USCIS Issues Policies to Improve Immigration Services: What Employers and Foreign Nationals Need to Know

U.S. Citizenship and Immigration Services (USCIS) announced three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits. The updated policies:

  • Clarify the criteria for expedited processing of benefit applications;
  • Address guidance regarding Request for Evidence (RFE) and Notice of Intent to Deny (NOID) issuance; and,
  • Increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

These policy initiatives were taken pursuant to  Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Issued by President Biden on February 2, 2021, the order directs federal agencies to identify strategies to eliminate barriers that impede access to immigration benefits.

What Employers and Foreign Nationals Need to Know

Expedited Processing

Applicants and petitioners may request that USCIS expedite the adjudication of immigration benefit requests even if premium processing is otherwise available for the application. USCIS reviews these requests on a case-by-case basis. The updated expedite policy clarifies the criteria and circumstances under which USCIS will generally consider expedite requests. It restores the ability of nonprofit organizations to request expedited processing if the beneficiary will further U.S. cultural and social interests. It also clarifies that expedited processing for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).

Requests for Evidence and Notices of Intent to Deny

The updated RFE and NOID guidance rescinds a Trump-era policy that permitted officers to deny certain benefit requests outright instead of first issuing an RFE or NOID.  The updated guidance instructs officers to issue a RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit, rather than simply denying the benefit request. This practice helps to ensure that those requesting benefits  have an opportunity to correct simple mistakes or unintentional omissions. This was USCIS policy from 2013 until 2018, when it was rescinded by the Trump Administration. With this action, the 2013 guidance is restored.

Employment Authorization Documents

 

Updated policy guidance increases the validity period for initial and renewal Employment Authorization Document (EADs) from one year to two years for certain adjustment of status applicants. The goal is to significantly lessen the number of employment authorization applications filed with USCIS, allowing USCIS to shift limited resources to other priority areas.

Gibney welcomes these developments and will closely monitor their impact. We will continue to report on additional initiatives to improve and modernize the U.S. immigration system.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

DHS Extends Form I-9 Flexibility for Remote Employees to August 31, 2021

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements.  The policy, initially implemented in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. The guidance, which was set to expire May 31, 2021, has now  been extended to August 31, 2021.

Who does the Policy Affect?

Form I-9 in-person inspection rules were relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. The policy states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

The current extension includes guidance for employees hired on or after June 1, 2021 working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who use this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy. DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

Looking Ahead

Employers should anticipate that DHS will terminate the  flexibility to verify Form I-9 documents virtually  as pandemic restrictions are lifted.  Because employers who have availed themselves of the relaxed rules will have only three (3) business days to physically examine documents when normal operations resume,  employers may wish to designate agents to physically inspect documents now for those hired and verified remotely since March 2020.  Keep in mind, though, as noted above, that employers are liable for any violations or errors made by the designated authorized representative during the verification process.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

David Johnson to Speak at Insider Scoop: US Travel & Immigration

David Johnson will join Belcham for the event “Insider Scoop: Travel & Immigration” on May 21, 2021. The program will cover business activities affected by the travel ban and changing immigration policies impacting foreign entrepreneurs such as:
  • Where do we find ourselves as an employer and/or individual. with the current US rules & regulations?
  • What are the exact US re-entry restrictions? When are they expected to change?
  • Which proclamations are still in place? Who’s exempted and who’s not?
  • What about current visa and petition processing? Which visas should/can I apply for?
  • Is the National Interest Exception (NIE) program still in place?
  • How do I maneuver state & federal laws for foreign employees with legal status tied to their employment?

Hasta La Visa, Baby: Episode 5

In this episode, Shai and Roderick get “shagadelic” with the Austin Powers trilogy. Our co-hosts investigate how Dr. Evil, a Belgian criminal mastermind, and Austin Powers’ arch nemesis, found himself running a world-famous coffee company in Seattle, Washington. The Immigration principles they will explore in this episode include: E-2 Treaty Investor Visas and the EB-5 Green Card program. Plus, Shai and Roderick talk the art of making the perfect parody movie.

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

About the Hasta La Visa, Baby Podcast

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

Biden Administration Revives International Entrepreneur Immigration Program

The Department of Homeland Security (DHS)  announced it is restoring the Obama-era International Entrepreneur Rule (IER), allowing certain foreign national entrepreneurs the opportunity to launch qualifying start-up businesses in the U.S.  The IER was published in January 2017 with an intended effective date of July 2017, but the Trump Administration published a rule delaying its implementation. Because the Trump Administration never issued a final rule removing the IER, the Biden Administration was able to withdraw the proposed removal rule  and continue the program consistent with its  initiative to remove barriers to lawful immigration.

How it Works and Who Qualifies

The IER  permits DHS to use its discretionary  parole authority to grant a limited period of authorized stay  to foreign nationals  pursuing qualifying business opportunities in the U.S. if they can show that their stay in the U.S. will provide a significant public benefit through their business venture.

Individuals applying for International  Entrepreneur parole must demonstrate that they:

  • Possess  substantial ownership interest in a start-up entity created within the last five years that has substantial potential for rapid growth and job creation.
  • Have a central and active role in the start-up entity.

