President Trump’s Proclamation effective June 24, 2020

The Proclamation suspending entry of nonimmigrants to the U.S. is effective June 24, 2020 at 12:01 AM ET and extends through December 31, 2020, subject to revisions and extension.

This Proclamation extends the earlier April 22, 2020 Proclamation suspending entry of certain immigrants into the U.S. through the end of the year as well.

The Proclamation affects the following nonimmigrant categories plus spouse & children: H-1B, H-2B, J and L.

It only applies to those individuals if they are:

·        Outside of the U.S. on the effective date of the Proclamation;

·        Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and

·        Do not have an official travel document other than a visa such as advance parole which is valid on the effective date of the Proclamation.

It is not clear if Canadian citizens who are not required to have a visa will be exempt from this Proclamation.

There are limited exemptions such as those seeking to enter the U.S. to provide temporary labor essential to the U.S. food supply chain, or those who are need to provide services in the national interest of the U.S. such as defense, medical care to COVID-19 patients, or essential to facilitate the immediate and continued economic recovery of the U.S.

This Proclamation does not affect those nonimmigrants already in the U.S.

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This office advises against international travel in the event further restrictions are placed on nonimmigrants.

President Trump suspends entry of Immigrants, i.e., Permanent Residents, into the U.S., effective April 23, 2020.

This suspension applies to aliens who are outside of the U.S. on April 23, 2020, do not have an immigrant visa that is valid on April 23, 2020, do not have an official travel document such as advance parole that is valid on April 23, or issued on any date thereafter that permits travel to the U.S.

Exemptions from this Proclamation include lawful permanent residents of the U.S., or spouses or children of U.S. citizens. It does not apply to those seeking to enter the U.S. on an immigrant visa (i) who are physicians, nurses or other healthcare professionals; (ii) to perform research related to COVID-19; or (iii) to perform essential work related to COVID-19.  It does not apply to EB-5 immigrants or members of the Armed Forces, their spouse and children.

This Proclamation will expire 60 days from its effective date and may be continued as necessary.

 

President Trump suspends entry into the U.S. of certain students and researchers from China, effective June 1, 2020.

 

Any student from China seeking to enter the U.S. in F-1 or J-1 status who has received funding from, or has been employed by, or studies or conducts research at or on behalf of an entity in China that implements or supports China’s “military-civil fusion strategy” will be refused entry into the U.S. Students seeking to pursue an undergraduate degree are exempt from this Proclamation.

This Proclamation will remain in effect until terminated by the President.

What is also of grave concern is that Chinese nationals already in the U.S. in F or J status, if determined to meet the criteria above, could have their visas revoked.

President Trump is poised to issue another Proclamation to stop L-1s, H-1Bs, H-2Bs, and J-1s from entering the U.S. for a temporary period of time. Specific details are not yet known but this could be in effect for as long as 90-180 days.

Check-in with DOS’s Charlie Oppenheim Regarding the June 2020 Visa Bulletin

Charlie does not make any future predictions for family-based categories beyond what the June Visa Bulletin states. For employment-based categories, he has predictions for the following categories only:

 

EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) which became current in May 2020 remains current in June. Given the lack of EB-1 demand and the likelihood of otherwise unused numbers becoming available from the EB-5 category, this category is expected to remain current through the end of FY2020.

 

EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) and EB-3 Worldwide Other Workers (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) which had been holding at January 1, 2017, into May, leaps forward by more than 10 months to November 8, 2017, in June. Similar to EB-1 India, there is a large amount of pre-adjudicated demand in EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam), making it more reliable that the advancements will result in visa issuances this fiscal year.

 

EB-4 Worldwide (including China, India, Philippines and Vietnam) remains current in June. EB-4 El Salvador Guatemala and Honduras advances four months from August 15, 2016, to December 15, 2016. The advancement of EB-4 Mexico slows in June to a little over one month–from May 1, 2018, to June 8, 2018. These advancements were aggressive in order to account for the current processing times in the hope that all visa numbers in these categories will be used during FY2020. It is possible that these dates will hold into July 2020.

 

EB-5 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines), Regional and Non-Regional Centers, remains current in June. EB-5 China (Regional and Non-Regional Centers) advances only two weeks in June, from July 1, 2015, to July 15, 2015. The pace of advancement also slows in June for EB-5 India (Regional and Non-Regional Centers), which advances only three months from October 1, 2019, to January 1, 2020. EB-5 Vietnam (Regional and Non-Regional Centers) similarly advances only three weeks in June from April 1, 2017, to April 22, 2017. Charlie expects EB-5 India to become current by August 2020. If that is the case, it is possible that otherwise unused numbers might fall to EB-5 Vietnam, allowing that category to advance more rapidly.

