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.

Judge Amit Mehta in Gomez v. Trump 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.

In response, DOS has issued guidance, but the agency’s “good faith” efforts will not be good enough for many DV applicants. Indeed, DOS said that it does not expect to be able to accommodate everyone. Embassies and consulates have been told they may begin processing DV applications where local health conditions and post resources allow.

Here is the DOS priority list:

  • The named plaintiffs in Gomez
  • Applicants who were already interviewed and are seeking reissuance
  • Applicants whose appointments in March, April, and May were cancelled
  • Applicants with cases pending at the KCC are at the bottom of the list

DOS has advised:

  • DV applicants who had previously scheduled appointments (even if cancelled) are directed to reach out to the relevant embassy or consulate for information about their case.
  • If a post is unable to process cases, an applicant may request a transfer to another post by reaching out to the desired post directly – but not all transfer requests will be accommodated.
  • DV applicants who had valid visas on April 23, 2020 (and therefore, are exempt from the Presidential Proclamation), but could not travel and now have expired visas, may apply to have their visas reissued before the September 30 deadline.
  • Because the 14-Day COVID-19 bans were not part of the Gomez case, DV applicants who are subject to the 14-Day COVID-19 bans (China, Iran, the Schengen Zone, UK and Ireland, and Brazil) may be interviewed, but visas will not be issued to them unless they are exempt or fall within an exception to the those bans.

Once a Diversity Visa is issued, the applicant must be able to enter the United States before the visa expires. In addition:

  • Those who fall within an exemption or exception to the July Presidential Proclamation or the 14-Day COVID-19 bans should be able to enter if their visas are issued.
  • Because immigrant visas generally expire when the underlying medicals expire, applicants may opt to submit a new medical exam with a later expiration date.
  • While there is not much time left and the logistics may not work, it is possible for individuals who are subject to a 14-Day COVID-19 ban to try to wait it out in a non-banned country prior to their visa appointment.

Jackson Lewis attorneys are available to assist with any questions regarding the new DOS guidance.

 

 

On September 11, 2020, the Department of Homeland Security (DHS) will release a new regulation for notice-and-comment that proposes to expand the collection of biometric data and give DHS increased flexibility to deal with emerging needs. Here are a few highlights from the draft 328-page rule.

  • Unless waived by DHS, any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection – regardless of age.
  • There will be new biometrics modalities including iris scans, palm prints and voice prints.
  • DHS may require DNA results to prove the existence of a claimed genetic relationship.
  • Foreign nationals who are granted immigration benefits will be subject to continued and subsequent vetting and biometric evaluation until granted U.S. citizenship.
  • New forms will be produced including the new biometrics requirements.

For employers, this may mean that authorized signatories or others associated with a petition filing could be subject to biometrics screenings – even if they are U.S. citizens. It also means that foreign national employees and their dependents will be subject to continuing surveillance and may need to attend numerous biometrics screenings, even absent a new petition or application. In addition, given the increase in biometrics processing and the new proposed modalities, including more DNA screenings, privacy issues will be of great concern for employers and employees alike.

DHS estimates that the draft rule would increase the number of annual biometrics screenings from 3.9 million to 6.07 million. Currently there is a 46% collection rate across all forms. Under the new rule, that would rise to 71%. This increase would be difficult to implement any time soon given the current backlogs at Application Support Centers.

Many observations and critiques will likely be submitted once the Notice-and-Comment Period opens. Jackson Lewis will continue to follow the rulemaking process and provide updates as they become available.

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.