Cuts will vary from office to office and will be spread between local and regional offices and Service Centers, but reports indicate that furloughed workers make up at least two thirds of the USCIS workforce. The furlough notices indicated that they will last for at least 30 days, but could extend to 3 months or longer. If Congress does not approve USCIS’ funding request, processing of immigration benefits could become severely backlogged, depending on the length of the furloughs and the volume of application and petitions filings.

Given the potential limitations on USCIS processing capabilities, it seems likely that USCIS will once again suspend the premium processing program during these furloughs, should they be necessary.  We therefore recommend that you convert any pending petitions to premium processing at this time, if you have not done so already and are considering it.

Please note that the proposed 10% fee surcharge is separate from the proposed fee increases which USCIS first proposed in November 2019 (as detailed in our December newsletter). That proposed fee increase continues to move through the regulatory process, with a final rule submitted to the Office of Management and Budget for review on May 29, 2020.

Routine visa services continue to be unavailable at U.S. Embassies and Consulates worldwide. On June 22, President Trump announced a sweeping Proclamation suspending entry into the United States for new H, L, and certain J nonimmigrants who were outside the U.S. without valid travel documents on June 24, 2020. In addition, a number of general travel restrictions remain in effect, including closure of the U.S.-Canada and U.S.-Mexico borders to non-essential travel, and suspension of entry for individuals who have been in certain countries during the preceding 14 days. For a full summary of current travel restrictions, please view our Fact Sheet here.

After suspending premium processing services for all case types on March 20 due to the pandemic, premium processing of all previously-eligible I-129 and I-140 petitions has now resumed at USCIS.

For all filings dated March 21, 2020 or later, USCIS will accept electronically reproduced copies of originally-signed forms for the duration of the National Emergency. Specifically, USCIS indicates that the originally-signed document with a “wet” signature may be scanned, faxed, photocopied, or similarly reproduced and that reproduction may be submitted to USCIS for filing. However, applicants/petitioners must retain the original document containing the “wet” signature, as USCIS may request it at any time. Based on this announcement, USCIS will still not accept signature stamps or e-signatures.

Additionally, applicants and petitioners responding to certain Requests for Evidence (RFEs), Notices of Intent to Deny or Revoke, or similar notices or Appeal filings have been granted additional time to respond. For notices issued between March 1 and September 11, 2020, USCIS will consider a response received within 60 calendar days after the response due date set in the request or notice before taking any action on the case.

Note that USCIS has not granted extensions of any other filing deadlines; however, if a petitioner or applicant files an extension or change of status request after the authorized period of admission expires, USCIS may use its discretion to excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances, and the petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis.

DHS has continued to extend the I-9 flexibility first announced on March 19. Specifically, DHS will exercise prosecutorial discretion to defer the physical presence requirements associated with Form I-9 completion for employers operating 100% remotely due to COVID-19 through July 19. Note that, if there are any employees physically present at a work location, no exceptions will be allowed for the in-person verification of identity and employment eligibility documentation for Form I-9. If newly-hired or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis. Please review our March News Flash for complete details on how to complete the I-9 process remotely if you qualify for this exception. USCIS has since provided examples of Forms I-9 completed remotely per the guidelines.

Beginning May 1, DHS also provided for flexibility with regard to List B identity documents which expired on or after March 1, 2020 and cannot be extended due to COVID-related closures. Depending on whether the issuing authority has issued an automatic extension of the expiration date, the document will either be treated as a receipt (meaning you will later need to re-verify with a valid document within 90 days after this temporary exception expires) or a valid document (not requiring re-verification). Please click here for further details and instructions.

With regard to the required Notice of Filing during the PERM advertising period, the regulations require that the notice be physically posted at the location of employment, in addition to a posting on the employer’s in-house media (where the employer usually uses such media for recruitment postings). DOL has indicated that it will not be making exceptions to this requirement during the pandemic.

While DOL made initial accommodations to allow extra time to file PERM applications for which recruitment was underway at the start of the pandemic, those accommodations ended on May 12. Furthermore, DOL has confirmed that the validity of prevailing wage determinations will not be extended.

In terms of certified PERM labor certifications, DOL will continue to send the labor certification electronically to employers and their authorized attorneys through September 30, 2020 (this practice began on March 24). This electronic copy may be printed, signed by all parties (employer, employee, and attorney), and submitted to USCIS along with the I-140 petition, in lieu of the typically-issued original certification on special security paper.

