Maintaining Status

While studying in the United States, it is important to maintain your F or M student status. Your status relates to the purpose, or reason for why you want to come to the United States. The U.S. Department of State issues you your visa based on your intended purpose.

If the Department of State issues you an F or M student visa, this means that you are coming to the United States to study. You should not take any action that detracts from that purpose. Maintaining your status means:

  • Fulfilling the purpose for why the Department of State issued you your visa.
  • Following the regulations associated with that purpose.

F-1 and M-1 students share the same primary purpose for coming to the United States however, F-1 students enroll in more traditional academic programs, while M-1 students enroll in vocational programs. Because these two types of programs are different in nature, the types of benefits an international student may be eligible for and how long they may remain in the country depend on whether they are an F-1 or M-1 student. For information on Maintaining Status, contact the Law Offices of Norka M. Schell, LLC at (212)258-0713.

F-1 Aliens in Post-Completion OPT

As exceeding unemployment limits can result in a loss of status, we are reminding F-1 aliens participating in post-completion Optional Practical Training (OPT), and their designated school officials (DSOs), that they must update the employer information in the Student and Exchange Visitor Information System (SEVIS), including unemployment data. Federal regulations require F-1 aliens to notify their DSO within 10 days of any changes to their personal or employment information. In turn, DSOs must update SEVIS with the alien’s information within 21 days. This reminder helps ensure F-1 aliens and DSOs properly comply with existing requirements.

Aliens in F-1 nonimmigrant status may update their employer information through the Student and Exchange Visitor Program (SEVP) Portal, a tool that allows F and M aliens participating in post‑completion practical training to report accurate and timely information directly to SEVP. DSOs may update the information in SEVIS following the instructions to add, edit, or delete the OPT employer. If aliens are unsure of whether they should report information using the portal, or provide the information to their DSO, they should contact their DSO for instructions.

Aliens in F-1 nonimmigrant status and DSOs must ensure that information is entered timely in SEVIS, so that the alien’s record is current and reflects actual employment data. SEVIS will count each day without employer information toward the total number of unemployment days allowed. Failure to update employer information in SEVIS to reflect that the alien is employed may result in any or all of the following actions:

  • The alien exceeding unemployment limits and therefore failing to maintain F-1 nonimmigrant status, rendering them removable, unless they are otherwise in a period of authorized stay;
  • SEVP setting an alien’s SEVIS record to “terminated” if they have exceeded unemployment limits;
  • U.S. Citizenship and Immigration Services (USCIS) initiating revocation proceedings for an alien’s Employment Authorization Document if they have exceeded unemployment limits; and
  • The exceeded unemployment limits negatively affecting the alien’s future benefit requests filed with USCIS.

Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak

On June 19, 2020, Press Secretary Kayleigh McEnany confirmed that for now, President Trump has no plans to lift restrictions discussed below for the Schengen area.

On May 24, 2020, based on concerns regarding COVID-19, President Trump issued a proclamation suspending the entry of individuals who were physically present in Brazil during the 14-day period preceding their entry or attempted entry into the United States. On May 25, 2020, the effective date of the proclamation was amended to be May 26, 2020. Similar to other proclamations implementing entry restrictions for certain nations, the Proclamation also includes a list of exemptions to which the suspension and limitation on entry do not apply.

https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/?utm_source=link

[New Version] VISA WAIVER PROGRAM AND COVID-19

Visa Waiver Program (VWP) program allows citizens from participating countries to travel to the U.S. as non-immigrants for business, tourism, transit and medical purposes. Travelers arriving into the U.S. under the VWP are permitted to stay up to 90 days per visit and not required to obtain other travel authorizations, such as a U.S. visa. There are currently 39 countries that participate in the VWP. 

Individuals traveling under the VWP agree to waive their rights to review or appeal. 

In response to COVID-19, the U.S. Customs and Border Protection (CBP) has tried to facilitate the ability of VWP travelers to lawfully remain in the US beyond the allowed 90-day period of stay. 

