On September 11, 2020, the U.S. Department of Homeland Security (DHS) proposed a regulation that focuses on the expansion of the collection and use of biometric data in the enforcement and administration of immigration laws. The proposed rule would subject foreign nationals to periodic biometrics collection and continuous vetting after they enter the United States and until they become U.S. citizens.
On August 12, 2020, the U.S. Department of State issued guidance on scenarios that may qualify for a “national interest exception” under Presidential Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) and Presidential Proclamation 10014 of April 22, 2020 (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”). Citing economic disruptions caused by the COVID-19 pandemic, President Donald Trump issued the proclamations and temporarily suspended the entry of certain foreign nationals into the United States. Although both proclamations referenced exceptions for individuals “whose entry would be in the national interest,” formal guidance had not been released prior to this announcement.
As the U.S. Citizenship and Immigration Services (USCIS) continues to operate under the stress of the ongoing COVID-19 pandemic and anticipated budget shortfalls, the production of certain Employment Authorization Documents (Form I-766, EAD) has become increasingly delayed. On August 19, 2020, in response to this situation, USCIS issued guidance providing employers and employees some flexibility to mitigate the myriad of I-9 compliance issues associated with the delays in EAD production.
On August 25, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that the agency will avert a furlough of approximately 13,000 employees, previously scheduled to take place on August 30, 2020.
On August 18, 2020, the U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement announced a fourth extension of its prior guidance relaxing the in-person verification requirements of Form I-9 for employers operating remotely due to the ongoing COVID-19 pandemic.
On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.
Despite all that is going on in the world, the California legislature has been busy this year. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate.
On July 29, 2020, the U.S. District Court for the Southern District of New York issued an injunction immediately blocking the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from enforcing the Trump administration’s new public charge rule during the COVID-19 pandemic.
On August 3, 2020, the Trump Administration issued an executive order (EO) directing the secretaries of the Departments of Labor and Homeland Security to “take action … to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B [workers].”
On July 31, 2020, the U.S. Department of Homeland Security (DHS) announced a final rule that will adjust fees for specific immigration and naturalization benefit requests to “ensure U.S. Citizenship and Immigration Services [USCIS] recovers its costs of services.”
On 13 July 2020, the UK Home Office published further details on the UK’s points-based system through a detailed policy statement regarding the changes to the UK immigration system due to come into effect from 1 January 2021, once freedom of movement with the European Union has ended. The document builds on the policy statement published in February 2020 and aims to provide “more detail to applicants, employers and educational institutions on the draft requirements and conditions underpinning the key immigration routes in the Points-Based System.”
On July 24, 2020, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) issued updated guidance for international students pursing education programs in the United States. The follow-up guidance states that active students in F-1 and M-1 status, as well as schools certified by SEVP, should abide by SEVP guidance originally issued in March 2020, enabling schools and students to engage in distance learning in excess of regulatory limits during the COVID-19 public health emergency.
On July 28, 2020, only six weeks after the Supreme Court of the United States blocked the U.S. Department of Homeland Security’s (DHS) attempt to end the Deferred Action for Childhood Arrivals (DACA) program, DHS issued a memorandum announcing plans to limit the scope of the DACA program, pending a comprehensive program review by the Trump administration.
On July 14, 2020, by means of executive order, the Trump administration announced that it will no longer recognize Hong Kong as a distinct autonomous region as compared to the People’s Republic of China (PRC).
On July 14, 2020, the U.S. Department of State announced that U.S. consulates and embassies around the world have begun a phased resumption of routine visa services. The Department of State did not provide a specific timeline for the resumption of routine visa services, stating instead that the schedule will depend on local conditions at each consular post.
U.S. Immigration and Customs Enforcement (ICE) has agreed to rescind a proposed rule that would have required international students on F-1 and M-1 visas to either attend in-person classes at U.S. colleges and universities or face having to leave the United States.
