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DOS suspends routine visa services at all US Embassies and Consulates worldwide

In response to the worldwide outbreak of COVID-19, the State Department is suspending routine visa services at all US Embassies and Consulates.  All routine immigrant and nonimmigrant visa applinets will be canceled as of March 20, 2020.  These embassies will resume service as soon as possible but are unable to provide a specific date at this time. Clients are advised to check the website of the embassy or consulate for its current operating status. 

This suspension of service does not affect the visa waiver program. 

Applicants with a need to travel immediately or other urgent matter may be able to request an emergency appointment following guidance provided at the Embassy’s website. 

More information can be found at the US Embassy website.

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DOS suspends routine visa services at all US Embassies and Consulates worldwide

An analysis of Canadian travel restrictions due to the COVID-19 outbreak

Update: On March 18, 2020, Prime Minister Trudeau announced that Canada and the United States had agreed to temporarily close the Canada-US border to non-essential travel, in order to preserve “critical” supply chains between the two countries. President Trump also announced this temporary closure in a tweet on March 18, 2020. Prime Minister Trudeau confirmed that travel for the purposes of recreation and tourism will be prohibited. Both Prime Minister Trudeau and President Trump have also stated that trade will not be affected. However, very little details have been provided regarding what will be considered essential travel. It is also not known at this time whether this measure will apply only to the land ports of entry or if it will modify the existing air travel ban that is already in effect.

Please click here to read the full Dentons client alert.

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An analysis of Canadian travel restrictions due to the COVID-19 outbreak

An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

President Trump has recently issued several Presidential Proclamations in response to the 2019 Novel Coronavirus (COVID-19) outbreak, which have restricted the ability of foreign nationals to travel to the United States. Dentons immigration partner, Henry Chang (who is based in our Toronto office) provides a summary of the US travel restrictions that have resulted from the COVID-19 outbreak (that the World Health Organization declared a pandemic on March 11, 2020). Please click here to read the full Dentons client alert.

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An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

DHS commences pilot project to collect DNA from certain travellers

The Department of Homeland Security (DHS) recently announced a pilot project to collect DNA samples from certain travellers, which commenced on January 6, 2020.

This announcement has prompted questions from Canadians (and other foreign nationals), who are concerned that they may be required to provide a sample of their DNA when travelling to the United States. Although privacy advocates are concerned about this mandatory collection of DNA, the pilot project, as it presently stands, may not be a significant departure from current practices. Please click here to read the full article.

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DHS commences pilot project to collect DNA from certain travellers

H-1B: The Buck Stops Where?

Who can pay the cost of the H-1B is a recurring question. And the US Department of Labor provides the answer.

The short answer is: the employer. However, like most legal questions, the more detailed answer is more complicated.

It is that time of year again—H-1B filing season. Employers, recent graduates, and professionals overseas are starting to prepare for the annual filing of new H-1B visa petitions to authorize professionals from other countries to be employed in the US.

The process is expensive. There are government filing fees and attorney’s fees, charges for expert evaluations of foreign education and/or experience and charges for translations. For some, there may also be costs associated with relocation, transportation, accompanying family members, etc. Even generous employers often question whether some of the expenses can be lawfully paid the employee himself or herself, or which of the expenses the employer may recoup if the employee leaves employment.

The DOL’s Wage and Hour Division issued Fact Sheet #62H, “What are the rules concerning deductions from an H-1B worker’s pay?,” in 2009. The DOL’s position is that there are certain expenses that can never be deducted from an employee’s pay. In pertinent part, these include:

  • The US Citizenship and Immigration Services training and processing fee;
  • The USCIS fraud protection and detection fee;
  • The USCIS optional premium processing fee;
  • A penalty for the workers failure to complete the full employment period authorized by the approved H-1B;
  • Any expenses, including attorney fees, directly related to the filing of the Form ETA 7035E labor condition attestation; and
  • Any deduction that would reduce the worker’s pay below the required wage rate, which is stated on the Form ETA 7035E.

The DOL does identify some expenses that can be paid by either the employer or the employee. Of course deductions required by law (e.g., income tax) can be made. Deductions authorized by the employee also are permissible, but only if:

  • There is a voluntary, written authorization by the employee;
  • For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging that was not incurred while traveling on the employer’s business;
  • For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
  • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

It is important to note that the US Citizenship and Immigration Services guidance in this area is much less comprehensive than the DOL. USCIS provides clear guidance on their position with respect to the various USCIS filing fees. While some may consider the differences as creating a grey area to justify allocating certain expenses to employees, conservative employers will want to minimize exposure to potential liability and the specter of a government enforcement action or civil suit by a disgruntled employee. Following the DOL’s guidance is the best practice.