Under ordinary circumstances, VWP travelers are not eligible to change (C/S) or extend their status (E/S) – they must depart the United States in a timely fashion. Failure to depart results in ineligibility for future VWP travel and other serious potential immigration consequences. The single exception to these restrictions is a rarely granted, 30-day, emergency forgiveness known as Satisfactory Departure. At this time, CBP has tried to facilitate the Satisfactory Departure process and is allowing requests for two 30-day extension periods. On April 17, CBP announced that VWP travelers granted Satisfactory Departure may apply for an additional 30-day extension of their admission period if they remain unable to depart the United States because of COVID-19. 

CBP is handling Satisfactory Departure requests due to the closure of US Citizenship and Immigration Services (USCIS) field offices which would otherwise adjudicate these cases. Thus, these requests may be made to CBP at Ports of Entry and Deferred Inspection Offices. These offices are typically located at or near international airports throughout the United States. Each CBP location has slight variations and nuances in the manner of processing these requests, such as how far in advance one can apply and the exact mechanism for making the request. Travelers should be prepared to document their inability to depart the United States with documentation including flight cancellations, home country conditions, travel restrictions, illness, and/or COVID-19 exposure. 

For assistance with the visa waiver, call the Law Offices of Norka M. Schell, LLC at (212)258-0713.

Access to Immigrants’ Information

Immigration applications are the most common trigger of adverse immigration consequences. When an immigrant applies for an immigration benefit or status, such as green card or naturalization, s/he must demonstrate that s/he is admissible to the U.S. and has good moral character. Immigration adjudicators often compel applicants to divulge information about their family court cases when, for example, proof of materially supporting a child is relevant to the relief being sought; when a child does not reside with the applicant; when an applicant has had an order of protection issued against him or her; or where an applicant has been arrested for a crime involving endangering the welfare of a minor (even if the charge was dismissed).

Fingerprinting

There are three types of fingerprinting that can prompt an immigration authority or adjudicator to demand access to family court information and adjudications: a) fingerprints taken at the time of booking into a local jail; b) fingerprints taken to conduct both criminal and civil background checks; and c) fingerprints taken to adjudicate immigration applications.

a.         Fingerprinting at Booking in Criminal Matters – Any time an immigrant litigant is arrested on a family court warrant or confined in connection with a contempt order, the immigrant becomes vulnerable to detection and apprehension by ICE. Fingerprints taken by local jails at booking are automatically shared with ICE via federal data-sharing networks.

b.         Fingerprinting for Background Checks in Family Court When individuals are fingerprinted for family court related background checks, the print checks are done by New York State’s Division of Criminal Justice Services (DCJS).

c.            Fingerprinting for Immigration Applications – For many types of immigration benefits, including those that relate to protecting unaccompanied minors and victims of domestic violence and other crimes, USCIS requires that the immigrant applicant undergo a “biometric screening” that includes both fingerprints and digitized photographs. USCIS uses the fingerprints to check an individual’s immigration and criminal history. Fingerprints are run through immigration databases that include information about immigrants who have violated immigration laws. Fingerprints are also run through the FBI’s criminal database, which includes information about past arrests, criminal convictions, and any active orders of protection. The FBI database includes information about active orders of protection issued by both family and criminal courts, which it obtains through a data sharing agreement with the New York State Police. Any time an immigrant applies for an immigration benefit, USCIS can access information about an immigrant’s travel, family, criminal history, etc. Immigrant applicants are often questioned about travel, family, and criminal matters that surface through biometric screening, and can be denied benefits after disclosure of information about arrests that do not result in prosecution. 

Individuals should always consult with a competent immigration attorney to determine the potential for adverse immigration consequences and to identify any available options that may pertain to his or her specific case.

