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.

Immigration and Customs Enforcement (ICE) continues to push forward a proposed rule that would set a maximum period of authorized stay for students. Although the details of the rule are unknown, the draft reportedly has been sent to the federal budget office for review. This is generally the last step before a new rule is published for notice and comment.

In May 2018, USCIS posted a policy memorandum that would have radically changed current immigration policy for students. Until that time, students usually were admitted not for a specific length of time but for the Duration of Status (D/S), i.e., the length of their programs. Because they had no specific “end date,” students could not accrue “unlawful presence” without a formal finding. In addition, if students violated their student status, for example, by working without proper authorization or by not taking enough courses, they would not be charged with unlawful presence. But the 2018 “sub-regulatory” policy memorandum changed that. Those who violated their student status would immediately start accruing unlawful presence and, if they accrued 180 days or more, they would become subject to the draconian three- and 10-year bars to admission.

Primarily because the new policy made it so easy for students to unknowingly start accumulating unlawful presence, it was challenged in court. The judge in Guilford College v. Wolf issued a nationwide injunction, holding USCIS could not make this sort of policy change without engaging in a proper rulemaking process. The judge also held the new policy conflicted with the text of the Immigration and Nationality Act (INA).

In addition to the 2018 policy memorandum, in October 2018, the Trump Administration for the first time published a notice of its intention to enact a new rule that would put an end to Duration of Status and would set out a maximum period of authorized stay for students. The stated purpose was to eliminate confusion about a student’s length of stay and therefore alleviate overstays by students. From the perspective of students and universities, this change would create difficult problems:

  • Students could lose the flexibility necessary to move through various levels of study and shift their research goals;
  • Every program change could require an application for an extension, which will be costly and would risk denial; and
  • The additional scrutiny and uncertainty would make study in the U.S. for foreign nationals less appealing, which could result in a loss of talent and a loss of income for colleges and universities.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.

The day before his previous Proclamation on immigrant visas was to expire, President Donald Trump signed the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” to extend his previous immigrant visa restrictions and suspend issuance of certain nonimmigrant, temporary work visas until at least the end of 2020. Read our analysis here,

The Department of State (DOS) has been collecting (and maintaining) information on social media use from all visa applicants (immigrant and non-immigrant) since June 2019. The DOS’s collection and maintenance of this information is the subject of a lawsuit. Read our analysis of these issues here.

In a 5-4 decision written by Chief Justice John Roberts, the U.S. Supreme Court has ruled that the Administration acted improperly under the Administrative Procedures Act (APA) in terminating the Deferred Action for Childhood Arrivals (DACA) program, thus allowing the program to continue. See our analysis here.

The Department of Homeland Security (DHS) once again is extending its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days until July 19, 2020, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must provide written documentation of their remote onboarding and telework policy for each covered employee.

The eligibility requirements are unchanged, applicable to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no flexibility is implemented. ICE has said, however, that DHS will evaluate on a case-by-case basis situations where existing or newly hired employees are subject to COVID-19 quarantine or lockdown protocols. If employers are not eligible for the flexibility, they may continue to designate authorized representatives to act on their behalf to review documents in person.

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

Previously, employers that were served notices of inspection (NOIs) during the month of March 2020 (and had not yet responded) were granted an automatic 60-day extension from the effective date to respond. ICE is now granting an additional 30-day extension, but notes that this will be the final extension.

DHS will continue to monitor the COVID-19 national emergency and provide updates as needed. Employers should monitor the DHS and ICE websites for updates regarding extensions and the termination of those extension.

Jackson Lewis attorneys will provide updates as they become available.

Reportedly, USCIS will soon announce the temporary furlough of the majority of its employees – 15,000 employees, or three-fourths of its workforce.

The furloughs will begin in August 2020 if the agency does not receive additional fiscal support.

