USCIS Announces Delays in Data Entry and Receipt Notice Generation for H-1B Cap Subject Petitions
Due to the ongoing impact of the COVID-19 pandemic, on April 13, USCIS announced the delay in data entry and receipt notice generation for FY2021 cap-subject petitions until at least May 1, 2020. In past years, USCIS would begin data entry on April 1, the first day petitions were received, and data entry was typically completed around mid-May, however delays were based on completion of the lottery and then pulling those cases that were accepted out of a group of approximately 200,000 cases. This year, USCIS has received significantly fewer cases, and all of those received have been accepted in the lottery and can be directly receipted, so the announcement by USCIS clearly indicates a workflow and staffing issue caused by COVID.
Once USCIS begins data entry on May 1, it will complete intake processing in the order in which petitions were received. With the delay in data entry and notice generation USCIS has acknowledged there will also be a general delay in processing FY-2021 cap-subject petitions. However, the agency noted that it is mindful of cap-gap petitions, which have sensitive expiration and start dates, and it will “strive to process these petitions as efficiently as possible.”
We will continue to provide updates regarding the processing of cap subject petitions as USCIS announces them. Please contact our legal team if you have questions regarding the status of your cap-subject petition.
CARES Act Stimulus Payment Does Not Negatively Impact Public Charge Determination
On March 27, President Trump signed into the law the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Among the provisions, the CARES Act provides a stimulus payment of $1,200 to each individual with an adjusted gross income of up to $75,000 ($150,000 for married couples), plus another $500 per child. Individuals with a valid Social Security number and people who qualify as “resident aliens,” as defined by the IRS, will qualify for the stimulus payment.
The IRS states that a non-US citizen is considered a nonresident alien unless he or she meets either the green card test or the substantial presence test. Under the green card test, lawful permanent residents (green card holders) are considered resident aliens. Likewise, a foreign national may be considered a resident alien if they have been physically present in the U.S. for a designated minimum threshold period. The IRS exempts certain nonimmigrant visa statuses from the physical presence calculations such as F, J, M, or Q visa holders. However, most work-authorized immigration statuses, such as the H, DACA, L, O, TN and TPS are not exempted. Hence, the nonexempted immigration statuses may be able to meet the substantial presence test and qualify for a stimulus payment.
A foreign national’s receipt of the stimulus payment is not factored into the new public charge determination regarding whether the foreign national is ineligible for lawful permanent residency status due to likely future dependence on public benefits. Specifically, the stimulus payment is considered a tax credit, and under the new public charge rule, tax credits are not counted as a “public benefit” used in the new public charge determination. Hence, foreign nationals should feel at ease accepting the automatic stimulus payments without worrying about whether the payments would negatively impact the ability to obtain lawful permanent residency in the future.
As an added reminder, USCIS has previously announced that the testing, prevention, or treatment for COVID-19 will not be used against foreign nationals in a public charge determination. Hence, we encourage all individuals to seek the care they need during these challenging times.
NVC Confirms Correspondence Delays
The Department of State National Visa Center (NVC) has advised that it has temporarily reduced its staffing levels due to COVID-19. Accordingly, the NVC will no longer respond to routine messages submitted through its online “ASK NVC” form. Instead, the NVC will only respond to inquiries involving urgent medical or humanitarian situations, or if an inquiry provides the NVC with a necessary update on a pending case.
If an individual is unable to resolve an issue through the self-service tools available online, the NVC’s call center [(603) 334-0700] continues to maintain normal business hours of 7:00 am (ET) to 12:00 am (ET) M-F.
USCIS Extends Temporary Office Closures Until at Least May 3 and Allows Reuse of Some Biometrics
On April 1, USCIS announced that it would extend the temporary suspension of in-person services at field offices, asylum offices, and application support centers (“ASC”) until at least May 3, 2020. Accordingly, all interviews, appointments, naturalization ceremonies, and other face-to-face interactions have been cancelled. USCIS will send out new notices advising individuals of their re-scheduled appointments. However, individuals must reschedule their Infopass appointments through the USCIS Contact Center.
