Weekly Immigration Update: June 12-18, 2020

In immigration news this week:

• Worldwide: Jurisdictions around the world continue to adapt their coronavirus-related travel restrictions and quarantine measures, and many have implemented extension policies and other concessions. Visit Fragomen’s coronavirus-related news page for the latest immigration updates.
• United States: The Supreme Court held that the Trump Administration failed to provide an adequate justification for terminating the Deferred Action for Childhood Arrivals (DACA) program, which currently grants work authorization and administrative relief from deportation to certain individuals who were brought to the United States as children. DACA remains in place for now, but the Trump Administration could renew its efforts to terminate the program. In connection with the COVID-19 emergency, U.S. Immigration and Customs Enforcement is extending its remote I-9 document inspection policy through July 19, and border restrictions permitting only essential travel across the U.S.-Mexico and U.S.-Canada borders will be extended through July 21.

These items and other news from Colombia, the European Union, the United Kingdom, and the United States follow in this edition of the Fragomen Immigration Update.

Important Updates in Immigration This Week

United States, June 18, 2020

Supreme Court Allows DACA to Remain in Place for Now

• The Supreme Court ruled today that the Trump Administration violated procedural requirements when it sought to terminate the DACA program in 2017.
• The decision means that the DACA program will remain in place for now, but the Administration could renew its efforts to terminate the program.
• Current DACA beneficiaries may continue to work pursuant to their valid employment authorization documents (EAD) and should apply to renew their benefits as soon as they are eligible to do so. 
• It is not yet clear whether DHS will resume accepting applications for initial DACA benefits or travel permission, which have been suspended since 2017.

To view entire article, click here.

United States, June 16, 2020

July Visa Bulletin Update: USCIS to Honor Final Action Dates for Employment-Based Categories Next Month

USCIS will accept employment-based adjustment applications in July from foreign nationals with a priority date that is earlier than the Final Action Dates listed in the State Department's July Visa Bulletin.

To view entire article, click here.

United States, June 16, 2020

U.S.-Canada and U.S.-Mexico Land Border Restrictions Extended Again Through July 21

• CBP border restrictions permitting only essential travel across the U.S.-Mexico and U.S.-Canada borders will be extended through July 21.
• Essential travel includes travel by U.S. citizens, lawful permanent residents, and foreign nationals traveling to work in the United States, among others. 
• Visa Waiver and other business travelers may face additional scrutiny at the border.
• “Non-essential travel” at land borders is not permitted, which includes travel that is considered tourism or recreational in nature.

To view entire article, click here.

United States, June 16, 2020

DOL to Continue to Issue Electronic PERM Labor Certifications Through September 30

PERM labor certifications will continue to be issued via e-mail through September 30 due to the ongoing COVID-19 national emergency, according to a DOL announcement issued today.

To view entire article, click here.

United States, June 16, 2020

July 2020 Visa Bulletin: Modest Advancement for Most Employment-based Categories, Significant EB-1 India Movement, EB-5 India to Become Current

• EB-1 China will advance by one week to August 22, 2017, while EB-1 India will advance by 11 months to May 8, 2017. 
• EB-2 China will advance by one week to November 8, 2015, while EB-2 India will advance by almost one month to July 8, 2009.
• EB-3 Worldwide will advance by over five months to April 15, 2018, while EB-3 China will advance by one week to June 22, 2016 and EB-3 India will advance by 2 months to June 1, 2009.
• EB-5 India will become current, while EB-5 China will advance by one week to July 22, 2015 and EB-5 Vietnam will advance by three weeks to May 15, 2017.

To view entire article, click here.

United States, June 16, 2020

ICE Further Extends Interim COVID-19 Procedures for Form I-9 Compliance Through July 19

• Due to the ongoing COVID-19 emergency, U.S. Immigration and Customs Enforcement is xtending its remote I-9 document inspection policy for an additional 30 days, through July 19, 2020.
• Eligible employers will not be required to review I-9 identity and employment authorization documents in the employee’s physical presence until the interim policy expires or until 3 days after the COVID-19 emergency is over, whichever comes first.
• The relaxed policy only applies where company employees are working remotely due to the COVID-19 emergency.

To view entire article, click here.

United States, June 15, 2020

Reminder: FY 2021 H-1B Cap Filing Period Closes June 30

• The FY 2021 H-1B cap petition filing window closes June 30.
• Employers should work with their Fragomen team to ensure the timely submission of H-1B cap petitions on behalf of selected beneficiaries.

To view entire article, click here.

Other Weekly News Briefs

Colombia: Technical Issues with Online Visa Application System Resolved – The technical issues reported last week that prevented foreign nationals from filing initial or renewal visa applications have been resolved. Applicants can again submit their visa applications online to the Ministry of Foreign Affairs. Processing generally takes five to eight days. As a reminder, the Ministry is currently accepting and processing visa applications only from foreign nationals who are in Colombia in a valid status in order to mitigate the spread of COVID-19 in the country.

United Kingdom/European Union: Brexit Transition Period Unlikely to be Extended – In meetings between the UK and EU governments last week, the United Kingdom reiterated that it would neither request nor accept any extension to the Brexit transition period, due to end December 31, 2020. Under the Withdrawal Agreement, the formal deadline for requesting such an extension is July 1, 2020, and since there are no more EU-UK meetings scheduled in June, it is likely that there will not be an extension of the period at all. Without an extension, trade relations between the European Union and United Kingdom would need to be agreed upon by October 2020 so that agreements can be ratified before the end of the Brexit transition period. Failure to reach a substantive agreement on the future relationship would not affect the enforceability of the Withdrawal Agreement which has already been ratified by both parties, and includes a deal on citizen’s rights (rights of residence and family reunion for EU and UK citizens who have established residence prior to December 31, 2020). For more information, see Fragomen's dedicated Brexit website.

United States: USCIS Changing Some H-1B Policies – U.S. Citizenship and Immigration Services (USCIS) has issued a new policy memorandum, rescinding two H-1B memoranda from 2010 and 2018 and replacing them with new guidance on H-1B adjudications. The rescission of the 2018 memorandum on contracts and itineraries in H-1B adjudications follows a May 2020 litigation settlement between USCIS and Plaintiffs in ITServe Alliance v. Cissna, in which USCIS was required to rescind the memorandum within 90 days. The memorandum had markedly increased the evidentiary requirement for third-party entity cases, and resulted in an increase in denials and requests for evidence. 

The rescinded 2010 memorandum addressed the H-1B employer-employee relationship and the requirement that the petitioning employer control an employee that may be working offsite. Though the new guidance establishes a seemingly less stringent standard than the 2010 memorandum, USCIS has long stated it plans to revise the regulatory definition of “employer-employee relationship,” as well as “specialty occupation” and “employment” in the H-1B context. 

Other issues addressed in the new guidance include: confirmation that an employer is not required to submit evidence of day-to-day assignments for an H-1B position in order to establish it as a specialty occupation; confirmation that benching of any sort is not permitted; and a requirement that if USCIS issues an H-1B approval with a shorter validity period than was requested by the employer, the agency must provide a brief explanation as to why validity has been limited.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen.