Tag: Immigration

The electronic registration period for the fiscal year 2021 (FY 2021) H-1B cap season successfully concluded on March 20, 2020.

What’s Next?

USCIS is expected to conduct its random selection process (lottery) of submitted registrations by March 31, 2020.  Selected registrants (employers) will have a 90-day window during which to file H-1B cap petitions for their selected beneficiaries.  The petition filing period is expected to start not later than April 1, 2020.   Employers may file  H-1B cap petitions for selected beneficiaries only; no substitutions are permitted.

What Should Employers Expect?

USCIS intends to notify employers and their legal representatives of lottery results no later than March 31, 2020.  USCIS will generate an email alerting employers and their legal representatives that the status of a registration has changed.  Recipients may then log into their USCIS accounts to view the status of individual beneficiaries included in the registration.  If a beneficiary has been selected, the system will generate a selection notice specifying the filing period for the H-1B cap petition for that individual. This notice must be  printed and submitted with the H-1B petition during the designated filing period. The filing period will be at least 90 days.

Premium Processing Suspended

Due to the impact of COVID-19 on USCIS  Service Center operations,  USCIS has suspended premium processing for ALL I-129 petitions, including H-1B cap petitions, until further notice.  As a result, for the foreseeable future, all H-1B cap petitions must be filed during the designated filing window using regular processing.

USCIS initially planned to implement  a two-tiered approach for premium processing of FY 2021 H-1B cap petitions, first allowing  premium processing for petitions requesting a change of status from F-1 nonimmigrant status (starting not later than May 27, 2020), followed by premium processing availability for all other H-1B cap petitions  (starting not later than June 29, 2020). This schedule was subsequently  suspended due to COVID-19. Once premium processing service resumes, USCIS may implement a similar schedule and two-tiered approach. For more H-1B cap information, you may visit USCIS’s  H-1B FY 2021 Cap Season page.

Gibney will continue to monitor the FY 2021 H-1B cap process and provide updates, and will work with employers to file H-1B petitions for selected beneficiaries during the designated filing window.  For additional information, please contact your Gibney legal team or email info@gibney.com.

UPDATE – APRIL 22, 2020:  On April 20, 2020, the Centers for Disease Control (CDC) issued an order extending the suspension of entry of  certain persons traveling  to the US from Canada and Mexico through land ports of entry through 11:59 pm ET on May 20, 2020.

The United States reached mutual agreements with Canada and Mexico to limit non-essential travel at land Ports of Entry and ferry terminals to reduce the spread of COVID-19. The restrictions do not apply to air travel.

Effective Dates

The restrictions are effective as of March 20, 2020 at 11:59 p.m. EDT and will remain in effect until at least April 20, 2020 at 11:59 p.m. EDT.

Restricted Non-Essential Travel

Restricted non-essential travel includes individuals traveling to the U.S. for tourism purposes, including sightseeing, recreation, gambling or attending cultural events.

Essential Travel

Essential travel is permitted. On March 24, 2020, U.S. Customs and Border Protection (CBP) published Federal Register notices with additional information about impacted travel from Canada and Mexico, specifying that essential travel includes, but is not limited to:

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico or Canada in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Mexico or Canada);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

Essential Travel Caution

Despite CBP’s fairly broad definition of essential travel, not all business travel may be deemed essential by a CBP officer at a Port of Entry. The American Immigration Lawyers Association is reporting that CBP officers at some Ports of Entry on the Canadian border continue to adjudicate L petitions and TN applications, while at other ports, CBP indicates it is waiting for more guidance. There are also anecdotal reports that some CBP officers have denied petitions and admission to individuals because their employment was not deemed essential.

With respect to travel from Mexico, U.S. consular closures in Mexico directly impact the ability to secure L and TN visas for admission to the U.S.

Travelers with valid visas and visa exempt travelers, including individuals traveling on the Visa Waiver Program, may be admitted at Ports of Entry from Canada or Mexico, though these travelers should also expect scrutiny as to whether their travel meets essential travel criteria. Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.

As a reminder, foreign nationals who have traveled in one of the otherwise restricted countries (China, Iran and Europe) in the 14 days prior to requesting admission to the U.S. from Canada or Mexico will not be admitted.

Finally, CBP advises that any person with COVID-19 symptoms should not make a personal appearance at a Port of Entry.