Furthermore, on March 30, USCIS announced that it would reuse previously submitted biometrics in order to process Form I-765, Application for Employment Authorization, extensions due to the temporary closure of ASC centers. Individuals who had an ASC appointment on or after the initial March 18 closure, or who filed an extension, will have their application processed using previously submitted biometrics until ASCs resume normal operations. Note: this announcement does not apply to pending EAD applications that did not have an ASC appointment scheduled, nor to I-539 applications that are pending.
E-Verify Extends Timeframe to Resolve Tentative Nonconfirmations
Due to Social Security Administration office closures to the public, E-Verify is extending the timeframe to take action to resolve Tentative nonconfirmations (TNCs). Normally, employees must make initial contact with SSA or USCIS within 8 federal government working days. However, because of office closures due to COVID-19, the time period has been suspended indefinitely. Employers must continue to notify their employees of TNCs as soon as possible. Importantly, employers must not take any adverse employment actions while E-Verify queries are in an interim status/while a TNC is pending.
Please contact a member of our legal team if you have questions regarding E-Verify and I-9 compliance.
Department of State Heightens Standard for Blanket L Petitions
In October, 2019, the Department of State (DOS) heightened the adjudication standard for L visas from “the preponderance of evidence” (more likely than not) standard to a “clear and convincing” (substantially more likely than not) through an update in the Foreign Affairs Manual (“FAM”). However, the change was subsequently reverted the following month.
On March 30, 2020 the FAM was updated again with an even higher adjudication standard. Specifically, it directs Consular Officers to deny a Blanket L petition if the Consular Officer has “any doubt” regarding whether an applicant has met all the requirements for a Blanket L petition.
Blanket L visas allow international companies to transfer executives, managers, and specialized knowledge employees to the United States. Beneficiaries of Blanket Ls may apply either at a consulate abroad or through USCIS. Generally, approvals for Blanket Ls have, anecdotally, been higher at consulates abroad, depending on the consulate. However, given the heightened standard, it will likely be more difficult to obtain approval from consular offices abroad. Moving, forward, our office will continue to work with international companies and their foreign employees to gather additional evidence for our L-1 petitions to satisfy this new heightened standard.
Continue to Remain Up-to-date With Our News Alert and Webinars
We have been stepping up our outreach in response to the Coronavirus Pandemic in the hope to ensure clients are well informed of the impact that government reactions have had to our global system and U.S. immigration processes. We will continue to send key updates to clients and friends of the firm – if you know someone who would benefit from these updates they may sign up for our news alert here. After holding webinars related to chronicling the impact on the immigration system with our latest recording available here, we are now discussing the impact of coronavirus on compliance – specifically in relation to work from home (“WFH”), salary reductions, furloughs, and lay-offs. See our invite below if you are interested in receiving the most current direction on these topics.
Immigration Compliance During Remote Work and Furloughs [two dates to choose from]
In 30 minutes David Brown, Managing Partner, will discuss the key elements to pay attention to related to compliance in the age of work from home, or finalizing a RIF or furlough of your staff. This will give you the tools to properly ensure compliance and understanding in what are truly difficult times.
David will cover key points related to:
- What employees have WFH compliance issues?
- What if employees during Shelter-in-place work outside of the normal commuting distance?
- Does the DOL really require a notice be posted or an H-1 amendment be filed?
- Is there a differential approach to a furlough or RIF for the different work authorized status types?
- What’s our best practice for minimizing disruption to our foreign national employees?
David will walk through specific examples and scenarios and draw on his experience handling these issues the last 22 years. After his presentation he’ll provide direct answers to questions and he is also available for direct consultation on these matters after the webinar. If your company or fellow HR colleague can benefit from such a session, please register, and invite your friends.
Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.
If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.
Don’t miss these opportunities to increase your knowledge on important immigration issues!
Thank you and we look forward to having you at the event.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **