Immigration Alert September 2020

Immigration Alert September 2020: As earlier reported in Epstein Becker Green’s August 2020 Immigration Alert, USCIS (U.S. Citizenship and Immigration Services) declared that it will increase filing fees from 2nd October 2020. According to the announcement, USCIS has updated its Policy Manual and the Federal Register with the subsequent changes:

1. USCIS will modify the edition date of specific forms. Therefore, any affected form filed on or after 2nd October 2020, that doesn’t have the 10/02/2020 edition date won’t be accepted. The forms affected by this change have H-1B, H-1B1, H-2A, H-2B, L, O, E, TN, H-3, P, Q, and R petitions (Form I-129), a Request for Action on Approved (Form I-600/600A), the Request for Fee Waiver (Form I-912), and the Application for Employment Authorization (Form I-765).
2. Premium processing adjudications will move from 15 schedule days to 15 business days, except holidays and weekends.
3. If USCIS can’t able to finish premium processing within 15 business days, then the agency will refund premium processing expenses. It may from that point settle the case under normal processing times.
4. Premium processing expenses might be subject to increments based on inflationary rates under the Consumer Price Index.
5. I-485 application expenses for minors under 14 years will increase to the I-485 application fee for adults.
6. USCIS may need that Green Cards (i.e., permanent resident cards), EAD works approval cards, advance parole or reentry permit travel permission documents, or certificates of naturalization (i.e., U.S. citizenship certificates) not be provided by the post office except if they are delivered with signature verification.

DHS Further Extends Special Flexibility for Verifying Forms I-9

Back on 20th March 2020, Epstein Becker Green posted a Special Immigration Alert. Immigration Alert September 2020 shows that, due to the COVID-19 pandemic, the DHS (Department of Homeland Security) is permitting special Flexibility to confirm Form I-9 documents without requiring viewing the actual original documents. To benefit by this remote Form I-9 verification process, an employer needed to specific requirements, which are gone ahead here. Although originally meant to be in place for 60 calendar days. This special flexibility has been extended many times by the Department of Homeland Security.

DHS has again extended this special flexibility up to 19th Nov 2020. Unless extended again, all employers must return to the pre-COVID-19 requirement to finish the I-9 verification of new hires after that date lapses. We will advise if this special flexibility is again extended. Read completely about Immigration Alert September 2020 below.

USCIS Settles Class Action Lawsuit Due to Delayed EAD Work Permit Issuance

On 22nd July 2020, a class-action (Subramanya v. USCIS) was filed with the U.S. District Court for the Southern District of Ohio compelling USCIS to issue EAD cards that were authorized. But not yet sent to the foreign nationals. Around 75,000 candidates joined the class because USCIS authorized their applications. However, didn’t send the actual EAD work permit cards months after approving their applications. On 21st August 2020, the court entered a Consent Order and Final Statement requiring USCIS to deliver the EAD cards instantly.

Since producing and sending out 75,000 EAD cards instantly would be an operational difficulty. The complainants in the class action agreed to work with USCIS to choose how USCIS could agree to the Consent Order. Therefore, the settlement gives the following:

<<DOL Rule Expected to Raise H-1B, E-3, H-1B1, and PERM Wage Minimums>>

Sub-class 1:

There were more than 27,000 candidates in this group. To whom USCIS sent an EAD approval notice and the production of the EAD card has been ordered however not finished. All EAD cards for this group were needed to be produced and mailed by 28th August 2020.

Sub-class 2:

There were more than 17,000 candidates in this group. To whom USCIS sent an EAD approval notice, however not their EAD cards were not ordered by USCIS. USCIS clarified that these EAD cards were not ordered because the candidates’ biometrics have not been finished. The EAD cards for this sub-class will be produced and mailed within 7 business days of capturing their biometrics.

USCIS announced that because of the COVID-19 pandemic, the production of EAD cards is delayed. Recently, USCIS updated its strategy to allow the use of a Form I-797 Notice of Action (“Approval Notice”). Approved between December 1, 2019, and 20th August 2020, as interim proof of work approval for EAD applications (Forms I-765). The interim policy is valid until 1st December 2020.

As a result, employees in receipt of an Approval Notice during the qualifying period noted above may present to their employer the Approval Notice as a Form I-9, Employment Eligibility Verification, document to build up employment approval, despite the fact that Form I-797 specifically states that it isn’t proof of employment approval. The Approval Notice might be presented to an employer as a List C document for Form I-9 purposes until 1st December 2020. However, the approval notice, may not be used as a List B document to build up identity.

Employers that accept an Approval Notice to finish a Form I-9 are recommended to re-check the employees’ work approval prior to 1st December 2020.

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