While being called temporary, the head of the American Federation of Government Employees is concerned the reduction-in-force may become permanent and result in a USCIS “brain drain.” In recent months, USCIS has experienced a dramatic decline in revenue because fewer immigrant and non-immigrant petitions are being filed due to the COVID-19 pandemic, related travel restrictions, the uptick in Requests for Evidence (RFEs) on filed petitions, and recent Administration restrictions on legal immigration.

The agency has asked the Administration and Congress for relief: a $1.2 billion loan and an average 21% increase in fees to shore up their budget shortfall. [

As of now, neither has been instituted. USCIS had partly re-instituted premium processing, which collects an additional $1,440 fee per case. However, this apparently will not help enough.

Because USCIS is self-funded, any decrease in filed petitions and applications directly reduces its revenues. In FY 2018, there was a 17% decrease in petitions filed. Despite this, delays and backlogs continue to grow. Much of this is attributed to the same “extreme vetting” that may be continuing to reduce the number of cases filed, including more focus on small technical errors, the complex new public charge rule, and more RFEs. Beyond that, a hiring freeze has been in effect since February 2020 on most positions other than asylum staff, who are there to push cases through the process.

Jackson Lewis attorneys will continue to provide updates as the negotiations continue.

 

Additional restrictions on entry into the U.S. may be expected soon. Initial indications are that the Administration is considering barring H-1B, H-2B, L-1, and J-1 status among other non-immigrant visa categories.

On April 22, 2020, President Donald Trump issued the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak.”

Business and advocacy groups continue to argue that these measures will harm, rather than help, the economy. Like all of the other COVID-related restrictions, indications are that there will be a number of exceptions, including exceptions for healthcare workers and those involved in the food supply chain. However, it is unclear how the exceptions would be implemented.

Jackson Lewis attorneys will continue to follow this issue and provide updates as soon as they become available. In the meantime, if you have employees who are abroad with currently valid non-immigrant visas, consider bringing them back to the United States sooner rather than later. Please contact a Jackson Lewis attorney with any questions.

Journalists and airlines are the two latest groups affected by the deterioration in the relationship between China and the United States.

Since the “tariff wars” and the onset of COVID-19, the relationship between China and the United States has become ever more complicated.

In early May, the Trump Administration changed the I visa rules for Chinese journalists working in the United States for non-U.S. media outlets. I visas are specifically for members of the foreign media. In the past, these visas were open-ended in terms of the time frame. Now, for Chinese journalists, they will be limited to 90 days, with the possibility of 90-day extensions. This change was in part a response to China’s expulsion in March of American journalists from major U.S. newspapers. That expulsion came after the State Department cut the number of Chinese citizens who could be in the United States working for Chinese state-controlled news agencies from 160 to 100. Prior to that, China had been granting shorter duration visas to resident foreign journalists.

In early June, the Trump Administration announced that as of June 16 (and possibly sooner), it would block Chinese airlines from flying into the U.S. because China has essentially prohibited U.S. airlines from flying to China. The dispute started in March, when China limited the number of flights available to foreign airlines based on their flight schedules from earlier in the month. Because U.S. carriers had stopped flying to China at that time due to COVID-19, they were cut out of the market. In the meantime, four Chinese airlines have been operating on the China-to-U.S. route. Two U.S. carriers hoped to restart China flights on June 1, 2020, and appealed to the Chinese Civil Aviation Authority for relief. They did not receive a response at that time. After the U.S. Administration announced its ban, the Chinese Civil Aviation Authority said it would allow U.S. carriers back on a limited schedule. While the Administration attempts to negotiate a way for China and the U.S. to “exercise their bilateral rights,” they agreed to a reciprocal approach. Chinese carriers will be able to have as many flights to the U.S. as U.S. carriers have flights to China.

Reacting to China’s newly announced controls over Hong Kong, President Donald Trump has issued a Presidential Proclamation banning the entry of Chinese nationals on F or J visas who wish to do graduate study or post-graduate research that would advance China’s military capabilities as security risks. He also has stated that “he would revoke Hong Kong’s preferential treatment as a separate customs and travel territory from China.”

Jackson Lewis will continue to follow these issues and provide updates as they become available.