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U.S. Closing Canadian and Mexican Borders to Tourism and Recreational Travel Amid COVID-19 Outbreak

Posted May 22, 2020Kyle RobyArticles

On March 20th, President Trump and Mexican Foreign Secretary Marcelo Ebrard announced that the U.S.-Mexico border will close to non-essential travel in response to the COVID-19 outbreak. The closing became effective on March 21 and has been extended through June 22nd. The move followed a similar announcement earlier last week between the U.S. and Canada, limiting travel between the borders.

The Department of Homeland Security (DHS) defines "non-essential travel" as travel that is considered tourism or recreational in nature. 

"Essential" travel includes, but is not limited to, the following:

  • U.S. citizens and lawful permanent residents returning to the U.S.
  • Travel to work in the U.S.
  • Travel for medical, emergency response, and public health purposes.
  • Travel to attend educational institutions.
  • Individuals engaged in lawful cross-border trade.
  • Individuals engaged in official government or diplomatic travel.
  • Travel by members of the U.S. Armed Forces and their spouses/children returning to the U.S.
  • Other forms of travel as determined by the CBP on a case-by-case basis.

While individuals with any valid U.S. travel document (i.e. U.S. visa or advance parole document) will be exempt from the restriction, it is possible that travelers could face additional scrutiny at the border while the new policy is being implemented. Foreign national travelers entering the U.S. should be prepared for the possibility of additional screening and questions from the CBP regarding their employment or reasons for business travel into the U.S.

Meltzer Hellrung LLC will continue to monitor U.S. travel restrictions amid the COVID-19 outbreak and provide updates as available. If you have any questions or concerns on the above or regarding how COVID-19 may impact U.S. immigration or foreign national employees, please contact your designated Meltzer Hellrung attorney or reference our COVID-19 FAQ here.

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ICE Announces Extension of Form I-9 Rule Flexibility

Posted May 15, 2020Kristen Kellar - Sr. Paralegal - Team LeadArticles

On May 14, 2020, Immigration and Customs Enforcement ("ICE") announced it would extend Form I-9 rules flexibility. ICE previously announced that it was allowing the physical presence requirements associated with the Form I-9 to be deferred until May 19 due to the COVID-19 pandemic. The policy has now been extended for another 30 days.

Companies with employees working remotely due to the pandemic do not need to review the documents with the employee physically present, but instead must review the documents remotely within three days of the employees start date. 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.

This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.

The flexibility in rules also relates to notices of inspection ("NOIs") served by ICE. Employer's served with NOIs in March were automatically given a 60 day extension. These employers will now have an additional 30 days to respond.

If you have any questions about these extensions, please reach out to your designated Meltzer Hellrung attorney.

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H-2B Updates for Food Supply Chain Security and Stability

Posted May 13, 2020Stephanie Wedel - Sr. AssociateArticles

In an effort to mitigate the impact from the COVID-19 pandemic, the Department of Homeland Security (DHS) has announced a temporary final rule to update certain H-2B requirements.  The H-2B visa is typically used for temporary work authorization in non-agricultural fields, which lasts for no more than 1 year, and where there are no available U.S. workers.

The temporary final rule does not increase the number of H-2B visas above the mandated 66,000 cap through the remainder of FY2020, and will only apply to individuals who are already present in the U.S. in H-2B status.

The temporary final rule will allow employers some additional flexibility for employing workers essential to the U.S. food supply chain.  There are two temporary updates in the final rule:

  1. H-2B employers can employ an H-2B employee physically present in the U.S. while the H-2B petition is still pending before USCIS, only if the employer attests that the worker will perform work that is essential to the U.S. food supply chain. This authorization will last for 60 days.
  2. H-2B workers who are essential to the U.S. food supply chain can stay beyond the 3-year maximum allowable period. This applies to petitions filed by current as well as potential future new employers, so long as it is for essential positions in the U.S. food supply chain.

In order to take advantage of these new updates, employers will need to submit an attestation, swearing under penalty of perjury, that the H-2B worker(s) will be performing temporary, non-agricultural services or labor that is essential to the U.S. food supply chain.

This rule is effective immediately upon publication in the Federal Register.

Please reach out to your designated Meltzer Hellrung attorney if you have any questions.

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Possible Impact of Suspension of Consular Processing Green Cards

Posted May 4, 2020Stephanie Wedel - Sr. AssociateGreen Card

On April 22, 2020, President Trump signed a presidential proclamation suspending green card applications directly from the consulates.  This proclamation does not impact applications for adjustment of status to legal permanent residence from within the United States.

The majority of consular issued green cards during FY2019 were for the family-sponsored preferences, while the majority of employer-sponsored green cards are issued as adjustment of status applications. For family-sponsored categories (excluding immediate relatives of U.S. Citizens), there are at least 226,000 visas available, and for employer-sponsored green cards there are at least 140,000 immigrant visas available. As unused visas for either employer-sponsored or family-sponsored are rolled over to the other category, this order could positively impact the availability of employment-based green cards this fiscal year.  Typically, this spill-over is minimal, however, last year nearly 500,000 individuals were issued green cards abroad (this includes individuals such immediate relatives of U.S. Citizens who are not counted against the available visa numbers), and  as the suspension appears to affect primarily family-sponsored immigration, there is a chance we could see a larger proportion of employer-sponsored green cards issued through USCIS.

Please reach out to your designated Meltzer Hellrung attorney with any questions.

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Temporary Policy for I-9 List B Identity Documents

Posted May 4, 2020Stephanie Wedel - Sr. AssociateArticles

The Department of Homeland Security has issued a temporary policy regarding expired List B identity documents given the challenges of renewing driver’s licenses, state ID cards, and other identity documents with the current shelter-in-place orders.

Effective May 1, 2020, List B documents that are set to expire on or after March 1, 2020 (and not extended by issuing authority) may be treated the same as if the employee has provided a valid for receipt for an acceptable document for Form I-9 purposes.

When completing the Form I-9 and presented with an expired List B document, the employer should list the document information in Section 2 under List B, and record “COVID-19” in the additional information field.  Within 90 days of the termination of this policy, the employee will need to provide a valid unexpired document for the I-9.

Once presented with the unexpired document, the employer should record the number and other required document information from the actual document under Section 2 additional information field and initial and date the change.

For those List B documents that have been extended by the issuing authority, employers should enter the documents expiration date in Section 2 and enter “COVID-19 EXT” in the additional information field.  Employers may also attach a webpage printout or copy of another notice that indicates the issuing authority has extended the expiration dates.

Please reach out to your designated Meltzer Hellrung attorney if you have any questions.

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