United States – Covid-19 – Immigration update

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Update: May 22^nd, 2020

US Embassy in India issues repatriation guidance for US citizens

What is the change?

The United States, Canada and Mexico have agreed to extend the current COVID-19 border restrictions for another 30 days, the Department of Homeland Security (DHS) hasannounced.

Key points:

• The travel restrictions will now remain in place until 11:59 p.m. EDT on June 22, but may be amended, rescinded or extended. The restrictions initially took effect March 20 for 30 days and were extended in April until May 21.
• Only “essential travel” is permitted at all land ports of entry along the U.S.-Canada and U.S.-Mexico borders.
• The list of individuals permitted to engage in “essential travel” includes U.S. citizens and lawful permanent residents (LPRs) returning to the U.S.; and people traveling to work in the U.S. (e.g., agricultural workers), engaging in lawful cross-border trade (e.g., truck drivers transporting goods), or traveling to attend school, receive medical treatment, for public health purposes, or a limited number of other reasons.
• The restrictions do not include air or sea travel, but do apply to passenger rail, passenger ferry travel and pleasure boat travel.

DHS is expected to publish official notices extending the restrictions in the Federal Register this week. Individuals traveling across the U.S.-Canadian and U.S.-Mexico border for essential travel are exempt from the restrictions, but travelers should be prepared for delays and increased scrutiny, as well as possible changes in how U.S. Customs and Border Protection officers interpret “essential travel.”

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Update: May 18^th, 2020

US Embassy in India issues repatriation guidance for US citizens

What is the change?

The U.S. State Department published guidance this week for Americans currently in India who wish to return to the United States.

Key Points:

• U.S. citizens wishing to depart India on a U.S. government-facilitated flight must fill out this form, including those who have previously registered, emailed, or otherwise contacted the U.S. Embassy.
• U.S. citizens are asked not to contact the embassy or consulate regarding flight status, as they will receive an email with flight and seat confirmation if applicable. Only those who receive a flight confirmation from the U.S. Mission will be permitted to board flights.
• Additionally, the U.S. Embassy in India has posted information for U.S. citizens who wish to return on one of the Air India flights traveling to the United States as part of the Indian repatriation operation. Those interested in returning on an Air India flight must contact the airline directly. Air India flight schedules are available here.

The U.S. Embassy and Consulates are working to arrange additional chartered flights from India for U.S. citizens. The earliest flights are expected to begin next week and will depart from Mumbai and New Delhi for Atlanta and San Francisco. All adult passengers must sign a promissory note, agreeing to pay for the cost of the flight, before boarding.

The embassy and consulates have thus far successfully repatriated approximately 5,500 travelers from India to the United States.

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Update: April 22^th, 2020

Trump announces plans to restrict green card applicants by executive order

What is the change?

President Donald Trump announced during the press briefing today that he will sign an executive order to restrict immigrants seeking permanent residency from entering the U.S., but will not restrict temporary visa applicants, such as H-1B workers or other non-immigrant categories, at this time.

Key points

• Trump stated that the restrictions will apply only to individuals seeking permanent residency (i.e., green cards) and will not apply to those entering the U.S. on a temporary basis.
• The restrictions will be in effect for 60 days, after which the government will evaluate whether they should be extended or modified.
• The administration will examine whether additional immigration-related measures should be put into place to protect U.S. workers.

Late Monday night, Trump tweeted that he would be signing an executive order “temporarily suspending immigration to the United States,” because of COVID-19 and to protect American workers.

President Trump indicated he will sign the order tomorrow. The text is not yet available, so details about the scope of the restrictions, and any exemptions, are not yet known. Deloitte is continuing to monitor developments and will provide analysis when the official order is published.

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Update: April 14^th, 2020

Department of Labor declines to provide additional flexibility in new FAQ

What is the change?

The Department of Labor Office of Foreign Labor Certification (OFLC) published a third round of FAQ’s today in light of the COVID-19 pandemic. The FAQ affords companies no new flexibility regarding where H-1B beneficiaries may work during the COVID-19 pandemic.

Key points:

• The FAQ outlines the “short-term placement” provision, which allows employers that meet certain conditions to place an H-1B worker at a new worksite outside the area of intended employment for up to 30 days, and in some cases 60 days, without obtaining a new Labor Condition Application (LCA).
• That exception already existed in the regulations. However, two provisions in the regulations prevent most H-1B employers from making use of it. First, an employer may not make short-term placements under the provision at worksites in any area of employment for which the employer has a certified LCA for the occupational classification. Second, it cannot be used for initial placements or assignments.

USCIS announces delays to H-1B cap processing

What is the change?

U.S. Citizenship and Immigration Services (USCIS) announced today in a stakeholder message that H-1B processing will be delayed for fiscal year 2021 cap season because of COVID-19-related health protocols. A 90-day filing period began April 1.

Key dates and information:

• H-1B cap-subject petitions filed beginning April 1 will not immediately be entered into the system. The agency will not begin to conduct intake or generate receipt notices until at least May 1.
• When data entry begins, the agency will conduct intake in the order in which petitions were received.
• Petitions will be stamped on the date they arrived at the USCIS service center, and properly filed petitions will retain the receipt date corresponding to the date of arrival. • Because of delays in data entry and receipt notice generation, employers should anticipate a “general delay” in processing FY 2021 cap-subject H-1B petitions.
• The agency said it is mindful of H-1B candidates with sensitive expiration and start dates, such as cap-gap petitions, and will strive to process those petitions as efficiently as possible.

Employers should plan for delays in H-1B cap receipt notices of at least several weeks and should prioritize time-sensitive filings when meeting the filing deadline of June 30. USCIS suspended premium processing until further notice earlier this year and the agency indicated today that it is not planning to extend the 90-day filing window. H-1B cap-subject petitions must be filed during the filing window indicated in the registration selection notice.

USCIS reiterates existing authorities to excuse untimely filings, declines to provide additional flexibility in light of COVID-19

What is the change?

U.S. Citizenship and Immigration Services (USCIS) released an announcement today reiterating legal requirements for applying for an extension or change of status and reminding applicants of its discretionary authority to excuse late filings. The agency did not announce any new policies or measures to provide flexibility to foreign nationals who are unable to depart the U.S. upon expiration of their status due to the COVID-19 emergency.

Key Points:

• The announcement reminds eligible non-immigrants that they may apply for an extension of stay (EOS) or change of status (COS), and that non-immigrants generally do not accrue unlawful presence while their timely-filed, non-frivolous application is pending. Certain extension applicants may benefit from the automatic 240-day extension of work authorization with the same employer, subject to the same terms and conditions of the prior approval.
• For applicants who fail to timely file for EOS or COS before their authorized period of admission expires, USCIS reminds applicants that it has discretionary authority, on a case-by-case basis, to excuse the failure to timely file if the delay was due to extraordinary circumstances. The petitioner or applicant must submit credible evidence to support the request. More information can be found on the agency’s Special Situations page.
• Travelers who entered the U.S. on the Visa Waiver Program (VWP) may not extend or change status, but USCIS has discretion to grant a period of satisfactory departure for up to 30 days if an emergency (such as COVID-19) prevents a VWP traveler’s departure. For VWP travelers who have already been granted satisfactory departure and are unable to depart within 30 days because of COVID-19 related issues, USCIS has authority to temporarily provide an additional 30-day period of satisfactory departure. This can be requested by contacting the USCIS Contact Center at 1-800-375-5283.

USCIS has provided a reminder to employers and applicants of requirements to file an extension or change of status, and its existing authority to excuse late filings on a case-by-case basis. The announcement also clarifies that VWP entrants may request satisfactory departure, but does not provide guidance for work-authorized nonimmigrants who are in the U.S. and do not have the option to apply for EOS or COS. The most up-to-date information about USCIS’s response to the COVID-19 pandemic can be found on the agency’s website.

PERM, prevailing wage processing updates

What is the change

The Labor Department has posted processing times current as of March 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of March 31, the department was adjudicating applications filed in November and earlier, conducting audit reviews on applications filed in June and earlier, and reviewing appeals for reconsideration filed in February and earlier.

Average PERM processing times in March:

• Adjudication – 150 days.
• Audit review – 279 days.

PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in December and earlier for H-1B cases and for PERM cases. Redeterminations were being considered on appeals filed in February and earlier for H-1B cases and for PERM cases. Center director reviews are pending for those filed in February and earlier for H-1B or PERM cases.

Average times for issuance of prevailing wage determinations in March:

• H-1B – 112 days (OES), 130 days (non-OES).
• PERM – 111 days (OES), 112 days (non-OES).

The Labor Department reports PERM and PWD processing time frames on its iCERT page.

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Update: April 6^th, 2020

USCIS in-person services further suspended until May 4

What is the change?

U.S. Citizenship and Immigration Services have announced that it is extending office closures and suspension of in-person services until May 4.

Key points:

• USCIS temporarily closed its field offices, asylum offices and Application Support Centers on March 18 to slow the spread of COVID-19. The closures were already extended once before.
• Offices are now scheduled to reopen May 4 unless the closures are extended again.
• The closures do not affect USCIS Service Centers, where immigration petitions are processed.

The closures affect in-person services, including interviews, biometric appointments and naturalization ceremonies. USCIS will send cancelation notices to applicants and petitioners with scheduled appointments affected by the closures. The agency will automatically reschedule Application Support Center appointments, and affected individuals will receive a new appointment letter in the mail. Applicants who had InfoPass or other appointments at a field office must reschedule through the USCIS Contact Center when field offices reopen. The agency continues to provide limited emergency services, and those with emergencies should call the Contact Center. USCIS also posts updates to its COVID-19 webpage.

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Update: April 2^nd, 2020

Stimulus recovery rebates to individuals due to COVID-19

What is the change?

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“the Act” or “the CARES Act”). Among significant other provisions related to economic stimulus and employers, the Act included a provision for the payment of “recovery rebates” to individual taxpayers. This rebate shall be provided in the form of a tax credit to be applied on an individual’s 2020 income tax return. The Internal Revenue Service (“IRS”) will issue an advance payment to individuals for the anticipated amount of the credit, based on historical tax information. The Act instructs that these payments be made “as rapidly as possible.” The CARES Act includes other provisions that impact both individuals and businesses. For an overview of the other tax provisions included in the Act and the potential implications, please refer to COVID-19 stimulus: A taxpayer guide, a new publication from Deloitte Tax LLP.

Amount of the rebate

The maximum amount of the credit is $1,200, or $2,400 for taxpayers filing a joint income tax return. An additional credit of $500 per qualifying child will also be available.

Generally, a qualified child:

• Is the taxpayer’s son, daughter, stepchild, adopted child, foster child, brother, sister, stepbrother, stepsister, or a descendant of any of them who was under age 17 at the end of the tax year, lived with the taxpayer for more than half of year
• Did not provide over half of his or her own support for the year
• Was a US citizen, US national, or US resident
• Is claimed as a dependent on the taxpayer’s tax return; and
• Has a social security number (or other identification number) that is reported on the tax return

The maximum credit will be paid to individuals with adjusted gross income (AGI) below the following thresholds:

• $150,000 for joint filers
• $112,500 for individuals filing as head of household
• $75,000 for single filers

The credit is reduced (but not below zero) by 5% of the amount of AGI in excess of the above thresholds. Thus, the credit is fully eliminated at the following thresholds:

• $198,000 for joint filers
• $146,500 for individuals filing as head of household
• $99,000 for single filers

It is anticipated that the phaseout thresholds will be based on the full amount of the credit, including the credit for qualifying children. Thus, the threshold at which the credit is fully eliminated would be higher for joint filers with qualifying child(ren).

Identification number and residency requirement

The credit is not available to nonresident alien individuals, or to individuals who do not have a US SSN (Social Security Number). Thus, individuals, including children, who have a US ITIN (individual taxpayer identification number) rather than an SSN will not be eligible for the credit.

Use of prior year tax information

The IRS will make the advance payments to individuals based on the adjusted gross income reported on the individual’s 2019 income tax return. If the 2019 income tax return has not yet been filed, the IRS will use information available from the 2018 income tax return.

Reconciliation with 2020 income tax return

When individuals file their 2020 income tax return, they will calculate the amount of the credit to which they are entitled based on 2020 tax year adjusted gross income. This amount will then be reduced, but not below zero, by the amount of the advance payment (if any) that the individual received during 2020. Thus, if an individual’s income from the 2018 or 2019 tax return qualifies them to receive a payment in 2020, but their 2020 income is above the thresholds, they are not required to repay the amount that was received.

Delivery of payments

The IRS is authorized to make payments electronically directly into any account which has been authorized on a tax return filed after January 1, 2018. Within 15 days of making such payment, the IRS will issue a letter to the taxpayer through the mail to confirm the amount paid and the method of the payment. This letter will be sent to the individual’s last known address.

Impact to global mobility programs

Social Security Number (SSN) vs. Individual Taxpayer Identification Number (ITIN) – The requirement that recipients of the credit must have a US SSN is important to note. While most inbound taxpayers to the US will obtain an SSN as part of their work authorization, many of their spouses and children are not eligible for an SSN and are included on tax filings with an ITIN. Individuals who have an ITIN rather than an SSN will not be eligible for the tax credit. Tax Equalization Policy Implications – Employees of companies who administer a tax equalization program may have received a 2019 Form W-2 with reported income higher than their pre-assignment income due to the inclusion of assignment benefits (e.g., housing, cost of living adjustments, foreign tax payments). The income reported on an individual’s tax return is the amount from this Form W-2, which may prevent some assignees from receiving the recovery rebate tax credit based on the inclusion of assignment compensation.

Impact to global mobility programs

Social Security Number (SSN) vs. Individual Taxpayer Identification Number (ITIN) – The requirement that recipients of the credit must have a US SSN is important to note. While most inbound taxpayers to the US will obtain an SSN as part of their work authorization, many of their spouses and children are not eligible for an SSN and are included on tax filings with an ITIN. Individuals who have an ITIN rather than an SSN will not be eligible for the tax credit.

Tax Equalization Policy Implications – Employees of companies who administer a tax equalization program may have received a 2019 Form W-2 with reported income higher than their pre-assignment income due to the inclusion of assignment benefits (e.g., housing, cost of living adjustments, foreign tax payments). The income reported on an individual’s tax return is the amount from this Form W-2, which may prevent some assignees from receiving the recovery rebate tax credit based on the inclusion of assignment compensation.

Deloitte’s view 
 
The advance payment of the credit will provide cash to certain taxpayers soon, rather than waiting until the filing of their 2020 income tax return in 2021. The use by the IRS of prior year tax filing information presents many questions for taxpayers. For example, some individuals will have income that exceeded the thresholds at which they would receive a payment in 2019 but will be below the thresholds if income decreases in 2020; these individuals will not receive a payment now and would instead receive a benefit when they file their 2020 income tax return.
 
There are also many open questions as to how to handle a change in address or bank account information. As of the release of this NewsFlash, the process for how the IRS will address these potential issues has not yet been addressed. .
 
In most cases, there is no need for individuals to rush to file their 2019 tax return. As a reminder, IRS Notice 2020-18 extended the deadline for 2019 individual income tax returns to July 15, 2020. Taxpayers anticipating a refund of federal income tax should still consider filing their return sooner than the postponed deadline, as the IRS has indicated that they are processing returns and paying out refunds.
 
Employers who administer a tax equalization program should carefully consider the impact of the limitation thresholds on the ability of their assignees to qualify for this tax credit and determine how this will be handled on the 2020 income tax equalization calculations.

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Update: March 31^th, 2020

USCIS to process EAD extensions using previous biometrics

What is the change?

U.S. Citizenship and Immigration Services today announced a flexible measure that will allow the agency to process certain applications to extend employment authorization documents (EADs) during the COVID-19 related closures of USCIS Application Support Centers (ASCs).

Key points

• USCIS will use previously submitted biometrics to process EAD extension applications.
• Applicants who had a biometrics appointment scheduled at an Application Support Center on or after March 18 will have their applications processed using their previously submitted biometrics.
• Applicants who have filed a valid Form I-765 extension application for employment authorization will also have their applications processed using their previously submitted biometrics.
• This policy will remain in effect until ASCs are open for appointments to the public. The agency is scheduled to reopen ASCs on April 7, unless the closures are extended.

The measure gives employees the ability to have their employment authorization documents extended without sitting for a new biometrics appointment. However, it does not apply to new applicants for EADs who have not previously submitted their biometrics. Companies are reminded that USCIS Service Centers, where immigration petitions and applications are adjudicated, remain operational, but they should expect ongoing delays in processing. Updated information about USCIS’s response to COVID-19 can be found on the USCIS website.

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Update: March 26^th, 2020

USCIS in-person services remain suspended until April 7

What is the change?

U.S. Citizenship and Immigration Services announced today it is extending its office closures and suspension of in-person services until at least April 7.

Key points

• On March 18, USCIS temporarily closed its field offices, asylum offices and Application Support Centers until April 1 to mitigate the spread of COVID-19.
• Today’s announcement extends the current closures, and says that offices will reopen April 7 unless the closures are further extended.
• The announcement only applies to in-person services at public USCIS offices, and does not affect USCIS Service Centers, where immigration petitions are processed.

Background

The closures affect in-person services, including interviews, biometric collection appointments and naturalization ceremonies. USCIS will send cancelation notices to applicants and petitioners with scheduled appointments affected by the closures. The agency will automatically reschedule Application Support Center appointments, and affected individuals will receive a new appointment letter in the mail. Applicants who had InfoPass or other appointments at a field office must reschedule through the USCIS Contact Center when field offices reopen. Those seeking emergency appointments may contact the USCIS Contact Center. USCIS also has a COVID-19 webpage where it is posting updates

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Update: March 20^th, 2020

State Department suspends visa services, issues worldwide Level 4 travel advisory

What is the change?

According to a notice posted by the State Department Visa Office, the U.S. State Department is suspending all “routine” visa services in most countries as of March 18 because of the COVID-19 pandemic. The notice advises to check the website of the appropriate U.S. embassy or consulate for its current operating status. On March 19, the State Department issued a worldwide level 4 travel advisory.

Key points:

• Visa applicants should anticipate suspension of nonimmigrant and immigrant visa services in most countries worldwide. U.S. embassies and consulates at those locations will cancel visa appointments as of March 18.
• U.S. citizens are advised to avoid all international travel.
• The suspension in visa services does not affect the visa waiver program (ESTA).
• The State Department directs those requiring emergency appointments to follow guidance at the relevant U.S. embassy website. The agency says that it will continue to process “urgent and emergency” requests, but does not define those terms.

Background

The State Department has already suspended visa services at numerous consulates around the world, and travelers from 30 countries are currently under entry bans to the U.S.

Employers and visa applicants should plan for significant delays as travel becomes increasingly curtailed and as more U.S. consulates suspend visa services.

H-1B cap electronic registration closes tomorrow

What is the change?

H-1B electronic cap registration closes at noon Eastern Daylight Time (EDT), Friday, March 20. The mandatory process requires that H-1B petitioners submit an online registration through myUSCIS.gov for each prospective H-1B candidate and pay a $10 government registration fee per registration.

Key points:

• ll companies must create an H-1B registrant account in myUSCIS before registrations can be submitted, even if a law firm will be submitting registrations on the company’s behalf.
• H-1B registrations may be submitted until noon, EDT on Friday.
• After the registration period closes, U.S. Citizenship and Immigration Services will conduct a lottery on properly submitted registration and post notifications of selected registrations in the myUSCIS accounts. Those selected will be invited to file full H-1B petitions during a 90-day filing period beginning April 1.
• USCIS has posted instructional videos and screenshots of the system on its website.

Background

Companies should be prepared to review and electronically sign the H-1B registrations and the Form G-28 if a law firm is submitting registrations for them.

Trusted Traveler Program enrollment centers close

What is the change?

U.S. Customs and Border Protection announced it will close Trusted Traveler Program enrollment centers nationwide beginning March 19 until at least May 1, to reduce risk of COVID-19 exposure. Enrollment on Arrival remains open.

Key points:

• The closures affect Global Entry, NEXUS, SENTRI and FAST enrollment centers. Additionally, Global Entry mobile enrollment events are also suspended until further notice.
• Applicants who have been conditionally approved and seek an interview at an enrollment center must reschedule their appointments after May 1. They should monitor their Trusted Traveler Program account and email for further information.
• The Enrollment on Arrival program for Global Entry applicants remains operational. Conditionally-approved Global Entry applicants may complete their enrollment when arriving on an international flight at any of the 60 airports that offer this program.