On June 18, 2020, when the Supreme Court ruled that the Trump Administration had not properly terminated the Delayed Action for Childhood Arrivals (DACA) program, many (including Dreamers themselves) assumed that at least for the time being, DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Consistent with this expectation and in accordance with the Supreme Court ruling, on July 17, 2020, Judge Paul W. Grimm of the United States District Court for the District of Maryland ordered that DACA be returned to its pre-September 5, 2017 state; i.e., to the process that was in place prior to the Trump Administration’s attempted termination of the program.

However, the Administration has chosen to see the decisions differently. On July 28, 2020, Acting Secretary of Homeland Security Chad Wolf issued a memorandum in which he changes the DACA application rules rather than restoring the program to the status quo ante.  Under his implementing guidance USCIS would:

  • Reject all initial DACA requests from individuals who had never previously applied;
  • Accept DACA requests and requests for advance parole and employment authorization from individuals who were previously granted DACA status;
  • Grant those requests for no more than one year at a time (instead of the usual two years);
  • Base the grant of advance parole on urgent humanitarian reasons or for reasons of significant public benefit; and
  • Caution DACA holders that travel on or after August 15, 2020 without first receiving advance parole would automatically terminate DACA status.

In August, a group of undocumented immigrants amended a suit filed in the U.S. District Court for the Eastern District of New York alleging that the changes promulgated by Acting Secretary Wolf violated the Administrative Procedures Act and were illegal because Wolf had not been validly appointed to his post.

At about the same time, a nonprofit coalition asked Judge Grimm to hold the government in contempt for the changes it made to DACA in violation of the Supreme Court ruling and his own order. Plaintiffs argued that despite the Administration’s “’acknowledged obligation to return the DACA program to the status quo ante, defendants opted instead for a strategy of obfuscation and defiance . . .’” Plaintiffs are asking Judge Grimm to force the Administration to comply with his earlier order.

Jackson Lewis will provide updates as they become available.

The “Strengthening the H-1B Nonimmigrant Visa Classification Program” rule has been submitted to the Office of Information and Regulatory Affairs (OIRA) for review and could be published by the end of the year – or earlier. Although the text of the rule is still not public, it is generally believed that the proposal will formalize some of the policies that USCIS has already been using over the past years to issue Requests for Evidence and to deny H-1B petitions, including:

This rule is likely to create additional uncertainty for foreign nationals and employers who rely on H-1B visas, particularly in the technology, biotech, finance and healthcare industries.

Under the Administrative Procedures Act (APA), once OIRA review is successfully completed, the new rule can be published in the Federal Register. This rule is classified as an Interim Final Rule, meaning the rule will go into effect immediately without a pre-publication notice and comment period. By formally establishing these policies through the rulemaking process, DHS will make it harder for individual employers to challenge denials in federal court. On the other hand, because the rule is being submitted as an Interim Final Rule, that in itself is likely to invite a court challenge.

Although the specific regulations have not been disclosed, employers who currently use H-1B workers have been significantly impacted by the policies the Administration may be now formalizing. Nonetheless, the new rule is currently designated as not economically significant.

We will continue to closely follow the process of this rulemaking. If you have any questions about how this rule might affect your business plans and strategies, Jackson Lewis attorneys are available to assist you.

 

Acting quickly, as he promised, Judge Ahmit P. Mehta in Gomez v. Trump, recognized the particular urgency of the Diversity Visa plaintiffs’ situation and granted them injunctive relief.  Judge Mehta ordered the Department of State (DOS) to make good faith efforts to “expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications” and issue visas to those eligible by September 30, 2020 – the deadline for the Diversity Visa program.

Judge Mehta’s ruling was not based on the Presidential Proclamations per se.  Instead, he opined that the Presidential Proclamations blocked entry of certain immigrants and non-immigrants but that did not justify the institution of a “no-visa” policy. DOS could not simply decide to suspend visa processing and in so doing, basically “extinguish” this year’s Diversity Visa program.

Although Judge Mehta did not find that the other immigrant and non-immigrant plaintiffs were entitled to injunctive relief, he did state they were likely to succeed in their case against DOS. He distinguished between the harm done to the Diversity Visa applicants who would lose their singular chance to obtain Green Cards if their visas were not adjudicated by September 30th and the situation of other applicants.  Those people, although suffering harm, were not subject to a specific statutory deadline and would not gain anything if their visas were promptly adjudicated because they could not in any event enter the U.S. now due to the entry ban in the Presidential Proclamations.