Employers should review their employee handbooks, employment agreements, offer letters and collateral materials to ensure that they are in compliance with the DOL framework.

The full text of Fact Sheet #62H is available on the DOL website.

For more information about H-1B visa requirements or other questions regarding hiring the best and brightest from around the world, please contact the authors or your regular Dentons lawyer.

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H-1B: The Buck Stops Where?

New important dates for H-1B employers: March 1, 20 and 31

The US Citizenship and Immigration Services agency announced on January 9, that the initial H-1B petition registration period will be from March 1 to March 20, 2020, and that USCIS expects to notify employers whose registrations have been selected no later than March 31, 2020. The agency also provided new information about the H-1B cap-subject petition registration process.  

Petitioners must register using an online account. As of this writing, USCIS has not provided any details regarding the registration portal or ways to register an account, but has indicated that it will post the date employers may start setting up accounts on its website. 

Petitioners must electronically submit a separate registration request for each individual it seeks to petition for a cap-subject H-1B. No more than one registration may be submitted for the same individual by the same petitioner, or all registrations for that individual will be disregarded. 

USCIS will deliver lottery results by sending notices electronically and inform petitioners to file an H-1B cap-subject petition on behalf of the named individual within the filing period indicated on the notice. The notifications will be added to the registration accounts, and the account holders will receive notification via email or text message stating that an action has been added to their account. 

Petitioners should start the preparation process now by evaluating potential H-1B candidates to make sure that they are qualified to receive the visa if selected. Please contact your Dentons lawyer if you have any questions. 

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New important dates for H-1B employers: March 1, 20 and 31

New H-1B Registration Starts March 1, 2020

Hire American/Buy American policy used to benefit the government

In a move under the Hire American/Buy American Executive Order touted as aiding US employers, the US Citizenship and Immigration Services in November actually placed an extra burden on US employers sponsoring H-1B professional workers. The only real winner from this change is the US government—not American employers or workers.

The old rule

In the past, employers filed H-1B petitions with filing fees and the USCIS would then randomly select petitions up to the limited quota available. The agency had to deal with more than twice as many petitions as the quota allowed. It took the USCIS three months on average to return unselected petitions and the filing fees paid by employers, at considerable expense to the government.

The new rule

Under the new rule, the USCIS has increased both the fees employers pay and the steps employers must take. Now employers seeking to file H-1B, cap-subject petitions for the 2021 fiscal year will be required to first register and pay a non-refundable $10-per-petition registration fee.

A separate registration must be submitted for each H-1B requested. The registration must be completed between March 1 and March 20, 2020. Petitioners will receive electronic notification that USCIS has accepted the registration for processing. As before, employers are not permitted to submit more than one registration for a single employee in a fiscal year.

The USCIS will then run a random selection process on the registrations received and will notify petitioners whose registrations were selected. The petitioner will then have up to 90 days to file a full petition with supporting documents and all of the usual filing fees.   

Dentons insights

Imposing additional fees and procedures on US employers benefits no one but the government.

While employers will find out sooner than under the old rule if an employee’s petition is selected, that is no guarantee the petition will be ultimately granted. To the contrary, the increasingly conservative positions being taken by USCIS adjudicators in evaluating petitions—a process without legislative or regulatory approval—make denial more likely than ever.

And early notice of selection for the lucky few means earlier notice of non-selection for the majority of registrations. That is particularly bad news for most F-1 visa foreign students.

The old rule allowed continued employment of certain F-1 students whose authorization otherwise ended. Known as a “cap-gap extension,” this rule provided that a pending H-1B petition for a foreign student with OPT or STEM OPT ending before September 30 acted to extend employment authorization until September 30 or the date that the employer receives notice that the H-1B petition is not selected, whichever is earlier. Such rejection notices were usually not received until mid-June or later, which benefited many employers and students. Under the new rule, unselected registrations will not enjoy cap-gap benefits and employers will lose more workers sooner.

We also expect that US employers will see even longer USCIS-processing times for selected H-1B petitions.

In the past, the USCIS began processing petitions after the selection process was completed—usually mid-April—yet the agency would still be sending out petition approvals and denials into October. Under the new process, the USCIS says registrations will be selected by the beginning of April and employers will have 90 days to file. With some petitions filed as much as three months later under the new rule, it seems likely employers will sometimes see USCIS processing completed in December, or 90 days later than now.