USCIS Resumes Premium Processing

USCIS will resume premium processing for certain petitions beginning June 1, 2020. First up, I-140 petitions eligible for premium may file Form I-907 beginning June 1st. H-1B petitions will be phased in by type over the month of June. Contact Cantey Hanger if you have questions about upgrading your case to premium processing.

The President’s Proclamation Suspending Entry of Immigrants into the U.S. has now been issued and is effective at 12:59 PM ET, April 23, 2020.

The Proclamation applies only to aliens who are outside of the U.S. on April 23, 2020, who do not have an immigrant visa that is valid as of April 23, 2020, or do not have another official travel document such as an advance parole document.

The Proclamation does not apply to Lawful Permanent Residents; certain healthcare professionals and their spouses and children seeking to enter the U.S. on immigrant visas; EB-5 investor immigrants; spouses and children of U.S. Citizens including prospective adoptees; individuals whose entry would further important law enforcement objectives; members of the military and their spouses and children; those seeking entry who are eligible as an Iraqi and Afghan translator or interpreter who worked for the U.S. military or as a U.S. government employee in Iraq (and their spouses and children); and any alien whose entry into the U.S. would be in the national interest as determined by the Secretary of State or Department of Homeland Security.

This Proclamation is valid for 60 days and can be extended or amended at that time.

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Nonimmigrants who are outside of the U.S. have already been unable to obtain visas due to the temporary closure of U.S. consulates so their plight continues. Those in the U.S. need to continue to maintain their status and file for extensions timely.

Trump’s Tweet and COVID-19 Effects on Immigration

President Trump tweeted late Monday night (4/20/2020) he plans to temporarily suspend immigration into the United States. What does this mean?

We won’t have specific details until the Executive Order (EO) is released, which should be sometime this week. Rumors are circulating that this may be for a 120 day period. This announcement is troubling but not surprising given Trump’s attempts and successes in limiting immigration already, and he can attribute the necessity of this EO to the pandemic. We will post updates on this EO as they become available.

Can nonimmigrants be eligible to receive a stimulus check under the CARES Act?

To receive the payment, the recipient must have a valid Social Security number and qualify as a resident alien as defined by the Internal Revenue Service. To qualify as a “resident alien,” one must either meet the green card test or the substantial presence test. To pass the “green card” test, one must be a lawful permanent resident, i.e., green card holder, at any time during the calendar year. The “substantial presence” test is also based on the calendar year. One must have been physically present in the U.S. during the calendar year for a specific minimum period of time per IRS rules. Some nonimmigrants are exempt from the physical presence calculation such as F-1 students. Most work authorized nonimmigrants (H-1B, L-1, O-1, and TN) are not exempt. More information on the substantial presence test can be found here: https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test. Please consult a Certified Public Accountant with any IRS-related questions.

Please note: Individuals who do not have a valid Social Security number and used an ITIN to file their taxes are not eligible for a stimulus check. In fact, the CARES Act denies the rebate to an eligible individual with a Social Security number if that individual filed a joint return with a spouse who has an ITIN, or filed a return with a qualifying child who has an ITIN. (Limited exceptions apply in adoption or military situations.)

As a nonimmigrant, if I receive a stimulus check, is there a risk in accepting and cashing it?

A new Public Charge rule went into effect on February 24, 2020. This rule is the basis for concern over receiving a stimulus check and whether that will lead to a public charge determination. The recovery rebates are considered tax credits. Tax credits are specifically excluded from public benefits in the Public Charge rule and are not taken into account in making a public charge determination.

How can I renew my driver license (DL) with Department of Public Safety offices closed?

DLs are extended for 60 days per order of the Governor of Texas.

In accordance with section 418.016 of the Texas Government Code, the Office of the Governor approved the Department’s request to suspend provisions of the Texas Transportation Code to the extent necessary to delay the expiration date of Driver Licenses (DL), Commercial Driver Licenses (CDL), Personal Identification Cards (ID), and Election Certificates (EIC).

