Latest Updates: US Immigration Changes Due To Coronavirus (COVID-19)

Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

April 22, 2020

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Regarding the most recent Presidential Proclamation issued on April 22nd:

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President Trump just issued a proclamation: "Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." (See below)

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This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

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It is important to note that the proclamation does not include any nonimmigrants, which means that it does not apply to anyone entering the U.S. on a temporary basis.  It also does not include anyone who is in the U.S. applying for any nonimmigrant or immigrant status. 

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Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who:

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1.      are outside the United States on the effective date of this proclamation;

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2.      do not have an immigrant visa that is valid on the effective date of this proclamation; and

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3.      do not have an official travel document other than a visa (such as a transportation letter, an appropriate

         boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or

         issued on any date thereafter that permits him or her to travel to the United States and seek entry or

         admission.

In light of the proclamation, it is important to keep in mind the following facts that already existed before the proclamation:

• Routine visa services at all U.S. embassies and consular posts around the world have been suspended as of March 20, 2020. U.S. embassies and consulates continue to provide urgent and emergency visa services as resources allow. The Department of State (DOS) intends to continue to process visa applications for farm workers and medical professionals assisting with COVID-19.

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• U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended in-person services through at least May 3, 2020, including in-person interviews and biometrics processing. USCIS staff will continue to perform duties that do not involve contact with the public and will provide emergency services for limited in-person situations. 

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• The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020.

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• With some exceptions, the entry of individuals who were present in China, Iran, the Schengen Area, the U.K., and Ireland, during the 14-day period before their attempted entry into the United States has also been suspended.

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• Despite these limitations, USCIS continues to accept and process applications and petitions for nonimmigrants and immigrants, including applications requesting an extension, change, or adjustment of status. 

Please contact our office here at Savitz Law if you have any questions. We are here to help!

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Presidential Proclamation Issued 4/22/2020: 
Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

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The 2019 Novel Coronavirus (COVID-19) has significantly disrupted the livelihoods of Americans.  In Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak), I declared that the COVID–19 outbreak in the United States constituted a national emergency, beginning March 1, 2020.  Since then, the American people have united behind a policy of mitigation strategies, including social distancing, to flatten the curve of infections and reduce the spread of SARS–CoV–2, the virus that causes COVID-19.  This needed behavioral shift has taken a toll on the United States economy, with national unemployment claims reaching historic levels.  In the days between the national emergency declaration and April 11, 2020, more than 22 million Americans have filed for unemployment.

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In the administration of our Nation’s immigration system, we must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor.  We must also conserve critical State Department resources so that consular officers may continue to provide services to United States citizens abroad.  Even with their ranks diminished by staffing disruptions caused by the pandemic, consular officers continue to provide assistance to United States citizens, including through the ongoing evacuation of many Americans stranded overseas.

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I have determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.  Excess labor supply affects all workers and potential workers, but it is particularly harmful to workers at the margin between employment and unemployment, who are typically “last in” during an economic expansion and “first out” during an economic contraction.  In recent years, these workers have been disproportionately represented by historically disadvantaged groups, including African Americans and other minorities, those without a college degree, and the disabled.  These are the workers who, at the margin between employment and unemployment, are likely to bear the burden of excess labor supply disproportionately.

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Furthermore, lawful permanent residents, once admitted, are granted “open-market” employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy.  There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply.  Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak.  The vast majority of immigrant visa categories do not require employers to account for displacement of United States workers.  While some employment-based visas contain a labor certification requirement, because visa issuance happens substantially after the certification is completed, the labor certification process cannot adequately capture the status of the labor market today.  Moreover, introducing additional permanent residents when our healthcare resources are limited puts strain on the finite limits of our healthcare system at a time when we need to prioritize Americans and the existing immigrant population.  In light of the above, I have determined that the entry, during the next 60 days, of certain aliens as immigrants would be detrimental to the interests of the United States.

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NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

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Section 1.  Suspension and Limitation on Entry.  The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.

