DHS Implements More Temporary Changes Due to COVID-19

As social distancing measures expand across the country in efforts to combat the COVID-19 pandemic, the Department of Homeland Security (DHS) has had to alter some of its standard requirements to better accommodate today's practical reality. DHS in involved in monitoring a number of typically people-facing immigration procedures and processes such as the I-9 Employment Verification process and in-person interviews and biometrics (fingerprinting) appointments administered by U.S. Citizenship and Immigration Services (USCIS). USCIS staff is also responsible for receiving and reviewing petitions and applications for a myriad of immigration benefits sought, including requests for continued non-immigrant status in the U.S., green card applications, and requests for Employment Authorization Documents (EADs). However, with calls to reduce in-office contact and the implementation of stay at home orders, immigration practitioners have highlighted the need for flexibility in carrying out certain immigration compliance and filing requirements, and DHS has acknowledged its own need to promote safety for its own workers. In fact, on March 18, USCIS temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of COVID-19, resulting in the rescheduling of such events as biometrics appointments and green card interviews. DHS has since implemented a number of other temporary changes that both reflect the agency's own staff limitations at this time and provide some flexibility to immigration applicants. For instance, as outlined in the post, DHS Announces Flexibility in Requirements Related to Form I-9 Compliance, on March 20, 2020, DHS announced it will exercise discretion to defer the physical presence requirements associated with the Form I-9 Employment Eligibility Verification process. Other important, temporary changes include:

• Signature Requirement – USCIS announced on March 20 that they will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond. However, the originals with "wet" signatures must be retained, as USCIS may later request the original documents.
• Premium Processing – On March 20, USCIS also announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due COVID-19. The announcement clarified that the suspension also applies to H-1B cap-subject petitions for fiscal year(FY) 2021, and the guidance supersedes the previously announced suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of the service.
• Response Due Dates – Any response to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), Notice of Intent to Revoke (NOIR), or Notice of Intent to Terminate (NOIT) received within 60 calendar days after the response due date noted in the request or notice will be considered by USCIS. In addition, any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS. Thus, employers and practitioners have been afforded additional time to submit their response filings. This flexibility applies when the issuance date listed on the request, notice, or decision is between March 1, 2020 and May 1, 2020, inclusive.
• Employment Authorization Documents – USCIS will reuse previously submitted biometrics in order to process valid Form I-765, Application for Employment Authorization extension requests due to the temporary closure of Application Support Centers (ASC). Applicants who had an appointment scheduled with an ASC on or after the March 18 closure or who have filed an I-765 extension will have their application processed using previously submitted biometrics. This will remain in effect until ASCs re-open for appointments with the public.

There have also been calls for USCIS to suspend deadlines, including requests to extend statutory or regulatory deadlines for immigration benefits; suspend all deadlines during the time of the COVID-19 national emergency; and extend any nonimmigrant status and otherwise maintain the status quo for purposes of eligibility for protection and immigration benefits processed by USCIS from the date the President declared a national emergency on March 11, 2020, until 90 days after the emergency proclamation ends. On April 3, the American Immigration Lawyers Association (AILA) filed a complaint against USCIS in the United States District Court for the District of Columbia to seek such relief, so further developments are expected. You can find USCIS updates on COVID-19 and related policies at uscis.gov/coronavirus.