As a reminder, the regulations allow employers to provide electronic notice of an LCA filing. Electronic notice may include any means ordinarily used by an employer to communicate with its employees about job vacancies or promotion opportunities. This includes website, electronic newsletter, intranet, or email. If employees are provided individual direct notice, such as by email, notification is only required once. Otherwise, electronic notice should be posted for 10 calendar days.

DOL has strict rules with regard to LCA requirements surrounding changes to a subject position or terms of employment, as summarized in our March News Flash. At this point, we believe we have worked with all of our clients to address issues related to changes to H-1B, H-1B1, and E-3 workers, including temporary or permanent changes to their job site, compensation, and/or work hours. Should new changes arise under the shifting landscape of this pandemic, please reach out to the attorney with whom you work to discuss the impact and potential requirements for LCA postings and/or new petitions with USCIS.

There have been two recent, significant changes with regard to international students:

On July 6, Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) announced updated guidance for Fall 2020 with regard to institutions that will be holding classes remotely rather than in-person. During the initial move to remote schooling this spring, SEVP instituted temporary exemptions to the standard online study policy, allowing F-1 students to take more online courses and still be considered to be maintaining a full course of study as required for F-1 visa status. The July 6 announcement ends this temporary exemption at the end of summer semester.

For the Fall 2020 semester, students in F status attending schools which will be operating entirely online will not be allowed to remain in (or come to) the United States (though they may continue attending classes online from abroad). Visas will not be issued to such students, nor will they be allowed to enter the country. Those students who are already in the U.S. will be required to depart or take other measures (such as transferring to another school with in-person instruction) in order to remain in lawful status. Students attending schools operating normal in-person classes will be subject to existing regulations, which allow for only one class (or 3 credit hours) of online study per semester. However, SEVP indicated that students attending schools with a hybrid model of remote and in-person classes will be allowed to take more classes online, but cannot take an entirely online course load, and the school must certify that the student is taking the minimum number of online classes required to make normal progress in their degree program. These exemptions do not apply to F-1 students in English language training programs, who are not allowed to enroll in any online courses. No guidance has been offered as to how many online versus in person classes will be considered an acceptable hybrid model.

If a school switches to entirely online classes during the fall semester, and international students do not have the ability to take in-person courses, they will be required to depart the U.S. or take alternative steps to remain in nonimmigrant status (such as transferring to a different school which offers in-person instruction).

Effective June 1, 2020, President Trump signed a “ Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China.” Specifically, the Proclamation indefinitely suspends entry of students on F or J visas who are coming from the PRC to pursue non-undergraduate studies and who either currently or in the past received funding from or were/are employed by, studied at, or conducted research at or on behalf of an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”. The Proclamation aims to limit the potential for intellectual property theft by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities. The Proclamation further directs the Secretary of State to consider whether nationals of the PRC currently in the U.S. pursuant to F or J visas who meet the exclusion criteria should have their visas revoked.

The United States-Mexico-Canada Agreement (USMCA) officially replaced the North American Free Trade Agreement (NAFTA) on July 1, 2020. While it makes changes to some trade and enforcement agreements, the terms of the TN visa program remain unchanged.   

The Trump Administration published three Asylum-related notices in the Federal Register last month, which make dramatic changes to the asylum process and eligibility:

If you’d like to learn more about the asylum process, the American Immigration Council maintains a Fact Sheet. The June 15 notice remains open for public comment through July 15. If you would like to submit a comment, the American Immigration Lawyers Association (AILA) and a number of other immigrant advocacy organizations offer templates.

On June 18, the U.S. Supreme Court issued a 5-4 ruling which blocks the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program on the basis that the Administration did not end the program through the proper procedures, and that the Government’s decision to end the program was “arbitrary and capricious”.

While this decision marks a big win for the “dreamers” who were brought to the country as children, and allows DACA applications and adjudications to continue, it is not a permanent win – the Court was clear in its decision that the President does have the power to terminate DACA, so long as he follows the correct legal process.

The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of July 2020:

There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.

Employment-Based Preference Categories

Family-Based Preference Category

Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.

Following are the relevant Visa Bulletin Final Action Dates for July 2020 (i.e. dates that allow an application to be adjudicated):

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received. Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions: