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Inconsistent Application of “Non-Essential” Travel Restrictions at US Land Borders

Posted July 30, 2020Sheila Kumar - Sr. AssociateArticles

Northern and Southern Land Border Closure Extended to August 20, 2020

In response to the COVID-19 pandemic, on March 20, 2020, the Trump Administration issued an order restricting travel from Canada and Mexico into the U.S. across the northern and southern borders.  The travel restriction across the northern and southern border has been extended until August 20, 2020 and applies to all non-essential travel by land and ferries.  The travel restrictions do not apply to air, freight or sea travel. 

The DHS has vaguely defined exceptions to the land border travel restrictions for essential travelers, including “traveling to work in the U.S” and “traveling for emergency response and public health purposes,” as well as other essential travel reasons.  U.S. Customs and Border Protection (CBP) officers have significant discretion in deciding what is considered “essential travel” and who is eligible for these exemptions. 

Recommendations for Travel Across the Border

Reports indicate at some ports-of-entry CBP officers are challenging whether nonimmigrants holding valid status and work authorization in the U.S.  are entering to perform work that is essential and qualifies under one of the travel restriction exemptions.  Nonimmigrants entering at a land border should:

  • Be prepared to answer questions from CBP on why they should be deemed an essential  .  
  • Carry a letter from the employer outlining the essential nature of their work in the U.S.  
  • Be ready to prove exemption from the travel restriction for each individual attempting to cross, including spouses and children.  

“Essentiality” can be defined in terms of critical contribution to the infrastructure of a company, such as IT support, finance, vital human resource professionals or other roles that make it possible for other employees of the company to continue working from home.  The Cyber and Infrastructure Security Agency’s (CISA) Essential Critical Workforce Memorandum released by the U.S. Department of Homeland Security on March 19, 2020 provides additional helpful reference on workers who conduct a range of operations and services that have been deemed essential to continued critical infrastructure viability. 

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at:


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Nationwide Injunction on Public Charge Rule

Posted July 30, 2020Stephanie Wedel - Sr. AssociateArticles

The U.S. District for the Southern District of New York issued 2 injunctions related to the Department of Homeland Security (DHS) Public Charge Rule and the Department of State (DSO) Public Charge rule and Health Insurance Proclamation.

DHS Public Charge Rule

The new temporary injunction on the DHS Public Charge rule prohibits the implementation, application, and enforcement while there is a declared national emergency related to the COVID-19 pandemic.  The injunction ensures that seeking testing and treatment of COVID-19 will not have negative immigration implications. This injunction is in effect across the country.

DOS Public Charge Rule and Health Insurance Proclamation

The preliminary injunction on the DOS Public Charge rule and Health Insurance Proclamation suspends these policies indefinitely, and is not limited to just the declared national emergency related to the COVID-19 pandemic.

Next Steps

Until overturned, the District Court’s injunction blocks the application of the public charge rules across the country. We expect that the federal government will continue to push to have these injunctions overturned. We will continue to submit forms including information on the public charge questions until USCIS directs to do otherwise.

We will continue to monitor the situation and will provide updates as they are available. 

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DOL Announces Updates on Compliance and Upcoming PERM-based Green Card Changes

Posted July 29, 2020Cheryl Kilborn - Sr. AssociateArticles, Green Card

With temporary office-closures and work-from-home becoming the new normal, immigration attorney’s and the company’s they represent, have struggled to interpret Department of Labor (DOL) guidance on compliance with respect to PERM sponsorship. This struggle actually started in 2005, with the roll out of the PERM program, but has been further exacerbated by trying to adapt modern practices to antiquated regulations not designed for the new normal.

On July 23, 2020, DOL announced during an Open Forum at AILA’s virtual annual conference, several key updates to assist with interpreting and complying with PERM regulations:

  • DOL confirmed that the PERM Notice of Filing (NOF) requirement can be satisfied by posting the NOF on the exterior door of the office building, even if the building is closed and all employees are remote, so long as the business is operational (i.e., conducting business). DOL further confirmed that an electronic NOF posting is not required nor is it sufficient
  • On Monday, July 20, 2020, DOL released the new proposed ETA-9089, which is out for notice and comment. DOL explained that the proposed ETA-9089 was drafted in consideration of all documents and BALCA decisions it had on file to integrate as much information into the form itself to limit confusion (such as when to use the Kellogg language) and to limit the number of cases that are being audited for routine things such as business necessity
  • DOL also confirmed that the new ETA-9089 will be rolled out in FLAG (and that the current system will be decommissioned). Simultaneously, DOL released the new proposed ETA-9141, which is also out for notice and comment. The ETA-9141, which is currently already in FLAG, will auto populate into the new ETA-9089, thereby preventing transcription errors that have previously served as a basis for denial of PERM applications

Shifting to the FLAG system is expected to cut down on the amount of time it takes DOL employees to perform adjudication tasks. That said, DOL stated that it is impacted by diminished funds and because of an increase in PERM filings this year, longer processing times should be expected next year.

Firm Insight: Some proactive steps that can be taken to minimize processing delays include posting the NOF now even if the office is physically closed; filing PERM applications as early as possible before the new forms and FLAG system are required; and getting familiar with the new ETA-9089 and ETA-9141 by reading the form instructions that DOL spent a considerable amount of time drafting to get clarity on what DOL requires for future PERM filings with the new forms.

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at:

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SEVP Announces Bar on U.S. Entry for New or Initial Students for Fall 2020 Semester if Courses Fully Online

Posted July 29, 2020Articles

The Student and Exchange Visitor Program (SEVP) has announced that for the Fall 2020 semester, new or initial students who will be attending schools that are operating 100% online will be unable to enter the U.S. or change status to student status (i.e. F-1) in order to take a full online course load. Further guidance notes that designated school officials (DSOs) should not issue a Form I-20 to a nonimmigrant student in new or initial status who is outside the U.S. and plans to take classes at an SEVP-certified educational institution fully online. New or initial foreign national students who have been granted a change of status to F-1 will be deemed in violation if they attend a fully online program. Further, pending change of status applications will be denied if records indicate a fully online semester. These policies also apply to M-1 vocational students.

The above does not apply to existing F-1 students who were in active SEVIS status on March 9th and have been maintaining lawful nonimmigrant status to date, whether in the U.S. or abroad. These students can benefit from SEVP’s March 2020 guidance that enables schools and students to engage in distance learning in excess of regulatory limits due to Covid-19, including online-only, in-person, and hybrid programs.

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at:

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Homeland Security Issues a New Memo on DACA

Posted July 28, 2020Maria Cabrales - Law ClerkArticles

Effective immediately, the Trump administration will not accept new applications for DACA. This suspension on initial DACA applications should not impact current employees, as they would be filing for renewals rather than an initial DACA application. 

The administration has also decided to limit the renewals for existing DACA holders to one year, instead of previously authorized two year periods. With the shortened validity periods, it is important to file extensions as early as possible to avoid loss of work authorization.  In addition, USCIS will begin rejecting all pending and future advance parole applications.  

The Trump administration stated that they will conduct a legal review of the program, as it still views the program as illegal and will continue to seek ways to limit the scope of DACA.

This decision comes after the Supreme Court in June ruled that the Trump administration could not terminate DACA unless they gave an adequate justification for doing so. The Court did write that it was not unconstitutional for Trump to terminate DACA, but the administration had failed to properly follow the Administrative Procedures Act process. 

The Trump administration expects court challenges.

If you have any questions about how this memo will affect your DACA status, please contact our firm at:

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