U.S. Citizenship and Immigration Services (USCIS) has issued an alert on delays in processing receipt notices due to the surges in petition filings at lockbox facilities because of the COVID-19 pandemic and the agency’s “flexibility” in response.

Due to the COVID-19 pandemic, many foreign nationals continue to be stuck and unable to leave the United States at the conclusion of their approved stays – either because of their home country travel restrictions, flight restrictions, or the rising COVID-19 cases abroad.  USCIS has suggested that those who unexpectedly have to remain in the United States beyond their authorized stay apply for an extension or change of status on a Form I-539 application. Individuals who timely file (prior to their expiration date) will not accrue unlawful presence. For many, just preparing a filing could be delayed because of lockdowns, illness, and other circumstances related to remote work. USCIS has excused delays that are due to extraordinary circumstances beyond the applicant’s control, including some caused by COVID-19. USCIS may use its discretion to excuse a delay on a case-by-case basis if the request is accompanied by credible evidence that the delay was beyond the applicant’s control and that it was commensurate with the circumstances.

Given the continuation of the pandemic and USCIS’ “flexibility,” it is not surprising that requests for extensions of stay have been soaring during the pandemic. In May 2020 alone, USCIS received 67,000 Form I-539 requests – four times the usual monthly average, with the B-2 Visitor category leading the way. There was a 500% increase in May 2020 compared to May 2019. May 2020 also saw a 100% increase in change of status requests from the previous year – from 4,000 to 8,000. Similarly, online filings increased as individuals struggled to avoid paper filings that would require services that might not be readily available – paper supplies, printing, and mailing.

In the meantime, the increase in filings may have exacerbated the “crisis level” delays and backlogs at USCIS. Between 2014 and 2019, overall case processing time rose by almost 100%. Currently, extension of stay and change of status requests can take from 4 months to 22 months to process. USCIS has been given the authority to institute premium processing for Form I-539 applications (as well as other petitions and applications), but that has yet to be implemented.

The way out of this situation, immigration advocacy groups have suggested, is more Congressional oversight and termination of new policies that are creating delays.

If you have any questions or need assistance regarding new rule changes or USCIS flexibility, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have allowed some flexibility due to the COVID-19 pandemic. Here are some of the changes in effect:

  • Virtual Inspection

Since March 2020, employers may inspect Section 2 documents virtually, e.g., over video link, by fax, or by email. This policy applies only to employers with workplaces that are operating remotely and if employees are not physically present at the workplace. Employees who are onboarded virtually must report for in-person verification once the employer’s normal operation resume or the employee is physically present at the work location, whichever is earlier. This policy has been extended until December 31, 2020 – but may be extended further.

  • EAD Approval Notices

Although an employee always may choose which documentation to produce, individuals whose sole work authorization document is an Employment Authorization Document (EAD) must present an unexpired EAD card for I-9 purposes. However, due to the USCIS backlog in  producing the EAD cards and subsequent litigation forcing the government’s hand, certain new employees and those needing to reverify their employment authorization may present Form I-797 approval notices instead of EAD cards if: the Form I-797 Approval Notice Date is between December 1, 2019, and August 20, 2020, and the employee can present (or has previously presented) an acceptable List B identity document. This will be in effect until February 1, 2021. Then the employee will need to present either a List A (such as an EAD card) or a new List C document.

  • TPS Beneficiaries

The DHS has announced automatic extension of work authorization until October 4, 2021, for certain Temporary Protected Status (TPS) beneficiaries due to pending litigation. Beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who are covered will need to present their expired EAD card along with the Federal Register notice announcing the automatic extension. For employees whose work authorization must be renewed, Section 2 should be updated. Reverification will not be required until October 5, 2021.

  • Deferred Action for Childhood Arrivals (DACA)

The termination of DACA has been set aside, but DHS did not return to the “status quo ante.” For a brief time, DHS refused to issue EAD cards to DACA beneficiaries for more than one year at a time, instead of the usual two years. Now, due to a court order, DHS must issue two-year renewals. USCIS has stated it will take appropriate steps to provide evidence of the full two-year employment authorization under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.

  • Expired List B Documents

Because of stay-at-home orders and restrictions on some document renewal services, starting on May 1, 2020, USCIS announced that List B identity documents set to expire on or after March 1, 2020, could be treated the same as if the employee presented a valid receipt for an acceptable document for I-9 purposes. There will be a 90-day grace period once this flexibility terminates.

