The entry period for the 2022 Diversity Immigrant Visa (DV) Program will open on Wednesday, October 7, 2020 at noon, Eastern Daylight Time (EDT) and will close at noon EDT on Tuesday, November 10, 2022.  There is no cost to register.

Individuals born in the following countries are not eligible to apply because more than 50,000 natives of those countries have immigrated to the United States in the past five years: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  Individuals born in Macau SAR and Taiwan are eligible.  It is notable that last year individuals born in Hong Kong SAR were also eligible, but this year, they are not.

Although there is no cost to register, individuals may not submit more than one application.  Doing so will lead to disqualification.  Eligibility requirements are set out on the Diversity Lottery website.  The Department of State (DOS) recommends that applicants apply early and not wait until the last week when heavy demand could lead to website delays.  Applicants must apply online.  No late or paper entries will be accepted.

The DV Program is continuing despite the Administration’s long-stated intention to eliminate it and this year’s Presidential Proclamation that made it impossible for all of the 2020 DV Program winners to apply for immigrant visas.  Those DV Program lottery winners sued the Administration and gained some relief.  They recently asked Judge Amit P. Mehta, the presiding federal judge in the District of Columbia, to preserve 30,000 visas for 2020 DV applicants beyond the September 30, 2020 deadline.  Judge Mehta did so but lowered the figure to 9,095 based upon his estimate of the number of visas DOS reasonably could have processed during the six months in which it illegally refused to process DV Program applications.  With the additional 9,095 visas, the total number issued for the 2020 Program would be about 24,000 – still far short of the close to 50,000 usually issued.

If you have questions about the DV Program 2022 process, Jackson Lewis attorneys are available to assist.

The Department of Homeland Security (DHS) is making it a little easier for some foreign nationals to fly to the United States by lifting certain restrictions in place following the outbreak of the COVID-19 pandemic.

Under the restrictions, any airplanes carrying passengers who had recently travelled to or had been present in China, Iran, the 26 countries in the Schengen Area, the United Kingdom, Ireland, and Brazil but were exempt or received waivers to enter the U.S. were required to land at a limited number of U.S. airports. At those designated airports, there were public health resources for conducting enhanced entry screening. The 15 international airports were in:

  1. Atlanta
  2. Boston
  3. Chicago
  4. Dallas-Fort Worth
  5. Detroit
  6. Fort Lauderdale-Hollywood
  7. Honolulu
  8. Houston
  9. Los Angeles
  10. Miami
  11. New York City
  12. Newark
  13. San Francisco
  14. Seattle-Tacoma
  15. Washington-Dulles

Now, those restrictions have been lifted. This change should make it easier for covered travelers, as they will have more flights, more airlines, and more U.S. arrival destinations to choose from for international travel.

According to its announcement, DHS hopes to stimulate air travel while using its health resources more effectively. Due to COVID-19, TSA hit a low point in daily travelers in mid-April – 87,534. On September 20, 2020, TSA reported 847,968 – a 10-fold increase. But, about three times as many passengers were screened on the same date in 2019 – 2,517,826.

Despite the changes, DHS will continue using an illness reporting system and passenger education for all arriving passengers, along with other TSA health measures. So that passengers and TSA employees “Stay Healthy and Stay Secure” during the screening process, the Agency has instituted, among other things:

  • Social distancing
  • A mask requirement
  • Plastic shielding
  • Increased cleaning
  • To make screening more “contactless”:
    • Each traveler holds their own IDs and boarding passes and places them on the reader, rather than handing the documents to the screener
    • Screeners will use new gloves for each pat down and new explosive trace swabs for each passenger
    • Belts and other items, including change and paper currency, that must be removed from pockets will be placed in the traveler’s own carry-ons, not in bins
  • Each traveler will be allowed to have up to 12 ounces of hand sanitizer in their carry-ons
  • To accommodate identification problems caused by COVID-19 closings:
    • Driver’s licenses or state-issued IDs that expired on or after March 1, 2020, and could not be renewed can be used as identification for up to one year after expiration
    • REAL ID enforcement deadline originally scheduled for October 1, 2020, has been changed and pushed out until October 1, 2021

Even though international travel is down, TSA still recommends arriving early for flights because COVID-19 has affected staffing throughout the airport environment.

If you have questions about international travel and visa restrictions, Jackson Lewis attorneys are available to assist you.

 

A federal judge in California has enjoined the USCIS’ new fee rule just a little more than a day before petitions and applications had to be postmarked.