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Sec. 2.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:

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(i)    are outside the United States on the effective date of this proclamation;

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(ii)   do not have an immigrant visa that is valid on the effective date of this proclamation; and

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(iii)  do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

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(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:

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(i)     any lawful permanent resident of the United States;

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(ii)    any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

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(iii)   any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

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(iv)    any alien who is the spouse of a United States citizen;

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(v)     any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

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(vi)    any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

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(vii)   any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

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(viii)  any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

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(ix)    any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

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Sec. 3.  Implementation and Enforcement.  (a)  The consular officer shall determine, in his or her discretion, whether an immigrant has established his or her eligibility for an exception in section 2(b) of this proclamation.  The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion.

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(b)  An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.

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(c)  Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

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Sec. 4.  Termination.  This proclamation shall expire 60 days from its effective date and may be continued as necessary.  Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.

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Sec. 5.  Effective Date.  This proclamation is effective at 11:59 p.m. eastern daylight time on April 23, 2020.

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Sec. 6.  Additional Measures.  Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.

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Sec. 7.  Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

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(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

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(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

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Sec. 8.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

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(i)   the authority granted by law to an executive department or agency, or the head thereof; or,

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(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

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(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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IN WITNESS WHEREOF, I have hereunto set my hand this
twenty-second day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

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DONALD J. TRUMP

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(https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/)

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Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus

April 21, 2020

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In order to limit the further spread of coronavirus, the U.S. has reached agreements with both Canada and Mexico to limit all non-essential travel across borders. Working closely and collaboratively, the Department of Homeland Security is part of a North American approach to stop the spread of the virus.

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Additionally, CBP will no longer detain illegal immigrants in our holding facilities and will immediately return these aliens to the country they entered from – Canada or Mexico. Where such a return is not possible, CBP will return these aliens to their country of origin.

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These measures were implemented on March 21, 2020 and will be in place for 30 days, at which point it will be reviewed by both parties.  On April 20, 2020, these measures were extended for an additional 30 days.

The U.S., Mexican, and Canadian governments are taking necessary action to fight against this pandemic together.

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Northern Border

• April 20, 2020: Acting Secretary Chad Wolf Statement on Non-Essential Travel

• March 20, 2020: Joint Statement on US-Canada Joint Initiative: Temporary Restriction of Travelers Crossing the US-Canada Land Border for Non-Essential Purposes

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The US-Canada land border serves as an economic engine that supports over $1.7 billion (USD) dollars in daily cross-border trade. As a result of the COVID-19 pandemic, the United States and Canada are temporarily restricting all non-essential travel across its borders. In each of our countries, we are encouraging people to exercise caution by avoiding unnecessary contact with others. This collaborative and reciprocal measure is an extension of that prudent approach.

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“Non-essential” travel includes travel that is considered tourism or recreational in nature.
The United States and Canada recognize it is critical we preserve supply chains between both countries. These supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border. Supply chains, including trucking, will not be impacted by this new measure. Americans and Canadians also cross the land border every day to do essential work or for other urgent or essential reasons, and that travel will not be impacted.

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This decision will be implemented on March 21, 2020, at which time the US and Canada will temporarily restrict all non-essential travel across the US-Canada land border. The measure will be in place for 30 days, at which point it will be reviewed by both parties.  On April 20, 2020, all parties extended these measures for an additional 30 days.

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Southern Border

• April 20, 2020: Acting Secretary Chad Wolf Statement on Non-Essential Travel

• March 20, 2020: Joint Statement on US-Mexico Joint Initiative to Combat the COVID-19 Pandemic

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The strong partnership and close cooperation between the United States and Mexico has allowed us to maintain a productive border environment. We value the health and safety of our citizens and keep that at the forefront of joint decisions made by our respective leaders regarding cross-border operations.

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Recognizing the robust trade relationship between the United States and Mexico, we agree our two countries, in response to the ongoing global and regional health situation, require particular measures both to protect bilateral trade and our countries’ economies and ensure the health of our nations’ citizens. We agree to the need for a dedicated joint effort to prevent spread of the COVID-19 virus and address the economic effects resulting from reduced mobility along our shared border.  

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The U.S. and Mexican governments further recognize critical services such as food, fuel, healthcare and life-saving medicines must reach people on both sides of the border every day. Essential travel must therefore continue unimpeded during this time.  In order to ensure that essential travel can continue, the United States and Mexico are also temporarily restricting all non-essential travel across its borders.

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“Non-essential” travel includes travel that is considered tourism or recreational in nature. Additionally, we are encouraging people to exercise caution by avoiding unnecessary contact with others.

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This collaborative and reciprocal initiative is an extension of our nations’ prudent approach that values the health and safety of our citizens in the joint decisions made by our respective leaders regarding cross-border operations.

This joint initiative will commence at 00:01 Saturday March 21 throughout the US-Mexico land border for a period of 30 days subject to extension upon review.  On April 20, 2020, all parties extended these measures for an additional 30 days.

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Detention Facilities

CBP is the first line of defense of our nation’s borders. To help prevent the introduction of COVID-19 into our border facilities and into our country, aliens subject to the order will not be held in congregate areas for processing by CBP and instead will immediately be turned away from ports of entry.

Those encountered between ports of entry after illegally crossing the border similarly will not be held in congregate areas for processing and instead, to the maximum extent feasible, will immediately be returned to their country of last transit. These aliens are processed in stations designed for short-term processing, where distancing is not a viable option, creating a serious danger of an outbreak.  

The Centers for Disease Control and Prevention (CDC) has determined that these conditions present a serious infection control challenge and are a risk to public health. Should an outbreak occur at these facilities, local medical facilities would be forced to devote extensive resources and may become overwhelmed.   

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This action will also protect the health of our country’s dedicated border agents and other law enforcement personnel, who are vital to the security of our Nation.

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Apprehension of illegal immigrants along both borders between POEs:

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• Migrants from Coronavirus Impacted Areas: Since the beginning of the FY20 fiscal year in October 2019 through the end of February 2020 (over the period of October 1, 2019 to February 29, 2020), foreign nationals from 122 separate countries have been apprehended or denied entry (inadmissible) at the U.S. Southwest border, for a total of over 190,000 apprehended or inadmissible migrants from countries currently with confirmed COVID cases.

• Size and Scale: Every week, CBP apprehends between 7,000 – 9,000 individuals between ports of entry —the equivalent of 2.5 Diamond Princess cruise ships per week.

• Human-to-human Spread: The spread of coronavirus is exacerbated by human-to-human transmission and the need for detention. CBP law enforcement facilities are for short-term holding and do not provide for needed large-scale isolation, diagnosis, or treatment of such a novel disease.

• CBP Facilities: CBP facilities are not structured or equipped to effectively quarantine an infected population. CBP would be forced to rely on state and local hospitals to provide longer-term medical care for individuals who fall ill, further burdening our strained healthcare system and depriving Americans of key medical resources.

Although CBP has policies and procedures in place to handle transmittable diseases, COVID-19 will impact already strained holding capacities and place an extreme burden on what is forecasted to be a stretched healthcare system and the nation’s critical medical professionals who are needed to attend to U.S. citizens and legal residents.  

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Migrants should shelter-in-place in their homes and communities, rather than attempting a long and dangerous journey to the United States borders at the hands of traffickers and smugglers.

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U.S. Citizens:

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U.S. citizens, lawful permanent residents and certain other travelers are exempt from this action. They will receive the same processing, evaluation and potential CDC medical screening that all entrants undergo at U.S. Ports of Entry.

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Authority:

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Effective at March 21, 2020 at 12:00 a.m. EDT, CBP will, as authorized, implement CDC authority under 42 U.S.C. § 265 to prohibit entry of certain persons into the United States. CBP will assist the Department of Health and Human Services’ (HHS) and U.S. Centers for Disease Control and Prevention (CDC) to protect against the spread of the novel coronavirus (COVID-19) by implementing the emergency authorities under 42 U.S.C. § 265 at the nation’s land borders to prohibit the introduction of certain persons in the interest of public health.

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CBP Offers Flexibility to Departing Visa Waiver Program Travelers

April 20, 2020

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Travelers Affected by Coronavirus May Apply for Extended Term of Admission 

U.S. Customs and Border Protection (CBP) announced today that Visa Waiver Program travelers who have been granted satisfactory departure may apply for an additional 30-day extension of their admission period if they remain unable to depart the United States because of the novel coronavirus (COVID-19).

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The extension grants flexibility to Visa Waiver Program travelers who have difficulty returning to their countries due to COVID-19 related travel restrictions, flight cancellations or illness. Travelers who are granted satisfactory departure will have an additional 30 days to depart the United States after their lawful period of admission concludes.