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

The United States reached mutual agreements with Canada and Mexico to limit non-essential travel at land Ports of Entry and ferry terminals  to reduce the spread of COVID-19.  The restrictions do not apply to air travel.

Effective Dates

The restrictions are effective as of March 20, 2020 at 11:59 p.m. EDT and will remain in effect until at least April 20, 2020 at 11:59 p.m. EDT.

Restricted Non-Essential Travel

Restricted non-essential travel includes individuals traveling to the U.S.  for tourism purposes, including sightseeing, recreation, gambling, or attending cultural events.

Essential Travel

Essential travel is permitted.  On March 24, 2020, U.S. Customs and Border Protection (CBP) published Federal Register notices with additional information about impacted travel from Canada and Mexico  Mexico, specifying that essential travel includes, but is not limited to:

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (g.,to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (g.,individuals working in the farming or agriculture industry who must travel between the United States and Mexico or Canada in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (g.,government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (g.,truck drivers supporting the movement of cargo between the United States and Mexico or Canada);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

Essential Travel Caution

Despite CBP’s fairly broad definition of essential travel, not all business travel may be deemed essential by a CBP officer at a Port of Entry.  The American Immigration Lawyers Association is reporting that CBP at some Ports of Entry on the Canadian border continue to adjudicate L petitions and TN applications, while other ports indicate that they waiting for more guidance. There are also anecdotal reports that some CBP officers have denied  petitions and admission to individuals  because their  employment is not deemed essential.

With respect to travel from Mexico, U.S. consular closures in Mexico directly impact the ability to secure L and TN visas for admission to the U.S.

Travelers with valid visas and visa exempt travelers, including individuals traveling on the Visa Waiver Program, may be admitted at Ports of Entry from Canada or  Mexico, though these travelers should also expect  scrutiny  as to whether their travel meets essential travel criteria. Individuals planning to enter the U.S. from Canada or Mexico during the restricted period should confer with counsel prior to travel.

As a reminder, foreign nationals who have traveled in one of the otherwise restricted countries (China, Iran and Europe) in the 14 days prior to requesting admission to the U.S. from Canada or Mexico will not be admitted.

Finally, CBP advises that any person with COVID-19 symptoms  should not make a personal appearance  at a Port of Entry.

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

India has issued new travel restrictions due to the COVID-19 pandemic. The following are guidelines for foreign nationals traveling to India:

Commercial Flight Restrictions

Effective March 23, 2020 and until March 29, 2020, no incoming scheduled international commercial passenger aircraft will be allowed to land and disembark passengers in India.

Visa and Consular Services

All Indian visa services are suspended until April 15, 2020. This does not include in-country registration, visa extension, and other visa related formalities.

India has temporarily suspended Visa-on-Arrival for nationals of Japan and South Korea.

Foreign nationals who are already in India on visas remain in valid status until their visa expires. The Indian government has made special provisions (set out below) for in-country extensions.

The Foreigners Regional Registration Offices (FRROs) and Foreigners Registration Offices (FROs) are temporarily providing essential consular services for foreign nationals who are currently unable to leave the country due to travel restrictions. Consular processed visas, electronic visas (e-visas) and stipulations of stay endorsed on the visas, which have expired, or are set to expire, during the period from March 13, 2020 (midnight) to April 15, 2020 (midnight) will be extended until April 15, 2020 (midnight). All foreign nationals must file an online application on the e-FRRO portal. Foreign nationals whose visas have expired and who have made an application to exit the country, will be granted an Exit Permit without a penalty for overstay. Foreign nationals are not permitted to visit the FRRO or FRO without a prior appointment for in-country Registrations, Visa Extensions, Overseas Citizen of India (OCI) applications and other visa related services, until further notice.

OCI cardholders in India remain in valid status. However, OCI cardholders who are not currently in India cannot travel to India until April 15, 2020.

Travel Restrictions for Foreign Nationals and Indian Nationals

Foreign nationals and Indian nationals residing in the following countries are restricted from traveling to India from March 18, 2020 until March 31, 2020:

• Member countries of the European Union
• Member countries of the European Free Trade Association (Switzerland, Norway, Liechtenstein and Iceland)
• Turkey
• United Kingdom.

Citizens from Afghanistan, Malaysia and the Philippines are restricted from all travel to India until March 31, 2020.

