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.

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.