Will provide a significant public benefit to the U.S. based on their role as an entrepreneur by showing:

    • the start-up entity has received a significant investment of capital from qualified U.S. investors;
    • the start-up entity has received significant award or grants for economic development, research and development, or job creation from federal, state or legal government entities; OR
    • they partially meet either or both of the above two requirements and provide additional compelling evidence of the entity’s potential for growth and job creation
  • Otherwise merit a favorable exercise of discretion.

Qualifying entrepreneurs  may be  granted parole for an initial period of 30 months and may only work for their start-up businesses. An additional parole period of 30 months may be granted if certain business metrics are met.  One entity may support up to three (3) International Entrepreneur parolees. Spouses and children of entrepreneur parolees are also eligible for parole and spouses may apply for work authorization once admitted to the U.S.

Important Considerations

Revival of the International Entrepreneur Parole program helps to fill a gap in U.S. immigration law with respect to attracting and welcoming foreign entrepreneurs. However, it is important to understand how status as a parolee differs from lawful nonimmigrant status and the implications for long-term immigration planning. For additional information about International Entrepreneur Parole and other visa potential visa options and considerations related to starting a business in the U.S., please contact your designated Gibney representative or email info@gibney.com.

DOL Prevailing Wage Rule Postponed

The Department of Labor (DOL)  has further postponed the effective date of its prevailing wage final rule to November 14, 2022.   The final rule significantly increases prevailing wage requirements  for permanent resident and H-1B, H-1B1 and E-3 nonimmigrant visa sponsorship.  Under the revised timeline, transition to the new, higher wage tiers will commence January 1, 2023.

Background

The prevailing wage final  rule was published by the Trump Administration in January  2021, and was set to take effect on March 15, 2021.  Upon taking office, the Biden Administration  postponed the effective date of the rule for 60 days, until May 14, 2021, and solicited additional  public comments concerning the rule and the wage computation methodology.  With publication of the May 13, 2021 DOL notice, the effective date of the rule is further postponed to November 2022.

The rule revises the calculus to determine prevailing wage levels  for labor condition applications required for the H-1B, H-1B1 and E-3 temporary visa programs, and prevailing wage determinations required for the PERM labor certification program. The rule would  significantly increase threshold wage requirements for employers across the four tiers of prevailing wages utilized by the Department of Labor in connection with these visa programs.

Looking Ahead

Employers can welcome the 18-month reprieve on implementation of restructured wage levels for labor condition applications and prevailing wage determinations.  In the interim, the Department of Labor will consider the rule’s legal and policy impact and will gather additional wage data.  Notably, an earlier interim final version of the  rule implemented  by the Trump Administration in October 2020 was  invalidated by a federal court as unlawful on procedural grounds. That rule had higher wage tiers than the current version.  Nonetheless, the current version of the rule is also the subject of legal challenges.  It is possible that the rule will be modified further before taking effect.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

 

 

DHS Will Restart the International Entrepreneur Parole Program to Provide Opportunities for Foreign Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) is withdrawing a 2018 notice to remove the International Entrepreneur (IE) parole program from DHS regulations. The IE parole program provides a viable means for foreign entrepreneurs to establish and develop their start-up entities in the US. Under the International Entrepreneur Rule (IER), DHS can grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the US would provide a significant public benefit through their business venture.

This decision to retain the program is consistent with President Biden’s Executive Order 14012: “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” The executive order requires the Secretary of Homeland Security to “identify any agency actions that fail to promote access to the legal immigration system.”

What this Means Foreign Entrepreneurs

  • Under the IE program, parole may be granted to up to three entrepreneurs per start-up entity, as well as their spouses and children.
  • Entrepreneurs granted parole are eligible to work only for their start-up business.
  • Spouses may apply for employment authorization in the US, but their children are not eligible for such authorization based on this parole.

Who is Eligible for the Program?

Entrepreneurs applying for parole under this rule must demonstrate that they:

  • Possess a significant ownership interest in a start-up entity created in the US within the past five years that has substantial potential for rapid growth and job creation.
  • Have a central and active role in the entity and are well-positioned to assist with the growth and success of the business.
  • Will provide a significant public benefit to the US based on their role as an entrepreneur of the start-up entity by showing that that start-up entity has received:
    • A significant capital investment from qualified U.S. investors with established records of successful investments;
    • Significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
    • They partially meet either or both of the prior two requirements and with reliable evidence of the potential for rapid growth and job creation.
  • Otherwise merit a favorable exercise of discretion

Additional information on eligibility and application requirements is available on the International Entrepreneur Parole page.

USCIS to Suspend Biometric Requirements for Certain E, H-4, and L-2 Applicants

U.S. Citizenship and Immigration Services (USCIS) intends to suspend collecting biometrics for individuals requesting E, H-4 and L-2 status on Form I-539, Application to Extend/Change Nonimmigrant Status. The policy, projected to take effect May 17, 2021, is expected to reduce adjudication backlogs and improve processing times for these applications, as well as for associated applications for Employment Authorization Documents  (EADs) filed on Form I-765.

