USCIS CANCELS PLANS TO FURLOUGH TWO-THIRDS OF ITS EMPLOYEES

USCIS announced on August 25, 2020 that it has halted plans to furlough 70% of its employees, reported the US News & World Report. The furloughs were initially set to begin on August 3, 2020, but

USCIS postponed the furloughs until August 30. On August 24, 2020, the U.S. House of Representatives unanimously passed an emergency stopgap bill that would expand the premium processing program in an attempt to prevent the scheduled furlough. It is yet unclear whether this bill will pass through the Senate.

USCIS has warned that furloughs could still take place unless Congress intervenes.

USCIS is traditionally self-funded by the filing fees paid by the applicants and petitioners. Forbes reported that under the Trump administration, costs have risen due to new hires at the agency focused on investigation and enforcement.

USCIS PLANS TO ADJUST FILING FEES AND CHANGE FEE STRUCTURE

On August 3, 2020, USCIS announced that the new DHS fee schedule will take effect on October 2, 2020. On August 20, 2020, the American Immigration Lawyers Association and eight other organizations sued USCIS over the agency’s Fee Rule. If USCIS is able to proceed with the fee adjustment, highlights of the changes include:

Form I-129 (e.g. H-1B, L-1 petition) filing fee will increase from $460 to $555.
Form I-140 Immigrant Petition filing fee will decrease from $700 to $555.
Form I-485 Adjustment of Status application (aka green card application) will decrease from $1140 to $1130, but the overall application will increase because USCIS will require separate filing fees for employment authorization and advance parole documents.

The total filing fee for an application for adjustment of status including the employment authorization and advance parole documents will increase from $1225 to $2270.
Children under the age of 14 will no longer benefit from a reduced filing fee rate.
Form N-400 Application for Naturalization will increase from $640 to $1170.

CONSULAR SERVICES RESUME IN PHASES
Beginning on July 15, 2020, consular posts began a phased reopening routine visa services which had been suspended since March 20, 2020. The decision to resume visa processing is post specific. The Department of State’s website maintains COVID-19 related information for the U.S. consular post in each country.

EMPLOYERS MAY USE I-797 FOR I-9 VERIFICATION DURING EAD PRODUCTION DELAYS
The production of certain Employment Authorization Documents (EAD) has been delayed recently. USCIS will allow employers to fulfill the I-9 employment authorization verification requirement by using Form I-797 Approval Notice with a notice date between December 1, 2019 through August 20, 2020.

Who is this for?

Employees whose primary proof of work authorization is an Employment Authorization Document (e.g. F-1 OPT, F-1 STEM OPT, certain Green Card Applicants) whose EAD was approved between December 1, 2019 and August 20, 2020, who have not yet received EAD, may be employed and the employer may satisfy the document verification requirement with I-797 instead of the actual EAD card, which would normally be required.

NEW GUIDANCE ON NATIONAL INTEREST EXCEPTIONS TO JUNE 22 PROCLAMATION
On August 12, 2020, the Department of State issued new guidance on a “National Interest Exception” to the suspension of visa issuance and travel restrictions that were ordered by the June 22, 2020 Presidential Proclamation.

Each consular post has its own procedures for visa application and request for a national interest exception (NIE). The list of exceptions is extensive. Below is a summary guidance highlighting the categories that are of interest to our corporate clients. This is not an exhaustive list.

1. What does this mean?

Employees, who are impacted by the June 22, 2020 Proclamation, may obtain an H-1B or L-1 visa if they are returning to the U.S. to continue previously approved employment with the same employer in the same visa category or if the employment meets other specified criteria. Spouse and dependent children are included in the exception, if the principal employee is granted an exception.

2. How does this apply to H-1B workers?

Highlights of the exceptions for H-1B workers include:

Employees seeking to re-enter the U.S. to resume ongoing employment in the same position with the same employer in the same visa classification.

