Most of America is now under quarantine, and American businesses are struggling to stay afloat without customers. That means that many employees are being furloughed or terminated, hundreds of thousands of whom are on visas. In this issue we are providing guidance to employers and employees on what those furloughs and terminations means.
In somewhat better news, the H-1B FY 2021 Lottery selections were announced, and we had 52% of our H-1Bs applicants picked! That is remarkable considering that the average selection rate was about 28% with 80,000 more applications in this year’s lottery than in the April 2019 lottery.
Upcoming Events and Kuck Baxter Immigration Media
We are actively engaged in our immigrant community both locally and national. Last week we gave three different community presentations on a variety of immigration topics to employers, community activists and foreign students.
We regularly speak at community events, continuing legal education seminars, Human Resource conference, and at universities and colleges around the US. If you would like us to speak to your group for free, let us know! Also, check out our website and come on out to an event! We also do a Facebook live every week, in both English and Spanish, every Friday at 2 pm. Follow us on our Facebook page and catch the action! You can also follow us on our YouTube page, which has hundreds of videos encompassing every immigration topic.
Have You Checked Out Our Blog and our Podcast?
Our Blog is updated each week with information, breaking news, and answers to questions you need to know!
You can also listen to our Top 50 rated podcast, “The Immigration Hour” podcast, that we post each Tuesday. The last episode talked in detail about S386, what is means for immigrant visa applicants through employers, and its chances for passage with the newest amendments. Download it and listen at your leisure. If you have comments on the podcast, or topics you would like us to talk about on The Immigration Hour, let us know!
Here is the Immigration News You NEED to Know Now
Kuck Baxter Immigration Guidance:
H-1B, H-1B1, and E-3 EMPLOYMENT GUIDANCE DURING COVID-19
During COVID-19, many H-1B, H1B1, and E-3 Employers are undergoing changes to their workforce and terms of employment. Please follow the below guidelines with respect to these changes.
A. Change of Worksite Address and Posting Requirements: Many employees are currently working remotely at a site not originally listed on their Labor Condition Application (LCA)
- If the new remote worksite location is within the same MSA (metropolitan statistical area) of intended employment (i.e., within normal commuting distance), the employer need not file a new LCA. However, the original LCA notice must be posted according to DOL regulations. The employer may provide the notice through online posting, a direct e-mail or a hard-copy posting at that remote location.
- If the new remote worksite location is outside the MSA of intended employment, this is considered a “material change” to the employment. In this situation, the employer will need to file a new LCA and amend the petition. Please contact your legal counsel at Kuck Baxter Immigration to assist you in this process.
- Time of Posting: During the COVID-19 emergency, DOL will allow employers to post the notice of the filing of an LCA up to 30 calendar days after the H-1B, H-1B1 or E-3 worker begins work at the new worksite location.
- Physical Posting: Posting may be placed electronically rather than physically at the job site location. Electronic notification is permissible in lieu of hard-copy posting and should be used when the COVID-19 pandemic makes it impossible for the employer to notify the workforce at that jobsite of the LCA filing. Employers may use any electronic means ordinarily used to communicate with its employees about job vacancies, including its website, electronic newsletter, intranet or e-mail.
B. Changes in Payment Structure: Any reduction in payment or hours is considered a “material change” for immigration purposes and will require a new LCA and Amended Petition. Please contact your legal counsel at Kuck Baxter Immigration to assist you in this process.
C. Termination or Furlough: Any termination or furlough is considered an end of the employment relationship for immigration purposes and an end of status for your employee. Termination results in certain obligations for the employer, including notification to USCIS and offering to reimburse the travel expense for the employee to return to their home country. There is also a 60-day grace period whereby the employee may either seek new employment or change his or her status.
Attorneys at Kuck Baxter Immigration are here to answer any questions and advise you on next steps during this difficult time.
UP-TO-DATE IMMIGRATION NEWS
USCIS Temporary Office Closure Extended Until At Least May 3
– USCIS said it will begin to reopen its offices on May 4 “unless the public closures are extended further.” Employees “are continuing to perform mission-essential services that do not require face-to-face contact with the public,” including limited emergency services.
ABIL Global: Canada
– This article provides recent COVID-19-related updates. Also, the Québec immigration department is closing a month-long consultation period with stakeholders on four questions intended to revamp a fast immigration track leading to permanent residence in Canada for francophone foreigners living in Québec.
FY 2021 H-1B Cap Petitions May Be Filed as of April 1; Glitch in Registration System Reportedly Results in Erroneous Denials
U.S. Citizenship and Immigration Services (USCIS) announced that H-1B cap-subject petitions for fiscal year (FY) 2021, including petitions eligible for the advanced degree exemption, may now be filed with USCIS if based on a valid selected registration. A petitioner is eligible to file an FY 2021 H-1B cap-subject petition only if they electronically registered the beneficiary during the H-1B registration process and USCIS selected the registration submitted for the beneficiary through the random selection process.
An H-1B cap-subject petition must be properly filed within the period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition will be at least 90 days. Online filing is not available for H-1B petitions, so petitioners seeking to file H-1B petitions must do so by paper. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2021 H-1B cap-subject petition.
Nearly 275,000 unique registrations were submitted during the initial registration period, USCIS said. Roughly 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees. More than 40,000 registration accounts were created, and nearly 81% of submitted registrations were for potential beneficiaries from India (67.7%) and China (13.2%).