  • H-2B Flexibility

Non-E-Verify employers with properly filed H-2A extension of stay petitions for H-2A workers currently employed by a different company may start employing those employees beginning on or after the date USCIS receives the extension of stay petition, but no earlier than the start date of employment listed on the petition. The extension petition must be filed on or after August 19, 2020, and no later than December 17, 2020. The employee’s unexpired I-94 indicating H-2A status along with their foreign passport qualify as a List A document.

Jackson Lewis attorneys are available to assist in navigating these and other new flexibilities, reviewing I-9 documentation, and helping employers to prepare for post-COVID-19 audits.

 

The Optional Practical Training Program for F-1 students (OPT) is not illegal, a federal judge has ruled in a case brought by Washington Alliance of Technology Workers (Washtech), a union representing workers in science, technology, mathematics, and engineering.

Criticism of OPT; Increased Scrutiny

Despite evidence that OPT is good for the economy and does not limit job opportunities for U.S. workers, opponents have questioned the program for years. In 2012, Senator Charles Grassley (R-IA) asked the Government Accountability Office (GAO) to investigate whether the program might undermine U.S. workers. Similarly, the Trump Administration has talked about reforming the OPT program since 2017, when a new proposed rule “intended to reduce fraud and abuse” appeared on the 2017 DHS Regulatory Agenda. While no large-scale reforms have materialized, the Department of Homeland Security (DHS) has increased scrutiny of the programs, announcing increased compliance inspections at worksites and talking about targeting Designated Student Officials (DSOs) at universities who approve OPT.

Litigation

Washtech has battled OPT through litigation since 2014 in the federal district court for the District of D.C. Washtech asked to have OPT declared illegal. DHS has been in the position of defending a program that the Administration did not favor.

In 2019, intervenors joined the case to vigorously defend the program. The intervenors included the National Association of Manufacturers, the Chamber of Commerce of the United States of America, and the Information Technology Industry Council. Amicus briefs also were filed in favor of OPT by public and private universities and colleges.

On November 30, 2020, Judge Reggie B. Walton denied Washtech’s claim that OPT was illegal. He is expected to issue a full memorandum and decision by the end of January 2021. Because the November 30 decision is not a final order, it is not yet subject to appeal. This means that OPT likely will outlive the current Administration. Immigration advocates are hopeful.

OPT draws students from all over the world to American universities and colleges. Given that these institutions recently have seen a 43% drop in foreign student enrollment, Judge Walton’s decision could not be more timely.

Jackson Lewis attorneys will continue to follow this case and provide updates as they become available.

Temporary Protected Status (TPS) for South Sudan has been extended again until May 2, 2022. The instructions for beneficiaries have been published in the Federal Register. Through January 4, 2021, TPS beneficiaries who have not already done so should re-register and apply to renew their Employment Authorization Documents (EADs). Those with EADs that expired on November 2, 2020 are entitled to a 180-day automatic extension of work authorization until May 1, 2021. Once the extension requests are adjudicated, those who are eligible will have their EADs extended until May 2, 2022.

In the meantime, despite the Trump Administration’s attempt to terminate TPS for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, they have all had their statuses extended until October 4, 2021 in light of ongoing litigation.

Jackson Lewis attorneys are available to advise you regarding these extensions and terminations and how to proceed with Form I-9 employment authorization.

The Department of Homeland Security (DHS) announced a further extension of status and work authorization until October 4, 2021, for Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan on December 9, 2020.

TPS allows individuals to remain in the U.S. because of disease, natural disaster, or conflict in their home countries. Approximately 400,000 nationals from 10 countries have been granted TPS. Many of those beneficiaries have been in the U.S. for years and have U.S. citizen children. Since 2017, the Trump Administration has been trying to terminate TPS for most countries. Some of the Administration’s actions, however, have been enjoined by court challenges that are still continuing. In response to court orders, DHS has been extending both TPS and work authorization for the covered beneficiaries.

As of December 9, 2020, work authorization for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will be extended automatically if:

  • The individual’s current EAD was issued with an A-12 or C-19 category code, and
  • Carries an expiration date of:
    • July 22 or November 2, 2017
    • January 5, January 22, March 9 June 24, July 5, or November 2, 2018
    • January 5, April 2, June 24, July 22, or September 9, 2019
    • January 2, January 5, or March 24, 2020
    • January 4, 2021

Forms I-94 and I-797 also will be automatically extended until October 4, 2021, if the beneficiaries properly filed for re-registration during one of the DHS-announced re-registration periods.

To complete or update Form I-9 Work Authorization Verifications, the beneficiary may present their EAD card (with one of the above expiration dates) along with the Federal Register notice automatically extending work authorization until October 4, 2021.

