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As colleges and universities develop plans for the fall semester, holding courses online is the predominant option that schools are taking. For international students, i.e., those who are not U.S. citizens, are not legal permanent residents, or not minor dependents of those here on work visas, this could have be (and was) a problem. These students are allowed to be in the U.S. as F-1 (international students of academic programs) and M-1 (international students of vocational programs) and only for that purpose. Buried in the regulations governing what it means to maintain their legal status in the U.S. are rules governing how many (or how few) online courses they could actually take.

While the government made accommodations at the start of the COVID-19 pandemic, on July 6, 2020, the Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security issued unofficial guidance indicating that, for Fall 2020, if a student’s program was completely online, that student would not be allowed to remain in the U.S. This news reverberated throughout higher education and triggered the first of many legal challenges against the government. Notably, Harvard University and the Massachusetts Institute of Technology joined forces and filed a lawsuit the next week against the government arguing that their new policy was “arbitrary and capricious,” which is the standard by which a government agency could not act. Today, before oral arguments were even held, the judge announced that both sides had come to a settlement, i.e., that the government would rescind its ICE guidance and keep things as they were prior to the announcement of the guidance. This would mean for now that international students in F-1 and M-1 status can legally remain in the U.S. even with online courses.

Please note that the above has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to see whether the above applies to you. Stay tuned!

When the COVID-19 pandemic hit the United States, most colleges and universities were on spring break. Students had to cut their plans short, pack up their belongings, and move back home. As the weeks passed, colleges and universities responded with online classes.

For international students, i.e., those who are not U.S. citizens, are not legal permanent residents, or not minor dependents of those here on work visas, this posed a problem. These students were allowed to be in the U.S. as F-1 (international students of academic programs) and M-1 (international students of vocational programs) and only for that purpose. Buried in the regulations were rules governing how many (or how few) online courses they could actually take. The government made accommodations. But now, as we face Fall 2020, the government is issuing new rules that are not as accommodating.

The Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security issued unofficial guidance today indicating that, for Fall 2020, if a school’s program is completely online and students are only attending online courses, the students will not be allowed to remain in the US in the F-1 or M-1 status. The official rules will be published shortly.

Highlights include the following:

• Students attending schools operating entirely online may not take a full online course load and remain in the United States.
  1. For those who are hoping to enter the US, the State Department will not issue visas for such students and the US Customs and Border Protection officers will not allow such students to enter the US.
  2. For those already in the US, they will not be allowed to remain, unless they transfer to schools with in-person classes.
• Students attending schools operating under normal in-person classes are bound by existing rules; these students are only allowed to take a maximum of one class or three credit hours online.
• Students attending schools adopting a hybrid model, that is, a mixture of online and in-person classes, will be allowed to take more than one class or three credit hours online. The assumption is that these students will not be able to take all classes on-line. ICE specifically indicates that “These schools must certify through the Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student Status,’ that the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” F-1 students in English language training programs or M-1 students are not permitted to enroll in any online classes.

What is not addressed is whether the above impacts those students who have already graduated and who are remaining in the US pursuant to either Optional Practical Training (OPT, the one-year period of post-graduate training) or STEM OPT (the additional two-years post-OPT for students who have received a STEM degree in the US and whose employer has signed up for the E-Verify program). Our reading of the guidance is that this does not impact such individuals. Such individuals should be able to continue to remain in the US and should be able to continue to work in the US pursuant to their OPT or STEM OPT.

*** Please note that we have seen USCIS continue to challenge whether OPT/ STEM OPT students have maintained their status by asking for documentation to show that they have not exceeded their allotted dates of unemployment. We have also seen USCIS ask for the training plan associated with the STEM OPT program. ***

ACTION ITEM: All F-1 and M-1 students should contact their Designated Student Officer (DSO) as soon as possible to see whether the new restrictions on remaining in the US apply to them. Even if they are allowed to stay, the DSO will need to issue an updated Form I-20 to prove that the student meets the new requirements.

For complete details see:

https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf

Please note that the above has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to see whether the above applies to you. Stay tuned!

H-1B, H-2B, J, and L NONIMMIGRANT VISA EXECUTIVE ORDER

On April 22, 2020, the White House issued an Executive Order that limited entry into the United States of certain individuals seeking to become legal permanent residents (i.e., green card holders). Since then, there has been talk regarding additional limitations for foreign nationals seeking employment in the United States, even on a short-term basis. On June 22, 2020, the White House issued this executive order.

What does this Executive Order do?

Citing high unemployment rates due to COVID-19, this executive order continues the restrictions of the prior executive order regarding certain immigrants.

In addition, the White House believes that additional measures need to be taken because “the present admission of workers within several nonimmigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current recovery.” (Unlike green card holders who would have unrestricted employment authorization, individuals entering the United States under certain nonimmigrant visa categories would have employment authorization for a very specific purpose, usually for a particular employer and a particular job.) According to the White House the “entry of additional workers through the H-1B, H-2B, J, and L nonimmigrant visa programs, therefore, presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.”

To whom does it apply?

This executive order applies to the following individuals who are currently outside of the United States and seeking to the enter in the following nonimmigrant visa classifications:

• H-1B (specialty occupation classification where the job requires at least a bachelor’s degree in a very specific field of study);
• H-2B (non-agricultural seasonal workers);
• J-1 (specifically of the following classes: intern, trainee, teacher, camp counselor, au pair, or summer work travel program)
• L-1 (individuals who have been working abroad for an affiliate entity, either are senior level managers or executives or have specialized knowledge of a company’s products/procedures, and are being transferred temporarily to the United States);
• Individuals accompanying any of the above (i.e., spouse and children); and
• Those already impacted by the prior order (i.e., immigrants)

And only if all of the following conditions are met:

• The individual is outside of the U.S. (to be clear - those who are already in the United States in any of the above nonimmigrant visa categories are not subject to the executive order);
• The individual does not already have a nonimmigrant visa stamp in his/her passport at the time this order takes effect; and
• The individual does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid at the time this order takes effect or issued on any date thereafter that permits the individual to enter the U.S.

To whom does it not apply?

The executive order does not apply to those individuals already in the United States. The executive order also does not apply to anyone within the following categories:

• Lawful permanent resident of the United States (i.e., green card holders);
• Spouse or child of a US citizen;
• Individual entering the U.S. “to provide temporary labor or services essential to the United States food supply chain;”
• Individual whose entry “would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.” Factors here include “critical to defense, law enforcement, diplomacy, or national security of the United States;” “involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;” “are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;” or “are necessary to facilitate the immediate and continued economic recovery of the United States.”

The order does not mention other nonimmigrant visa categories such as TN, H-1B1, E-3, E-1, E-2, or O-1. The logical conclusion is that such nonimmigrant workers are not impacted by this current executive order.

When does it take effect?

The executive order takes effect at 12:01AM on June 24, 2020.

When does it expire?

The executive order expires on December 31, 2020, and may be continued as necessary.

Are there other concerns?

The executive order also directs the Secretary of Health and Human Services to provide guidance to the Secretary of State and Secretary of Homeland Security for implementing additional health measures. Further, the order directs the Secretary of Labor to work with the Secretary of Homeland Security to consider developing rules or take action to ensure that individuals seeking admission or a benefit pursuant to certain employment-based immigrant visas or the H-1B visa does not disadvantage U.S. workers. This includes taking additional measures regarding the efficient allocation of H-1B visa numbers so as not to disadvantage U.S. workers.

Please also be mindful that other travel restrictions are still in effect, including those that restrict entry into the United States if one has been in China, Iraq, Brazil, Ireland, the U.K., and any of the Schengen countries within the last 14 days. The above executive order should be read in the context of other restrictions and practical concerns such as the current closure of U.S. Consulates abroad that prevent one from even applying for an immigrant or nonimmigrant visa.

The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to determine if and how the above applies to you.

On June 18, 2020, the U.S. Supreme Court issued a decision ruling that the U.S. Department of Homeland Security’s termination of the Deferred Action for Childhood Arrivals (DACA) program was “arbitrary and capricious” under the Administrative Procedures Act (APA). (This is the standard by which the APA evaluates the legitimacy of government agency.)

As background, the Obama Administration issued a memorandum on June 15, 2012 that would defer any actions regarding the removal of individuals who did not have legal permission to remain in the U.S. Such individuals would have to meet certain requirements, such as having arrived in the U.S. before the age of 16; applying under the age of 31; having continuously resided in the U.S. since June 15, 2007; and attending school, having graduated, having obtained a certificate of completion from high school, having obtained a General Educational Development (GED) certificate, or being an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S. If they however were convicted of a felony or a significant misdemeanor (two or less misdemeanors would have been acceptable) they would not be eligible. These individuals would be allowed to apply for employment authorization for two years at a time. This program did not offer permanent residency nor a path to U.S. citizenship. Family members could not benefit either. In 2017, the current Administration challenged the legitimacy of the program and the Department of Homeland Security (DHS) rescinded the program in September. Through a series of legal actions the question of DACA’s legitimacy arrived at the U.S. Supreme Court.