Judge Jeffrey S. White’s decision in Immigrant Legal Resource Center v. Wolf was based on a finding that Chad Wolf’s appointment to the position of Acting Secretary of Homeland Security was invalid under the rules of succession and, therefore, the new rule itself was invalid. The Judge also determined that there likely were violations of the Administrative Procedures Act (APA). The rule was “arbitrary and capricious” because, among other things, the Administration failed to explain in detail how it determined that the fee increases were needed and did not adequately consider the impact on applicants – particularly the negative impact on low-income populations, the Judge stated.

While the new fee rule affects and increases fees for many business-related immigration petitions, this case was focused on the increase in naturalization fees, the addition of asylum fees, and the change in fee waivers. Nevertheless, the Judge chose to enjoin the entire rule.

Although Judge White refused the Administration’s immediate request for a stay, he stated that if an appeal is filed, “nothing in this Order shall preclude [the Administration] from filing a motion to stay.” Meanwhile there are two more cases challenging the USCIS fee rule in federal courts in D.C. and Massachusetts.

We await guidance from USCIS and a response from the Administration. We will provide updates as they become available.

While it typically uses the “Final Action Dates” chart for accepting adjustment of status application filings, U.S. Citizenship and Immigration Services (USCIS) has announced that for October 2020, it will allow employment-based adjustment of status applicants to file based upon the U.S. Department of State’s (DOS) October “Dates for Filing” chart.

This means that individuals will be able to file their adjustments in October 2020, even though their Green Card cases may not be adjudicated for years – until they reach their “Final Action Dates.” The DOS Charts can be found here. The USCIS page confirming that adjustment applications can follow the “Dates for Filing” chart can be found here.

The main advantage to filing adjustments is that 180 days after filing, applicants become portable – meaning that they can change jobs within the same occupational category without having to have a new PERM case filed. Similarly, those who file may maintain their underlying visa statuses, although they do not have to. Instead, they can remain in the United States while their cases are pending and rely on EADs and advance parole for work authorization and travel.

Of course, applicants are not the only beneficiaries of this big push forward. USCIS has been suffering. A decrease in filings has led to a severe budget deficit. The agency had planned to furlough two-thirds of its workforce on October 1, 2020. These additional adjustment of status filings may help the agency defray costs with a much-needed injection of cash, the greater because new, increased filing fees will go into effect on October 2, 2020. After October 2, 2020, adjustment of status application fees will no longer include employment authorization and advance parole applications. There will be separate fees for those applications totaling more than $1,000. In addition, children under 14 will no longer have reduced fees – further driving up fees for families applying for green cards. Another fee-producer is in the fact that the “Dates for Filing” chart provides a much more advanced available filing date for Employment-Based Third-Preference (EB3) applicants than for Second-Preference (EB2) applicants. That will give employers an option to file an amended I-140 petition, each carrying a $555 filing fee, along with the adjustments of status. The agency stands to receive a multimillion-dollar cash infusion.

If you have questions about the October 2020 Visa Bulletin, please reach out to your Jackson Lewis attorney.

 

Foreign students soon may find themselves subject to new policies and processes regarding their status in the United States.

U.S. Immigration and Customs Enforcement (ICE) has released for comment its proposed rule Establishing a Fixed Time Period of Admission and an Extension of Stay Procedures for Individuals in F, J and I Status. The 31-day comment period will run until October 26, 2020. The primary purpose of the proposed rule is to replace the Duration of Status (D/S) entries with a regime under which students and others will be admitted for specific periods of time, will need to apply for extensions of stay, and may accrue unlawful presence if they overstay or fall out of status.

In 2018, the Administration issued a policy memorandum that would have accomplished the same goals as the proposal. Enjoined by Judge Loretta Biggs in Guilford College v. Chad Wolf, the government was stopped from enforcing its new policy. The court found the policy violated not only the Administrative Procedures Act (APA), but also the Immigration and Nationality Act (INA). The Administration appealed, but then unexpectedly withdrew its appeal. This led many to think the Administration was going to take a new approach and submit a new rule for notice and comment to overcome at least some of the problems identified by Judge Biggs – and that is what happened.

