A Message from Managing Partner David Zaritzky Brown
As I write this my father is ending his time with us in a hospital in Canada. Like all of us COVID-19 has had a direct and enormous impact, whether to ourselves or loved ones who may have gotten sick, or our job, or business, or our opportunity to go to school. For me, this became very personal when my father was hospitalized (unrelated to COVID) and his medical condition worsened. I rushed to Canada to start to quarantine (Canada has a mandatory 14-day quarantine), and to help my family in any way I could. The death of a loved one and the time in quarantine have helped to crystalize my thoughts on how best to honor my father. I should note that there has always been a special relationship between the U.S. and Canada, and but for our lack of a coherent national strategy, I would have anticipated being exempt from quarantine coming from the U.S. But our leadership failed to take COVID seriously and the Canadian government implemented a separate quarantine order for U.S. entries to protect Canadians. Since entry it’s clearly the case that my Canadian family and friends were concerned I might have COVID based on my zip code.
To know my father was to know he cared about everyone and, despite being a busy CEO, he somehow found time for everyone. A refugee who resettled in Canada at the age of 10, he knew the horrors of war and experienced discrimination the moment he came to Canada as he was the “other.” He overcame unimaginable obstacles and was a self-made man, but what makes him special is that despite his successes in life, he never lost sight of who he was. He was universally loved by everyone who knew him, and this was in large part a result of taking the time to connect and care and to always work to make things better. He also believed that with a little bit of hard work you could fix anything, no matter how difficult the problem.
In honoring my father for the man he is and was, our firm is expanding our outreach in a number of areas to help make our world a better place.
- We support keeping families together;
- We support our obligations to refugees and asylum seekers;
- We support the rule of law and that court orders be obeyed;
We support oversight in a free and democratic country;
- We support common sense immigration reform and proper management of our immigration system;
- We support a free press;
- We support truth, information, and science-based decision-making;
- We support affordable health care and education;
- We support efforts to address climate change;
- We support the right to life, liberty and the pursuit of happiness for all;
- We support diversity and social justice for all; and
- We support everyone’s right to vote.
We will put our money where our mouth is and donate a minimum of $50,000/year and/or free legal services to specific issues or organizations in support of the above. And we will ensure our internal policies are in line with these objectives. I share my father’s concern that our country is going in the wrong direction, and this is our opportunity to put our collective knowledge and wisdom to help solve issues that matter. We are part of the problem if we aren’t part of the solution. One of our firm values is “Community is everything” – both our community within the firm and the community we call home, and although we’ve helped around the edges before, now is the time to think bigger – we won’t sit on the sidelines anymore.
Please email me directly if you have a suggestion on where we direct our resources. And for those clients who are following the litigation related to the June 22nd Presidential Proclamation related to Non-Immigrant and Immigrant Visas, we are committed to facilitating the filing of an amicus brief for any corporate client who wishes to take a stand with us for the rule of law. I can be reached at email@example.com – thank you dad for the opportunities you gave me and for being a role model in so many meaningful ways.
OMB Currently Reviewing New Regulation to Restrict H-1Bs
USCIS first changed the review of 3rd party placed H-1Bs in the summer of 2017 extra-judicially (meaning without a change in the law, or even a proper regulatory process). Then, USCIS introduced a 3rd party placement memo (“Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”) on February 22, 2018 that outlined some of the changes us immigration attorneys had also seen in the prior eight months. Similarly, USCIS also dramatically changed its interpretation of “specialty occupation” and thus started issuing denials of H-1Bs which had previously not been denied, including straightforward H-1B extension filings. Both situations are instances of USCIS acting illegally and the courts in many cases found this to be the case. Additionally, in many cases, including a case we litigated, USCIS would actually reopen the case under litigation solely to eliminate the court’s jurisdiction (note: to argue the government misused its authority you must litigate a case that has a final action, by reopening the case the court loses jurisdiction.) This is a convenient way for the government to avoid liability and accountability. These are not the actions Ronald Reagan envisioned when he called America the “shining city on a hill.”