Background

In March 2019, USICS implemented a nationwide requirement for H-4 and L-2  applicants to attend an appointment at a local Application Support Center (ASC) to submit biometrics, including fingerprints, photographs and digital signatures.  This requirement significantly delayed adjudication of these applications and associated applications for work authorization filed on Form I-765.  The problem was compounded by closure of ASC locations due to the COVID-19 pandemic.  Though ASCs have reopened,  many operate at reduced levels due to ongoing health and safety protocols, and are dealing with unprecedented backlogs. USCIS reports that 123,000 H-4 and L-2 applications are pending adjudication, with an additional  57,500 applications for EADS backlogged.

Agency Action

In response to lawsuits stemming from the delays, and recognition of the significant  backlogs and ensuing hardships created, USCIS is deploying additional officers to adjudicate  I-539 applications for H-4 and L-2 status and implementing the policy to suspend temporarily  biometrics requirements  for individuals requesting an extension of stay in, of change of status to, H-4, L-2, E-1, E-2 and E-3 nonimmigrant status.

The new policy is expected to begin May 17, 2021, and remain in effect for two years, to May 17, 2023, subject to extension or revocation by the USCIS Director.

The policy will apply only to I-539 Applications for H-4, L-2, E-1, E-2, and E-3 status pending as of the effective date of the policy that have not yet been issued  a biometric appointment notice, and new applications received by USCIS after the effective date of the policy.  If an applicant has received a biometrics appointment for a pending application, failure to attend the biometrics appointment may result in denial of the application. USCIS will also retain discretion to require biometrics for any case for identity verification and other screening purposes.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

Biden Administration Issues Travel Ban for India

On April 30, 2021, the Biden Administration issued a proclamation imposing restrictions on the admission of travelers from India.  The ban will take effect at 12:01 am eastern daylight time on Tuesday, May 4, 2021.  Impacted travelers include nonimmigrant foreign nationals who have been physically present in India at any point during the 14 day period prior to arrival in the U.S.

WHO IS EXEMPTED FROM THE BAN?

The entry restrictions do not apply to:

  • US citizens;
  • US lawful permanent residents;
  • Noncitizen nationals of the US;
  • Noncitizens who are the spouses of US citizens or lawful permanent residents;
  • Noncitizens who are the parents or legal guardians of US citizens or lawful permanent residents under the age of 21;
  • Noncitizens who are the siblings of  US citizens or lawful permanent residents under the age of 21;
  • Noncitizens  who are the children, foster children, or wards of  US citizens or lawful permanent residents, or who are prospective adoptees;
  • Noncitizens traveling  at the invitation of the US government for purposes related to virus mitigation; and,
  • Certain other travelers classified as nonimmigrant crew members, foreign government officials, and diplomats, etc.

Keep in mind that under existing policy, all international travelers, including those exempted from travel bans,  are required to show proof of a negative COVID-19 test result or proof of recovery from COVID prior to traveling to the U.S.

HOW LONG WILL THE BAN REMAIN IN EFFECT?

The ban will remain in effect until terminated by the President.

BACKGROUND INFORMATION

The restriction comes at the recommendation of the CDC after the surge of COVID-19 cases in India in recent weeks and a  Level 4 Do Not Travel advisory issued by the Department of State last week.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

USCIS and State Department Take Action to Improve Access to Immigration Benefits

Early in its tenure, the Biden Administration issued an executive order directing the State Department and the Department of Homeland Security (DHS) to  identify barriers that impede access to immigration benefits and the fair and efficient adjudications of these benefits. This week the agencies have taken important steps in furtherance of this directive.

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS), the benefits agency within DHS, announced policy guidance  instructing officers to give deference to prior agency determinations when adjudicating extension requests involving the same parties and same material facts unless the initial decision contained a material error.   In essence, USCIS is reverting to guidance that was in place from 2004 until it was rescinded by the Trump Administration in 2017.  According deference to prior approvals will help to restore predictability and fairness to adjudications, benefiting employer sponsors and foreign national applicants alike. The policy will also help USCIS to better allocate resources, improve operational efficiency, and eliminate backlogs  as it moves to streamline adjudication of benefit applications.

On April 26, the State Department issued updated National Interest Exemption (NIE)  guidance for travelers restricted from entering the U.S. due to  their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland stemming from the COVID-related regional travel bans covered by  Presidential Proclamations (PPs) 9984, 9992, and 10143.    Students with valid visas intending to begin or continue an academic program commencing August 1, 2021 or later do not need to contact an embassy or consulate to seek an individual NIE to travel.  They may enter the United States no earlier than 30 days before the start of their academic studies with a valid visa.  Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. If qualified for student visa, they will automatically be considered for an NIE to travel. Ideally this action will facilitate the admission of foreign students and also allow the consulates to reallocate resources to help clear backlogs in issuing immigrant and nonimmigrant visas stemming from COVID-19, consular closures and regional and visa category travel bans.

Gibney will continue to monitor agency action and provide updates as they become available.   For additional information, please contact your designated Gibney representative or email info@gibney.com.