Under the proposed rule, D/S admissions will end for all those in F, J, and I status. Below are some of the highlights of the proposed rule for F-1 students:

  • Students will no longer be admitted in D/S status. Instead they will be admitted until the end date of their programs – not to exceed 2 or 4 years.
  • To promote E-Verify usage, students at schools that use E-Verify may be able to receive 4-year admissions while students at schools that do not will be subject to 2-year admissions.
  • The 60-day grace period at the conclusion of status will be reduced to a 30-day grace period.
  • To remain in the U.S. beyond their initial admission period, students will have to apply to USCIS for an extension of stay and biometrics will be required.
  • Students will become subject to accruing unlawful presence.
  • Students will not be able to change programs within the same educational level more than twice and will not be able to change programs to a lower educational level more than once.

More favorable for students, under the proposed rule, Cap-Gap work authorization will be extended until April 1 of the fiscal year in which a Cap H-1B change of status is filed.

The proposed rule also establishes a transition period. When the new rule goes into effect, students maintaining valid status will be able to remain in the U.S. until the end dates of their programs (per their I-20s), not to exceed four years plus 60 days from the effective date of the rule. This, however, will not apply to any students who travel outside of the U.S. during the four-year period. Such travel will subject a student to the new fixed term admission rules.

If you have any questions about this rule or would like assistance in submitting comments, Jackson Lewis attorneys are available to assist you. As the rule goes through the notice and comment process, we will provide updates as they become available.

The Department of Homeland Security (DHS) may resume implementation of the new Public Charge Rule, the U.S. Court of Appeals for the Second Circuit has ruled.

The factors that are considered under the new Public Charge Rule include the applicant’s use of public benefits, employment status and history of employment in the U.S., among others.

Since 2018, the Administration has been trying to enforce a new Public Charge Rule that expands the public benefits that would render an alien a “public charge,” thereby limiting the ability of certain immigrants and non-immigrants to obtain visas. When the 447-page Public Charge Rule was published, it immediately became controversial as a “wealth test.” Cities, states, and advocacy groups also opposed the new rule because it would result in immigrants forgoing benefits such as basic health benefits for themselves and even for their U.S. citizen children due to fear of potential adverse immigration consequences.

States and advocacy groups filed suits and injunctions preventing the U.S. Citizenship and Immigration Service (USCIS) from proceeding with implementation were issued. The U.S. Supreme Court lifted one injunction in January 2020 and the new rule was set to become effective on February 24, 2020. However, due to the national emergency caused by the COVID-19 pandemic, a new injunction was issued by the U.S. District Court for the Southern District of New York on July 29, 2020. That injunction was completely overturned by the Second Circuit on September 11, 2020.

USCIS announced on September 22, 2020, that it would apply the new rule to all relevant applications or petitions postmarked or submitted electronically on or after February 24, 2020, including pending applications and petitions. It would do the following:

  • Applicants who filed Form I-485 Applications to Register Permanent Residence or Adjust Status after February 24, 2020 (but before the announcement) may receive Requests for Evidence requiring them to submit a Form I-944, Declaration of Self-Sufficiency, in accordance with the new rule.
  • Any applicants who submit Forms I-485 between September 22 and October 13, 2020, that do not include the evidence and forms required under the new rule will be asked to submit the missing forms and evidence.
  • After October 13, 2020, Forms I-485 that do not include the evidence and forms required under the new rule will be rejected.
  • The Form I-944 (which had been temporarily removed from the USCIS website) has been republished.
  • USCIS also announced that it would ask for any missing evidence for the following forms:
    • I-129, Petition for Nonimmigrant Workers;
    • I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Workers;
    • I-539, Application to Extend/Change Nonimmigrant Status; and
    • I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

USCIS announced it will not re-adjudicate any applications or petitions that were already approved following the July 29, 2020, injunction.

The Department of State (DOS) issued its last guidance regarding the application of the new rule in August 2020. At that time, DOS stated that the Form DS-5540, Public Charge Questionnaire, was not required due to the then-current injunction. DOS likely will provide an update.

Please reach out to your Jackson Lewis attorney with any questions about the new Public Charge Rule. We will continue to provide updates as they become available.

 

 

On September 15, 2020, Judge Amit P. Mehta filed an amended order in Gomez v. Trump in response to the Department of State’s (DOS) guidance regarding the processing of Diversity Visa applications. DOS had announced that it would not issue visas to applicants who were subject to the “14-Day Quarantine” rule if they were not exempt or had not completed a 14-day quarantine elsewhere. Judge Mehta found this was “illogical” and “at odds with” his previously issued injunction. DOS has yet to respond.