In light of the Home Office now making regular policy announcements and issuing revised guidance, here are the main immigration law issues that employers may want to keep in mind in order to consider the implications of COVID-19 on their organisations.
The Internal Revenue Service (IRS) recently posted a set of frequently asked questions (FAQs) on its website to provide additional information on Revenue Procedure 2020-20. The IRS published this revenue procedure on May 11, 2020, to provide relief for certain nonresident aliens stranded in the United States due to COVID-19-related travel restrictions. The new FAQs provide relief for certain nonresident aliens who may be forced to remain in the United States longer than anticipated because of a medical condition. As indicated in our prior article on Revenue Procedure 2020-20, an extended stay could adversely affect a nonresident alien’s classification for federal income tax purposes.
On July 6, 2020, the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) announced plans to update its online study policies for F-1 and M-1 nonimmigrant students for the fall 2020 semester. According to the proposed policies, SEVP intends to prohibit F-1 and M-1 students from taking a fully online course load while in the United States during the fall 2020 semester.
COVID-19 has had significant implications on how employers engage a workforce—particularly with respect to U.S. immigration. The employment changes caused by the pandemic, combined with President Donald Trump’s recent proclamation prohibiting certain H1-B, H-2B, L-1, and J-1 visa beneficiaries from entering the United States, may forever change how U.S. employers engage non-U.S. nationals. In particular, without the opportunity to resume or start the employment of foreign nationals in the United States, employers are forced to consider remote cross-border engagements, including hiring foreign nationals in their home countries or, in cases where individuals are stranded away from home due to COVID-19-related restrictions, in other countries. The European Union’s recent announcement easing entry restrictions on some countries—but not the United States—signals that this phenomenon is relevant elsewhere as well.
Employers in the United States that sponsor foreign nationals for work visas may already be familiar with the various barriers their employees are facing when entering the United States during the COVID-19 pandemic.
On June 22, 2020, the Trump administration issued a presidential proclamation suspending the entry of individuals to the United States on select nonimmigrant visas, including H-1B, H-2B, J-1, and L-1 visa holders, as well as their dependents.
On June 16, 2020, U.S. Immigration and Customs Enforcement (ICE) announced a second extension of its prior guidance relaxing the in-person verification requirements of Form I-9 for employers operating remotely due to COVID-19.
On May 29, 2020, President Donald Trump issued a proclamation suspending the entry of a small subset of Chinese nationals that seek to study or conduct research in the United States, citing a threat to the “long-term economic vitality” of the United States “and the safety and security of the American people.” The accompanying press release notes that the proclamation “will not affect students who come to the United States for legitimate reasons.”
U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing via Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, in phases during the month of June.
Because of travel restrictions, such as canceled flights and stay-at-home orders, the COVID-19 pandemic may have significantly limited a nonresident alien’s ability to leave the United States, regardless of whether the individual contracted the COVID-19 virus. An unexpected extended stay in the United States, however, could affect an individual’s tax residency classification or eligibility for certain tax treaty benefits. The Internal Revenue Service (IRS) recently released Revenue Procedure 2020-20 to address the potential tax consequences for eligible individuals impacted by the COVID-19 travel restrictions.
U.S. Citizenship and Immigration Services (USCIS) will reopen some domestic offices to resume non-emergency services on June 4, 2020. USCIS suspended routine in-person services on March 18, 2020, in response to the COVID-19 pandemic.
In its ongoing response to the COVID-19 health crisis, the United States has announced travel restrictions for Brazil. President Donald Trump’s proclamation suspends the entry of all immigrants and nonimmigrants who were physically present in Brazil during the 14-day period before seeking to enter the United States.
Following the March 10, 2020, decision of the U.S. District Court for the District of Columbia in ITSERVE Alliance, Inc. v. Cissna, U.S. Citizenship and Immigration Service (USCIS) has agreed in a settlement to rescind the 2018 third-party worksites memorandum (PM-602-0157) in its entirety no later than October 13, 2020.