On August 12, 2020, the U.S. Court of Appeals for the Second Circuit limited the nationwide injunction on the Department of Homeland Security’s Public Charge Rule to three states: Connecticut, New York, and Vermont.

Since August 14, 2019, exactly one year ago today, when DHS published the final version of the new Public Charge Rule in the Federal Register, there have been multiple court challenges and the Rule has been widely criticized. With the new Rule, the Trump Administration is imposing additional requirements and background screening for foreign nationals who hope to obtain green cards or secure temporary non-immigrant status.

Due to the litigation, it is still not clear how the agencies will enforce this rule. The following recaps the twists and turns of the litigation:

  • The Rule was supposed to go into effect on October 15, 2019, but just before that could happen, several courts issued injunctions.
  • By February 21, 2020, the U.S. Supreme Court had lifted the last remaining injunction and the Rule went into effect on February 24, 2020.
  • The COVID-19 pandemic crisis began and, on July 29, 2020, the Rule was once again enjoined nationwide by a federal district court in New York because it impeded efforts to combat the disease – immigrants, many of whom are essential workers, were afraid to seek testing and this was detrimental to efforts to combat the disease.
  • USCIS issued guidance that, while the injunction was in effect, petitions and applications would be accepted without public charge information.
  • On August 12, 2020, in response to a request from the Administration, the Second Circuit limited the nationwide injunction to Connecticut, New York, and Vermont.

A USCIS spokesperson reported that the agency is reviewing the Court’s Order and “will determine the administrative viability of reimplementing the Inadmissibility on Public Charge Grounds Final Rule where applicable.”

If you have questions about the applicability to the Public Charge Rule, especially if you live or work outside of Connecticut, New York, or Vermont, Jackson Lewis attorneys are available to assist you.

Assuming there is no further stalling or litigation by the government, Employment Authorization Documents (EADs) may finally be on their way to approximately 75,000 foreign nationals who have been waiting for them, in some cases for months, after having approved application notices in hand.

In Subramanya v. USCIS, federal District Judge Algenon L. Marbley issued a temporary order giving USCIS seven days to produce the backlogged cards. Judge Marbley agreed to continue the hearing on the preliminary injunction until August 24, 2020 to allow the parties time to negotiate a consent degree to resolve the claims. Form I-9 rules do not allow many categories of “alien authorized to work” employees to use the petition approval notices to prove authorization to work—the actual EAD is often needed under the rules.

Since deciding to cancel the printing contract with an outside vendor and bring the production of Green Cards and EADs in-house, USCIS has been unable or unwilling to address the demand or eliminate the backlog. The agency’s plan to hire more workers for this task appears to have been put on hold because of financial mismanagement, or political maneuvering, despite being a fee-based service that has had no financial issues until this year.

Plaintiffs in Subramanya argued USCIS abused its power in an egregious and outrageous manner either with the intention of harming the plaintiffs or out of deliberate indifference to the harms caused. Plaintiffs waiting for EADs have lost wages, lost healthcare, lost jobs, lost the ability to support their families and have even been forced into homeless shelters.  Employers have been forced to terminate valuable employees, losing their expertise and talents. Judge Marbley wrote that although there is no statutory time frame for producing EADs, that “does not mean the agency retains unfettered discretion to issue EADs at any time they wish.” 

Since the failure to produce the EADs is a self-inflicted wound, USCIS needs to take responsibility and solve the problem. The solution may come in the form of a consent decree.  If the agency cannot produce the cards, perhaps it should consider a temporary adjustment to Form I-9 List A documents and allow foreign nationals to work on the basis of their EAD approvals alone.  This would help employees and employers who are already dealing with the COVID-19 crisis. Although those waiting for Green Cards are not part of this litigation, they have been similarly hindered by the lack of card production and also need some form of relief.

It is interesting to note that the named plaintiff in the case has received her EAD but Judge Marbley dismissed the agency’s argument that this made the case moot. Among other things, he noted that the agency cannot just pick off one plaintiff and expect that to mean that the proposed class cannot move forward.

Jackson Lewis will provide updates as they become available.

New Yorkers can once again register for Trusted Traveler Programs.

However, registrants should note that, due to COVID-19, Trusted Traveler Enrollment Centers are closed until at least September 8, 2020.

In early February 2020, the Department of Homeland Security (DHS) prohibited New Yorkers from registering or re-registering for Trusted Traveler Programs, including Global Entry, SENTI, NEXUS, and FAST (Free and Secure Trade). New Yorkers were singled out for this treatment because New York’s Driver’s License Access and Privacy Act, also known as the “Green Light Law,” gave undocumented residents the right to apply for driver’s licenses and prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) absent a court order. At that time, the New York Attorney General sued DHS over New Yorkers’ exclusion from the Trusted Traveler Programs.

