The reported failure of USCIS to renew its contract with an outside vendor in June, because it planned to bring all printing of Green Cards in-house, may be the reason foreign nationals who have managed to make it through the arduous permanent residency process are not receiving their “Green Cards.”

USCIS has wide-ranging budget issues and is talking about furloughing 75% of its workforce. Under these circumstances and the impact of COVID-19, the two Green Card printing facilities in the U.S. cannot keep up with demand. The facility in Kentucky reportedly has been closed since late-June and the Missouri facility is operating only at reduced capacity. This will likely only get worse if the furloughs go into effect in late-July or early-August.

Understandably, USCIS is apparently flooded with calls from approved applicants asking about delays in the receipt of Green Cards. Individuals need these cards to travel or to prove their employment eligibility. In the past, those with urgent needs could get stamps in their passports to temporarily serve their purposes. Due to COVID-19 and limited operations at Field Offices, getting appointments for the purpose of “stamping” can be challenging.

The Trump Administration has been issuing regulations and proclamations restricting grants of permanent residence. This delay in production is another factor slowing and curtailing legal immigration to the United States.

For questions regarding Green Card processing delays, please reach out to your Jackson Lewis attorney.

Many businesses are beginning their re-opening phases, while others are being forced to close again due to COVID-19 fluctuations.  In such uncertain circumstances, many employers are struggling to find a balance between the safe and efficient operation of their businesses, and preparation for potential closure orders and/or business restrictions.

Due to the uncertainty of the circumstances, there is no way to predict what is in store for employers. However, the following are things to consider as COVID-19 persists:

  • Determine whether your business qualifies as “essential” under the state or local orders, keeping in mind, that even if your organization’s mission may be considered “essential”, not all employees may be deemed “essential”, under local orders.
  • Prepare and/or update your company’s COVID-19 exposure and Prevention Plan and Cal/OSHA Injury and Illness Prevention Plan;
  • Review state and local requirements for symptom screening procedures for employees working on-site and/or customers coming to the worksite;
  • Ensure you have appropriate sources of personal protective equipment for your employees;
  • Review remote work and telework policies;
  • Evaluate expense reimbursement for potential further telework;
  • As to employees who cannot work from home, assess which applicable supplemental paid sick leave ordinances may apply to your business;

It is recommended that reopened companies implement an action plan to ensure they are prepared to handle potential future closures due to the fluctuation of COVID-19 infections.

Some things businesses should do to prepare for a potential second wave of closures are:

  • Review Cal-WARN Act obligations;
  • Revisit former employee notices and communications to ensure they are compliant under the rapidly changing regulations;
  • Consult local orders applicable to furloughs and layoffs;
  • Verify compliant practices for processing requisite terminations and layoffs.

To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor.  Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.

Once again, the Ivy League has sent a loud and clear message regarding COVID-19 to the college community. The Ivy League presidents have cancelled all intercollegiate sports until at least January, becoming the first Division I conference to officially suspend its fall semester football schedule in the midst of the coronavirus pandemic.

The league has reserved its decision on the potential impact of the pandemic on winter and spring sports schedules, except it has confirmed that no intercollegiate sports activity would begin until at least January 1, 2021. Ivy League Executive Director Robin Harris stated that even though a decision on potentially moving fall sports to the spring has not been made, “there won’t be basketball games or hockey games or other sports in the fall.” This delayed start date would essentially eliminate the non-conference schedule for all Ivy League men’s and women’s basketball programs even if health and safety concerns regarding COVID-19 are reduced and the sports programs are able to resume.

The league’s announcement of the fall sports cancellation follows its controversial decision on March 10th to become the first NCAA conference to cancel its men’s and women’s basketball tournaments. Despite broad criticism for overreacting from multiple professional leagues and other college conferences for its preemptive decision, within days

the Ivy League and its Executive Director Harris were lauded for her decision to exercise extreme caution to protect the league’s student-athletes from COVID-19.

Approximately two days after the Ivy League’s decision all professional sports leagues were shut down following the COVID-19 diagnosis of NBA player Rudy Gobert and the NCAA was forced to cancel the men’s and women’s NCAA tournaments.

The decision to cancel fall sports followed weeks of discussion in an effort to make a potential schedule of competition work for all of the Ivy League schools and their student-athletes.. Following Harvard, Yale and Princeton’s decision to limit the number of undergraduate students on campus for the fall semester, it made the opportunity to continue this fall’s athletic schedules more impractical. Princeton President Christopher Eisgruber commented that

“athletics is part of the broader educational mission and not treated differently from the rest of the academic enterprise. Our athletes are first and foremost students.”