The decision on June 18, 2020 criticized DHS for not following established requirements for government accountability under the APA. This includes considering whether DHS should continue a lesser part of the program and any reliance interests created by the DACA program. The Supreme Court however did not address whether DACA was a good program as a matter of policy or not. In fact, the decision indicated that DACA may be rescinded, if done properly.

For now, the DACA program can continue but this does not mean that DHS may not revisit rescinding it in the future. It also does leave open the question of whether Congress would take action and take the question out of the Administration’s hands.

The above has been provided for information purposes only. If you have any questions, please feel free to contact Clark Lau LLC to see whether this applies to you.

On Friday, May 29, 2020, President Trump issued a proclamation that would restrict entry of certain Chinese students and researchers seeking to enter the U.S. in F-1 or J-1 nonimmigrant status. His concern was that the People’s Republic of China’s (“PRC”) “acquisition of sensitive United States technologies and intellectual property to modernize its military is a threat to our Nation’s long-term economic vitality and the safety and security of the American people … The PRC authorities use some Chinese students, mostly post‑graduate students and post-doctorate researchers, to operate as non-traditional collectors of intellectual property. Thus, students or researchers from the PRC studying or researching beyond the undergraduate level who are or have been associated with the [People’s Liberation Army] are at high risk of being exploited or co-opted by the PRC authorities and provide particular cause for concern.”

As of 12:00 PM Eastern Daylight Savings Time on June 1, 2020, any PRC national seeking to enter the United States in F-1 and J-1 status “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC's ‘military-civil fusion strategy’” is prohibited from entering the United States. (Note that those entering the United States for undergraduate studies are not restricted.)

The term “military-civil fusion strategy” means actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities.

Exceptions to this Proclamation include the following:

• any lawful permanent resident of the United States (“LPR” or green card holder);
• any spouse of a U.S. citizen or LPR;
• any member of the U.S. Armed Forces and anyone who is a spouse or child of a member of the U.S. Armed Forces;
• anyone whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;
• anyone who is studying or conducting research in a field involving information that would not contribute to the PRC's military‑civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies (agencies);
• anyone whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or
• anyone whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

While no specific termination date has been provided, there is a 60-day review date to determine the effectiveness of the above and whether further action would be needed.

The above contains only highlights of the proclamation and has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to determine whether the above applies to your circumstances.

The current administration just added Brazil to the list of countries with travel restrictions. As of 11:59 PM on May 28, 2020, travelers who have been to Brazil within the last 14 days will also be prohibited from entering the U.S. Brazil joins the U.K., Ireland, the People’s Republic of China (excluding Hong Kong and Macau), Iran, and countries from the Schengen region (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) on this list.

Again, some of the exceptions to the travel restrictions include the following:

• U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
• Spouses of U.S. Citizens and Lawful Permanent Residents;
• Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
• Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
• Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
• Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
• Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
• Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
• Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments. The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

On Monday night, President Trump sent out a tweet indicating that he would “suspend” immigration. On Tuesday night during his regular briefing, he indicates that this would only apply to individuals seeking permanent residency into the United States. A lot of questions however still remained. Today, we actually get to see the Executive Order and here’s what he really meant.

When does this take effect?

11:59PM (Eastern Daylight Savings Time) on April, 23, 2020.

How long will this last?

60 days, but subject to review and possible renewal.

Who is affected?

Individuals seeking to enter the U.S. as immigrants (i.e., legal permanent residents, also referred to as “green card holders”) who meet the following:

• Are outside of the U.S. as of April 23, 2020 AND
• Do not have an immigrant visa in their passport issued by the U.S. Consulate or an official travel document such as a transportation letter, an appropriate boarding foil, or an advance parole document effective on April 23, 2020 or issued on any date thereafter.

Are there exceptions?

Yes.

Who are exempt?