Jackson Lewis will continue to follow this litigation and any DOS reaction as well as any changes or further guidance regarding the Presidential Proclamations and travel waivers.

 

Foreign students wishing to study in this country may have whiplash over the Trump Administration’s many moves.

Early in 2020, a federal court blocked the Department of Homeland Security (DHS) from changing the rules regarding duration of status admission to the United States. Under the Trump Administration’s proposed policy, students might unknowingly accumulate unlawful presence and become subject to the three- and ten-year bars to admission. The Court found the policy violated not only the Administrative Procedures Act (APA), but also the Immigration and Nationality Act (INA). Colleges hoped the Administration would not appeal the decision and put foreign students back into limbo. But the Administration did appeal. Then, at the end July, the Administration unexpectedly withdrew its appeal. That may just mean, however, that the Administration is planning to try a different route to achieve its goals.

Proposed rules changing unlawful presence calculations, changing the duration of status designation, establishing a fixed time period for admission, and reforming practical training options have been on the DHS’s regulatory agenda for some time. When the Spring 2020 Regulatory Agenda appeared (late) on June 30, 2020, those proposed rules were all there again – scheduled for publication by the end of 2020. While the schedules set out in regulatory agendas are frequently aspirational, with the presidential election looming, the Administration may want to fast track some of these agenda items.

During the COVID-19 pandemic, the Administration has taken 740 administrative actions thus far. Some actions it would like to make permanent. In the proclamations the President issued in April and June 2020 that block the entry of immigrants and non-immigrants in H, L, and J status, the Secretaries of State, Homeland Security, and Labor were ordered to issue regulations to ensure foreign nationals would not disadvantage U.S. workers. Regulations regarding student status and student work authorization could fall into that category, along with regulations tightening H-1B requirements and removing H-4 EADs.

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

Some 50,000 foreign nationals with approved Lawful Permanent Residency (Green Card) applications have been waiting for months to receive their cards, which provide proof of lawful permanent resident status. Without these cards, the foreign nationals will have difficulty travelling internationally and proving employment authorization. Causing further stress to these individuals is the requirement under the Immigration and Nationality Act (INA) that permanent residents should always carry their Green Cards.

How did this happen? USCIS cancelled its printing contract with an outside vendor, creating a delay in printing not only Green Cards, but also 75,000 Employment Authorization Documents. Once the printing was brought in-house with USCIS, it did not keep up with demand. The ongoing threat of USCIS employee furloughs and budgetary constraints has only exacerbated the issues. Like a Greek tragedy where everything goes wrong that can go wrong, the onset of the COVID-19 pandemic closed USCIS Field Offices, which made it impossible for individuals with approved cases to get temporary I-551 stamps proving permanent residence, foreclosing another way for them to prove their status.

Concerns over the printing problems have been raised and even litigated with respect to EAD cards. In Subramanya v. USCIS, a Consent Order was issued that set a specific schedule for EAD card production and adopted an interim rule that allows individuals with certain approved EAD applications to use their I-797 Notices of Approval as List C documents in the Form I-9 employment verification process. But that Order does not apply to and does not help those with approved Green Card applications.

Individuals with approved Form I-485 Adjustment of Status applications, but whose Green Cards have not been printed, can consider taking the following steps:

  • Call the USCIS Contact Center at 1-800-375-5283 and request an appointment at a USCIS Field Office to obtain a temporary Form I-551 stamp (sometimes called an Alien Documentation, Identification and Telecommunications, or ADIT, stamp) as evidence of lawful permanent residence for purposes of employment or travel. Callers should eventually be connected to a “live” representative.
  • The USCIS Ombudsman is sending weekly spreadsheets to USCIS confirming applicants whose cards are awaiting production. Requests for case assistance can be submitted to the Ombudsman at https://www.dhs.gov/topic/cis-ombudsman/forms/7001.
  • If the Green Card is needed for employment authorization and USCIS will not schedule an appointment for a temporary Form I-551 stamp, try the Department of Justice Immigrant and Employee Rights (IER) Section hotline at 1-800-255-7688 (for employees) or 1-800-255-8155 (for employers) for assistance. In some circumstances, the IER can intervene with USCIS to seek additional guidance.