In court, the government argued that New York’s Green Light Law prevented CBP from accessing records they needed to vet applicants for Trusted Traveler Programs. In April 2020, New York amended the Green Light Law to allow the DMV to share records “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.” Notably, the case revealed that other states had similar laws to New York’s Green Light Law, that DHS was able to vet program applicants in those states, and that none of those states were “punished” with exclusion from the programs. As a result, the government asked to withdraw their motions for summary judgment and to dismiss, and DHS lifted the suspension on New Yorkers.

New York Governor Andrew Cuomo stated he was “glad that this issue has finally been resolved for all New Yorkers.” But, in a press release, Acting Secretary of the DHS Chad Wolf said he appreciated the information sharing regarding the Trusted Traveler Programs, but chastised New York for continuing to block federal access to DMV records, which he believes “creates a significant threat to both public safety and officer safety.”

Please contact a Jackson Lewis if you have any questions.

New USCIS filing fees will go into effect on October 2, 2020, under a new final rule published by the Department of Homeland Security (DHS) in the Federal Register on August 3, 2020. This rule raises fees by a weighted average of 20% and changes the current fee structure to impose specific fees per visa category.

USCIS, a fee-based agency, has stated the increase in fees was required to avoid a DHS projected deficit of $1 billion per year. Some fees will decrease, but others will increase dramatically – such as a more than 80% increase for citizenship applications. Other larger percentage increases include popular business-related petitions:

  • 51% increase for TN and E petitions to $695
  • 75% increase for L petitions to $805
  • 53% increase for O petitions to $705
  • 34% increase for I-765 Employment Authorization Documents to $550 (excluding DACA)

Employers whose workforce is comprised of at least 50% H-1B or L-1 workers will see even bigger increases. Already paying an additional $4,000 for a new H-1B visa and an additional $4,500 for a new L-1 visa, those companies will be required to pay the additional fees for renewals as well. It is reported that this alone will bring in $200 million per year in fees to USCIS.

Employers filing H-2A and H-2B petitions for temporary, seasonal agricultural and non-agricultural workers also will see an increase, from $460 to $850 (85%) and $715 (55%), respectively. This comes despite the Administration’s recognition of the essential nature of workers involved in the food supply chain during the COVID-19 pandemic national emergency.

The USCIS Premium Processing fee, which brought in $2.39 billion in fees to USCIS between 2014 and 2019, will not increase, but the processing time has changed from 15 calendar days to 15 business days, up from two weeks to three weeks.

Comments on the new rule include a suggestion that USCIS increase its own efficiency instead of “charging more and providing less service.” Others noted the Administration’s own policy failings created the need for increased fees, citing the following as areas of concern:

  • Frivolous Requests for Evidence
  • “Extreme vetting”
  • Long suspensions of premium processing
  • Unnecessary in-person interviews
  • Increased denaturalization efforts
  • Litigation of improperly denied applications

In addition, commentators complained of the negative impact the increased fees would have on potential immigrants, the businesses that need to employ them, and the economy. To these and other comments submitted, DHS responded that it understands immigrants make significant contributions to the United States economy, but this final rule is not intended to impede or limit naturalization or legal immigration. Other commentators suggest the Administration’s policies have already impeded immigration and fee increases are not likely to help alleviate that.

USCIS also plans to publish updated forms before the new fees go into effect, including a new Form I-129 and a new Form I-765.

If you have any questions about the new fees or the new forms, please reach out to your Jackson Lewis attorney.

 

 

Employers need to ready themselves for investigations from the Department of Labor (DOL) into the use of H-1B visas.

Without Congressional oversight or legislative changes, the Trump Administration has changed the policies for H-1Bs, resulting in the highest denial rate in history of this legal immigration program. During the ongoing COVID-19 pandemic national emergency, the Administration has issued a number of executive changes further restricting immigration, including a Presidential Proclamation restricting the entry of foreign nationals in H-1B status (among others) until at least the end of 2020.

Most recently, in conjunction with that Presidential Proclamation, USCIS and DOL have entered into an agreement to further share data so that DOL can conduct “more robust examinations” of employers’ H-1B usage. According to a DOL press release, “No previous Secretary of Labor has ever exercised this authority.”

In the past, USCIS has conducted unannounced worksite visits to ensure H-1B compliance. With DOL stepping into this new role, employers likely will see additional investigations and penalties for violations, including awards of back pay for wage errors. The added risks for businesses come as many of them continue to argue that making it harder to hire H-1B workers only harms the economy and does nothing to promote economic recovery.

Jackson Lewis attorneys are available to help you prepare for these new enforcement efforts by advising on auditing your H-1B petition processes and your H-1B public access files.

On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the Rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.

 

In response to the June 2020 U.S. Supreme Court decision that the DACA program had not been properly terminated by the Trump Administration, President Donald Trump has announced he will be instituting a comprehensive review of the program. During that review, current DACA beneficiaries will be able to renew their statuses for one year, he said.