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Visa Waiver Program travelers may seek satisfactory departure by contacting:

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1. Any local CBP Port of Entry or Deferred Inspection Site; or

2. The U.S. Citizenship and Immigration Services Contact Center.

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Travelers should be prepared to provide their passport number when submitting their request.

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Travelers generally must apply for satisfactory departure before their current period of admission expires. Grants of satisfactory departure are made at the discretion of the reviewing CBP Officer.

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Travelers who remain in the United States beyond their lawful period of admission lose their eligibility to travel under the Visa Waiver Program and may be subject to additional penalties under U.S. law.

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The Visa Waiver Program enables eligible nationals of 39 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Visa Waiver Program travelers generally are not eligible to extend their stay or change their status after arriving in the United States. Under current regulations, however, CBP in its discretion may grant periods of satisfactory departure of up to 30 days if an emergency prevents the departure of a Visa Waiver Program traveler.

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Acting Secretary Chad Wolf's Statement on Non-Essential Travel

April 20, 2020

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Restrictions On Non-Essential Travel Extended For Additional 30 Days

In close collaboration, the US, Mexico, and Canada have each agreed to extend restrictions on non-essential travel across their shared borders for 30 additional days. As President Trump stated last week, border control, travel restrictions and other limitations remain critical to slowing the spread and allowing the phased opening of the country.

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USCIS Announces Delay in Data Entry and Receipt Notice Generation for FY 2021 H-1B Cap-Subject Petitions Due to the Coronavirus Pandemic

April 13, 2020

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U.S. Citizenship and Immigration Services today announced that petitioners should expect a delay in data entry and receipt notice generation for fiscal year (FY) 2021 H-1B cap-subject petitions until at least May 1, 2020, due to the impacts of the coronavirus (COVID-19).

Beginning with the first day of filing, April 1, 2020, we will not immediately enter data for FY 2021 cap-subject petitions due to the COVID-19 pandemic and required health and safety protocols. Data entry and notice generation will be delayed until at least May 1, 2020. 

Once USCIS begins data entry, we will complete intake processing in the order in which we received petitions at the service centers. Petitions will be stamped received on the date they arrive at the service center. Petitions, if otherwise properly filed, will retain the receipt date that corresponds with the date the petition is received at the service center.

Due to delayed data entry and notice generation, there will be a general delay in processing FY 2021 cap-subject petitions. We are mindful of petitions with sensitive expiration and start dates, such as cap-gap petitions, and will strive to process these petitions as efficiently as possible. 

The specified filing window on the registration selection notices will not be changed. A petitioner who has a valid selected registration notice must file their H-1B cap-subject petition for the beneficiary named in the selected registration notice during the filing window indicated in their selection notice, or USCIS will reject or deny the petition.

We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice.

Additionally, we may transfer some Form I-129 H-1B cap-subject petitions for adjudication between the Vermont Service Center, California Service Center, Nebraska Service Center and Texas Service Center to balance the workload and enhance efficiencies. However, petitioners should still file their FY 2021 H-1B cap-subject petitions at the service center named in their selection notice. If we transfer your case, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition. 

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COVID-19 Delays in Extension/Change of Status Filings

April 13, 2020

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The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic. We continue to carefully analyze these issues and to leverage our existing resources and authorities to effectively address these challenges. DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.

Generally, nonimmigrants must depart the United States before their authorized period of admission expires.  However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19.  Should this occur, the following options are available to nonimmigrants: 

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Apply for an Extension.  Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS).  U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.

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If You File in a Timely Manner.  Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

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Flexibility for Late Applications. USCIS reminds petitioners and applicants that it may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances.

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Under current regulations, and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

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Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

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Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.  To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center at 1-800-375-5283. 

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For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance.

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USCIS Temporary Office Closure Extended through May 3

April 13, 2020

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On March 18, U.S. Citizenship and Immigration Services temporarily suspended routine in-person services to help slow the spread of coronavirus (COVID-19). USCIS plans to begin reopening our offices on May 4, unless the public closures are extended further. USCIS staff are continuing to perform duties that do not involve contact with the public. However, USCIS will provide emergency services for limited situations. To schedule an emergency appointment, contact the USCIS Contact Center.

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USCIS domestic field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location for the interview. When USCIS resumes normal operations, USCIS will automatically reschedule application support center appointments due to office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments at the field office must reschedule through the USCIS Contact Center, once field offices reopen to the public. Please check the USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.