When USCIS negotiated a settlement in the IT Serve case, it appeared that USCIS had come to its senses.It was a tacit admission it had done something wrong. Although the agreement did not include readjudicating the thousands of inappropriate denials these illegal policies created, it at least created a path forward: the 2018 memo was tossed; the 2010 Neufeld memo was also tossed (“Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”), and; those cases wrongfully denied named in the litigation were reopened and readjudicated.
Immigration attorneys were understandably buoyed by USCIS’ admission and agreement but as we have seen these last 3+ years, there is a political element that has infected DHS and USCIS and it seeks to restrict lawful immigration. As 2017 and 2018 showed us, it did it without authority and through internal policy changes and rewriting manuals. Now we have heard of a new regulation under consideration by the OMB. It is expected to be published in the next 80 days and in our mind likely before the election so it can be used as an election prop to show the administration is tough on immigration fraud.
Reportedly, it “clarifies” that a specialty occupation must always require a degree in a specific field, rather than it being the normal or common hiring requirement. This will make it harder to argue H-1B cases with USCIS.
Additionally, it requires that the 3rd party that accepts an H-1B onsite must also file their own LCA and ensure that such employees meet prevailing wage requirements. Collectively both changes are serious impediments to the H-1B program as we know it. We caution that the language has not been released so we are making these statements based on known reports, but know that any language proposed can be changed. And there have been many new regulations sent to the OMB that never get published, including the H-4 EAD rescission regulation which was sent to the OMB around May of 2019 and has yet to be published. We will have to wait for the rule to be published to know what it contains. The final underlying concern is that USCIS will speed up its enactment by publishing it as an interim final rule, and thus bypass the normal comment and review period before a regulation becomes enforceable.
We will continue to monitor this situation and will immediately review and report on any new regulations introduced that impact the proper functioning of the H-1B program.
USCIS Provides Extended Time to Respond to Inquiries
Juxtaposing the political maneuvers that are possibly bringing us new H-1B regulations, USCIS has again extended its grace period in responding to inquiries. Previously USCIS allowed that Petitioners had an extra 60 days over the published response time to respond to Requests for Evidence, Notices of Intent to Deny and other requests. That allowance was extended for requests or notices issued anytime from March 1, 2020 through January 1, 2021. We obviously seek to respond to RFEs as soon as practicable assuming that is the best strategy, however, in cases where additional time may be beneficial we will discuss this with you.
Trusted Traveler Programs Enrolment Centers Reopen on September 8
On September 4, Customs and Border Protection (CBP) announced the reopening of Trusted Traveler Programs (TTP) enrollment centers to the public. Operations at all enrollment centers had been suspended since March 19, 2020 to prevent the spread of COVID-19. Beginning September 8, conditionally approved Global Entry applicants are able to complete in-person interviews at most TTP enrollment centers in the US by logging into their account on the TTP website. However, due to the temporary restrictions on non-essential travel at U.S. land borders, NEXUS, and U.S. Canada FAST interviews at U.S. and Canadian enrolment centers will continue to remain suspended. SENTRI and FAST-South enrollment on the southern border may also be limited. Travelers are reminded that crossing a U.S. land border for the purpose of visiting a TTP enrollment center is considered non-essential travel.
CBP has introduced additional measures to promote social distancing and protect the health and safety of travelers and CBP personnel. The additional measures include requiring all applicants and visitors to wear face masks consistent with CDC recommendations and state and local mandates, staggering or reducing appointment availability, limited seating in waiting areas, more frequent disinfection of the service counters, and other measures to promote social distancing.
We will continue to provide updates as CBP announces them.
USCIS Authorizes Usage of EAD Approval Notices to Complete I-9 for Limited Time
On August 19, in response to extensive delays in the production of certain Employment Authorization Documents (EADs), USCIS announced that a Form I-797, Notice of Action, approving an Application for Employment Authorization (Form I-765) may temporarily be used to prove work authorization rather than requiring an actual EAD card (Form I-766). An I-797 Approval Notice for employment authorization shall be considered a valid List C document (Item #7 under List C) to establish employment authorization through December 1, 2020, if the notice was issued from December 1, 2019 through August 20, 2020. Employers must re-verify employees who presented the Form I-797 Approval Notices as employment verification by December 1. A new employee presenting a Form I-797 approval notice in lieu of an EAD as a List C document to demonstrate employment eligibility will need to also present a List B document to establish identity. Whereas, a current employee who filed an application to renew an EAD is only required to produce the approved Form I-797 as a List C document during a reverification process.
