As many know by now, the novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, is a pandemic threatening populations worldwide. The following are a few highlights of new immigration-related developments in the short term, as of press time:
- The REAL ID deadline has been extended 12 months, to October 1, 2021. The REAL ID Act establishes minimum security standards for license issuance and production and prohibits federal agencies from accepting driver’s licenses and identification cards from states not meeting the Act’s minimum standards for the purposes of accessing federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft.
- U.S. Citizenship and Immigration Services (USCIS) has extended its suspension of routine in-person services until at least April 7, 2020. USCIS staff will continue to perform duties that do not involve contact with the public. The agency said it will provide emergency services in limited situations. To schedule an emergency appointment, contact the USCIS Contact Center. USCIS said:
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC [Application Service Center] appointments due to the office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if your field office has been reopened before reaching out to the USCIS Contact Center.
- USCIS has announced flexibility for Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). For applicants and petitioners who receive an RFE or NOID dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.
- The Department of Homeland Security and U.S. Immigration and Customs Enforcement announced flexibility in complying with I-9 requirements by employers and workplaces operating remotely. Specifically, DHS said it “will exercise discretion to defer the physical presence requirements.” 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. Employers must inspect the Section 2 documents remotely (e.g., over video link, fax, or email) and obtain, inspect, and retain copies of the documents within three business days of hire 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 once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. These provisions may be implemented by employers either for a period of 60 days from the date of this notice or within 3 business days after the termination of the National Emergency, whichever comes first. Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee, DHS said. USCIS said employers should monitor the DHS and ICE websites for additional updates on when the extensions will be terminated and normal operations will resume.
- Premium processing is temporarily suspended for all I-129 and I-140 petitions until further notice. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, the agency said it will not be able to send notices using pre-paid envelopes and will only send batch-printed notices. Petitioners who have already filed Form I-129 (Petition for a Nonimmigrant Worker) or Form I-140 (Immigrant Petition for Alien Workers) using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, USCIS said. The agency will notify the public with a confirmed date for resuming premium processing. USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
The suspension includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap.
- USCIS has temporarily closed its offices in Rome, Italy, and Nairobi, Kenya, to the public. In February, USCIS announced the temporary suspension of services in Beijing and Guangzhou, China. USCIS said it will reschedule appointments and will continue to respond to email inquiries, which should be submitted in English to the Rome Field Office or the Nairobi Field Office.
- The Department of Labor’s Office of Foreign Labor Certification (OFLC) has alerted employers and other stakeholders that through June 30, 2020, the Atlanta National Processing Center will issue PERM labor certification documents electronically to employers and their authorized attorneys or agents. Through June 30, 2020, employers or their authorized attorneys/agents who file the application and are granted a permanent labor certification by OFLC will receive the certified Form ETA-9089 and Final Determination letter by email. In circumstances where employers or, if applicable, their authorized attorneys or agents, are not able to receive the certified Form ETA-9089 documents by email, OFLC said it will send the original security paper Form ETA-9089 and Final Determination letter using UPS regular delivery (i.e., approximately 2 to 8 days depending on delivery location).
Upon email receipt of an electronic copy of the certified Form ETA-9089, the form must be printed, and then signed and dated by each of the following before filing the Form
I-140 with USCIS: the foreign worker, preparer (if applicable), and employer. USCIS said it “may consider this printed Form ETA-9089, containing all signatures, as satisfying the requirement that petitioners provide evidence of an original labor certification issued by DOL.”
See Office of Foreign Labor Certification (scroll to announcement for March 24, 2020).
- OFLC has released frequently asked questions regarding COVID-19 issues. OFLC said it remains fully operational (as of March 20, 2020) under the federal government’s maximum telework flexibilities operating status. This includes the National Processing Centers, PERM System, and Foreign Labor Application Gateway (FLAG) System. OFLC said it continues to process and issue prevailing wage determinations and labor certifications that meet all statutory and regulatory requirements.
The situation is rapidly evolving, and changes to the information above are possible. Contact your Miller Mayer immigration attorney for advice in specific situations.