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Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

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USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please visit uscis.gov/coronavirus for more information.

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Office Of Foreign Labor Certification 
COVID-19 Frequently Asked Questions: Round 3

April 9, 2020

1. Due to the impact of the COVID-19 pandemic, can I move my H-1B workers to a new worksite that is located outside the area of intended employment on my certified Labor Condition Application?

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An employer with an approved Form ETA-9035, Labor Condition Application for Nonimmigrant Workers (LCA), may place an H-1B worker at a new worksite located outside of the area(s) of intended employment certified by the Department’s Office of Foreign Labor Certification (OFLC), without having to file a new LCA, if the employer meets the conditions for short-term placement. The conditions are fully discussed in the H-1B regulations at 20 CFR 655.735 and summarized as follows:

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• The employer’s in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA;

• The employer’s short-term placement is not at a worksite where there is a strike or lockout;

• For every day the H-1B worker is placed outside the area of intended employment, the employer continues to pay the required wages; and

• The employer pays lodging costs, costs of travel, meals, and expenses (for both workdays and non-workdays).

   

Under the short-term placement provisions, an employer may place the H-1B worker at the new worksite location for up to 30 workdays in one year and, in certain circumstances, up to 60 workdays in one year. Employers will need to determine, on a case-by-case basis, whether the 30-workday and/or 60-workday provisions may apply. Employers should be aware that, if the worker’s place of residence is outside the area of intended employment, the 60-workday provision would not apply. The short-term placement provisions only apply to H-1B workers; not H-1B1 or E-3 workers.

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The area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for “normal commuting distance.” Generally, if an H-1B worker normally commutes from his or her place of residence to the worksite(s) on the approved LCA, the worksite(s) will be considered within commuting distance. If the worksite is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance, even if it crosses state lines. Accordingly, H-1B workers may be employed at a worksite within an MSA without the employer filing a new LCA and without the employer relying on the short-term placement provisions. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended or new petition with USCIS.

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Important Reminder: Certain notice requirements would apply, as explained in

separate Frequently Asked Questions concerning the COVID-19 pandemic, which OFLC published on March 20, 2020. (SEE BELOW)

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Additionally, employers retain the option of filing a new LCA, at any time, covering new worksite(s) that are located outside the area(s) of intended employment or to make other changes to the terms and conditions of the original LCA. Under the Department’s H-1B regulations at 20 CFR 655.760, employers must document and retain evidence in their files demonstrating compliance with all LCA requirements. If an employer files a new LCA covering additional worksites outside the area of intended employment listed on the original LCA, or materially changes the terms and conditions of employment, the employer would need to file an amended or new H-1B petition with USCIS. Employers should consult DHS regulations and USCIS guidance regarding when an amended or new petition must be filed: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/2015- 0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf

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Further, employers are reminded that they attest on the Form ETA-9035, section G(2), that the employment of H-1B, H-1B1 or E-3 nonimmigrant workers in the named occupation will not adversely affect the working conditions of similarly employed U.S. workers, and that nonimmigrant workers will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers similarly employed. See 20 CFR 655.732. This means that if an employer is offering H-1B workers the flexibility to telework from their home that is within the area of intended employment, the employer must offer those same flexibilities to its U.S. workers similarly employed. Additionally, if the employer is offering to move the H-1B worker to a new location outside of the area of intended employment, the employer must offer the same option to its U.S. workers similarly employed.

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Workers or employers who have questions, or would like to file complaints with the Wage and Hour Division (WHD) should visit www.dol.gov/whd/, submit an inquiry online at webapps.dol.gov/contactwhd/, or call 1-866-487-9243. Callers will be directed to the nearest WHD office for assistance. WHD staffs offices throughout the country with trained professionals who have access to interpretation services to accommodate more than 200 languages. Specific information on how to file a complaint is available on WHD’s website. All assistance from WHD is free and confidential.

2. Due to the impact of the COVID-19 pandemic, can I use alternative housing that was not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of the virus within my community or during a quarantine period?

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The Department understands that agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers, while taking appropriate steps to slow the spread of the virus. In some cases, COVID-19 containment measures may require an employer to find alternative housing for some of its workers due to social distancing measures that reduce the maximum occupancy of approved housing, to accommodate quarantine periods, or both.