Those waiting for a Green Card renewal or replacement (not an initial Green Card) and have filed a Form I-90 Application to Replace Permanent Resident Card can use the receipt as a List A document for Form I-9 employment verification purposes (for up to 90 days). The receipt also may be an option for international travel, but first ask your immigration lawyer if travel is advisable.

If you have questions about your pending Green Card application, Jackson Lewis attorneys are available to assist you and to strategize about the best avenues to pursue.

In April and June, numerous Presidential Proclamations suspended entry of thousands of legal immigrants and nonimmigrants least until December 31, 2020, using the COVID-19 pandemic as the reason. This is despite the fact that legal immigration has been proven to bring economic growth.

One proclamation affects family-based, diversity visa, and employment based “Green Card” applicants. Another affects those applying for H-1B, L-1, and J-1 visas.

The web of COVID-19 travel restrictions and exemptions has led to a lawsuit seeking to block any further implementation of the proclamations. The plaintiffs and amici in Domingo Arreguin Gomez et al. v. Donald Trump et al. include diversity visa applicants, family-based immigration applicants, advocacy groups, employers, and 21 states. Judge Amit P. Mehta held a hearing on August 27, 2020, on a motion for injunctive relief.

In support of their motion, the plaintiffs contended the Trump Administration is exploiting the COVID-19 crisis to prevent immigration of the sort the President has long opposed. They argued the record does not support the Administration’s contention that allowing immigrants into the U.S. will exacerbate unemployment. They stated that the only evidence on this issue indeed proves the opposite – immigrants are important to the economic recovery. The plaintiffs distinguished U.S. Supreme Court precedent from the Travel Ban case (Trump v. Hawaii), which held that the President has great deal of power in terms of preventing the entry of foreign nationals based upon national security concerns, as long as the policy is not based solely on guesswork. The Gomez plaintiffs argued, however, that this case is very different because there is a clear lack of reasoned decision-making, in violation of the Administrative Procedures Act (APA). Another difference is that the proclamations are adding new visa eligibility requirements – something only Congress can do.

At the hearing, there was sharp argument about how much work is being done by the Consulates and how much more they could be doing at this time. While all of the plaintiffs are being subjected to various levels of hardship due to the proclamations, diversity visa applicants are in a particular bind. If their cases are not adjudicated by the end of the fiscal year (September 30, 2020), they will lose their chance to apply for permanent residence.

Judge Mehta said he will issue his decision as soon as possible.

If an injunction is issued in this case, employers with employees in H-1B, L-1, and J-1 status may be able to move forward with their currently stymied employment and business plans. Jackson Lewis attorneys will provide updates in this important case as soon as they become available.

 

 

Advocacy groups have filed suits challenging the USCIS fee increases scheduled to take effect on October 2, 2020.

The fee increases are not equal across the board. Certain types of business immigration petitions have been targeted for large percentage fee increases: 51% for TNs and E visas, 75% for L petitions, and 53% for O petitions. Further, the increase in naturalization fees and the addition of a nonwaivable asylum fee has sparked opposition. Naturalization fees are going from $640 to $1,170 – an 83% increase. The new asylum application fee will be $50. The United States has never before charged a fee for asylum and will join only three other countries that charge fees for this benefit: Iran, Fiji, and Australia.

The challenges to the fee increases are as follows:

  • A Massachusetts nonprofit was the first to file to prevent USCIS from raising the naturalization fee, contending the fee adds a non-statutory requirement for naturalization — an illegal “wealth test.”
  • In the Northern District of California, Immigrant Legal Resource Center et al. v. Wolf challenges all of the fee increases on the grounds that the fees were proposed and issued under those (Kevin McAleenan and Chad Wolf) not properly appointed to their positions, and therefore, the new rule is unlawful. That suit also contends the naturalization fee increase and asylum fee harm the most “vulnerable” in our society.
  • In the third suit, in the United States District Court for the District of Columbia, Northwest Immigrant Rights Project et al. v. Department of Homeland Security et al., an attorney representing the advocacy group plaintiffs notes, “DHS’s rule is cruel and unlawful. DHS should not use its budget as an excuse to price immigrants out of the opportunity to receive asylum and citizenship ….” The suit challenges not only the fee increases, but also USCIS’ implementation of changes to the fee waiver rules that makes it much more onerous for applicants to obtain fee waivers.