Quarantine Procedures

All foreign nationals who have traveled to India from any location outside India or who may travel to India once international flights are permitted to land in India, may be quarantined for a minimum period of 14 days upon their arrival to India.

All incoming travelers including Indian nationals who have traveled or who are set to travel to India once international flights are permitted to land and who have visited China, Italy, Iran, the Republic of Korea, France, Spain or Germany after February 15, 2020 will be quarantined for a minimum period of 14 days upon their arrival.

We are closely monitoring matters in India and will provide further updates as they are provided by the Indian government.

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

As the world grapples with the COVID-19 pandemic, the U.S. and other countries are cautioning against travel,  imposing fast-breaking travel restrictions, and cancelling non-essential visa services at consulates abroad. Recent actions are highlighted below.

Travel Advisory – U.S. Citizens

• The U.S. Department of State has issued a travel advisory  advising  U.S. citizens to avoid all international travel and recommending that U.S. citizens arrange for immediate return to the U.S. if they are able to do so.  The State Department is warning that U.S. citizens who chose to travel internationally may be forced to remain outside of the U.S. indefinitely.
• The State Department has also authorized the departure of U.S. personnel and family members from its diplomatic and consular posts abroad if they are at higher risk if exposed to COVID-19.  Departure of personnel may limit the ability of U.S. Embassies and consulates to provide services to U.S. citizens who remain abroad.

Suspension of U.S. Visa Services

• With increased travel restrictions, the Department of State also announced that it is suspending routine U.S. visa services in most countries worldwide and cancelling immigrant and nonimmigrant visa appointments effective March 18, 2020.  The Department of State aims to resume visa services as soon as possible, but cannot provide a specific date at this time. Please check the Embassy websites for the status of current operations and for information about the availability of emergency appointments.

Travel to the U.S.

• Earlier this week, the U.S. and Canada announced a mutual agreement to close their shared border to non-essential travel. Official details regarding implementation have not been published as of March 19.
• The Trump Administration has temporarily suspended travel to the U.S. for most foreign nationals traveling from Schengen Area countries in Europe, the U.K. and Ireland,  China and Iran.  Additional information is available on our Insights We expect more countries to face similar restrictions going forward and it is possible that the U.S. may determine to temporarily close its borders to all foreign national travelers in the near future.

Travel to Countries Outside the U.S.

• Many countries around the world are imposing similar restrictions on admitting foreign travelers.  All travelers should check airline carriers, foreign embassy websites and Department of State country-specific travel advisories frequently if travel cannot be avoided.
• For the latest information on conditions in each country, please review the Department of State’s COVID-19 country-specific information and the U.S. Centers for Disease Control for risk assessments by country.

Gibney is closely monitoring these developments.  Please contact a Gibney representative for additional information.

The Trump Administration issued a Proclamation extending travel restrictions to travelers from the U.K. and Ireland.  The ban will take effect at 11:59 pm ET on Monday March 16, 2020.  Impacted travelers include most foreign nationals who have been physically present in the U.K. or Ireland at any point during the 14 day period prior to arrival in the U.S. A similar ban went into effect on Friday, March 13, 2020 at 11:59 pm ET for travelers who have been in Schengen Area countries at any point during the 14 days prior to their scheduled arrival in the U.S.

The U.K. and Ireland will join the growing list of travel impacted countries including Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Iran and China.

It is likely that additional countries will be added to this list as the U.S. and the rest of the world grapples with the COVID-19 pandemic. All travelers should also expect other countries to impose restrictions, and should check foreign embassy websites and airline carriers before traveling.

WHO IS EXEMPTED FROM THE BAN?

The entry restrictions for the U.K., Ireland and Schengen Area countries do not apply to U.S. citizens, U.S. lawful permanent residents, immediate family members of U.S. citizens, and certain other individuals who are identified in the proclamation. Exempted individuals will arrive on flights that are directed to designated ports of entry to the U.S. and these travelers will undergo enhanced screening. Those who are allowed to enter the U.S. will be asked to self-quarantine for 14 days.

HOW LONG WILL THE BAN REMAIN IN EFFECT?

While news outlets have widely reported that the suspension will remain in effect for 30 days, the Presidential Proclamation announcing the Schengen Area ban does not specify a time period. Gibney is monitoring the implementation of these measures and will provide updates as they become available.