Extending work authorization for current employees based upon this automatic extension does not require Form I-9, Section 3 reverification. Instead, the employer should update the Section 2 Additional Field noting EAD EXT, October 4, 2021 (and then initial and date the correction). In this situation, reverification would not be required until October 5, 2021.

If any of the cases that have blocked the TPS terminations conclude in the government’s favor before October 4, 2021, DHS has promised there will be winddown periods of at least 120 days to allow a reasonable repatriation. Since President-Elect Joseph Biden has pledged to review TPS for those in vulnerable populations who cannot safely return to their home countries, it would seem that the timing of the extension, along with the upcoming inauguration, may favor those in TPS.

For more information about TPS work authorization, please reach out to your Jackson Lewis attorney. You may also refer to our TPS Tool.

On December 2, 2020, the Ninth Circuit Court of Appeals upheld preliminary injunctions blocking USCIS from enforcing the “new” Public Charge Rule in 18 states and the District of Columbia.

The Court found the rule was inconsistent with any reasonable interpretation of the statute which requires long-term dependence on government support, not temporary resort to supplemental non-cash benefits. It opined that:

Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence.

The Court also found the new rule was “arbitrary and capricious” because the Administration failed to adequately consider:

  • The financial effects of the new rule not only on legal immigrants, but also on the states to which they would turn after withdrawing from federal programs to protect their immigration statuses;
  • The effects on public safety, health, nutrition, hospital resources, and vaccination rates especially in this time of COVID-19; and
  • The abrupt change from the original 1999 guidance that focuses on long-term dependence.

The new Public Charge Rule has been controversial since it was first proposed by the Trump Administration. Characterized as a “wealth test” by immigration advocates, the rule has been the subject of litigation in various jurisdictions. There have been injunctions and stays of injunctions. This has led to a situation where one month, the rule was effect in some jurisdictions, but the next, it was not, and then a little later, it was in effect again. This endless back and forth has meant that applicants for Adjustment of Status and nonimmigrant visas are never quite sure whether the new Public Charge Rule will apply to their applications or not. This uncertainty has been particularly impactful in a year when immigrant visas became available for certain heavily backlogged categories and a significant number of applicants have been able to file Adjustment of Status applications beginning in October. As of November 4, 2020, USCIS was applying the new Public Charge Rule to all petitions postmarked or submitted electronically on or after February 24, 2020. But, USCIS has not yet reacted to the Ninth Circuit’s ruling.

The 18 plaintiff states (plus the District of Columbia) that are affected by the Ninth Circuit’s ruling are: California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Washington and Virginia.

We await the Administration’s review and reaction to the ruling and will provide updates as they become available.

On December 1, Judge Jeffrey S. White granted the plaintiffs’ request to set aside two separate rules issued by the Trump Administration that would have drastically undermined the ability of employers to utilize both the H-1B and PERM visa programs. In Chamber of Commerce of the United States v. United States Department of Homeland Security, Judge White held that the Administration violated the Administrative Procedures Act (APA) when it enacted two rules: the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule (the “Wage Rule”) and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule (the “H-1B Visa Classification Rule”). Both were issued as Interim Final Rules and without the usual Notice and Comment required by the APA.

The new rules threatened to upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. The Wage Rule has been in effect since October 8, 2020, and the H-1B Visa Classification Rule was to go into effect on December 7, 2020.

Judge White stated that he was “once again confront[ing] a challenge to the Administration’s assertion that the H-1B program adversely affects American Workers to such a degree it must take immediate action.” He was not persuaded by the Administration’s arguments that the COVID-19 pandemic created a situation that justified dispensing with “due deliberation” required by the APA, or that giving more notice would have hindered the Department of Labor’s ability to solve the problem it alleged. He found that the Administration could not rely on the pandemic to invoke exceptions to the APA for several reasons, including:

  • The new rules have been on the Administration’s Regulatory Agenda since 2017 – well before the COVID-19 national emergency; and
  • The unemployment rate in the sectors that typically use H-1B visas was only 4.8%, not the skyrocketing rates that have been seen in other sectors during the pandemic.

Judge White had previously enjoined the DHS’ implementation of a new rule that would have increased the USCIS filing fees for many business-related immigration petitions and naturalization and asylum fees, as well as the Presidential Proclamation that suspended the entry of certain individuals in H, L, and J status. These rules have one thing in common: they would disrupt the immigration process in one way or another.

The Administration has not yet responded to Judge White’s new ruling. Jackson Lewis attorneys will provide updates as soon as they become available.