If your Texas DL, ID, CLP, CDL card or EIC expires on or after March 13, 2020, you are granted a waiver for the expiration date for 60 days after the Department provides further public notice that normal operations have resumed. You may download a copy of the Verification of Driver License Expiration Extension (PDF) notice. All local and state law enforcement officials have been notified of this expiration waiver. When the Department resumes normal operations, you will be able to renew without any penalty.

A close reading of the DPS notice reveals it is not consistent in how it defines the extension of DLs. The most favorable interpretation is the following:

(1) The expiration date on the DL is on or after March 13, 2020; and

(2) DLs remain valid for the duration of the governor’s declaration of State of Disaster for the State of Texas AND for 60 days after DPS provides further public notice that normal DPS operations have resumed.

So, for now, there is no definitive end date for the validity of DLs because the State of Texas is still under a State of Disaster.

I am an H-1B temporary worker and as a result of COVID-19, my worksite has changed. What do I need to do?

If the change in work location remains within the same metropolitan statistical area as the work location listed on the existing and valid Labor Condition Application (LCA), and this new work location is not listed on the original LCA, a new LCA posting must be done. The “same metropolitan statistical area” typically means within normal commuting distance. Currently, most employees are having to work remotely from home, and very likely, their home is within normal commuting distance of their office.

Consequently, employers must post LCA Notices at the new worksite location that is within normal commuting distance of the certified LCA worksite location no later than 30 days after the H-1B or E-3 worker begins work at this new location. This additional posting can be either via a hard copy posting (e.g. on the refrigerator at the worker’s home) or electronic.

If the change in work location is outside of the metropolitan statistical area stated on the LCA, a new LCA and amended H-1B petition are required unless short-term placement rules can be utilized.

Consult with an attorney for detailed advice and instructions concerning your specific situation.

I’m in H-1B status and my employer wants to reduce my hours from full-time to part-time. Is that okay? Also, can my pay be reduced because of lack of work during the pandemic?

A reduction in hours is a material change in the job offer. Consequently, a new Labor Condition Application (LCA) and amended H-1B petition must be filed prior to the employer reducing the hours of work.

Regarding wages, the H-1B employer is required to pay the higher of the prevailing wage or actual wage as specified on the LCA and in the H-1B petition throughout the validity period of the H-1B.

An H-1B employee may not be put in non-productive status without pay, due to the decision of the employer or for the employer’s benefit. This includes furloughing the employee for lack of work or “benching” that employee.

In the case of company-wide salary cuts in response to an economic crisis, an employer should ensure any adjustments to an H-1B employee’s salary keep the salary at or above the prevailing wage rate. The wages paid to the H-1B must still be at least the higher of the adjusted actual wage or prevailing wage for that occupational classification and in the area of intended employment. The employer must place a memo in each applicable Public Access File documenting this adjustment in wages.

On the other hand, if the employee voluntarily requests leave for a personal reason, such as maternity leave or to care for a family member, then the employer is not required to pay the H-1B worker during that leave for personal reasons. Keep in mind, though, that the employer may still be obligated to pay the required wage if subject to payment under the employer’s benefit plan, or acts such as Family and Medical Leave Act, the Americans with Disabilities Act, or the Families First Coronavirus Response Act.

Can nonimmigrant workers in H-1B, L-1, E-3 or TN status receive unemployment insurance?

To maintain valid nonimmigrant status in those classifications, the nonimmigrant must remain employed by the petitioning employer. If they are terminated or quit working for that employer, barring a 60-day grace period within which to file a new petition or depart the U.S., the nonimmigrant is out of status. Filing for unemployment insurance is an indication the person is not working and hence, out of status. Further, to be eligible for unemployment benefits, the person must be available and ready for full-time work. Persons in the nonimmigrant categories mentioned above are not immediately available or ready for work due to the immigration process that must be conducted first.

USCIS OFFICES TO REMAIN CLOSED UNTIL MAY 4, 2020

On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS offices will begin to reopen on May 4 unless the public closures are extended further. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public.

H-1B CAP UPDATE

USCIS completed its H-1B CAP registration lottery and all of those employers with registrations selected in the lottery have been notified. USCIS announced that nearly 275,000 unique registrations were submitted during the initial registration period. Roughly 46% of all registrations were for prospective beneficiaries with U.S. advanced degrees. 275,000 registrations is more than three times the H-1B annual limit of 85,000. Nearly 81% of submitted registrations were for potential beneficiaries from India (67.7%) and China (13.2%).