In a surprise announcement, District Judge Allison D. Burroughs, U.S. District Court for the District of Massachusetts, announced a reversal of the government decision that was announced just last week regarding students in F-1 or M-1 nonimmigrant status. Foreign students will now be able to enter the United States and remain even if they are only taking online courses. The government agreed to resume the flexibility it had announced in March when COVID-19 forced most colleges and universities to go online.

On July 6, 2020, ICE sent higher education into chaos by announcing a last-minute change from that flexibility. Colleges and universities that had been working on re-opening plans for months were being asked either to turn on a dime and create new plans immediately that included in-person teaching or to forgo having foreign nationals on campus. This was not only disruptive to the schools; it also wreaked havoc on the lives of the students who had already made plans for the fall semester, including housing and travel. More significantly, the announcement dashed the dreams of many students and had the potential to harm the universities financially – possibly depriving them of needed tuition payments.  Some members of Congress writing to USCIS and DHS called the sudden change “cruel and unconscionable.” They noted that the over one million foreign nationals who attend universities across the country are important not only for the talent and diversity they bring, but also for the financial support that they give to the universities and to the economy. In one recent year, international students added close to $41 billion to the U.S. economy leading to the creation of 458,290 jobs.

The change in policy led to two suits in the United States District Court in Massachusetts – one filed by the two prominent universities that was joined by close to 200 other institutions, and another filed by the Attorney General of Massachusetts that was joined by the states of Colorado, Connecticut, Delaware, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in a separate suit in the District of Massachusetts challenging the Administration’s order. Suits also had been filed by the California Attorney General on behalf of colleges and universities in that state.

It appears that the likelihood of a quick and decisive loss led the Administration to back down. For some time, it has been creating an unwelcoming atmosphere for foreign students. Perhaps this reversal of policy will help turn the tide.

Foreign nationals with approved permanent residence applications but no actual permanent resident card (known as Green Cards) are not the only ones dealing with the printing back-up at USCIS. After deciding to bring the printing of Green Cards and all other employment authorization documents in-house, USCIS is not able to keep up with the demand. It reportedly has a backlog of 75,000 other employment authorization documents (EADs) in addition to a backlog of 50,000 Green Cards.

Green Card holders are required by law to carry evidence of their permanent residency status. For most, this means carrying their unexpired residency cards. Green card holders who are changing jobs also may choose to use the unexpired residency card to prove that they have employment authorization and complete Form I-9 employment verification documents. The delayed card production creates harm in both of these situations. The EAD card production delays create further chaos and harm to these workers. Not only must a foreign national working on an EAD present a valid card to start new employment, but the card itself, generally valid for only one or two years, needs to be renewed and presented for reverification to allow the foreign national to continue working. Work interruptions caused by the lack of card production at USCIS unfairly harm both the employee and the employer.

Certain foreign nationals with EADs (such as refugees), those whose cards are based on adjustment of status applications, and students filing for STEM OPT EADs may continue working for up to 180 days with an expired EAD if their renewal application was submitted prior to the expiration date of their current card. But foreign nationals who are dependents of L-1 and J-1 visa holders and DACA recipients who are working on EADs have no such “grace period.” These days, even that six-month grace period may not be enough if card production stops or is delayed further.

The inability of the government to do its job leads to extreme consequences. Employees are not able to start or continue jobs — putting their families at serious risk. It also undermines employers who cannot hire essential workers and end up having to put continuing projects at risk. Given USCIS’ self-inflicted printing problem, perhaps it is time the Department of Homeland Security (DHS) prioritizes printing, come up with an interim card solution, or at the very least, create new and longer “grace periods” based upon timely filing of EAD applications.

Please reach out to your Jackson Lewis attorney for strategies on how to deal with the current backlog.

 

Under the Transportation Security Administration’s (TSA) new “Stay Healthy. Stay Secure.” Campaign, screening procedures are being changed to allow for more social distancing and to limit physical contact while still maintaining needed security procedures during the summer travel season.

In mid-April, due to COVID-19, TSA recorded its lowest travel volume ever: approximately 87,500 travelers per day. Although TSA anticipates a higher volume of travelers during the summer, it does not expect anywhere close to its daily average of 2.5 million travelers screened in recent years. At the same time, more than 1,000 TSA employees, mostly screeners, have tested positive for COVID-19.

Changes to expect at airports nationwide include the following:

  • Social distancing (six feet) among travelers in lines and among TSA officers
  • ID verification without physical contact between the traveler and the TSA officer (g., asked to hold up ID or place it on the screening device)
  • Plastic shielding in various locations
  • Increased cleaning and disinfecting of frequently touched surfaces including bins and screening equipment
  • TSA officers will be wearing masks and gloves and, perhaps, face shields
  • At the traveler’s request, TSA officers will use a new pair of gloves for a pat-down
  • Travelers can bring up to 12 ounces per passenger of hand sanitizer in carry-on bags, but the sanitizer must be removed from the carry-on for screening

TSA recommends that travelers allow additional time to get through screening. Travelers also are advised to:

  • Practice good hygiene by washing your hands before and after screening
  • Wear a facemask during screening (although you may be asked to remove it for identification purposes)
  • Remove belts and personal items from your pockets and place them in your carry-on before getting into the security queue
  • After screening, move out of the screening area to “re-pack”

Because some airlines have specific rules, TSA recommends checking with your airline regarding any COVID-19 rules or guidance.