Jackson Lewis attorneys will monitor further developments and provide updates accordingly.

Temporary Protected Status (TPS) beneficiaries from El Salvador will likely have a longer wind down period than beneficiaries from other countries impacted by the recent Ninth Circuit decision.

In October 2019,  the United States entered into an agreement with El Salvador addressing national security concerns. El Salvador agreed to implement information sharing, border and aviation security, and other internal diplomacy reforms. In return, Salvadoran TPS beneficiaries were granted an extra 365 days of TPS to repatriate “after the conclusion of the TPS-related lawsuits.” Exactly when those additional 365 days would begin is not immediately apparent, nor is whether these TPS beneficiaries would continue to be eligible for employment authorization, but Jackson Lewis attorneys will continue to monitor developments and provide updates, including as to any upcoming appeals, as they become available.

Days before the upcoming deadline, ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 60 days (instead of just 30 days), until November 19, 2020, due to continued precautions related to the COVID-19 pandemic.

Pursuant to the original guidelines for virtual verification, eligible employers may continue to inspect Section 2 documents without an actual in-person physical inspection (e.g., over video link, fax, or email). As before, the policy applies only to employers and workplaces that are in fact operating remotely. The latest announcement states that if any employees are physically present at the worksite, in-person physical inspection of the I-9 documentation must occur. In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. How and whether ICE will be reasonable is yet to be seen. Rather than using virtual inspection, employers still have the option of using agents or authorized representatives to review I-9 documentation at remote locations.

Keep in mind that all employees who were onboarded virtually must report within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

Jackson Lewis attorneys are available to assist you in creating “best practices” regarding I-9 compliance and preparing for possible upcoming investigations and audits.

The Trump Administration’s effort to end Temporary Protected Status (TPS) for approximately 250,000 people from El Salvador, Nicaragua, and Sudan has been upheld in a split ruling from U.S. Court of Appeals for the Ninth Circuit in Crista Ramos, et al. v. Wolf, et al. TPS for Honduras and Nepal likely will be affected by this ruling as well, adding approximately 57,000 and 9,000 beneficiaries, respectively.

While the Ninth Circuit also upheld termination of TPS for individuals from Haiti, a separate injunction currently preventing the termination of TPS for Haiti remains in place and is not affected by the Ninth Circuit Order.

These work-authorized beneficiaries, many of whom have been in the U.S. for more than two decades, are thoroughly entrenched in their communities, have homes, jobs, and as many as 200,000 U.S.-born children.

As part of an anti-immigration platform, the Trump Administration has been working to terminate TPS for many countries since 2017. In 2018, California Federal Judge Edward M. Chen issued a nationwide preliminary injunction. He explained that the equities definitively favored the plaintiffs, many of whom have U.S. citizen children who know no other home than the one they have here. The plaintiffs were facing a “Hobson’s choice” of leaving the country without their children or leaving with their children and depriving them of their lives in the U.S. The Judge also found the U.S., rather than suffering harm from the continuation of TPS, might suffer economic harm due to the TPS terminations. Such prospective harms could include: $132 billion loss in GDP and $5.2 billion loss in Social Security and Medicare contributions – this was before the current economic crisis brought on by COVID-19. The Judge also found that terminating TPS could lead to $733 million in turnover costs in industries that employ TPS beneficiaries: “construction, hospitality, food service, landscaping, home health care, child care and retail . . . .”

On the basis of Judge Chen’s injunction, the Department of Homeland Security (DHS) has been extending TPS or TPS employment authorization while the case has made its way through the appeals process. On November 4, 2019, DHS again extended TPS-related forms and documents until January 2, 2020. The agency announced that if the government prevailed in its challenge to the injunction, there would be a wind down period of at least 120 days to allow for an “orderly transition.”

The purpose of the wind down period was to give the beneficiaries some time to prepare to leave the country or seek some other status in the United States. For many, this will include not only making wrenching choices about their children, but also selling homes during a pandemic or facing possible deportation. While it is possible for some TPS beneficiaries to change status, adjust status to permanent resident, or apply for asylum, the options are limited.

Plaintiffs likely will appeal the ruling and seek to maintain the status quo until all appeals are finalized. Numerous employers will be affected by this ruling, as TPS beneficiaries provide valuable labor in job sectors where workers are scarce, such as the construction, landscaping, and food services industries.

Jackson Lewis attorneys will continue to follow this case and are available to assist with strategies and discuss options to deal with the current TPS situation.