 

Along with extending its flexibility in allowing virtual Form I-9 employment verification until December 31, 2020, USCIS is also continuing its flexibility with regard to long-pending Employment Authorization Document (EAD) applications. USCIS expected that this interim solution would only be necessary through December 1, 2020, but the delays in producing EAD cards have continued.

As a result, USCIS announced that certain individuals may continue to present Form I-797, Notices of Approval, for I-9 purposes until February 1, 2021.  New employees and those needing to reverify their employment authorization may continue to present Form I-797 EAD approval notices instead of EAD cards if:

  • The Form I-797 indicates that the EAD has been approved for at least three months;
  • The Form I-797 has a Notice Date between December 1, 2019 and August 20, 2020; and
  • The employee can present (or has previously presented) an acceptable List B identity document.

The approval notice should be entered on the Form I-9 as a List C document with USCIS as the issuing authority and the 13-digit receipt number as the document number. The expiration date should be listed as February 1, 2021 and reverification should be conducted by that date or sooner if the employee receives their EAD card. Absent any further extensions, by February 1, 2021, the employee will need to present either a List A or a new List C document.

For any employees verified or reverified on the basis of the earlier USCIS guidance who still do not have EAD cards, an extension until February 1, 2021 should be noted in the Additional Information box in Section 2 of Form I-9.

For any questions regarding the Form I-9 process including best practices regarding flexibility in the E-Verify or electronic I-9 database context, Jackson Lewis attorneys are available to provide assistance and guidance.

Once again, just as it was about to expire, ICE has announced a further extension of flexibility in its rules related to Form I-9 compliance. This time, the extension will continue through December 31, 2020.

Employers will be able to continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).

ICE has reiterated that the policy applies only to employers with workplaces that are operating remotely and that if employees are physically present at the workplace, no exceptions will be implemented. Whether ICE will be reasonable and assess circumstances on a case-by-case basis is yet to be seen.

Remember that any employees who were onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be earlier than December 31, 2020) or once the employee is physically present at the work location, whichever is earlier.

If the company does not seem to be eligible for the flexibility, an employer may continue to designate authorized representatives to act on their behalf to conduct in-person review of documents.

With companies in often changing and various stages of returning to workplaces, Jackson Lewis attorneys are available to assist you in determining how the rules apply to your particular circumstances.

Federal District Judge Nicolas G. Garaufis struck down the Administration’s most recent attempt to limit the Deferred Action of Childhood Arrivals (DACA) program. He held that the Acting Secretary of Homeland Security, Chad Wolf, had not been properly appointed and therefore, his recent rollback of DACA was invalid. Rules regarding appointment and succession are meant to ensure continuity of leadership but the Trump Administration has tried to circumvent those rules to place particular candidates at the top of DHS without following the normal Senate confirmation process.

The court’s objection to those actions has set the stage for close to a million people across the country to benefit or continue to benefit from DACA protections while they await the arrival of the next administration. Joe Biden has said that one of his first acts would be to reinstate DACA.

The backdrop of the recent federal court decision is dramatic. The U.S. Supreme Court ruled in June 2020 that the Administration had not properly terminated DACA, leading many (including DACA recipients themselves) to believe that DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Although the Supreme Court decision left the door open to the Administration to terminate DACA through proper administrative processes, the belief was that everything would revert to the “status quo ante” in the meantime. But the Administration saw the Supreme Court opinion differently. On July 28, 2020, Acting Director Wolf issued a memo explaining that the Administration would be reviewing DACA to possibly take the steps to terminate it (per the Supreme Court decision), but until that could occur, DACA would be restricted as follows:

  • DHS would not accept applications for initial DACA applications.
  • Renewals of DACA for current beneficiaries would be limited to one year, rather than the usual two years.
  • Advance Parole would be issued only for urgent humanitarian reasons or for the sake of a significant public benefit.

In response to the suit challenging the July 28th Wolf memo, Judge Garaufis said that, despite the Administration’s various tangled attempts to appoint and reappoint Chad Wolf properly, none of those attempts served to correct the problem. He wished “the government well in trying to find its way out of [its] self-made thicket.”

The ruling was not unanticipated because many other cases have raised the issue, including cases challenging new asylum rules, new USCIS fees, the new public charge rule, and new rules regarding H-1B visas, and judges have been open to the argument. DHS is likely to appeal the ruling because the validity of DHS appointments will continue to thwart and undercut the Administration’s last-minute regulatory efforts.

Jackson Lewis attorneys will provide updates as they become available.