However, during this period, no new applications will be accepted by DHS, the Administration said. Moreover, absent exceptional circumstances, Advance Parole will not be issued to any DACA beneficiaries. This is notwithstanding the fact that on July 17, 2020, following the Supreme Court ruling, a federal court in Maryland ordered DHS to start processing new applications along with renewals. The Administration apparently has chosen not to comply. The California Attorney General, Xavier Becerra, one of those who spearheaded the original DACA case, has said he will go back to court.

The comprehensive review of DACA being proposed by the Administration will take place over a 60- to 100-day period. This could very well mean that any decision will not come down until after the November election (unless Congress acts).

Jackson Lewis attorneys are available to assist you with questions and strategies to deal with the current DACA situation.

USCIS confirmed that its planned furlough of 70% of its workforce (13,400 employees) will be postponed at least until the end of August. The ostensible reason for the furlough was a budget shortfall, even though USCIS is a fee-based service that historically has covered costs.

The furlough announcement, when coupled with the anti-immigration agenda from the White House, caused some to question the claim that USCIS had of a $571-million deficit for FY 2020. Agency and indeed recent reports show that USCIS will end the fiscal year with a budget surplus large enough to keep employees on the payroll for now. In the meantime, Congress will have to time to act to provide emergency relief for FY 2021. As of July 10, 2020, the surplus was reportedly $121 million.

Senators Patrick Leahy (D-Vt.) and John Tester (D-Mont.) wrote to Acting Secretary of Homeland Security, Chad F. Wolf, when they learned of the surplus, which was in “stark contrast” to the previous deficit prediction. The Senators implored the agency not to put more American jobs “on the line” at this time of “unprecedented unemployment.” They made it plain that it was not just the employees who would be harmed.

[T]housands of United States Citizens, employers, and students rely on USCIS work, including members of the military. The loss of these valuable jobs will also cause hardship to the communities where these federal workers live and work – communities already struggling with the pandemic.

The USCIS Deputy Director for Policy, Joseph Edlow, stated that the changed forecast, occurring after an investigation, is due to increased revenue over the past few weeks. This revenue could be the result of Cap H-1B filings and the opening up of premium processing. At the end of March, USCIS suspended premium processing. On June 1, 2020, the agency slowly started resuming it. By June 22, 2020, premium processing became available for all I-129 petitions, including cap-subject petitions. At $1,440 for each petition, this resumption could account, at least partly, for the increased USCIS revenues. Given the current processing delays and the pent-up demand for premium processing, an increase in revenue could have been expected – and the fear of an almost-total halt in immigration processing alleviated.

USCIS union members (members of the American Federation for Government Employees) speaking to reporters explained that while the pandemic has decreased petitions, the agency has been crippled by “previous policy decisions that have restricted legal immigration.” In 2018, there was 17% decrease in petitions and applications. Since then, the public charge rule and increases in vetting, denials, requests for evidence, interviews, delays, and backlogs have led individuals and companies to file fewer petitions and applications. For some companies, it has become easier and more predictable to move jobs out of the United States into more welcoming environments. The impact of such a move is the opposite of what is needed in the U.S. economy’s recovery.

Senator Leahy expects to address the USCIS’ 2021 deficit with the next COVID-19 relief package.

If you have any questions, please contact a Jackson Lewis attorney.

 

 

 

The Department of Homeland Security (DHS) has extended its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days, until August 19, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must have a written documentation of their remote onboarding and telework policy that is available to employees. If employers are not eligible for the flexibility, they may continue to designate authorized representatives to act on their behalf to review documents in person.

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

How does DHS define who is eligible for flexibility and when does that flexibility end as normal operations resume?

DHS has said that if employees are physically present at a work location, flexibility does not apply. This rigid interpretation lacks understanding of the complexity of the current workforce, such as when Human Resources professionals are not on site. Therefore, each employer should design a policy around its particular situation, so the employer’s actions are defensible.

ICE may significantly increase audits as soon as worksites start reopening. Therefore, it is important to have a plan for reinstituting “normal” I-9 processes and making a good faith effort to comply. For more information on possible steps to take, please see our prior blog.

Jackson Lewis attorneys are available to assist in determining the best steps to take based on your company’s particular circumstances and will continue to provide updates as they become available.

In a move that was not surprising due to the spike of COVID-19 cases in the United States, Prime Minister Justin Trudeau of Canada and the Mexican Foreign Ministry have both announced the continuation of the COVID-19 border restrictions between Canada, Mexico and the United States.  These restrictions were first announced in March and have been extended four times since then.  The restrictions are now set to expire on August 21, 2020 but are subject to further extensions.

These closures are not meant to affect essential goods and services.  But travel for tourism including but not limited to sightseeing, recreation, gambling or attending cultural events is non-essential and not allowed.  The restrictions only affect land ports of entry.

Please reach out to your Jackson Lewis attorney for any questions regarding this border closure.