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.

USCIS is in the process of entering a Consent Order to produce, on a specific schedule, Employment Authorization Document (EAD) cards for those 75,000 foreign nationals who have approved employment authorization applications but have been waiting for inordinate amounts of time for the cards themselves.  Without the cards, these foreign nationals have not been able to complete the Form I-9 employment verification process and unable to work. In the meantime, so that they are not kept waiting any longer, USCIS has agreed to some interim relief.  See our legal update here.

A recent non-binding report by the Government Accountability Office (GAO) found the appointments of Kevin McAleenan and Chad Wolf (both as “acting” DHS Secretaries) and Ken Cuccinelli (senior official performing the duties of the deputy secretary) violated the governing federal and DHS succession rules because they were not eligible for the positions they occupy.

The GAO did not determine who should be in those roles or whether any actions taken by the current leadership are invalid. Those questions were referred to the DHS Office of Inspector General.

The rapidity and breadth of the Trump Administration’s changes to immigration policies, particularly in the past year, have felt a little like being in warp speed on a star cruiser. The rapid governmental changes to long-standing immigration policies, without legislative input or a regulatory process, have come under fire as opponents challenge the validity of these moves. The GAO has given additional ammunition to individual plaintiffs and advocacy groups who seek to argue that the policies are invalid.

In the meantime, in March 2020, a District Court in D.C. ruled that because Cuccinelli had been illegally appointed, the two policies he implemented, which further complicate the process of applying for asylum, were invalid. The Administration initially appealed the decision, but on August 14, 2020 – just as the GAO released its report – the appeal was withdrawn in a victory for the plaintiffs and asylum seekers.

It looks like another asylum-related policy also may be invalidated. The rule scheduled to take effect on August 25, 2020, would prevent asylum-seekers who do not enter the U.S. at designated ports of entry from obtaining work authorization while they wait for their asylum determinations, absent a special showing of “good cause.” Because asylum cases can take years to adjudicate, this proposed rule would financially cripple many asylum seekers and hinder their ability to support themselves or their families. The Maryland District Court judge in that case said the GAO report “aligns closely with her reading of the law and thinking on the plaintiffs’ argument that Wolf and his predecessor, Kevin McAleenan … were improperly appointed.”

If the GAO’s report is upheld, it would mean that policies issued by DHS in the last year-and-a-half could be subject to challenge and potentially invalidated. According to the GAO, Kirstjen Nielsen, who resigned from her post in April 2019, was the last DHS Secretary to be properly appointed. President Donald, Trump, who is fond of “acting” officials because of the flexibility he has over their tenures, may yet have to submit nominees to Senate confirmation hearings.

Any actions taken by DHS or USCIS by McAleenan, Wolf, or Cuccinelli, or under their direction, could be challenged on this score, including: DHS’ failure to accept new DACA applications in defiance of the U.S. Supreme Court ruling, upcoming USCIS fee increases, the Public Charge rule, changes in the treatment of F-1 students, and policy changes around H-1B and L-1 nonimmigrant visas, among many others.

The Administration has responded that the GAO report is “baffling and baseless.” The GAO said it “stands by its decision.” Further litigation is expected on this topic, but, given the appeals process, there may not be any final decisions prior to the November election.

Jackson Lewis attorneys will provide updates as they become available.

 

USCIS may be close to negotiating an agreement that would mean EADs for thousands of foreign nationals with approved applications will finally start to be produced.

Yet, first-time EAD applicants who are in H-4 or L-2 status may still face impediments. In March, when the COVID-19 crisis began and USCIS offices closed, the Application Support Centers (ACS) had to reschedule biometrics appointments. The biometrics appointment is essential and a precondition to USCIS issuing a final determination. Although USCIS agreed to reuse previously submitted biometrics to expedite processing, first-time applicants (or applicants who were not previously required to submit biometrics) had no recourse but to wait.

When ASCs started to reopen in June, individuals with appointments were subject to COVID-19 precautions, including face coverings (which may be removed for identification or photographing purposes) and social distancing. These limitations have resulted in ASCs limiting the number of daily appointments. It appears that some individuals have been told that appointments will not be available until October.

It is reported that during a three-week period, starting in mid-July, ASCs completed approximately 74,000 biometrics appointments. But on an average day pre-COVID-19, 14,000 were photographed and fingerprinted across all the field offices and ASCs. So, the backlog continues and the possibility that USCIS may furlough two-thirds of its workforce by the end of August will only exacerbate the problem.

Those who do get appointments for biometrics, interviews, or naturalization ceremonies must remember to comply with the current USCIS Visitor Policy:

  • Wear face coverings;
  • Follow signage related to social distancing;
  • Be aware that USCIS is placing specific limits on those who can accompany applicants with scheduled appointments; and
  • Do not bring or invite guests to naturalization ceremonies.

Individuals will not be allowed to enter a USCIS office if they:

  • Are experiencing symptoms of COVID-19;
  • Have had close contact within the last 14 days with a person known or suspected to have COVID-19;
  • Have been instructed by a healthcare provider to public health authority to isolate or self-quarantine with the last 14 days; or
  • Refuse to wear a face covering in accordance with USCIS policy.

USCIS asks anyone who feels sick to reschedule their appointments.

If you have any questions regarding these regulations, please reach out to your Jackson Lewis attorney. We are available to assist you in interpreting the rules and advising on how to proceed.

ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 30 days, until September 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. After all, can the employer do I-9s in person if Human Resources staff are not on site or if the new employees must work remotely because they are high risk for COVID-19? Of course, employers maintain the option of using agents or authorized representatives to review I-9 documentation at remote locations.

Importantly, 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.