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%).

DHS Announces Flexibility in Requirements Related to Form I-9 Compliance for Remote Employees

Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced on March 20, 2020 that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).  Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.  However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.  Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

 

For additional instructions on completing Form I-9 during this time of National Emergency, please contact Susan Lane.

Cantey Hanger Response To COVID-19

A Message To Our Clients and The Community:

Cantey Hanger LLP has been a proud member of the Texas legal community for over 130 years. We have always worked hard to provide expert legal service in the past, and we strive to provide you with that same professional, yet compassionate service as we face these challenging times.

During the COVID-19 emergency, we are taking precautions to protect the safety and well-being of our clients, our attorneys and staff. We are following City of Dallas, City of Fort Worth, State of Texas and the Centers for Disease Control and Prevention (CDC) recommendations for managing the spread of the virus. At the same time, we are watching and coordinating with our local business community to lessen the impact on our workplace, as well as yours.

Cantey Hanger is open and doing business. Be assured that we are continuing to work on your legal matters and are prepared to address your future needs. Like you, we are dedicated to the use of technology to allow our attorneys and staff to work from home, supporting our families and the community. We are a call or click of the mouse away. You will still be able to contact us by telephone, email, fax, or videoconference, so reach out when you need us.

If you have a matter in the courts, most Texas courts are open; however, many are holding telephonic hearings and rescheduling non-emergency matters. Your attorney or our staff will keep you updated on your case and any upcoming hearings or pressing issues. Most court filings are done electronically across the nation, so there should be little interruption in our ability to continue advocating on your behalf.

For your business needs, we continue to confer with clients daily on COVID-19 and other challenging and novel legal issues. Whether it is an employment issue, contract interpretation, immigration matter or general business advice, our attorneys are continuing to provide service, but doing it just a little farther away than usual. We are sailing in uncharted waters, but Cantey Hanger has the expertise to navigate them safely for your company and employees, as well as for you and your family.

Please contact me or any of our legal professionals with questions or concerns, and know that while dedicated to maintaining the safety of our clients, colleagues and staff, we stand ready to serve you.

 

Brian C. Newby

Managing Partner

DATES FOR FILING ADJUSTMENT OF STATUS APPLICATIONS IN APRIL 2020

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. This means that applicants in the F2A category may file using the Final Action Dates chart for April 2020.

 

For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for April 2020.

 

For Employment-Based Preference Filings:
For all employment-based preference categories, you must use the Final Action Dates chart in the Department of State Visa Bulletin for April 2020.

COVID-19 UPDATE FOR VISA WAIVER/ESTA ENTRANTS

ONLY APPLICABLE TO THOSE WHO WERE ADMITTED THROUGH IAH, HOUSTON HOBBY, DFW, AUSTIN AND SAN ANTONIO AIRPORTS OR ARE TEMPORARILY RESIDING WITHIN THE HOUSTON FIELD OFFICE AREA OF RESPONSIBILITY.

Individuals admitted under the VWP/ESTA program who find themselves unable to depart the US before the expiration of their current period of admission due to COVID-19 related issues and who were admitted to the US through IAH, Houston Hobby, DFW, Austin and San Antonio airports (only)  or are temporarily residing with the Houston Field Office area of responsibility can contact the Deferred Inspections office at the locations below starting Thursday, March 19, 2020 to request Satisfactory Departure (up to 30 days).

The Deferred Inspection hours and contact numbers are listed below:

Location                                                                                 Contact number              Hours of Operation

Houston Intercontinental Airport (IAH)                                281-230-4886                       Mon-Fri 0800-1600

San Antonio International Airport (SAT)                               210-821-6965                        Mon-Fri 0800-1600

Oklahoma City, Oklahoma (OKC)                                           405-942-3405                        Mon-Fri 1000-1500

Dallas/Fort Worth International Airport (DFW)                  972 456-2250                       Mon-Thurs 0800-1400

Appointment Requests at dfwairporti94@cbp.dhs.gov

H-1B Premium Processing Update

USCIS will be temporarily suspending Premium Processing for FY2021 Cap-Subject Petitions. Petitioners filing FY 2021 cap-subject H-1B petitions will not be able to request premium processing when USCIS begins accepting cap-subject petitions on April 1. Until premium processing resumes for FY 2021 cap-subject H-1B petitions, USCIS will reject any Form I-907 concurrently filed with a cap-subject H-1B Form I-129.

As USCIS has done in the past, premium processing will resume in a two-phased approach during the FY 2021 cap season so that USCIS can best manage premium processing requests.

USCIS will resume premium processing for FY 2021 cap-subject H-1B petitions requesting a change of status from F-1 nonimmigrant status no later than May 27, 2020, and will notify the public before premium processing resumes for these petitions.

The earliest date that USCIS will resume premium processing for all other FY 2021 cap-subject H-1B petitions is June 29, 2020.

Petitioners filing FY 2021 H-1B cap-subject petitions will be eligible to upgrade to premium processing by filing Form I-907 once premium processing resumes, as applicable. USCIS will notify the public with a confirmed date for resuming premium processing for FY 2021 H-1B cap-subject petitions.

At this time, premium processing remains available for H-1B petitions that are exempt from the cap, such as extension of stay requests.