The challenges to the fee increases are reminiscent of the challenges to the Administration’s proposed changes to the Public Charge Rule. Like the fee increases, the new Public Charge Rule was seen as a “wealth test” and “backdoor and unlawful approach in the interest of changing the face of immigrants allowed into this country ….”

USCIS is expected to issue new forms by October 2, 2020, to accompany the new fees. If you have any questions about the fees, Jackson Lewis attorneys are available to assist you.

 

 

 

 

The Consent Order and Final Statement (Order) in Subramanya v. USCIS, the case seeking the agency’s issuance of long-delayed Employment Authorization Documents (EADs), has been signed and issued.

Under the Order, approximately 75,000 identified, delayed EADs are expected to be produced and mailed. The Order includes individuals who have EAD approval notices dated from December 1, 2019, through August 20, 2020, but who have not received their corresponding cards. In the meantime, these individuals will be permitted to use their Form I-797 approval notices to complete the Form I-9 employment verification process.

The Order sets out the specific schedule for production and mailing of the EADs as follows:

  • There are 27,829 individuals who have received I-765 approval notices. The production of their cards has been ordered. Their EAD cards should be mailed by August 28, 2020.
  • There are 17,736 individuals who have received I-765 approval notices, but the production of their cards has not been ordered. USCIS claims that is because biometrics are still required. Most of these individuals now have biometrics scheduled on or before September 4, 2020 (17 will not be scheduled until September 15, 2020, and one will not be scheduled until September 22, 2020). USCIS has agreed that these EADs will be mailed within seven business days of the biometrics capture.

Approximately 30,000 EADs were reportedly produced and mailed between July 22, 2020, the date the complaint was filed, and August 20, 2020.

USCIS has been ordered to pay $90,000 to defendants’ attorneys in settlement of all claims for attorneys’ fees and costs. The court will retain jurisdiction and receive reports on compliance until all identified EADs have been mailed.

For questions regarding the Order, please reach out to your Jackson Lewis attorney.

 

USCIS has announced that, due to an “unprecedented” increase in revenues, the source of which is unclear, it would not go forward with the furloughs previously scheduled for August 30, 2020 – at least not until the end of the fiscal year (October 1, 2020).

The USCIS Deputy Director for Policy, Joseph Edlow, stated this will come at a cost. USCIS will be cutting support activities, and anticipates that this will lead to longer wait times for case inquiries and longer processing times for adjustment of status and naturalization cases (a problematic issue in an election year). Average wait times for calls to USCIS to fix errors made by the agency have increased under the Trump administration.

The agency did note, however, that naturalization ceremonies will continue.

Since June 2020, USCIS has been threatening to furlough 13,000 employees (two-thirds of its workforce) due to a purported but unexplained budgetary shortfall for this fee-based agency.

The previous deadline for receipt of $1.2 billion from Congress to stave off the furloughs was August 30, 2020. The House had approved some emergency funding (including raising the cost of premium processing to $2,500 per case), but the Senate has yet to act.

Congress had wanted to avoid this magnitude of operational cuts. USCIS has reiterated that a return to “normal” operations cannot occur without the requested financial assistance. Keep in mind that even before these financial issues were raised, USCIS already had unprecedented delays and backlogs.

As the new October 1, 2020, deadline approaches, Jackson Lewis attorneys will continue to provide updates as they become available.

Due to the continuation of the COVID-19 national emergency, the Department of Homeland Security (DHS) has decided to continue its temporary loosening of H-2A rules to make it easier to employ temporary, seasonal agricultural workers.

Under the rule:

  • Employers can continue to petition to employ foreign workers who are already in the U.S. in H-2A status but who are working for a different employer;
  • Employees will be able to start working for the new employer once the petition has been received by USCIS (but no earlier than the start date on the petition); and
  • Employees will have work authorization for 45 days while the case is pending.

Previously, DHS also allowed workers to remain in the U.S. beyond the usual three-year limit, but that piece of flexibility has been eliminated from the rule extension.

For I-9 purposes, employees may present as List A documentation:

  • An unexpired I-94 showing H-2A status; and
  • An unexpired foreign passport.

In the Additional Information field, employers should indicate:

  • “45 Day Extension”; and
  • The date the I-129 was submitted.

Reverification will be required by the end of the 45-day period.

If you have any questions about H-2A employment or the new rules, Jackson Lewis attorneys are available to assist you.