Technical specialists, senior managers, and others who can show at least 2 of the following factors:

1. A Labor Condition Application (LCA) certified on or after July 2020. If the LCA was certified before July 2020, the visa application must demonstrate the employer’s continued need for the worker. If the visa applicant is currently performing or able to perform the essential functions of the H-1B position from outside the U.S., this criterion is NOT met.
2. The employer is in a critical infrastructure sector (e.g. financial services, IT, communications, healthcare/public health, transportation, chemical, defense, water systems and nuclear reactors). The H-1B worker is a senior level employee or has specialized qualifications that provide significant and unique contributions to the employer.
3. A wage exceeding the required prevailing wage by at least 15%
4. The H-1B worker has education and/or experience that show unique expertise (e.g. a doctorate or professional degree or years of specialized experience).
5. Financial hardship to the employer (e.g. inability to meet contractual or financial obligations or impediment to resuming pre-pandemic level of business operations)
6. How does this apply to L-1A managers?

Highlights of the exceptions for L-1A workers include:

Employees seeking to re-enter the U.S. to resume ongoing employment in the same position with the same employer in the same visa classification.

Senior-level executive or managers who can show at least 2 of the following factors:

1. A senior-level executive or manager
2. Many years with the overseas entity showing a substantial knowledge and expertise within the employer
3. Employee will fill a critical business need for the employer that is in a critical infrastructure sector
4. How does this apply to L-1B managers?

Highlights of the exceptions for L-1B workers include:

Employees seeking to re-enter the U.S. to resume ongoing employment in the same position with the same employer in the same visa classification.
Technical expert or specialist who can show ALL the following factors:

1. Employee will provide “significant and unique” contributions to the employer;
2. Employee has specialized knowledge that is specifically related to a critical infrastructure need; and
3. Employee has many years of experience with the overseas entity.
4. Other categories of interest

J-1 and H-2B in line with the new NIE guidance. For more information, please visit the Dept. of State website.

USCIS SELECTS ADDITIONAL CASES FO THE FY 2021 H-1B CAP (H-1B LOTTERY)

On August 14, 2020, employers and attorneys have begun receiving email notifications from USCIS that new H-1B registrations have been selected for submission. The newly selected registrations have notices that say “August 2020 Selection of Reserve Registration” and indicate a filing period of 8/17/2020 – 11/16/2020.

1. What does this mean?

If the particular employee’s registration was not selected in the first round of the lottery in March but is now selected, the employer can file an H-1B petition for this particular employee during the 90 day filing window indicated on the selection notice.

2. Who is this selection for?

Only those who registered for the first round of the H-1B lottery may be considered for selection in the second round for reserve registrations.
USCIS had stated that it would keep registrations in the system in the event that it needed to select additional cases to meet the annual quota for H-1B visa.

3. Can the employer use this reserve selection for another employee?

No. The H-1B registration is for the specific individual employee. If that employee is no longer employed, a company cannot substitute another employee in for the lottery selection.

4. Can the employer use this reserve selection to file an H-1B petition for an employee who is no longer with the company?

If the company intends to employ the selected individual after the H-1B petition is approved and the employee is able to join the company in H-1B status, the company can file an H-1B petition for an individual who is not currently employed.
By filing an H-1B petition, the employer certifies that it intends to offer an employment to the named individual in a manner that is consistent with the terms and conditions listed on the H-1B petition.

5. Can the employer use this reserve selection to file an H-1B petition for an employee who is outside the US and is currently unable to return to the US?

Yes. However, in order for the employee to return to the U.S. in H-1B status, the petition must be approved first and then the employee must apply for H-1B visa at the U.S. Embassy/Consulate abroad. Due to the COVID-19 pandemic, suspension of new H-1B visa issuance is in place through December 2020. Even after the ban on visa issuance is lifted, it will be up to each consulate to decide whether to resume routine visa services and many consulates are faced with a backlog of cases. Therefore, it is difficult to predict when the employee will be able to return to the U.S.

MT Perspective

How should employers respond to employees’ questions?

Employees will not know that they have been selected from the reserve pool of registrations. However, they will likely begin following up with the employer and MT to inquire whether they have been selected.

Both MT and the employers receive email notification regarding the reserve selection.

1. The employer contact person listed in the registration system will receive an email from USCIS with the following subject line: “We have taken an action on your case.”
2. This email prompts the recipient to sign into USCIS to check the case status.
3. After logging into the USCIS portal, the case status will show “selected” and there will be a selection notification for the selected employee in the system which confirms that the case has been selected.

Please feel free to share the great news of selection with employees, and we ask for your patience as we review each case and formulate a plan for filing.

How is MT responding?

MT is working diligently to review the reserve selection results and will reach out to every selected employer and employee to coordinate the preparation and filing of the H-1B petition during the filing window.