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In some areas of the country, COVID-19 containment measures may require an employer to find alternative housing for some of its workers due to reduced occupancy standards (i.e., to increase social distancing) or quarantine workers for a temporary period of time. In effect, part of the employer’s approved housing has become temporarily unavailable after certification due to the impact of the COVID-19 pandemic (i.e., an unforeseen reason outside the employer’s control). Where certified housing becomes unavailable, in whole or in part, the employer must promptly notify the State Workforce Agency (SWA) in writing of the new housing situation. As COVID-19 measures require flexibility and immediate action, an employer may place workers in other employer-provided housing or rental or public accommodation housing that complies with applicable local, State, or Federal housing standards upon notice to the SWA and, then, work with the SWA to provide documentation demonstrating compliance and/or schedule an inspection of the alternative housing following the procedures outlined in 20 CFR 655.122(d)(6).

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Please contact us here at Savitz Law today if you need clarification on any of these latest changes or have any further questions.  

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Office Of Foreign Labor Certification COVID-19 Frequently Asked Questions: Round 2

April 1, 2020

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1. Due to the impact of the COVID-19 pandemic, can I permit workers to perform other agricultural labor or services that were not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of the virus within my community?

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The Department understands that, while responding to the disruptive impacts of the COVID- 19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may permit H-2A workers and domestic workers employed in corresponding employment to perform limited duties that are not specifically listed in the job order, but only as necessary due to the COVID-19 pandemic and related measures, and provided that the additional duties:

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(1) constitute agricultural labor or services, as defined at 20 CFR 655.103(c); and

(2) are performed at worksite locations covering the same area of intended employment certified by the Department.

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Consistent with the employer’s recordkeeping requirements at 20 CFR 655.122(j), the employer must retain records showing the nature and amount of the work performed, including any other agricultural work performed in response to the impacts of the COVID-19 pandemic. The employer must continue to pay H-2A workers and workers in corresponding employment the highest applicable wage rate in effect at the time the work is performed and must offer U.S. workers no less than the same benefits, wages, and working conditions the employer will offer or provide to H-2A workers.

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2. My workers may need to be quarantined and not able to perform work for several continuous weeks in order to slow the spread of the COVID-19 virus. Do I need to invoke contract impossibility?

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Given the unforeseen and disruptive impacts of the COVID-19 pandemic, the employers may be afforded some degree of flexibility before requesting a determination of contract impossibility from the Department under 20 CFR 655.122(o) (i.e., “for reasons beyond the control of the employer ... that makes the fulfillment of the contract impossible”). Accordingly, employers who must temporarily suspend agricultural operations due to the COVID-19 pandemic, whether in whole or part, may do so for a period of up to 21 calendar days without advance CO approval.

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Consistent with the recordkeeping requirements at 20 CFR 655.122(j), the employer retains records for each worker of the number of hours of work offered each day, the number of hours actually worked, and, if applicable, the reason(s) why the number of hours worked is less than the number of hours offered. In order for the Department to take into account the disruptive impacts of the COVID-19 pandemic on the employer’s business while still ensuring the three-fourths guarantee protection for workers, employers may note for each worker the specific time period in which fewer hours or no work was offered and the reason(s) why (e.g., business closure or worker quarantine due to COVID-19 pandemic).

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3. Due to the impact of the COVID-19 pandemic, my workers may not be permitted to perform work at some worksites listed on my certified Application for Temporary Employment Certification and job order. However, there are other work sites within the certified area of intended employment where work can be performed. Can I place workers at other worksites not specifically listed in the certified Application for Temporary Employment Certification but are still within the same area of intended employment?

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The Department understands that, while responding to the disruptive impacts of the COVID- 19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may place H- 2A workers and domestic workers employed in corresponding employment at other worksite(s) that are not specifically listed in the certified H-2A application and job order, but only as necessary due to the COVID-19 pandemic and related measures, and provided that: the worksite(s) are located in the certified area(s) of intended employment and workers will perform only agricultural labor or services listed on their H-2A job orders at those worksite(s) (or as provided in the separate FAQ addressing the performance of other agricultural labor or services that were not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of COVID-19). The employer should provide an amended work contract to any workers who will be performing work at another worksite.​

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The Department must be assured that essential worker protections (e.g., safe and compliant housing and daily transportation, as well as meals) will be provided to all workers performing duties at the worksites not covered by the certified H-2A application and job order. For worksites that are outside of the area of intended employment on the certified application, and where the COVID-19 pandemic may constitute good and substantial cause, the employer must file a new H-2A application and job order, but should request emergency processing under 20 CFR 655.134.

