By Andrea Lee
The Department of Homeland Security (DHS) announced the expansion of premium processing service to more case types. Premium processing is an expedited adjudication service for specific types of forms filed with the U.S. Citizenship and Immigration Services (USCIS). It is currently available to those filing a Form I-129, Petition for Nonimmigrant Worker, or a Form I-140 for certain employment-based immigrant visa petitioners. The final rule expands the regulation to apply to three more categories, detailed below.
Form I-539, Application to Extend/Change Nonimmigrant Status
This form is commonly used for spouses of individuals who hold nonimmigrant employment visas in the United States. Premium processing is already available for employees seeking temporary work visas, which allows for quick adjudication of their petitions. However, their spouse’s applications currently get delayed with long backlogs, without the option for premium processing. Hopefully, this new rule will help keep families on the same processing timeline, now that the employee, their spouse, and their children are eligible for premium processing.
Form I-765, Application for Work Authorization
U.S. employers are required to verify the identity and authorization to work for all employees. For many non-immigrants, this is often done by showing an employment authorization document (EAD), issued after Form I-765 is approved. Without an approved EAD, many individuals must take extended unpaid leave from work or become unemployed altogether.
This new premium processing rule gives applicants the opportunity to pay the premium processing fee to receive approved work authorization within 15 calendar days of submission. Cases that are now taking almost a year may be approved in just two weeks. The expansion of premium processing regulations is great news for employers and employees alike.
Form I-140, Petition for Alien Worker
The Form I-140 Petition for Alien Worker is used by employers to request permanent residency for an employee, often after the certification of a PERM labor certification application. Premium processing was already available to certain categories under the I-140 petition. This new rule adds premium processing options for additional classifications in the employment-based immigrant visas, such as national interest waivers or multinational executives or managers.
The new expansion will be implemented in a phased approach, starting in fiscal year 2023 (which starts on October 1, 2022). USCIS plans to begin the implementation process with Form I-140, for those requesting EB-1 classification as a multinational executive or manager and EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.
For more information and updates on U.S. immigration news, please visit our website at www.world1law.com.
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Trump Proclamations Extend and Expand Travel Ban to Immigrants, Workers, and their Families
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President Donald Trump issued a proclamation on June 22, 2020 that furthered the Administration’s ongoing efforts to prevent the entry to the United States of foreign workers and their families. Proclamation 10052 prohibits admission by foreign workers abroad who have H1B, H2B, L1, or some J1 visas and their dependents. This proclamation also extends previously imposed limitations (in Proclamation 10014) on issuing visas for permanent residency applicants through their American employers or family members.
Who Is Affected by this Proclamation?
This latest Proclamation is titled “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.” The first provision extends the previously announced “suspension” of permanent residency visas for foreign nationals outside the US on April 22 and who did not already have a valid travel document. This proclamation exempted lawful permanent residents, health care professionals or medical researchers working specifically on COVID19, EB5 investors, as well as spouses and minor children of US citizens.
The 60 day “suspension” for immigrant visas was extended at least through the end of 2020.
The June Presidential Proclamation also expanded the visa ban to prevent entry to the United States for certain temporary workers and their families. It specifically affects only those who were outside the United States on midnight on June 24, 2020. It also targets those individuals seeking entry on visas including H1B (high skilled workers), H2B (seasonal workers), H4 (dependents of H workers), L1 (multinational managers or specialized knowledge workers), as well as some J1 visa categories (interns, trainees, teachers, camp counselors, au pairs, or summer work travel).
This proclamation does not directly impact the work authorization of individuals in those work visas categories who are currently in the United States. People with H, L, or J status who were in the United States can continue to live and work in the United States. However, these individuals may now be unable to travel internationally without jeopardizing their employment or being separated from their families.
This ban on travel would prevent entry to the United States at least through December 31, 2020.
Who Is Specifically Exempted from the Travel Ban
Several key groups were exempted from this most recent restriction on entry. Spouses and minor children of US citizens and permanent resident “green card” holders can return to the United States after temporary travel abroad. President Trump also explicitly exempted temporary workers who are “essential to the United States food supply chain” or whose entry would be in the “national interest” as determined the Secretaries of State or Homeland Security. But these policies still put unnecessary obstacles in the way of these critical workers.
The policy announcement details some examples of people who may be considered to be in the “national interest.” Some of these exemptions are quite narrow. For example, the policy excluded certain medical workers but only health care professionals caring for a COVID-19 patient, and only if that patient is currently hospitalized. Medical researchers are able to enter the United States, but only if they are directly helping combat COVID-19. If a foreign-born doctor or medical researcher is fighting cancer, diabetes, heart disease, or any number of ailments, that individual is not able to return to their home in America.
Other exemptions are much more vague. The proclamation allows entry of individuals who are “critical to the defense, law enforcement, diplomacy, or national security of the United States.” But only the Secretary of State or Secretary of Homeland Security can determine who meets that standard. Foreign nationals who are “necessary to facilitate the immediate and continued economic recovery of the United States” are also able to get a visa. The proclamation fails to mention whether these critical workers would be able to bring their families to the United States.
The Proclamation provides no clear information about how to apply for these exceptions. There is no form to complete and US embassies are closed. This latest policy decision will only add to the existing confusion and delays.
Individuals with Valid Travel Documents May Return; Others Are Stuck
The proclamation allows entry for anyone who had a valid nonimmigrant visa stamp or travel document. If a foreign worker, or their spouse or child, is abroad on the date of the proclamation, they are able to return to the United States only if they already have an unexpired visa stamp in their passports. An amendment to this provision was issued on June 30th to correct an error that would have allowed people to travel on visitor visas. Foreign nationals who have applied for permanent residency and who have current travel authorization (called advance parole) can also return to the United States.
The burden of this proclamation will fall primarily on people who live and work in the United States but who were abroad when the announcement was made. Many have been stuck abroad for months because of the abrupt closure of US embassies and consulates. If their H, L, or J visa stamp are now expired, they are unable to return to their home in America at least through December of 2020.
The State Department has also published its “interpretation” that any person who travels overseas and needs a new H1B, H2B, L1, or J1 visa will not be issued one, even if that individual was in the United States on the date of the proclamation. This violates the plain language of the proclamation. This means that tens of thousands of workers in H, L, or J status will not be able to visit sick parents, go to family celebrations, or travel internationally for work without the possibility of being unable to return home.
Economic Impact of this Travel Ban
The unemployment rate in the United States has nearly quadrupled between February and May of 2020, mostly due to the public health crisis. However, this harsh new immigration policy will do little to improve the job prospects of American workers. In fact, this policy is likely to hurt our country’s short- and long-term economic prospects.
Immigrants contribute far more in taxes than they take in public benefits. Foreign workers contribute to American economic activity by paying rent, buying groceries, and purchasing supplies. Almost half of the Fortune 500 companies in the United States have one or more immigrant founders. Preventing needed workers from entering the United States only encourages international companies to outsource their work to other countries.
Anti-Immigrant Policies Designed to Frustrate Foreign Workers
As many courts have ruled in the last several years, President Trump does not have the power to impose his anti-immigrant policies unilaterally that violates existing US immigration laws. He must follow the strict dictates of the Administrative Procedures Act to change most regulations or force Congress to pass new immigration legislation.
No one should have to make the choice between their jobs and their families during these difficult times. This policy does not create jobs for Americans, it only generates more disruption and dislocation during a global pandemic and economic depression.
This blog is published by the attorneys of World One Law Group, an immigration law firm in Bellevue, Washington. World One specializes in employment and business immigration, family-based immigration, naturalization, as well as asylum, DACA, VAWA, and U-Visa cases.