 

The US Has Finalized An Asylum Agreement With Honduras

On Friday, a newly-finalized asylum agreement with Honduras took effect. The agreement means that the U.S. may send some asylum seekers to Honduras rather than handle their asylum claim here. Critics of the agreement say it violates our obligations under international asylum law, particularly since Honduras has high levels of violence and corruption. On Friday, a newly-finalized asylum agreement with Honduras took effect. The agreement means that the U.S. may send some asylum seekers to Honduras rather than handle their asylum claim here. Read it here.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-09322.pdf

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Relief

Emergency Loans, Expanded Unemployment Pay

On March 27, 2020, after many sectors of the economy have come to a virtual standstill and millions of Americans have filed for unemployment as a result of the coronavirus, the United States Congress passed, and President Trump signed, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in its effort to respond to the COVID-19 pandemic.

The CARES Act provides various forms of economic assistance to employers to address the economic effects of the pandemic, although this assistance is subject to certain conditions and restrictions.

This alert summarizes the significant provisions of the CARES Act that affect employers and employees.

Expanded Unemployment Benefits for Individuals

The CARES Act includes expanded rights to unemployment compensation for individuals who are unemployed due to various reasons related to COVID-19. Notably, the CARES Act provides a special unemployment compensation program for gig workers, independent contractors, and self-employed individuals, and an individual whose work histories might not otherwise qualify.

The Act also provides for payments of an additional $600 per week in unemployment compensation benefits above and beyond what an individual is otherwise entitled to under state law, for up to four months. Further, the CARES Act extends an individual’s ability to receive unemployment benefits by an additional 13 weeks, through December 31, 2020. However, individuals cannot receive unemployment compensation simultaneously they are receiving paid sick leave from an employer.

The federal government has incentivized the states to waive the one-week waiting period by funding the costs. In addition, the federal government will fund expanded unemployment benefits.

The CARES Act includes some favorable tax provisions for employers as it concerns their employees. Certain provisions are limited to “eligible employers,” while other provisions are more generally applicable.

What Should Businesses Do Immediately?

Every business should contact its banker(s). The expanded SBA Section 7(a) loans, sometimes referred to as the “Paycheck Protection Program,” will be administered by banks and other financial institutions. 

Evaluate, with its banker and potentially other professional advisors, whether it qualifies for expanded SBA Section 7(a) and/or EIDL loans (see below for more information). Franchisors not in the restaurant or hospital space (Sector 72) should consider applying to be on the SBA’s franchise directory.

Assemble company documents, such as certificates or articles of incorporation, bylaws, operating agreements, and certificates of good standing (make sure that the company is in good standing).

Assemble financial information of a type that borrowers would ordinarily expect a lender to want to review, including financial statements, tax returns, and payroll information. As you will see below, payroll information is of particular importance for the expanded SBA Section 7(a) loans.

 

What the coronavirus shutdown means for immigrant workers

Faced with indeterminate delays and circumstances changing by the day, businesses that rely on immigrant workers have been frantically communicating with their legal teams in recent weeks as the impact of the coronavirus pandemic has spread.

Diane Hernandez, a Denver-based lawyer at Hall Estill, said one university she works with was expecting a Chinese researcher to arrive March 1 to helm a large summer project. His H-1B visa was approved in December, but as his start day approached, he could not obtain the visa at the U.S. consulate in China because of the coronavirus-related travel ban. Now, the researcher, his family, and the university are all on hold, waiting to see what will happen.

“There will likely be issues when he finally does enter that will have to be dealt with, specifically getting some leeway from U.S. immigration on his entry date and having missed a number of weeks or months in his H-1B status,” says Hernandez, who has fielded many panicked emails from clients in the past few weeks.

The processing speed for employment visas, and immigration benefits in general, had already decelerated under the Trump administration, with more requests for additional documentation and other evidence that were not typical in the decades prior.

“Even before COVID-19, many of our partners in the business community were worried about USCIS [U.S. Citizenship and Immigration Services] processing of work-related immigration visas. Wait times, labor certifications, and other issues seemed to spring up at every turn,” says Ali Noorani, executive director of the National Immigration Forum.

Now, further delays are expected during the pandemic response, and employers and employees alike are faced with tough decisions.