As to travel destinations, it is important to check with your airline, the Department of State, and the state or country to which you are traveling to determine whether there are travel advisories, travel restrictions, or quarantines in place. As of July 1, 2020, the European Union has reopened its members’ borders to select countries – but not to United States residents (although there are exemptions). The list will be reviewed bi-weekly and countries will be added or deleted based upon their handling of the epidemiological situation, containment measures, and reciprocity.

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

 

 

 

 

The reported failure of USCIS to renew its contract with an outside vendor in June, because it planned to bring all printing of Green Cards in-house, may be the reason foreign nationals who have managed to make it through the arduous permanent residency process are not receiving their “Green Cards.”

USCIS has wide-ranging budget issues and is talking about furloughing 75% of its workforce. Under these circumstances and the impact of COVID-19, the two Green Card printing facilities in the U.S. cannot keep up with demand. The facility in Kentucky reportedly has been closed since late-June and the Missouri facility is operating only at reduced capacity. This will likely only get worse if the furloughs go into effect in late-July or early-August.

Understandably, USCIS is apparently flooded with calls from approved applicants asking about delays in the receipt of Green Cards. Individuals need these cards to travel or to prove their employment eligibility. In the past, those with urgent needs could get stamps in their passports to temporarily serve their purposes. Due to COVID-19 and limited operations at Field Offices, getting appointments for the purpose of “stamping” can be challenging.

The Trump Administration has been issuing regulations and proclamations restricting grants of permanent residence. This delay in production is another factor slowing and curtailing legal immigration to the United States.

For questions regarding Green Card processing delays, please reach out to your Jackson Lewis attorney.

U.S. Immigration and Customs Enforcement (ICE) has announced that students in F-1 or M-1 nonimmigrant status will not be able to remain in or enter the United States if they are taking only online courses during the upcoming fall semester. This is a last-minute change from the flexibility that students were given this past spring and through the summer when COVID-19 forced most universities online.

The new restriction not only causes problems for foreign students, but it also is likely to increase the economic pressures colleges and universities are facing due to COVID-19 by inducing foreign students to attend universities elsewhere. This is on top of the already confounding travel restrictions that affect foreign students, such as the Schengen, UK, Ireland, Brazil, China, and Iran COVID-19 bans, as well as the various pre-COVID-19 travel bans and restrictions that affect a smaller number of students.

According to ICE:

  • F-1 and M-1 students cannot remain in the United States and visas will not be issued to them if their school is operating entirely online. Those already in the U.S. must depart or take other measures, such as transferring to a school with in-person instruction, or be subject to immigration consequences up to and including removal.
  • F-1 students who are attending schools that are operating “normally” (in-person instruction) are subject to the existing regulations, i.e., eligible to take only one course (three credit hours) online per semester.
  • F-1 students whose schools are adopting the hybrid model for instruction will be allowed to take more than one course online, but the schools will be required to make specific certifications regarding their teaching model and course loads. The hybrid model exemption is not available to students in English language training programs or M-1 students pursuing vocational studies.

If there is a change in circumstances during the semester, such as a return to fully online instruction due to COVID-19 spike, foreign students will need to leave the country (if they can), switch to a different program (which may not be possible), or take alternative steps such as a reduced course load (which is allowed only in limited circumstances).

Colleges and universities are struggling in an uncertain environment to develop plans to balance educational goals with COVID-19 safety measures. Despite the financial problems involved for the institutions, most are changing their calendars, limiting the number of students on campus at any one time, providing hybrid teaching models, and even putting all classes online while still bringing students to campus. Indeed, some have already announced they will be teaching fully online for the fall semester. The fully online approach allows the schools to accommodate not only students who are at risk, but also faculty, many of whom are in high risk categories. ICE’s announcement may force schools to rethink their already carefully balanced plans and adopt the hybrid model. Foreign students will be forced to take some in-person classes – despite the health risk – in order to come to or remain in the United States with their classmates.

Please contact a Jackson Lewis attorney with any questions.

The Department of Homeland Security’s COVID-19 flexibility regarding the physical presence requirements for I-9 inspection ends on July 19, 2020, for companies that are still operating 100-percent remotely. Unless further extended, the three-day rule to review the original documents in person will kick in on that date. But that three-day clock may start ticking sooner if your company is starting to return to the worksite before July 19, 2020. See our full publication on this subject here.