Meanwhile, Forbes reported that USCIS mistakenly denied more than 100 (possibly hundreds of) H-1B visa registrations filed for new H-1B petitions. The new USCIS system allegedly erroneously denied many registrations as duplicates that were not. As of press time, attorneys reporting the problem had not yet heard back from USCIS.
USCIS Temporary Office Closure Extended Until At Least May 3
On March 18, 2020, U.S. Citizenship and Immigration Services (USCIS) temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of the novel coronavirus, which causes the disease COVID-19. USCIS said it will begin to reopen its offices on May 4 “unless the public closures are extended further.” Employees “are continuing to perform mission-essential services that do not require face-to-face contact with the public,” including limited emergency services, USCIS said.
USCIS said field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies affected by the extended temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews.
AILA Sues USCIS Seeking Maintenance of Status for Nonimmigrants, Extended Immigration Benefit Deadlines
In a follow-up to a letter sent on March 23, 2020, to U.S. Citizenship and Immigration Services (USCIS) calling for the immediate suspension of immigration benefit deadlines and the maintenance of status for nonimmigrants in the United States, on April 3, 2020, the American Immigration Lawyers Association (AILA) filed a complaint against USCIS in the U.S. District Court for the District of Columbia on behalf of its members to seek these necessary measures amid the COVID-19 pandemic.
Jesse Bless, AILA Director of Federal Litigation, said, “USCIS has every power to immediately and temporarily toll any and all immigration-related deadlines and expiration of status to the benefit of U.S. employers, lawfully admitted foreign nationals, and the public. Many of those fighting on the front lines—our nurses and healthcare workers—are foreign nationals on nonimmigrant visas. At present, immigration attorneys seeking to effectively represent U.S. employers and foreign nationals face a dangerous catch-22: risk exposure and try to protect their clients’ immigration status or protect themselves and risk putting their clients’ cases or rights in jeopardy.”
Our managing partner, Charles Kuck, serves on the AILA Federal Litigation Committee and is actively involved in aspects of this, and other upcoming, federal court litigation activities on behalf of our clients, and greater immigrant communities around the United States.
This article provides recent COVID-19-related updates. Also, the Québec immigration department is closing a month-long consultation period with stakeholders on four questions intended to revamp a fast immigration track leading to permanent residence in Canada for francophone foreigners living in Québec.
- Students who have valid study permits or an Immigration, Refugees and Citizenship Canada (IRCC) pre-approval letter (“letter of introduction”) dated March 18, 2020, or before, may travel to Canada by land or air.
- Workers with valid work permits or pre-approval letters from IRCC (“letter of introduction”) may travel to Canada, regardless of industry.
- New workers who will be employed in critical industries such as agriculture, food processing, health, transportation, and emergency services, may also travel to Canada.
- Individuals whose permanent residence has been approved and who hold a Confirmation of Permanent Residence (COPR) issued on or before March 18, 2020, may also travel to Canada to activate their permanent residence. They must show the COPR upon boarding the plane.
- Transit through Canadian airports is still allowed, provided the individual is not seeking to be admitted to Canada.
- Canadian citizens with dual or multiple citizenship may exceptionally travel back to Canada on their foreign passports, provided they obtained an email from IRCC granting them special authorization.
- Anyone, regardless of citizenship, returning from abroad must self-isolate for 14 days. Canadians being repatriated and landing at one of the four airports receiving international flights (Montreal, Toronto, Calgary, and Vancouver) and who need to take a domestic connecting flight will be quarantined at one of the airport hotels for 14 days, before being allowed to embark on a plane to their final Canadian destinations. Accommodation and food will be provided by the government.
- Severe penalties such as fines and prison sentences have been established under the Quarantine Act for anyone violating it. Foreign workers, students, and permanent residents could become criminally inadmissible if convicted of one of the more severe offenses under the Quarantine Act.
Immigration-related services in Canada are provided by various provincial and federal administrations, such as Service Canada; IRCC; and provincial governments such as the Québec Ministry of Immigration. As companies recently transitioned to remote work and only “essential” services were allowed to stay open, all government offices had to adjust quickly to allow their personnel to work remotely. Depending on the administration, some immigration processes still rely heavily on paper-based submissions.
Which eligibility criteria should the immigration department apply in their selection of workers and students intending to fast-track their permanent residence?
2. How can immigrants be encouraged to settle outside the urban centers?
3. Should the selection criteria prioritize experience gained in Québec, or immigrants whose profile match the labor market needs, or both?
4. How can “overqualification” be avoided? Should graduates become eligible for fast-track permanent immigration only after 1 year of work experience, and should the work experience have been obtained in their field of study, or at a level that matches their qualification?
The Québec immigration department had been heavily criticized for having attempted to overhaul the fast-track immigration process without public consultations in the fall of 2019, and had been forced to withdraw their bill.
New Publications and Items of Interest
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for the public in April, May, and June. These include webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars
How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish at https://www.immi.org/en/Home/make_a_plan
CBP accountability. The website https://holdcbpaccountable.org/
documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Department of State Visa Bulletin:
Kuck Baxter Immigration — In The News
Kuck Baxter Immigration LLC, and our Managing Partner, Charles Kuck, once again, as a preeminent Immigration attorney recognized around the world. Congrats, Chuck!
Kuck Baxter Immigration LLC has opened a new office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 6,000 detained immigrants. The new office is managed by our Senior Counsel Elizabeth Matherne, the former Director for the Southern Poverty Law Center’s Irwin Detention Project.
We have changed the location of our podcast–The Immigration Hour
— to Stitcher. We are entering our 12th year of continuous broadcasts. Listen each week for our latest take on immigration and immigration law!