United States: Recent USCIS, DHS, DOS And DOL Changes In Response To COVID-19

U.S. Citizenship and Immigration Services

Last week, USCIS announced that for certain types of requests for evidence and notices (such as Notices of Intent to Deny or Revoke) as well as appeals issued between March 1 and July 1, 2020, inclusive, USCIS will consider responses received within 60 calendar days after the response due date set in the request or notice before taking any action.

Even though USCIS Field Offices and Application Support Centers are closed to the public for routine (nonemergency) services until at least June 4, 2020, USCIS has confirmed that the USCIS Contact Center (1-800-375-5283) continues to schedule local office appointments for those seeking an ADIT stamp "where there is an emergent need." Examples of when an appointment will likely be scheduled include a need to document continued status for employment verification purposes or necessary international travel. It is unclear if needing an ADIT stamp to extend a lawful permanent resident's driver's license is considered an emergent need by USCIS. All requests will be reviewed at the discretion of each local office.

Department of Homeland Security

In regard to the I-9 process, DHS announced that, beginning May 1, 2020, Form I-9 List B identity documents set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

Department of State

Starting June 1, 2020, the National Visa Center will no longer accept or respond to inquiries through mail, and all inquiries must be submitted through their online Public Inquiry Form.

Department of Labor

The Department of Labor (DOL) appears to be setting stricter standards on employers who filed PERM labor certification applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. The PERM application process requires a U.S. employer to conduct a test of the U.S. labor market as part of the process to sponsor a foreign national worker for a green card. Based on recent reports from employers, the DOL has started asking for explanations of the business necessity regarding the position's education, training, experience and skill requirements in its PERM audit letters. Specifically, the DOL PERM audits are now requiring that an employer explain why the employer's job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences) and address how the requirements at issue apply to any U.S. applicants. If this turns out to be a new DOL trend, employers should determine whether to collect factual explanations and supporting evidence related to business necessity upfront.

Student Exchange Visitor Program

The Student and Exchange Visitor Program (SEVP) guidelines now state that for the duration of the COVID-19 emergency, SEVP considers students who are working less than 20 hours a week in their optional practical training opportunities as still being engaged in OPT. Students may also volunteer for COVID-19 relief efforts without work authorization, as long as they do so without wages, taxable compensation or other remuneration.

For More Information

If you have any questions about this Alert, please contact any of the attorneys in the Immigration Law Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.