The government claims this new registration process will dramatically streamline processing by reducing paperwork and data exchange, and will result in an overall cost savings to US employers. In fact, the real beneficiary of the new process is the agency itself.

By limiting the number of petitions eligible to file, the USCIS reduces its own workload. It will not have to deal with sending out rejection notices and returning unselected petition packages. Government efficiency is a good thing, but better without the pretense that the change helps Americans.

US employers will continue to bear the cost of recruiting and making offers to more prospective hires than they will ultimately be allowed to employ. They will still have to pay lawyers to evaluate jobs offered and candidate qualifications to make sure registrations are only done for qualified cases. The fact that some forms will not need to be typed or documents copied will save employers some money, but only on the clerical aspects of the process.

As with any new rule, there are clouds of uncertainty. Employers, candidates and lawyers must be prepared for last-minute process changes. The USCIS already announced that it will soon release more information regarding the new registration. And there is always the possibility that a court decision will ban the implementation of this new process and we will have to revert back to previous practices.

Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.

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New H-1B Registration Starts March 1, 2020

US green card waiting times lengthen for many

The US State Department predicts longer green card waiting times for many immigrants. Charlie Oppenheim, chief of the department’s Visa Control and Reporting Division, recently shared his analysis of current trends and future prospects with respect to immigrant visa supply and demand.

EB1—Extraordinary ability; outstanding professors/researchers; multinational managers/executives

The employment-based first preference category is not expected to become currently available again for any country of birth. While people born in most countries are predicted to see movement of up to three months per month, Indian-born can anticipate little if any movement. India and China both have waiting times that are years longer than other countries.

EB2—Advanced degree; exceptional ability

EB2 is expected to remain currently available for all countries of birth, except mainland China and India, but that could change, as it did in the current fiscal year. The demand for Indian-born is so great that the predicted movement is only up to one week per month, while China is predicted to move up to two months per month.

EB3—Professionals; skilled workers; unskilled/other workers

The prediction for EB3 is similar to EB2, but with slow and irregular forward movement likely for China and the Philippines. India is predicted to show little to no movement until January 2020. The more limited supply of the “other workers” category makes it likely that it will not remain currently available for the entire fiscal year.

EB4—Religious workers; special immigrant juveniles

The prediction is for EB4 to remain currently available for most countries of birth. El Salvador, Guatemala and Honduras are likely to see little if any movement because of the large demand in the special immigrant juvenile category. Mexico is predicted to see movement of up to four months.

EB5—Immigrant investors

The EB5 category is expected to remain currently available for most countries of birth; mainland China, Vietnam and India will continue to experience longer waiting periods. Mr. Oppenheim did not predict availability.

Note that the October 2019 Visa Bulletin’s EB5 Regional Center final action date is reported as unavailable because Congress and the administration have not yet extended that program. This program has always been temporary in nature and the government always has extended it, often after expiration. In contrast, traditional EB5 remains available.

Family-based preference categories

There are no limits on US citizens sponsoring their spouse, parents and unmarried children under age 21, so these are not reported in the Visa Bulletin.

For October, the F2A (family second preference) category for green card holders sponsoring their spouse and unmarried children under age 21 is reported as current across all countries of birth. Mr. Oppenheim predicted that demand will increase in late 2019 or early 2020, and the category can expect a Final Action Date by February 2020.

Background

The Department of State’s monthly online Visa Bulletin reports on the current wait times for the US immigrant visas (green cards) that are subject to numerical limits. The date the government receives an immigrant visa petition is considered the priority date. The immigrant’s country of birth is another factor impacting how long it takes to immigrate, although a married couple immigrating together can use either spouse’s country of birth for the entire family.

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US green card waiting times lengthen for many

The Government of Canada implements its New Preclearance Act

Effective August 15, 2019, the Preclearance Act of 2016 gives enhanced powers to US Customs and Border Protection officers working in preclearance areas located in Canada, much to the chagrin of many concerned Canadians. The Act was implemented in furtherance of the Preclearance Agreement, a treaty signed by Canada and the US in 2015. Please click here to read the Dentons client alert.

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The Government of Canada implements its New Preclearance Act

Federal legalization of hemp in the United States and its effect on US immigration laws

US immigration laws eased after the US 2018 Farm Bill removes hemp (and extracts of hemp such as CBD), from the list of controlled substances that have immigration consequences. Signed into law by President Trump on December 20, 2019, removes a major roadblock that hindered foreign investment and job creation in the US lawful hemp industry. Please click here to read the full article.

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Federal legalization of hemp in the United States and its effect on US immigration laws