“There are all kinds of ramifications. Some companies are worried about having work available for people to do, because the economy’s going downhill so quickly, and how to handle their staff in the best way,” says Susan Cohen of the Mintz law firm. “On the other side, some businesses are still desperate for people, key hires that they’ve gone to great trouble and expense to retain, and now their visa is approved, but they can’t get here. In some cases, we’re talking about executives and top managers.”

USCIS offices for in-person interviews, biometric appointments, and other activities are temporarily closed, but the agency service centers that handle things like the H-1B lottery process and visa adjudications are still operating.

“If they start laying people off or furloughing workers, or otherwise close the service centers where they do the adjudication, that would have a huge impact,” Hernandez says.

While employment, student, and other visa applications are moving forward, they will not be issued until consulates reopen to the public, and travel bans are lifted.

“For larger companies, it might not be such a big deal, but for the little startups that have fewer than 10 employees, to not have one team member can be really detrimental. The uncertainty is really tough on employers,” says San Francisco–based attorney Jennifer Burk.

Depending on the visa category, rules can vary widely. Furloughed H-1B employees, for example, must still be paid even if they are not working, as long as they are under contract. Laid-off visa holders typically have 60 days to adjust their status, such as securing a different job or enrolling in school, before they are required to leave the country.

From technology companies to medical services and food production, the COVID-19 pandemic is expected to strain a wide range of industries reliant on immigrant labor.

“One area of great concern these days is coming from agricultural interests who utilize the H-2A program,” Noorani says. “With harvest season looming and the State Department not conducting interviews, growers are worried about their labor supply.”

This year, USCIS implemented a brand-new H-1B lottery system that pushes the old April 1 deadline for final applications out to June 30. Meanwhile, USCIS recently suspended premium processing, which enables employers to pay $1,440 per application for a guaranteed response in 15 days, otherwise, a decision can take months.

“The new June deadline might offer more time, but it could end up as a negative for employers who can’t do premium processing, are not given the option, or can’t afford it,” Hernandez says. “That will likely push approval past the October 1 start of the new visa period. Someone who is converting from student to H-1B, for example, may run out of status before the new visa is approved and would be required to leave, then come back. It’s a whole domino effect.”

USCIS has made some allowances for filings, including a March 20 announcement to accept copies of signed I-9 work authorization forms in lieu of original documents until normal work-site operations resume.

“I tell my clients to take it day by day, because things are changing so fast. The best thing to do is document everything, keep track of what you’re doing and why,” Hernandez says. “I think that the government understands how detrimental it would be to totally cease processing work visas, not just to small entrepreneurs but to big companies like Microsoft that use tons of H-1B workers.”

By: Tovin Lapan. See https://fortune.com/2020/03/26/coronavirus-jobs-immigrants-us-work-visas-h1b-employment-immigration/

IMMIGRATION ALERT COVID-19 PANDEMIC

IMMIGRATION ALERT

The world is confronting the potentially deadly COVID-19 pandemic. Preliminary reports from the Center for Disease Control (CDC) indicate that the virus is primarily spread between people who are in close contact.  The virus can also be spread before people show symptoms. The virus can remain alive on surfaces–such as court tables–for days. The pandemic has caused the President to issue a national declaration of emergency.

To slow the spread of the virus the CDC advises individuals to increase their physical distance from other people to about 6 feet. Id. Consequently, social gatherings, business conferences, sporting events, and religious ceremonies have been canceled or postponed across the nation.

As the coronavirus situation continues to evolve, LAW OFFICES OF NORKA M. SCHELL, LLC is focused on ensuring the health and safety of our employees and their families.  At the same time, we remain committed to delivering the same level of service our clients expect and deserve.  We also aim to support our community with cutting-edge thought leadership throughout the coronavirus pandemic.

We maintain a business continuity plan designed to minimize significant business interruptions and facilitate uninterrupted service.  Precautionary actions include ongoing briefing on health recommendations and safety measures; banning non-essential travel; amplified cleaning and sanitization; and enabling remote work options to encourage self-quarantine and social distancing.

We are actively following the latest reports and recommendations from the Centers for Disease Control (CDC), and the World Health Organization (WHO) to help us develop our policies.

Contact us directly for any further questions you may have.