Please contact a member of our legal team if you have questions regarding I-9 compliance.
DHS Proposes Expansion of Biometrics Collection
On September 11, the Department of Homeland Security (DHS) proposed a rule to amend its regulation to expand the use and collection of biometrics in enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services (USCIS), Customers and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The proposed rule would significantly expand the collection of biometric data for immigration benefits. Among the changes, the proposed rule would:
- Require any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, to appear for biometric collection without regard to age unless DHS waives or exempts the biometrics requirement;
- Increase the biometric modalities DHS may require to include iris image, palm print, and voice print;
- Define the term biometrics to include more than just “fingerprints;”
- Allow DHS to require, request, or accept DNA results, which include a partial DNA profile, to prove the existence of claimed genetic relationship and that DHS may use and store DNA test results; and
- Implement a program of continuous vetting and biometric evaluation for any alien approved for an immigration benefit until citizenship is granted.
Currently, DHS collects fingerprints, signature, and photographs for its biometrics. The addition, and retention, of iris image, palm print, and voice print constitutes a significant expansion of biometric data collected and raises serious privacy concerns. If finalized, the new rule is expected to expand the collection of biometrics by about 2.17 million submissions annually, and the resulting biometrics submitting population will increase from 3.90 million currently to 6.07 million.
The proposed rule has a 30-day public comment period which will end on October 13, 2020. We encourage affected applicants and petitioners to submit a comment. Thereafter, the agency will publish the final rule and the changes will go into effect.
We will continue to monitor the development of this proposed rule and timely notify employers and employees of the changes once they are finalized.
Court Stays DHS Public Charge Injunction
On September 11, The Second Circuit U.S. Court of Appeals stayed a lower-court’s nationwide injunction prohibiting the implementation and enforcement of DHS’ “public charge rule” during the COVID-19 pandemic. Previously, the court had narrowed the lower-court’s nationwide injunction to the states of New York, Connecticut, and Vermont. With the court’s most recent decision, DHS is now able to resume its public charge rule across the nation, which broadened how USCIS determined whether a foreign national applying for admission or adjustment of status is inadmissible if the foreign national is deemed a public charge or likely at any time to become a public charge. Given that there is not a legal impediment to reinstituting the “public charge rule,” we expect an announcement shortly and expect that new case filings will need to include the I-944 form and supporting evidence again shortly.
DOS Expands Interview Waiver Eligibility
On August 25, the Department of State (DOS) announced the temporary expansion of the ability for consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification if not more than 24 months have passes since the expiration of the prior visa. The temporary policy is in effect until December 31, 2020. Previously, the interview waiver was only available for those whose nonimmigrant visa expired within 12 months. To qualify for an interview wavier an applicant must:
- Apply to renew the visa no more than twenty-four (24) months after the previous visa’s expiration;
- Be seeking renewal of the visa in the same nonimmigrant classification;
- Be applying for the visa renewal in the consular district of normal residence;
- Be “an applicant for whom the consular officer has no indication of visa ineligibility or noncompliance with U.S. immigration laws and regulations;” and
- Have been subjected to all appropriate biometric visa requirements.
F, M, and J nonimmigrants who meet the above conditions are subject to additional requirements. Please contact a member of our legal team regarding any questions about potential eligibility for the Interview Waiver Program.
Frequently Asked Questions
As employers and their employees continue to be impacted by COVID-19 and the plethora of Presidential Proclamations and other restrictions that limit the ability of individuals to come into the U.S., we provide a list of Frequently Asked Questions during these challenging times. As always, please consult with our legal team member assisting you with your case or immigration process as these general answers may not be applicable to your specific situation.
- I am a Canadian citizen; can I apply for a TN at the border?