The suspension of entry into the U.S. does not apply to the following categories of people:

(i) any person already a lawful permanent resident (also referred to as “green card holders”) of the United States;

(ii) any person seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii) any person applying for a visa to enter the U.S. pursuant to the EB-5 Immigrant Investor Program;

(iv) any person who is the spouse of a U.S. citizen;

(v) any person who is under 21 years old and is the child of a U.S. citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi) any person whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii) any member of the U.S. Armed Forces and any spouse and children of a member of the U.S. Armed Forces;

(viii) any person seeking to enter the U.S. pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix) any person whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The above has been provided for informational purposes only. Please consult your Clark Lau LLC attorney to see how the above may apply to your particular circumstances.

On Monday, April 20, 2020 President Trump sent a tweet indicating that he would sign an Executive Order suspending immigration to the United States temporarily.

Just tonight, the President clarified that his Executive Order would only apply to those individuals seeking permanent residency (green cards) in the United States and the suspension would be for an initial 60 days. His Executive Order does not impact nonimmigrant visas such as H-1Bs, TNs, L-1s, and other visas that allow US employers to access foreign talent. It is also our understanding that the Executive Order does not apply to those seeking permanent residency already in the United States.

The above was provided for informational purposes only. Please stay tuned as we learn more and see the actual Executive Order.

USCIS announced on Friday, March 27, 2020 that they had completed the H-1B lottery for the upcoming fiscal year. Each year, 85,000 visa numbers are available for individuals who are not already in H-1B status and who have been offered specialty occupation positions by U.S. employers. (Certain employers such as colleges, universities, government research organizations, or non-profit research organizations are exempt from this lottery.) 20,000 of these numbers are allocated to those with at least a U.S. Master’s degree. (Please note that of the total 85,000, 5800 however are reserved for those who are applying under the H-1B1 program – specialty occupation workers of Chilean or Singaporean citizenship. In theory, when these numbers are not used, they are returned to the H-1B pool.) Over the weekend, employers and their attorneys were informed of the results.

USCIS released statistics today indicating that there were nearly 275,000 registrations with 46% of the registrants with at least a U.S. Master’s degree. For more details, check out the link:

https://www.uscis.gov/news/news-releases/fy-2021-h-1b-cap-petitions-may-be-filed-april-1

The above was provided for educational purposes only. Please contact Clark Lau LLC if you have any questions and how the above may apply to your specific circumstances.

Our world is full of acronyms and the two latest ones are COVID-19 (Corona Virus Disease 2019) and WFH (work from home). Needless to say, COVID-19 has disrupted our lives in all aspects and many have shifted either voluntarily or mandatorily to a WFH situation. In the immigration context, not only are there many more acronyms but additional considerations arise for employers as far as how to remain compliant with all the rules.

The first step of the H-1B (specialty occupation), H-1B1 (Singaporean/Chilean specialty occupation), and E-3 (Australian specialty occupation) nonimmigrant/short-term visa programs requires an employer to file an application with the U.S. Department of Labor (DOL). The specific application, the Labor Condition Application (LCA), contains four attestations, one of which is to notify other workers in the same occupation in the same area of intended employment of the filing of the nonimmigrant petition and another of which is the payment of a required wage.

With WFH, employers have been asking how they can properly comply with the notification process. DOL issued a Frequently Asked Questions (FAQ) on Friday, March 20, 2020 which reminds employers that they may use electronic means to comply with the requirements. DOL also took the opportunity to provide employers with extensions up to May 12, 2020 to respond to ongoing deadlines with their different programs if the original deadline fell between March 13, 2020 and May 12, 2020.

Given the fact that a lot of businesses cannot operate as usual, employers also have questions concerning layoffs, terminations, and payment of wages. The H-1B rules indicate that an employer must continue paying the employee regardless of whether there is work. No specific guidance has been provided just yet allowing for any special dispensation.

Further, if the employer terminates the employee before the end of the visa petition period, the rules require an employer to pay for reasonable return transportation costs. The employee’s status also ends, with a short grace-period of no more than the shorter of 60 days or the end of the visa petition period. If you find yourself in this situation, be sure to contact competent counsel to ensure compliance and to find answers to these and other related questions.

COVID-19 and WFH and many other related fact patterns are raising novel issues and challenges for employers. Stay tuned as we learn more.

Additional Resources:

From the Office of Foreign Labor Certification, U.S. Department of Labor:

https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

From the Wage and Hour Division, U.S. Department of Labor:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62I.pdf

The above has been provided for informational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney or competent immigration counsel for guidance specific to your situation.