FGI News and Publications

As a result of the COVID-19 pandemic, processing issues at

USCIS, and the Trump Administration’s efforts to protect U.S.

workers and wages, there have been several U.S. immigration

developments in the last few weeks.  This writing will provide

an update of some of these recent U.S. immigration developments and

the potential impact on U.S. employers and foreign nationals.

• Lawsuits Challenging Increase in USCIS FilingFees:

  On August 20, 2020, the American ImmigrationLawyers Association (AILA) along with eight (8) other organizations

  filed a lawsuit challenging the legality of the U.S. Department of

  Homeland Security’s (DHS) Fee Increase Rule. The plaintiffs are

  seeking an emergency injunction to prevent the Fee Increase Rule

  from taking effect on October 2, 2020. The suit claims that as

  Acting Secretary for Homeland Security, Chad Wolf did not have the

  constitutional or statutory authority to issue the fee

  changes.  There is also a  second lawsuit that has been

  filed by the Northwest Immigrant Rights Project, Ayuda, Inc., and

  Casa de Maryland, Inc., challenging the DHS’s Fee Increase

  Rule.

• Use of Form I-765 Approval Notices as Evidence ofEmployment Authorization for I-9 Purposes:

  On August20, 2020, the U.S. Citizenship and Immigration Services (USCIS)

  announced that, due to production delays of Employment

  Authorization Documents (EADs), employees may use Form I-797,

  Notice of Action (i.e., Form I-765 Approval Notice) with a date of

  approval between December 1, 2019, through August 20,

  2020, for Form I-9 employment eligibility verification

  purposes. Employees may present the Form I-765 approval notice for

  the purposes of satisfying Form I-9, List C #7 as a document that

  establishes employment authorization issued by DHS.

• USCIS to not Furlough Workers for Now:On August 25, 2020, the USCIS canceled the planned furlough of

  13,000 workers, which was set to go into effect on August 30. The

  anticipated furlough was due to a projected shortfall in the USCIS

  revenues of $1.2 billion that was initially announced in May. Due

  to cost-cutting measures, increased revenues, and bipartisan

  pressure, the USCIS cancelled the furlough for the remainder of the

  fiscal year (until September 30, 2020). The additional cost savings

  come through the descoping of federal contracts that assist USCIS

  adjudicators in processing and preparing case files as well as a

  myriad of other support activities. Anticipated operational impacts

  include increased wait times for pending case inquiries with the

  USCIS Contact Center, longer case processing times, and increased

  adjudication time for aliens adjusting status or naturalizing. The

  USCIS is still projecting a budget shortfall heading into FY 2021

  and is continuing to seek financial support from Congress.

• New Application for Employment Authorization (FormI-765) Issued by USCIS:

  On August 25, 2020, a newForm I-765, Application for Employment Authorization, went into

  effect. The USCIS will not accept Applications for Employment

  Authorization postmarked on or after August 25, 2020, if not filed

  with the 8/25/2020 edition of Form I765 and the I-765WS and correct

  fees.

• Visa Restrictions Imposed on Certain ChineseCitizens

  :  On August 26, 2020, as part of the Trumpadministration’s latest round of sanctions against the

  People’s Republic of China, the DOS announced that it would

  begin imposing visa restrictions on Chinese citizens

  “responsible for, or complicit in, either the large-scale

  reclamation, construction, or militarization of disputed outposts

  in the South China Sea.” These individuals would be barred

  from the United States and their family members may also face visa

  restrictions.¹

• DHS Proposed Rule to Expand Methods for CollectingBiometrics of Foreign Nationals

  :  On Tuesday,September 1, 2020, the DHS issued a Notice of Proposed Rulemaking

  that would expand its methods for collecting biometrics. The

  proposed rule would, according to the notice, “modernize

  biometrics collection and authorize expanded use of biometrics

  beyond background checks to include identity verification, secure

  document production, and records management.”² In

  addition, the proposed rule will enable DHS to utilize facial,

  iris, and voice recognition technologies, and to collect DNA from

  migrant families in custody to verify the genetic relationship of

  family members.

• USCIS and the U.S. Department of Labor (DOL) submit newregulations to the Office of Management and Budget (OMB) for review

  that impact H-1B program:

  The Trump Administrationis in the process of trying to implement new regulations that

  impact the H-1B program. The first regulation is a rule entitled,

  Strengthening the H-1B nonimmigrant Visa Classification

  Program.  The Administration is attempting to publish

  this rule as an Interim Final Rule (IFR), which would take effect

  immediately, and by-pass the usual notice and comment period

  typical in the rule making process.  This rule proposes to

  revise the definition of the term “specialty occupation,”

  and revise the definitions of the term’s “employment”

  and “employer-employee relationship” with the aim of

  protecting U.S. workers and wages.  In addition, the rule will

  likely impose additional requirements designed to ensure certain

  wages are paid to H-1B visa holders. While the specific

  language of the draft regulation has not been shared, it is widely

  presumed that it may restrict the ability to sponsor certain

  individuals for the H-1B category, who may be able to be sponsored

  under the current regulations.  OMB has up to 90 days to

  complete its review of the regulation, but it is anticipated OMB

  may complete its review in the near future.