Yes. Though the US and Canada border has been closed since March 2020, restricting all non-essential travel across the US-Canada land border, which has been extended until September 21, 2020, entry for work is considered essential. Therefore, you will be able to apply for a TN at the border and enter into the US if your application is approved.
- I have a current unexpired H/J/L nonimmigrant visa and passport; if I depart the US and seek reentry, am I subject to any entry bans into the United States?
Generally, no. However, if you have been to certain foreign countries during the past 14 days preceding your entry into the U.S., you may not be allowed to enter. Please consult with a member our legal team currently assisting you prior to any foreign travel to minimize the risk of not being able to reenter the U.S.
- I am currently in the Schengen Area/United Kingdom/Ireland, countries which are subject to the 14-day rule, are there any exceptions for my entry into the US?
Yes – the DOS has noted that certain individuals who are seeking to enter the US due to humanitarian, economic (substantial benefit to the U.S. economy), or are traveling to the US in connection with investment or trade, among others, may qualify for an exemption and be allowed entry into the U.S. even though the individual was in one of the banned regions within 14 days preceding attempted entry into the U.S. Additionally, if you are a foreign national with U.S. born children you are also exempt from the entry ban. Those individuals who are subject to the ban and have no exemptions typically travel to a third country for at least 14 days after which they then travel into the U.S.
- Do I qualify for a national interest exception to Presidential Proclamations 10014 and 10052 which restricts the entry of certain immigrants and nonimmigrants into the United States until after December 31, 2020?
It depends. On August 12, 2020, the DOS released guidance detailing the exceptions in which H, L, and J applicants may qualify for a national interest exemption (in other words get a U.S. visa despite the Proclamation’s plain meaning suggesting a visa will not be issued). The exemptions include traveling as a public health or healthcare professional, engaging in employment that meets a critical infrastructure need, or filling a critical business need as a senior-level executive or manager. If you believe you may qualify for a national interest exemption, please contact a member of our firm to fully assess your eligibility.
New Presidential Proclamation and Recent Policy Changes Webinars
As the Coronavirus Pandemic has continued to impact our daily life and local economies, we know that the impact is still being felt and that not all government offices and benefits are readily available. This has clearly lasted longer and had more profound effects than any of us originally imagined. To ensure our clients and friends are better aware of the impact of prior and recent policy announcements (including the June Presidential Proclamation on NIVs) we are going to spend time to give a newer picture of the world of immigration. To this end, we holding two upcoming talks:
Pandemic Planning Update – What Current Immigration Restrictions Remain in Place “And What to Do About That”
During this talk David Brown, Managing Partner, will outline what changes have happened since the start of the global pandemic. Specifically how administration policy and government agencies have responded to the disruption of daily life. While some policies have created flexibility and made coping with lockdowns and shelter in place easier, other pronouncements have made the process of compliance more difficult, or created barriers preventing employees from travelling. David will ensure employers understand both the flexibility that has been created and the restrictions to pay attention to (and when possible avoid), so you can keep your teams safe during these unprecedented times.
David anticipates speaking for roughly 30 minutes followed by a generous Q&A period to raise issues of concern to the group.
What Employers Can Do – Despite the Speed Bumps Most Business Immigration Options Remain on the Table
While pandemic planning has gone through many stages, and fears of USCIS furloughs and travel bans have impacted employers’ willingness to hire foreign born employees, there are many things that can still be done. David will clarify that it is business as usual for most employers and foreign workers, and he will walk you through what is possible – from the filing of H-1B Change of Employer applications to sponsoring individuals with PERMs – many tools at our disposal to move forward and create stability still remain despite fears and pronouncements to the contrary.
David anticipates speaking for roughly 30 minutes followed by a generous Q&A period to raise issues of concern to the group.
We also note that David has been asked by the State of California’s EDD to provide talks on similar issues to employers in the State. He’ll be doing a longer talk for tech related companies on September 22nd, and a separate talk for Agricultural and Skilled Trades employers on September 24th – if you are a California employer and would prefer to attend one of those talks, you are more than welcome to register or pass the information on to other interested employers.
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 **