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Important Reminders:

• An employer that obtained temporary labor certification as a fixed-site employer may place workers only at other worksite(s) the employer owns or operates.

• An employer must provide workers with a copy of any approved extensions or modifications to the work contract, as soon as practicable.

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4. I’m concerned that some or all of my workers will not arrive on my certified start date of work due to the COVID-19 pandemic and related measures. Should I request an amendment to my certified start date or file a new H-2A Application for Temporary Labor Certification with a later start date for those workers whose arrival will be delayed? If not, what do I need to do?

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The Department recognizes that employers are making every effort to ensure that all workers arrive in time to commence work on the start date listed on the H-2A Application for Temporary Employment Certification or as soon as possible thereafter, consistent with the health and safety parameters related to the COVID-19 pandemic response. The Department also understands that, while responding to the disruptive impacts of the COVID-19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, employers will not be required to file a new H-2A Application for Temporary Employment Certification with a later start date for workers whose arrival is delayed due to the COVID-19 pandemic, or to request amendment of the start date on their certified application provided they comply with the following conditions:

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An employer experiencing temporary delays in the arrival of H-2A workers must notify the State Workforce Agency (SWA) to which it submitted the job order and the Chicago National Processing Center (NPC) that, due to the delayed arrival of H-2A workers based on the COVID-19 pandemic and related measures, the employer’s positive recruitment period is extended. See 20 CFR 655.158. Under these circumstances, the SWA and Chicago NPC will continue to recruit for U.S. workers and satisfy as much of the employer’s need as close to the employer’s actual start date of need as possible.

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In some cases, however, the impact of the COVID-19 pandemic and any delayed worker arrival(s) may change the employer’s need for labor to such an extent that a new H-2A Application for Temporary Employment Certification is required for the resulting job opportunity. For example, a new H-2A Application for Temporary Employment Certification may be necessary if: the duties the employer needs workers to perform have substantially changed as a result of the unforeseen circumstances; the timing of the need for labor has shifted such that a new labor market test is necessary; or if the employer is unable to reasonably anticipate when labor will be needed.

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5. My H-2A Application for Temporary Labor Certification is pending with the Chicago NPC. I’m concerned that some or all of my workers will not arrive on the start date I listed on my application due to the impact of the COVID-19 pandemic and related measures. Should I request an amendment to my start date before certification?

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The Department recognizes that employers are making every effort to ensure that all workers arrive in time to commence work on the start date listed on the H-2A Application for Temporary Employment Certification or as soon as possible thereafter, consistent with the health and safety parameters related to the COVID-19 pandemic response. The Department also understands that, while responding to the disruptive impacts of the COVID-19 pandemic, agricultural employers are making every effort to maintain the nation’s food supply and meet their contractual obligations to foreign and domestic workers. Based on these unique circumstances, and pursuant to the provisions below, an employer may request a minor amendment to the start date listed on its H-2A Application for Temporary Employment Certification, consistent with 20 CFR 655.145(b). For example, an employer’s request to amend the period of need should include a statement and any other documentation (e.g., state/local weather reports, crop yield data) demonstrating how the need for the change in the period of employment could not have been foreseen, and a description of how the crops or commodities will be in jeopardy if approval is not granted.

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Although the general impact of the COVID-19 pandemic and related measures may be more focused on the health and movement of people and not crop conditions, the employer’s H-2A Application for Temporary Employment Certification identified the first date of need on which it required workers to begin performing agricultural labor or services. In most cases, an employer’s need for the agricultural labor or services work to begin on the date specified in its H-2A Application for Temporary Employment Certification will remain unchanged and the employer will need as many of the workers to begin work on the listed start date. In such cases, a start date amendment would not be appropriate.

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In some cases, however, an employer anticipating widespread delays in workers arriving due to the COVID-19 pandemic, and related measure, may sufficiently demonstrate to the Chicago NPC that a minor delay will increase the likelihood of more workers arriving to begin work together (e.g., as a crew,) and perform large-scale planting. Where a minor amendment to the start date could increase the likelihood of more workers arriving together on the later start date (e.g., as the result of changes to travel restrictions or availability of other domestic workers based on an extended labor market recruitment), a start date amendment may be appropriate.

