Author: Alan Lee

As published in the Immigration Daily on May 7, 2020

U.S.C.I.S. is now tentatively scheduling its reopening for June 4, 2020, and the public and legal community are rightfully anxious over what plan the agency has to safely protect the public, its employees and contractors, and still efficiently handle the business of immigration processing. Given the way that the Covid-19 crisis has been managed so far, there is far less than a firm conviction in the minds of all that this will be done right. The speed with which the government wishes to reopen the country apparently in disregard of the human toll (data projections of daily deaths doubling to about to 3000 daily by June 1 in a leaked White House internal document since disavowed as not being produced by or presented to the president’s coronavirus task force) makes one wonder whether the reopening will be carefully thought out or accomplished haphazardly.

Will the scene outside the larger immigration offices resemble total chaos or manageable order with social distancing? Is there also a plan in place for the Application Support Centers (ASC’s)? Will U.S.C.I.S. be able to efficiently process cases, or will people have to wait an interminable period of time for their appointments? For cases already in the pipeline with medical and background checks soon to expire, slow processing will mean additional expense and updating medicals and even more pending time if additional security checks must be run either before or after interviews. The following are some immediate suggestions on how to reduce the number of individuals needing to go into the immigration offices that can be easily implemented:

1. Stop the practice of interviewing every employment-based (EB) adjustment of status case. Interviewing without exception is a practice that only came into existence in October 2017, mainly in response to widely perceived fraud in EB-4 religious cases, not other EB categories. Before that time, U.S.C.I.S. only interviewed a small percentage of employment based cases. Unless the agency is able to point to a large number of fraud permanent resident employment cases caught through interviewing, it should drop the need for interviewing all and only selectively interview.
2. In all adjustment of status cases, U.S.C.I.S. should give internal guidance and stop sending out interview letters for persons other than the principal applicant (and spouse in a marriage case). The principal applicant should be instructed to bring adequate documentation of relationship to the other immigrating members of the family.
3. In petition cases involving non-spouse petitioners, the petitioner should be specifically instructed not to appear. If an interviewing officer has doubts concerning family members or a petitioner, he or she can schedule a further interview.
4. For naturalization cases involving applicants qualifying under the three-year marriage to US citizen rule, some immigration offices expect a US citizen spouse to be sitting in the waiting room. The appointment letter should make clear that the US citizen spouse is discouraged from appearing.
5. For ASC’s, many times the only purpose of an appointment is for the ASC to take a photograph – U.S.C.I.S. should return to the old ways of relying upon photographs submitted at the time of filing. In connection, it should change its instructions to require photographs for applications on which it has waived the requirement, e.g. I-90 applications to replace permanent resident card, N-400 applications for naturalization. It should make it a practice to always rerun the captured fingerprints instead of asking people to come in to take partials after their fingerprints are already on file. It should also stop asking or requiring children under the age of 14 or elderly applicants 79 or older to attend biometrics appointments.

In these ways and others, immigration offices can continue to efficiently process cases without backing up the immigration queue of cases ad infinitum.

The second question is how to protect members of the public and U.S.C.I.S. and contracted workers entering the premises.

1. Although unproven as to whether they can be reinfected or infect others, the government should have as many security personnel as possible available out front who have already tested positive for antibodies to the coronavirus to first meet people coming into the buildings.
2. Social distance the line.
3. Take no-contact forehead temperature checks on everyone before they enter the building.
4. Hand out masks and gloves to those entering the building.
5. Do not ask members of the public to take off their shoes. A terrorist with a shoe bomb would cause minimal damage in a socially distanced office, would only be a blip on the news with everyone concentrated on the pandemic (which has so far taken a gruesome death count of 75,000 US citizens, permanent residents, nonimmigrants and undocumented), and could cause more damage infecting himself or herself and then others with the coronavirus.
6. After each use, sanitize the bins into which people place their belongings to go through security.
7. Increase the number of available bins and persons wiping them down so as to not make going through security a nightmare.
8. Social distance the customers from the security clearance until they arrive at the designated room, including limiting the numbers on each elevator.
9. In the interview room, maintain social distancing in the waiting areas by removing seating or (even easier) putting tape across a number of chairs to maintain social distance.
10. Place receptionists, clerks and officers behind plexiglass or other barriers while working with or interviewing individuals.
11. Ensure that all employees have adequate numbers of masks and gloves.
12. Have firm instruction that interviewing officers must use masks and gloves while interviewing.
13. Reconfigure the back room space to allow all U.S.C.I.S. employees sufficient social distancing space, erecting barriers between them, and creating more common walkways to avoid crowding.
14. Ensure that both customers and officers/clerks/receptionists wear disposable gloves at all times.
15. Give the people being interviewed disposable pens if they did not bring their own that they can either keep or drop in a box for sanitizing and reuse.
16. Sanitize the index fingerprint screen after every interviewee places his/her prints or eliminate the need to do such.
17. Install more hand sanitizers all over the building and make sure that they are filled quickly upon being emptied.
18. Put more paper towels in the bathrooms and ensure that they remain available so that people do not have to touch objects with their hands alone.
19. Think about changing bathroom doors where needed so that they swing both ways and there is no need to grab the knob to enter or exit.
20. Clean the bathrooms open to the public on an hourly or two-hour basis.

These are some but clearly not all of the ways that a safe experience can be had by everyone entering the reopened immigration offices.