Executive Director Harris added that the league had considered numerous options to try and make athletic competition work, but school restrictions and state rules on the size of gathering prevailed, resulting in this “sad decision.”

While this announcement may not be followed by similar announcements from larger Power 5 football conferences, other mid-major conferences may follow the Ivy League’s lead as the Coronavirus continues to spike across the country.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

At the end of June, the San Francisco Board of Supervisors passed an emergency ordinance creating a right of reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance became effective on July 3rd.  Although Mayor Breed did not sign the ordinance, the City Charter allows the ordinance to take effect if the Mayor does not sign the ordinance within ten days of receiving it.

This ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.

Under the ordinance, an employer shall provide written notice to employees of covered layoffs and an employee’s rights under the ordinance. Employers who conducted covered layoffs on or after February 25, 2020, prior to the effective date of the ordinance, have 30 days from July 3rd to provide notice to employees of their rights under the new ordinance.

The notice must include a notice of the layoff and its effective date, a summary of the new ordinance’s right to reemployment, and contact information for the San Francisco Office of Economic and Workforce Development.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you need assistance in compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

U.S. Immigration and Customs Enforcement (ICE) has announced that students in F-1 or M-1 nonimmigrant status will not be able to remain in or enter the United States if they are taking only online courses during the upcoming fall semester. This is a last-minute change from the flexibility that students were given this past spring and through the summer when COVID-19 forced most universities online.

The new restriction not only causes problems for foreign students, but it also is likely to increase the economic pressures colleges and universities are facing due to COVID-19 by inducing foreign students to attend universities elsewhere. This is on top of the already confounding travel restrictions that affect foreign students, such as the Schengen, UK, Ireland, Brazil, China, and Iran COVID-19 bans, as well as the various pre-COVID-19 travel bans and restrictions that affect a smaller number of students.

According to ICE:

  • F-1 and M-1 students cannot remain in the United States and visas will not be issued to them if their school is operating entirely online. Those already in the U.S. must depart or take other measures, such as transferring to a school with in-person instruction, or be subject to immigration consequences up to and including removal.
  • F-1 students who are attending schools that are operating “normally” (in-person instruction) are subject to the existing regulations, i.e., eligible to take only one course (three credit hours) online per semester.
  • F-1 students whose schools are adopting the hybrid model for instruction will be allowed to take more than one course online, but the schools will be required to make specific certifications regarding their teaching model and course loads. The hybrid model exemption is not available to students in English language training programs or M-1 students pursuing vocational studies.

If there is a change in circumstances during the semester, such as a return to fully online instruction due to COVID-19 spike, foreign students will need to leave the country (if they can), switch to a different program (which may not be possible), or take alternative steps such as a reduced course load (which is allowed only in limited circumstances).

Colleges and universities are struggling in an uncertain environment to develop plans to balance educational goals with COVID-19 safety measures. Despite the financial problems involved for the institutions, most are changing their calendars, limiting the number of students on campus at any one time, providing hybrid teaching models, and even putting all classes online while still bringing students to campus. Indeed, some have already announced they will be teaching fully online for the fall semester. The fully online approach allows the schools to accommodate not only students who are at risk, but also faculty, many of whom are in high risk categories. ICE’s announcement may force schools to rethink their already carefully balanced plans and adopt the hybrid model. Foreign students will be forced to take some in-person classes – despite the health risk – in order to come to or remain in the United States with their classmates.

Please contact a Jackson Lewis attorney with any questions.

As COVID-19 continues its upheaval of nearly all aspects of life, retirement plan administration included (see some of our prior discussions here, here, here and here), the Internal Revenue Service recently issued guidance providing additional relief for the sponsors of certain plans.  IRS Notice 2020-52 clarifies requirements for mid-year changes to a safe harbor 401(k) plan that only reduces contributions made on behalf of highly compensated employees (HCEs), and provides temporary relief from certain requirements that would otherwise apply when a plan sponsor chooses to reduce or suspend safe harbor contributions during a plan year.

Contributions and benefits provided under a qualified retirement plan must not discriminate in favor of HCEs.  Certain tests must be run on a plan annually —the Actual Deferral Percentage (ADP) and Actual Contribution Percentage (ACP) tests—to confirm that a plan is non-discriminatory.  Sponsors may instead choose to design their plan as a “safe harbor” plan by providing matching or nonelective contributions to non-HCEs under certain formulas specified under the safe harbor rules.  By doing so, a plan is generally deemed to pass the ADP and ACP tests.  In most cases, the safe harbor provisions of a plan must be adopted before the first day of a plan year and must remain in place for the entire 12-month period that follows.  If a sponsor does wish to make changes during a plan year—in particular, amending the plan to reduce or suspend the safe harbor contributions—they must either be operating at an economic loss or have included language in their annual safe harbor notice that a reduction or suspension may occur mid-year with 30 days’ advance notice.

