Remote Work Blurs Boundaries

Working Remotely Triggers Immigration Compliance Regulations

Written By Howard D. Shapiro and Frida P. Glucoft

In the wake of a range of “safer at home” federal, state and local orders and guidelines stemming from the COVID-19 pandemic, employers throughout the United States have temporarily closed their offices to varying degrees and instructed their employees to work remotely, usually from home. Companies with employees working in the US pursuant to the temporary visa categories H-1B, E-3 (Australian citizens) and H-1B1 (citizens of Singapore and Chile) are required to take extra steps to ensure compliance with immigration laws and regulations when those employees are working from locations outside of their normal worksites. Continue reading “Remote Work Blurs Boundaries”

Don’t Get Stuck With COVID-19

US Immigration In The Time of the Coronavirus

Written by David S. Rugendorf

Our lives have changed almost overnight, and the unimaginable has become the new normal. We find ourselves, our families and our workplaces in an unprecedented and ever evolving situation, with new government directives and restrictions appearing on an almost daily basis. With that in mind, we have a few general points to share with our clients and friends:

RECONSIDER TRAVEL PLANS – This should be obvious. Government travel restrictions are in place prohibiting entry into the United States of individuals who have recently been present in China and Europe (including the United Kingdom). Exceptions are currently being made for US citizens, permanent residents (“green card” holders) and their immediate families. Entries across our land borders are now severely curtailed. We do not expect the situation to return to normal any time soon – further restrictions may be imposed. Appointments to obtain visas at US embassies and consulates all over the world have been cancelled, or face lengthy postponements. Applicants should monitor their e-mails for notifications regarding cancellations and postponements. US airports have seen delays in immigration processing and crowding which have made social distancing impossible. Continue reading “Don’t Get Stuck With COVID-19”

Novel Coronavirus European Travel Ban (Effective March 13, 2020)

Airport terminal and coronavirus sign
Photo Credit: istock.com/Marta Ortiz

By Frida Glucoft and Benjamin Lau

On March 11, 2020, the White House issued Proclamation 9984 “Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus,” which suspends entry to the United States for immigrants and nonimmigrants who were physically present in the Schengen Area during the 14-day period preceding their arrival to the United States. The Schengen Area includes the following 26 countries:

Austria Hungary Norway
Belgium Iceland Poland
Czech Republic Italy Portugal
Denmark Latvia Slovakia
Estonia Liechtenstein Slovenia
Finland Lithuania Spain
France Luxembourg Sweden
Germany Malta Switzerland
Greece Netherlands

Exceptions: The travel restriction does not apply to US Citizens, legal permanent residents (green card holders), spouses of US Citizens or legal permanent residents, unmarried children under the age of 21 of US Citizens or legal permanent residents, parents or legal guardians of US Citizens or legal permanent residents who are unmarried and under the age of 21, or members of the US Armed Forces and spouses and children of members of the US Armed Forces. Additional less common immigration statuses, such as individuals traveling on diplomatic visas, United Nation visas, or C-1/D crewmember visas, are also excluded from the travel restriction. Continue reading “Novel Coronavirus European Travel Ban (Effective March 13, 2020)”

New Travel Restrictions for New Yorkers

Freedom Tower, Manhattan, New York
Photo Credit: istock.com/IzabelaSun

Department of Homeland Security Suspends New York Residents From Enrolling in Global Entry and Other Trusted Traveler Programs

By Benjamin Lau and Susan Kohn Ross

New York residents may no longer be able to enroll (or re-enroll) in Global Entry and other Trusted Traveler Programs, according to recent action by the Department of Homeland Security (“DHS”).

On February 5, 2020, Acting Homeland Security Secretary Chad Wolf announced DHS was suspending enrollment in Global Entry, NEXUS, SENTRI, and FAST for all New York state residents.  This announcement does not affect residents of other U.S. states and jurisdictions who may continue to use, enroll or re-enroll in these programs.  No information was provided regarding how long the suspension would be in effect, although the way the DHS letter to New York state officials was worded makes it seems further discussions between DHS and those officials may be possible.  The stated reason for the restriction is New York’s denial of access to DHS of its Department of Motor Vehicle data for immigration enforcement and criminal history/involvement purposes.  An open question remains as to whether grounds exist to bring court action or some other form of legal challenge given DHS invoking law enforcement considerations as the basis for its actions. Continue reading “New Travel Restrictions for New Yorkers”

USCIS Releases New Form I-9, Effective Today

Close-up of an immigration form and #2 sharp pencil
Photo Credit: istock.com/alexskopje

By Benjamin Lau and Frida Glucoft

On January 31, 2020, the USCIS issued a new Form I-9, Employment Eligibility Verification with edition date 10/21/2019. The form is effective immediately. The new Form I-9 is available on the USCIS website at https://www.uscis.gov/i-9.

The form includes the following updates:

Revisions related to the List of Acceptable Documents on Form I-9:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

Continue reading “USCIS Releases New Form I-9, Effective Today”

Update to Critical Restrictions on French Nationals (E and L Visas) as of November 12, 2019

Worker is applying for Visa to Paris France.
Photo credit: iStock.com/junce

By Frida P. Glucoft and Janice Luo

Today, the U.S. Department of State (DOS) changed the reciprocity schedule for France to reflect decreased E-1, E-2, and L-1 visa validity periods. Specifically, effective November 12, 2019, E-1 and E-2 visas are now limited to a validity of only 25 months per visa issuance. Similarly, L-1 visas are now limited to a validity of only 17 months per visa issuance. Until this change, E and L visas have had validity for 60 months.

In general, different types of U.S. nonimmigrant visas have different allowable validity periods depending on the nationality of the applicant, because the Immigration and Nationality Act (INA) requires the DOS to set country-specific visa policies based on reciprocity. The validity periods, number of entries, and visa fees for different types of visas are based on each country’s treatment of similar classes of U.S. visitors to its territory, as well as national security, immigration, and other considerations. Since August 2019, there have been announcements by the U.S. Embassy in France regarding decreased E visa validity periods for French nationals. According to the U.S. Embassy in France’s website at that time, the reduction in validity time on E visas was implemented to correspond with the “treatment afforded to U.S. citizens by the Government of France”. However, until today, the DOS has not changed the reciprocity schedule to reflect the changes. Continue reading “Update to Critical Restrictions on French Nationals (E and L Visas) as of November 12, 2019”

ICE To Increase STEM OPT Worksite Inspections

US Customs and Border Protection
Photo credit: iStock.com/danielfela

By Benjamin Lau and David Rugendorf

U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.

What Is STEM OPT?

STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.

What Is a Site Visit? Continue reading “ICE To Increase STEM OPT Worksite Inspections”

US Visa Applicants Now Required To Provide Social Media Identifiers

Social media concept
Photo credit: iStock.com/Urupong

By Benjamin Lau and David Rugendorf.

On May 31, 2019, the US Department of State updated their Form DS-160 (online nonimmigrant visa application) and Form DS-260 (online immigrant visa application) to collect social media identifiers for those applying for nonimmigrant and immigrant visas. Applicants for US visas are now being asked to provide all social media identifiers they have used within the past five (5) years. This update was announced in a statement to the press by a US Department of State official on June 1, 2019.

A social media “handle” or “identifier” is any name used by the individual on social media platforms including, but not limited to, Facebook, Twitter, and Instagram. The updated visa application forms currently employ a drop-down menu which list the specific social media platforms for which identifiers are being requested. An example of the drop-down menu from online visa application form can be seen below: Continue reading “US Visa Applicants Now Required To Provide Social Media Identifiers”

The United States Finalizes Its Welcome Notice to Israeli Investors: E-2 Visas Available in May

Global business concept.
Photo credit: iStock.com/metamorworks

By John E. Exner IV and Frida P. Glucoft

Pursuant to a recent announcement by the U.S. Embassy in Israel, E-2 Investor visas will be available to Israeli citizens starting May 1, 2019.  While the bill granting Israeli citizens eligibility for the United States E-2 Treaty Investor visa was signed into law in 2012, the availability of visas was delayed by lengthy negotiations over the final terms of the reciprocal agreement between Israel and the United States.  Fortunately, the terms of the reciprocal agreement between the two countries have now been finalized, allowing for the issuance of E-2 investor visas to Israel citizens starting in May.

The E-2 investor visa is available to citizens of qualifying countries who are actively engaged in the development and direction of a United States enterprise. In order to qualify for the E-2 visa, the foreign investor must have already invested, or be in the process of investing, a substantial amount of capital into the United States company. Although the list of qualifying nations for the E-2 visa includes over 70 countries, that list did not include Israel – until now. Continue reading “The United States Finalizes Its Welcome Notice to Israeli Investors: E-2 Visas Available in May”

Warning to Employers When Staffing Special Projects

Quality control certification, checked guarantee of standard.
Photo credit: iStock.com/anyaberkut

By Susan Kohn Ross and Frida P. Glucoft

There are many ways employers may run afoul of the anti-discrimination provisions in U.S. immigration law. As a very clear starting point, the general rule for a long time has been and remains an employer may not make hiring, firing, or recruitment / referral decisions based on a worker’s citizenship status. However, there are notable exceptions and the one relevant here relates to controlled goods.

For these purposes, the definition of controlled goods includes their documentation – typically referred to as technical data – and means those goods which are subject to either the International Traffic in Arms (ITAR) or Export Administration Regulations (EAR) laws and regulations. ITAR is the export license restrictions which regulate military and defense articles, whereas BIS controls other higher tech exports which are subject to export license restrictions. As part of their regulatory regimes, both agencies (and some others of more limited scope) regulate when and how non-U.S. persons may gain access to either the actual good, the technical data or both, and require some form of notice to and pre-approval by the agency. Continue reading “Warning to Employers When Staffing Special Projects”