Hopefully U.S.C.I.S. has a good plan that incorporates many of the above features when it reopens.  And above all, everyone from the top of the agency down to the security guards should be merciful and use common sense in dealing with people working in the buildings and the general public. People with appointments should not be turned away or looked upon with disapproval if late given the delays attendant to the pandemic, including lack of reliable transportation. Persons with appointments cannot be expected to come early to avoid being late as they would not be welcome to take up seating in any eating establishment with limited capacity or to congregate for hours outside the federal buildings.

As published in the Immigration Daily on April 16, 2020

Setting the Coronavirus Record Straight for East Coast Infections as European and not Asian is Important

In our article of March 20, 2020, “Repeatedly Calling It a Chinese Virus Is Racist and a Deflection of Blame,” we asked that President Trump stop calling the coronavirus a Chinese virus as that was inflaming hatred towards Asians in a country with a history of prejudice, violence, and exclusion towards Chinese. There are now a plethora of articles in newspapers with detailed descriptions of discriminatory and violent acts against Asians including one by the Anti-Defamation League detailing 44+ reported incidents through April. Mr. Trump should be reminded that his assignation of blame will turn many Asian-Americans against him when it comes time to vote in November. He has a chance, however, to now change the narrative and remove most of the stigma from Asian-Americans. Recent studies by the Icahn School of Medicine at Mount Sinai and the NYU Grossman School of Medicine have identified the coronavirus laying waste to the country from the East Coast as originating in Europe through genetic analysis of viral samples. Dr. Anthony Fauci, the leading disease expert and director of the National Institute of Allergy and Infectious Diseases, said that “Given the travel and the air traffic from anywhere in Italy, but also particularly northern Italy, it’s just not surprising that unfortunately and inadvertently New York was seeded before they really knew what was going on.” While the coronavirus originated in China, it is now officially a misnomer to call it a Chinese virus where the major number of infections and deaths in the U.S. originated from Europe. As the number of deaths continues to mount in this country, Mr. Trump’s past insistence on referring to the virus as Chinese has even more significance as it continues to resonate and appeal to the dark nature of people to strike out, especially those who have lost someone close.  This country’s Asians are a ready target being perceived as vulnerable, non-violent, and easily identified by the color of their skin. Europeans on the other hand generally do not stand out except when they speak and there is not the ingrained prejudice against them as with the Chinese. So since Mr. Trump inadvertently or purposefully touched off a flame of resentment that burns to this day, we believe that he owes it to the Asian communities in the United States to make a clarification now.

Why not just excuse the LCA posting requirement for those working from home at this time?

In the Covid-19 related FAQs Rounds 1and 3 by the Department of Labor, the Department made clear that the Labor Condition Application (LCA) worksite notice would still have to be posted for H-1B workers remotely working from home. In the first FAQ of March 20, 2020, the Department said that where workers perform the work elsewhere in the same area of intended employment, the employer must provide either electronic or hardcopy notice at the new worksite locations meeting the content requirements for 10 calendar days unless direct notice is provided such as an email notice. It said that if the employer could not provide a hardcopy notice of the LCA filing due to the pandemic, the regulations allow electronic notice by any means ordinarily used to communicate about job vacancies to employees in the occupational classification in the area of intended employment, and such could include the employer’s website, electronic newsletter, intranet or email – that email notification is only required once and does not have to be provided for 10 calendar days. The FAQ also extended the time that such a notice would be considered timely to no later than 30 days after the worker begins work at the new worksite locations (normally notice is required to be posted prior to the worker moving on to the new site). In the third FAQ of April 9, 2020 (Second FAQ related to H-2A visas), the Department made four points advancing and not retreating from the notice requirement during this time of disease. 1.)  It expanded on employer requirements for situations that did not involve remote employment in the area of intended employment, and instead involved short-term placements of 30 or 60 days outside the area – that the employer could place the H-1B worker for up to 30 workdays in one year and up to 60 days if the person’s place of residence was inside the area of intended employment so long as the employer was in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA. There would also have to be no strike or lockout at the short-term placement location; and the employer would have to pay lodging costs, costs of travel, meals and expenses for both workdays and non-workdays.; 2.)  It defined the area of intended employment as within normal commuting distance to the place of employment with any place within the Metropolitan Statistical Area (MSA) deemed to be within normal commuting distance even if it crossed state lines; 3.)  It instructed that if an employer instead filed a new LCA for work sites outside the area of intended employment or materially changed the terms and conditions of employment, it would need to file an amended or new H-1B with U.S.C.I.S.; and 4.) It admonished that the employer’s treatment of H-1B personnel must not adversely affect the working conditions of similarly employed US workers and the employer had to offer the same flexibility to US workers similarly employed that it was offering to H-1B workers including telework from home within the area of intended employment or where the employer was offering to move H-1B employees outside of that area.

Although there is great interest in protecting the American job market, the insistence on maintaining the same notice requirements for new locations in the current time of crisis seems strained and the Department may still wish to reconsider its position. Where working from home is involved, one of the options is for the employer to post the notices at the H-1B holder’s house or apartment for 10 days. Is there any practical use in doing so where the two notices will likely only be seen by the employee, and perhaps spouse, children, and family dog if they exist? There is also the problem of employers in nonessential businesses even  being able to go into their offices where files are stored to  retrieve employee information or work on the notification procedures much less updating the public access package, especially when they are supposed to be sheltering in place in most parts of the country. As of the time of this writing, only five states, Arkansas, the Dakotas, Iowa and Nebraska are not under stay-at-home orders.  Common sense seems to dictate a waiving of requirements where attempting to comply places those in danger who must leave home to go to their businesses.