The IRS recognizes, however, that many plan sponsors are facing unexpected and unprecedented financial hardship this year in light of COVID-19.  Sponsors may not know yet whether they are operating at an economic loss for the year and/or may not have included the requisite language regarding potential changes in their most recent safe harbor notices.  Sponsors may also have difficulty satisfying the timing requirements for suspending safe harbor contributions when doing so immediately is necessary to ensure they can meet their payroll and other financial obligations.

Because of these considerations, Notice 2020-52 clarifies that a mid-year amendment only reducing contributions to HCEs is not a safe harbor contribution change (as safe harbor contributions by definition are only made to non-HCEs), though an updated safe harbor notice is still required.  In addition, a plan may be amended to reduce or suspend safe harbor contributions between March 13, 2020, and August 31, 2020, without requiring economic loss or language in the annual safe harbor notice allowing such a mid-year change.  Such an amendment, regarding nonelective contributions only, may also be made without 30 days’ advance notice, as long as the amendment is effective on a prospective basis and an updated safe harbor notice is provided no later than August 31, 2020.  (Thirty days’ advance notice is still required for changes to safe harbor matching contributions as those contributions may directly affect the amount a participant chooses to defer.)

The relief under Notice 2020-52 also applies to safe harbor 403(b) plans.

If you have questions regarding Notice 2020-52, or any other COVID-19 relief afforded to qualified retirement or other benefit plans, please contact a member of our Employee Benefits practice group.

Connecticut Senator Richard Blumenthal and New Jersey Senator Cory Booker plan to formally introduce legislation, the “College Athlete Pandemic Safety Act,” to eliminate the ability of colleges and universities to use liability waivers as a basis for student-athletes to return to campus and resume training activities.

Reacting to the growing number of schools, including Ohio State, SMU, Indiana, and Iowa, requiring student-athletes to sign liability waivers or “pledges,” the Senators have expressed concern that student-athletes are being asked to waive their legal rights in order to avoid being barred from practice and training facilities without the benefit of legal counsel. Senator Blumenthal summed up the proposed legislation, stating that

student-athlete’s health and safety is a “non-negotiable priority”

and that “forcing college athletes to sign away their rights … in the middle of a pandemic is just the latest in a litany of unacceptable actions schools have taken to exploit these young people.”

A proposed draft of the legislation includes the following stipulations:

  • A college or university cannot allow an individual to agree to a waiver of liability regarding COVID-19.
  • A college or university may not cancel a scholarship or financial aid for a student-athlete who refuses to participate because of concerns regarding COVID-19.
  • A college or university must inform all student-athletes at the school when an athlete or staff member tests positive for COVID-19. The person who tests positive will not be identified.
  • The Centers for Disease Control and Prevention will  be asked to develop specific health and safety guidelines related to COVID-19 for student-athletes.
  • The college or university will make sure the athletic department adheres to all COVID-19 health and safety guidelines.

Reaction and criticism of the NCAA regarding its lack of a uniform health and safety policy has been swift. Nevada Senator Jacky Rosen criticized the NCAA for publishing guidelines relating to the restarting of college sports but leaving “it up to individual schools to decide how to implement health and safety policies.” Senator Rosen also commented during Senate committee hearings that the lack of a uniformed NCAA response could result in 1,100 NCAA member schools reacting differently, which could result in wide-ranging and inconsistent protocols for testing, social distancing, and the quarantining of athletes.

NCAA Board of Governors Chairman Michael Drake responded to the criticism of the NCAA by asserting that he supports universal coronavirus guidelines and that “this is under discussion actively on a daily basis.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of this proposed federal legislation and the student athlete waiver issue. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Its July. A time when in normal years, schools are closed and families are planning vacations. But in 2020, paid vacation is being replaced with paid leave under the Families First Coronavirus Response Act (“FFCRA”), leaving employers asking, can they still do that?!

For public employers and employers with less than 500 employees, the FFCRA provides two weeks of paid sick leave and up to 12 weeks of Emergency FMLA. The most popular reason for taking both leaves is that the employee is unable to work or telework due to a need to care for the employee’s child(ren) due to a school or childcare closure caused by COVID-19. Many employers hoped that the need for this leave would cease as summer arrived, after all, schools are normally closed in the summer — so the closure would no longer be caused by COVID-19. Not so fast.

Although the need for FFCRA leave due to school closures should have subsided, employees may still seek this leave if their childcare is closed due to COVID-19.

