2020 AILA Conference: Day 4, Session 2 & 3: Discussions with Customs Border Protection & Department of Labor
2020 AILA Conference CBP & DOL Summary:
In this video, Attorney Joseph Tsang summarizes the discussion between the representatives from AILA and the Customs and Border Protection agency as well as the Department of Labor. We get answers to how the pandemic is affecting both of these crucial agencies and how to best interact with them during these rapidly changing times.
Learn more by watching the full video.
Full Video Transcript
[Tsang Intro Splash]
Hi everyone, this is Joseph, and I’m here on day four, the last day of AILA’s 2020 virtual conference. This is the biggest conference on immigration in the year. This is where we all gather and discuss key ideas. Today’s track is significantly important because we’re interviewing all the top agency personnel from the Department of State, to ICE, to CBP. We’re hearing what they have to say.
And just a quick disclaimer before we get started. The opinions expressed in this video should only be attributed to me. Even though I am an AILA member, they cannot be attributed to AILA as an organization as a whole, nor even to the speakers themselves. I’m trying to do my best to summarize them. If you would like, please download the original version from AILA University, and you can also help fact check this video. Thank you.
[0:45] Hi everyone, welcome to day four, session two and three. We’re combining the presentations by CBP as well as the presentation by DOL together in this one video. Both presentations were phenomenal. You had the CBP and AILA people over here [Alexis S. Axelrad, Ramon E. Curiel, Frank Russo, Luis A Mejia, Sidney Aki], and the DOL and AILA people over here [Sarah K Peterson, Vincent W. Lau, Brian Pasternak, Shawn M. Packer, Renata Adjibodou]. And it was a really lively discussion. Both panels were amazing, but I wanted to glean the top information from both presentations, so we can condense it into this one video. Let’s get started.
Customs and Border Protection Agency
[1:10] We’ll start with the Customs and Border Protection Agency (CBP). Now, this agency is under a lot of stress, an unbelievable amount of stress, as you can imagine. They are front-line workers, dealing with people flying in and out of the country, land borders, people crossing in and out, humanitarian asylum. They are really the face of everything that we’re seeing, and they’re taking the brunt force of it. Unlike their brother agency, USCIS, that’s asking for a bailout of 1.2 billion, they’re running out of money. Everybody’s focused on that because they’re issuing all the approvals. CBP is also running out of money, and they’re short on staff, and their officers are dying. So, if you can send up a quick prayer for them, that will be much appreciated.
[1:51] Now, the first thing I want to talk about is the international students. CBP deals with international students all the time, and recently, within this past month, there have been huge litigation battles over whether or not international students can stay in the U.S. If you don’t know what the issue is, we made a whole video Harry Potter-style over here. You can feel free to check it out.
The core issue is whether or not international students can just take online classes and don’t need to be physically in the classroom. The law has always been that they need to physically go to the classroom, but because of the pandemic, there are some questionable issues. There’s a whole litigation going on. How is every single CBP officer going to know what the outcome of the litigation is? What’s the reason for the litigation? Is it fair? Is it not fair? They’re just doing their job, and so this makes it extra complicated for them because they are the front lines. These officers are the people who are adjudicating whether or not these international students can get into the country, and if they get it wrong, sorry, the international student’s F1 visa gets canceled. They get sent back. There’s no way for them to apply for a second F1 visa interview at the consulate because the consulates are shut down, and it becomes a huge disaster.
[2:53] If you are an F1 international student in the U.S., you are able to leave the country and come back and just take online classes. They know that’s the law and it’s okay, unless something else changes that online, then we might have to revisit this issue. So you can imagine how great of a relief it is to hear the CBP officer directly say they understand international students. They are able to leave the country and come back and take online classes. However, new students with new F1 visas about to enter the US and study for the first time, these people cannot just take online classes. This is a new discovery. It’s kind of a makeshift settlement between the two opposing views. On the one hand, the government wants to maintain the black letter law, “If you are here as international students, you need to take class physically. You cannot just be doing it online.” On the other hand, the government understands, given the pandemic, if they were original students here, it would be kind of sad to kick them out of the country, especially if they don’t have internet connection to their home country. It will disrupt the entire studies. “Okay, we will give them grace and they can just take online classes.” It’s kind of a compromise with the universities as well. Maybe you’ll lose half the new students, but at least your old students don’t have to leave… um… We’re not exactly sure how this rule came about, but this is what it’s been decided.
[4:08] And the second the second update is regard to TN applications and I-94 renewals on the Northern border. So this is the border between Canada and the US. So if you’re applying for a TN application from Canada, you can just go through the normal channels: Go to the airport, apply for the TN visa. You don’t need to prove essentiality and if everything checks out, you can still get your visa and fly into the US. We can also confirm this personally because in the past month, we did a ton of TN applications and they’ve all been successful just like this now.
It’s also super great news that I-94 renewals are also applicable which means if you’re I-94 is expired or is about to expire, you can directly go to the port of entry and directly get a new I-94 and come back in. Now each port is specific so you need to contact each port individually.
Unfortunately, the panels didn’t discuss the Southern border so I cannot provide any updates there. [Correction: Travel ban with Canada and Mexico is a land port banflights are okay!]