The White House has issued an amendment to the June 22, 2020, Presidential “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” to clarify an issue regarding those who are outside the scope of the Proclamation.

According to the amendment, not all those holding nonimmigrant visas on June 24, 2020, are exempted from the Proclamation – only those holding valid H, L, or J visas. This means that individuals with, for instance, valid B-1/B-2 visitor visas on June 24, 2020, will not necessarily be eligible to apply for H, L, or J visas.

The amendment affects Section 3 of the original Proclamation setting out the scope of the suspension.

The Proclamation (the amendment in italics) will affect those who are:

  • Outside of the U.S. on the effective date – June 24, 2020, at 12:01 a.m. (EDT);
  • Do not have a nonimmigrant visa, of any of the classifications specified in Section 2 (H, L, or J) and pursuant to which the alien is seeking entry that is valid on the effective date of the Proclamation or issued thereafter; and
  • Do not have another travel document (such as a transportation letter, boarding foil, or advance parole document) valid on the effective date or issued thereafter.

Jackson Lewis attorneys are committed to helping employers make the best business decisions and will continue to provide updates and clarifications as they become available. Please contact your Jackson Lewis attorney with any questions about how these new restrictions and forthcoming regulations will affect your employees and prospective employees.

 

Since May, USCIS has been threatening furloughs of three-quarters of its workforce in August if it does not receive a $1.2 billion loan and an average 21% increase in fees to take care of its budget shortfall. Reportedly, more than 13,000 of the 20,000 USCIS employees who work on citizenship and visa processes will receive furlough notices if emergency funding is not forthcoming. Further, some notices may have already been received for a late-July furlough.

Apparently, USCIS sent formal notification to the union representing USCIS employees that up to 70 percent of the agency’s employees could be furloughed as of August 3, 2020. Furloughs that are expected to last more than 30 days require this sort of formal notice. Therefore, the projected furloughs will not be short term. The president of the union that represents 2,500 USCIS employees in Washington, D.C. stated the obvious:

It is not in the best interest of the American people to allow such a failure – which would have a substantial impact on millions of legal immigrants, permanent residents and US citizens and would be detrimental to American businesses, educational institutions, the economy and our law enforcement and health care systems ….

USCIS has been told that any additional funds should not burden U.S. taxpayers. The agency recognizes that any loan would have to be repaid. In other words, to make up the shortfall, the funding will have to come from increased fees, pushing the entire burden onto immigrants, employers, and those seeking naturalization. If the increased fees do not discourage immigration, the even longer delays that will result from the furloughs certainly will. An estimated 860,000 individuals were scheduled to naturalize this year – but, through the combined impact of the pandemic and the proposed furloughs, those individuals may not become citizens before the November election.

The funding problem at USCIS is not simply due to COVID-19. Although the decrease in filings associated with the pandemic may have been the final straw. Budget problems at USCIS have persisted for several years. Unfortunately, the needed funding appears to have become yet another political battleground. Adding another 13,000 employees to the ranks of the unemployed is not likely to help the U.S. economy.

Jackson Lewis attorneys will continue to monitor this situation and provide updates as they become available.

Immigration and Customs Enforcement (ICE) continues to push forward a proposed rule that would set a maximum period of authorized stay for students. Although the details of the rule are unknown, the draft reportedly has been sent to the federal budget office for review. This is generally the last step before a new rule is published for notice and comment.

In May 2018, USCIS posted a policy memorandum that would have radically changed current immigration policy for students. Until that time, students usually were admitted not for a specific length of time but for the Duration of Status (D/S), i.e., the length of their programs. Because they had no specific “end date,” students could not accrue “unlawful presence” without a formal finding. In addition, if students violated their student status, for example, by working without proper authorization or by not taking enough courses, they would not be charged with unlawful presence. But the 2018 “sub-regulatory” policy memorandum changed that. Those who violated their student status would immediately start accruing unlawful presence and, if they accrued 180 days or more, they would become subject to the draconian three- and 10-year bars to admission.

Primarily because the new policy made it so easy for students to unknowingly start accumulating unlawful presence, it was challenged in court. The judge in Guilford College v. Wolf issued a nationwide injunction, holding USCIS could not make this sort of policy change without engaging in a proper rulemaking process. The judge also held the new policy conflicted with the text of the Immigration and Nationality Act (INA).

In addition to the 2018 policy memorandum, in October 2018, the Trump Administration for the first time published a notice of its intention to enact a new rule that would put an end to Duration of Status and would set out a maximum period of authorized stay for students. The stated purpose was to eliminate confusion about a student’s length of stay and therefore alleviate overstays by students. From the perspective of students and universities, this change would create difficult problems:

  • Students could lose the flexibility necessary to move through various levels of study and shift their research goals;
  • Every program change could require an application for an extension, which will be costly and would risk denial; and
  • The additional scrutiny and uncertainty would make study in the U.S. for foreign nationals less appealing, which could result in a loss of talent and a loss of income for colleges and universities.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.