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

On March 13, 2020, the U.S. Department of State announced on its website that the U.S. Embassy and Consulates in India are cancelling all visa appointments scheduled on or after March 16, 2020 due to the COVID-19 pandemic. The U.S. Department of State has not provided a date by when they expect to resume regular consular operations.

Who is Impacted?

Any foreign nationals who have scheduled, or are in the process of scheduling, a visa appointment at a U.S. Embassy or Consulate in India.

Do Cancellations Apply to Both Immigrant and Nonimmigrant Visa Appointments?

Yes, the U.S. Embassy and Consulates in India are cancelling all nonimmigrant and immigrant visa appointments scheduled on or after March 16, 2020.

Will the Embassy Contact Each Visa Applicant with a New Appointment Date?

No, it will be the visa applicant’s responsibility to monitor the website of the U.S. Embassy and Consulates in India to find out when appointments will be made available again and schedule a new one.

If you are currently in India and had a U.S. visa appointment scheduled on or after March 16, 2020, please contact your Gibney representative immediately.

Foreign nationals who are in the U.S. and are planning on visiting India in the near future should contact their Gibney representative to discuss travel risks and visa/status renewal or extension options. If travel or visa appointments were cancelled, please be sure to notify your Gibney representative to ensure no other action is needed to maintain valid status in the U.S.

Background Information and Resources

More information on the U.S. Embassy and Consulates in India and their operations is available here.

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

The general information provided is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

President Trump signed a Presidential Proclamation further limiting travel to the United States for foreign nationals traveling from several European countries.

WHO IS IMPACTED?

The Proclamation suspends entry to the United States of most foreign nationals who have been in Schengen Area countries at any point during the 14 days prior to their scheduled arrival in the United States.  The impacted countries include: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. The United Kingdom is not included in the restriction.

WHEN DOES THE BAN TAKE EFFECT?

The entry restrictions will go into effect on Friday, March 13, 2020 at 11:59 pm ET. The restriction will not apply to persons aboard flights scheduled to arrive in the U.S. that departed prior to 11:59 pm ET on March 13.

WHO IS EXEMPTED FROM THE BAN?

The entry restrictions do not apply to U.S. citizens, U.S. lawful permanent residents, immediate family members of U.S. citizens, and certain other individuals who are identified in the Proclamation. Those who are allowed to enter the U.S. after travel to Europe will likely be subject to quarantine measures and their flights may be directed to selected ports of entry, as yet to be named.

HOW LONG WILL THE BAN REMAIN IN EFFECT?

News outlets have widely reported that the suspension will remain in effect for 30 days. However, the Proclamation does not specify a time period. Gibney is monitoring the implementation of these measures and will provide updates as they become available.

Background Information and Resources

Information about all of the U.S.  travel restrictions associated with the coronavirus, including links to some general resources, is available here.

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

The general information provided is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

Today USCIS implements its new public charge rule nationwide.  The rule was previously enjoined in Illinois, but the U.S. Supreme Court lifted the injunction last week, allowing USCIS to implement the rule in all 50 states.

In addition, the Department of State (DOS) will also implement the new public charge standards beginning February 24, 2020 pursuant to the Office of Management and Budget (OMB) approving DOS’s  Form DS-5540, Public Charge Questionnaire. While the DS-5540 is now required for immigrant visa applicants (i.e., “green card” applicants) at U.S. consulates abroad, according to the updated Foreign Affairs Manual,  DOS  may also require nonimmigrant (i.e., temporary) visa applicants to provide specific financial evidence or to complete a Form DS-5540, in whole or in part, or to respond orally to questions from the form at visa interviews.

As previously reported, in general, individuals seeking admission to the U.S. must show they are not likely to become a public charge. The new public charge rule dramatically expands the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.

Nonimmigrants seeking a change or extension of status in the U.S. will be required to show that they have not received certain public benefits exceeding a designated threshold as of the rule’s implementation date.  Information about DHS’s public charge rule, including the implicated benefits, may be found here.

Individuals applying for adjustment of status to lawful permanent resident will be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. These individuals will be subject to a discretionary “totality of circumstances” test that will weigh such factors as the applicant’s age, health, household size, level of education and skills, financial assets  and liabilities, among others.  Applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.

Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required. For additional information, please contact your designated Gibney representative or email info@gibney.com