[4:55] Update number three: pre-clearance and exemptions. So in the previous videos, we discussed the method of directly flying to Mexico or flying to Canada and trying to directly enter the US and proving exemption without having to go to the consulate. If your visa is already valid, you could directly present your case to the CBP officer and, generally speaking, we were told that business reasons are more acceptable. They are more friendly to business and economic reasons at the CBP, but how does it actually work? So AILA presented these questions to the CBP and this is their response: Different ports have different ways to handle it. Certain ports have created specific designated exemption emails that you can directly contact and email in. There is no special way to schedule an appointment to come in and present your case. Just go ahead and do it.
[5:42] They were not able to go in depth to talk about what they’re looking for and how it’s being approved. It’s port by port. Officer by officer discretion. But here’s my personal opinion: these officers are trained for TN applications so prepare it like a TN application. The same type of documentation. The same type of cover letter. Original signatures. Cover letter. Don’t treat it like a USCIS or consulate. Treat it like a TN because that’s what they’re used to. So prepare accordingly.
[6:05] Alright back to CBP. Now if they approve the case this is only a one-time approval. It is not a blanket approval. By approving your case once on an O visa, it does not give you permission to continue flying back and forth freely. It’s just a one-time thing. Next time, you still have to prove your case again, maybe with a different officer. The only way you can get a blanket approval is if you go to the consulate and if they approve it and it says blanket approval. Then you’re able to fly in and then CBP won’t question it.
[6:31] Update number four: extensions or Satisfactory Departures (SD’s). A lot of people are stuck in the US and they cannot leave. Maybe they came on a tourist visa in February and then the pandemic hit and they couldn’t get an airline. They couldn’t leave and it’s been months and months and months and months. Before they were originally going to leave in May, but now it’s already July and they might not be able to leave until December. There are heavy penalties if you have more than six months of Unlawful Presence and it’s always on your record. So what do you do?
Traditionally you’re supposed to file an extension with USCIS. The form is 539 and you have to explain why you’re here, why you’re not working. You have sufficient funds. You’ll do all of that and it’s expensive. Now USCIS has a huge backlog and they’re taking six months or more to adjudicate these cases and they might even deny it, and if they deny it, then your entire time is unlawful, so it’s extra tedious. And you can’t blame USCIS with the furlough and the pandemic and lack of money. It’s totally understandable so the CBP had been instructed to grant these Satisfactory Departure Extensions.
[7:32] Basically you go to a CBP officer and say “Hey look, I’m supposed to leave, but I can’t because of the plane issue. I’m trying to. Can you give me an extra 30 days? Sure. Stamp. Write it on. Update your I-94. Done. It totally makes sense. They should do it a lot more. This should just be standard policy from now on. But they said that they only do it twice maximum. So you get 30 days and 30 days. Maximum 60 days. If you need longer than that then you still need to do the traditional 539 extension with USCIS to try to get additional six months.
Department of Labor
[7:59] Alright now let’s move to the Department of Labor (DOL). This particular agency governs the employment and unemployment aspect of all of the US workforce. It’s super important and it’s especially important to the immigration agency because, in order to apply for immigration benefits, in order to get a work permit, in order to get a green card, you need to prove first with the Department of Labor that you have tried to hire a US worker and that you couldn’t. And so their updates are super key. And there are two major ones that we want to tell you.
[8:26] The first major update is regarding [job] posting. And this is particularly important because the advice actually contradicts one of the other sessions we attended at AILA. You’ll see why. One of the things that you have to do to show the Department of Labor that you’re actively trying to hire us workers is to provide this posting. You post this so all employees can see “Hey, there’s a job opening and if nobody applies then I have to hire this foreign worker.” Well given the pandemic, the furloughs, the social distancing the office is doing on the rotational schedules, not everybody being in the office, working remote, how do you do postings?
There are a lot of different suggestions, but we have heard from the Department of Labor in this panel that the requirement is to put the posting outside of the office. You can’t put it inside the office because nobody’s in the office so you put it outside of the office; outside of the building, so when people drive by they can see “Hey, there’s this posting for this company. Alright, I can apply” and I assume you take this posting, you put it on the outside of your building, and you take a picture of the facade of the building, and then you show it to Department of Labor, “Hey, look, I did this. It was outside.” I don’t know if this will work for those corporate buildings where there’s like 100 different businesses in one building. Does every single person just put postings outside? And what if it gets ripped off? I don’t know. There’s a lot of questions if these two contradict. Doesn’t matter. Just do both. Just to be on the safe side. And if your employer is not willing to do one, and your lawyer doesn’t recommend doing the other, well you, yourself, if you’re the client, just do both. Post it in your own living room to show that “Hey, you’re actively trying to hire somebody.”
[9:50] Alright the second major update is: how do you get in touch with the Department of Labor, right? It’s so hard to get in touch with them and now the official notice is do not do it by mail. Do not send them physical documentation because they’re only going to the office once a week and who knows who’s opening up these packages. Do everything electronically.
[10:09] So those were the key updates from the CBP panel and the DOL panel. They both went in-depth talking about a lot of really good information. And so if you are interested, please go ahead and download it directly from AILA University. You can watch the entire session. It’s fun. Enjoy.
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Thank you and have a great rest of the year. Bye-bye.