Last week the Department of Labor issued a Field Assistance Bulletin providing guidance to its investigators as to whether the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons could support an employee’s request for FFCRA leave. And the answer is, not surprisingly, yes. Summer camps and programs may qualify as places of care of employees’ children for the purposes of FFCRA leave. The question is whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons. In many cases, employees had not yet enrolled their children in these programs in March when everything starting shutting down.

According to the Bulletin, employees may be entitled to FFCRA leave for the closure of a summer camp or program if:

• The child was enrolled in the camp or program before the closure was announced;
• The family submitted an application to participate in the camp or program before the closure;
• The family submitted a deposit for the camp or program;
• The child recently attended the camp or program (in 2019 or 2018) and is currently eligible to attend again;
• The child is on a waitlist;
• Or other affirmative evidence of a plan or intent for the child to attend the camp or program.

The DOL recognized that it is not a one-size fits all inquiry, but a parent’s mere interest in a camp or program is generally not enough. The Bulletin, which is written to guide the department’s investigators tells its investigators that when evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program they should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19.

How does this help an employer? Employers are still limited in what information they can require before providing leave. Generally, an employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason.

Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school, place of care, camp or summer program that is closed and a statement that no other suitable person is available to care for the child. In other words, although the employee may need to prove to the DOL investigator that it was more likely than not that the child would have attended the camp, the employee doesn’t necessarily need to prove it to the employer, making it difficult for employers to determine whether the employee is legitimately entitled to the leave.

The White House has issued an amendment to the June 22, 2020, Presidential “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” to clarify an issue regarding those who are outside the scope of the Proclamation.

According to the amendment, not all those holding nonimmigrant visas on June 24, 2020, are exempted from the Proclamation – only those holding valid H, L, or J visas. This means that individuals with, for instance, valid B-1/B-2 visitor visas on June 24, 2020, will not necessarily be eligible to apply for H, L, or J visas.

The amendment affects Section 3 of the original Proclamation setting out the scope of the suspension.

The Proclamation (the amendment in italics) will affect those who are:

  • Outside of the U.S. on the effective date – June 24, 2020, at 12:01 a.m. (EDT);
  • Do not have a nonimmigrant visa, of any of the classifications specified in Section 2 (H, L, or J) and pursuant to which the alien is seeking entry that is valid on the effective date of the Proclamation or issued thereafter; and
  • Do not have another travel document (such as a transportation letter, boarding foil, or advance parole document) valid on the effective date or issued thereafter.

Jackson Lewis attorneys are committed to helping employers make the best business decisions and will continue to provide updates and clarifications as they become available. Please contact your Jackson Lewis attorney with any questions about how these new restrictions and forthcoming regulations will affect your employees and prospective employees.

 

Since May, USCIS has been threatening furloughs of three-quarters of its workforce in August if it does not receive a $1.2 billion loan and an average 21% increase in fees to take care of its budget shortfall. Reportedly, more than 13,000 of the 20,000 USCIS employees who work on citizenship and visa processes will receive furlough notices if emergency funding is not forthcoming. Further, some notices may have already been received for a late-July furlough.

Apparently, USCIS sent formal notification to the union representing USCIS employees that up to 70 percent of the agency’s employees could be furloughed as of August 3, 2020. Furloughs that are expected to last more than 30 days require this sort of formal notice. Therefore, the projected furloughs will not be short term. The president of the union that represents 2,500 USCIS employees in Washington, D.C. stated the obvious:

It is not in the best interest of the American people to allow such a failure – which would have a substantial impact on millions of legal immigrants, permanent residents and US citizens and would be detrimental to American businesses, educational institutions, the economy and our law enforcement and health care systems ….

USCIS has been told that any additional funds should not burden U.S. taxpayers. The agency recognizes that any loan would have to be repaid. In other words, to make up the shortfall, the funding will have to come from increased fees, pushing the entire burden onto immigrants, employers, and those seeking naturalization. If the increased fees do not discourage immigration, the even longer delays that will result from the furloughs certainly will. An estimated 860,000 individuals were scheduled to naturalize this year – but, through the combined impact of the pandemic and the proposed furloughs, those individuals may not become citizens before the November election.

The funding problem at USCIS is not simply due to COVID-19. Although the decrease in filings associated with the pandemic may have been the final straw. Budget problems at USCIS have persisted for several years. Unfortunately, the needed funding appears to have become yet another political battleground. Adding another 13,000 employees to the ranks of the unemployed is not likely to help the U.S. economy.

Jackson Lewis attorneys will continue to monitor this situation and provide updates as they become available.