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To the extent an employer anticipates more than a minor start date delay or is unsure whether or when work will begin, an amendment to the start date would not be appropriate. In those circumstances, once a new start date is certain, the employer may file a new H-2A Application for Temporary Employment Certification.

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Important Reminder: If the employer requests a delay in the expected start date of work, please remember to include, in the written notification to the Chicago NPC, a statement indicating whether any U.S. workers have already departed for the place of work and, if so, an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

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6. I am an employer with a pending H-2A application and job order, and the housing I intend to provide to workers requires an inspection from the State Workforce Agency (SWA). What should I do in the event that the SWA temporarily closes its public offices or suspends operations due to the impact of the COVID-19 pandemic?

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Employers should consult the appropriate state government website and/or office for the latest information concerning the SWA’s operating status. Although some states may decide to temporarily close physical offices to the general public due to the impact of the COVID-19 pandemic, SWAs in those states may have the capability to continue to perform housing inspections on a case-by-case or emergency basis, to leverage technologies to conduct inspections remotely under specific conditions, or to implement other alternative methods for ensuring housing meets applicable standards. The Department encourages employers to proactively consult their SWAs to obtain information on available procedures to complete their housing inspections.

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In the event that the SWA provides notification that it has or will fully suspend all operations due to the impact of the COVID-19 pandemic, employers should be aware that this may prevent or significantly delay the issuance of a final determination on their H-2A applications and job orders. A certification that housing meets applicable safety and health standards is a prerequisite for the Certifying Officer to grant temporary labor certification.

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7. I am an employer operating as an H-2A Labor Contractor (H-2ALC). Due to the impact of the COVID-19 pandemic, I may not be able to provide the OFLC Chicago NPC an original surety bond associated with my H-2A application 30 days before the start date of work, as required by the Department’s regulations. Can the Chicago NPC grant temporary labor certification based on its review of a scanned copy of the original surety bond in this unique circumstance?

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Yes. Under 20 CFR 655.132(b)(3), an H-2ALC must include, with its H-2A application, the original surety bond serving as proof of its ability to discharge financial obligations under the H-2A program. Under normal circumstances, an employer may scan and upload a copy of the surety bond in the Foreign Labor Application Gateway (FLAG) at the time of filing the H-2A application electronically, and send the original surety bond to the Chicago NPC for receipt at least 30 days before the employer’s start date of work. Consistent with the Frequently Asked Questions, Round 1, issued on March 20, 2020, OFLC is making accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for labor certification due to the COVID-19 pandemic.

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For employers operating as H-2ALCs and impacted by the COVID-19 pandemic, if the deadline to submit an original surety bond falls within the period from March 13, 2020 through May 12, 2020 (i.e., 30 days before the start date of work), the Chicago NPC will review the scanned copy of the original surety bond uploaded in FLAG and, provided that the employer will submit the original surety bond by May 12, 2020, the Chicago NPC may grant temporary labor certification.

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8. Due to the impact of the COVID-19 pandemic, I may not be able to pay the fees associated with my H-2A labor certification within 30 days after the date certification was granted. Will OFLC make accommodations for the delayed payment of H-2A labor certification fees?

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Yes. Consistent with the Frequently Asked Questions, Round 1, issued on March 20, 2020, OFLC is making accommodations related to deadlines for employers and their authorized attorneys or agents to respond to the applicable OFLC NPC regarding the processing of applications for labor certification due to the COVID-19 pandemic. Accordingly, for certifications issued from March 13, 2020 through May 12, 2020, the employer’s H-2A labor certification fee will be considered timely if received by the Chicago NPC no later than June 11, 2020.

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Important Reminder: An employer who is issued an H-2A labor certification, but requests post-certification withdrawal of that H-2A labor certification and/or decides not to proceed with the filing of a Petition for a Nonimmigrant Worker (Form I-129) with the United States Citizenship and Immigration Services, must still pay the required labor certification fee in a timely manner. Failure to do so can result in debarment from the H-2A program, in accordance with 20 CFR 655.182.

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Please contact us here at Savitz Law today if you need clarification on any of these latest changes or have any further questions.  

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