The second regulation is a U.S. Department of Labor (DOL) rule

that was submitted to OMB on September 16, 2020. This new

regulation is entitled, Restructuring of H-1B, H-1B1, E-3 and

PERM Wage Levels.  The text of this new rule has not been

released, either.  However, based on comments made by the

Trump Administration earlier in the year, it is expected that the

rule will aim to tighten wage criteria, increase wage levels and

enhance oversight and enforcement in connection with the above

programs.  It is anticipated that this rule will be issued as

an IFR, as well.  Just like with the DHS rule above, OMB has

90 days to review the DOL rule.

• DHS Public Charge Rule Update:  OnSeptember 11, 2020, the Second Circuit Court of Appeals stayed a

  District Court’s nationwide injunction of the DHS Public Charge

  Rule.  (Note:  The Public Charge Rule renders may make

  certain foreign nationals inadmissible, if they have received

  certain public benefits, or if there is a determination made by a

  USCIS examiner, based on a review of the facts of a case, that a

  foreign national is not able to support themselves in the U.S. and

  may become a public charge.³)  This decision means

  that the USCIS is now able to apply its new Pubic Charge Rule

  freely across the U.S. to those foreign nationals that file Green

  Card applications, or have nonimmigrant visa petitions filed on

  their behalf.  However, at the time of this writing (September

  21, 2020), the USCIS has not issued any new guidance.  The

  USCIS website indicates that it will apply the 1999 public charge

  guidance that was in place before the new Public Charge Rule was

  implemented on February 24, 2020.  It is anticipated that

  USCIS will likely update its website regarding the Public Charge

  Rule in the next few days in light of the recent decision issued by

  the Second Circuit Court of Appeals.

• U.S. Government Terminates Certain COVID-19 ArrivalRestrictions

  :  In order to prevent the spread ofCOVID-19 in the U.S., U.S. Customs and Border Protection (CBP),

  working with the U.S. Center for Disease Control (CDC), designated

  15 U.S. airports that travelers returning to the U.S., who were

  present in certain countries that experienced a surge in COVID-19

  cases, could enter in order to undergo COVID-19 health screening.

  The countries included the following:  The People’s

  Republic of China (PRC) (excluding the Special Administrative

  Regions of Hong Kong and Macau); The Islamic Republic of Iran; The

  Schengen Area countries of Western and Central Europe; The United

  Kingdom, excluding overseas territories outside of Europe; The

  Republic of Ireland; and Brazil.

The purpose of directing flights from these countries to a

limited number of U.S. airports was to focus public health

resources to conduct enhanced COVID-19 health screenings in order

to protect the U.S. population.

Recently, U.S. Customs and Border Protection (CBP) and the

Transportation Security Administration (TSA) announced that,

effective September 14, 2020, flights that carry passengers,

present in the above listed countries, are no longer required to

land only at the 15 designated U.S. airports.  Rather,

individuals who are present in these countries may now land at any

U.S. airport for inspection by CBP and the COVID-19 health

screening.  CBP contends that by not restricting entry to the

15 U.S. airports, it will allow public health resources to be more

effective and will stimulate air travel.  CBP indicates that

all other health measures to protect the public health will remain

in place.

Please note that the announcement by CBP and TSA does not

rescind the country-specific COVID-19 health proclamations that

were issued suspending the issuance of U.S. visas and/or entry of

individuals into the U.S., who are present in the above listed

countries, unless the individual is exempt from the proclamations

(Examples:  Green Card holders; Spouses, Children, Parents of

U.S. Citizens or Green Card holders; foreign nationals traveling to

the U.S. at the invitation of the U.S. government for purposes

related to the containment or mitigation of the COVID-19 virus,

etc.), or has obtained a National Interest Exception (NIE) from the

U.S. Department of State prior to boarding a flight to the U.S.

• Judge Denies USCIS’ Motion to Dismiss in H-1BMarket Research Analyst Class Action Lawsuit

  :  OnSeptember 15, 2020, a U.S. Magistrate judge denied USCIS’s

  motion to dismiss a class action suit brought by U.S. companies on

  behalf of H-1B applicants who have had their H-1B petitions denied,

  because their occupation was defined as a “market research

  analyst.” The judge agreed with the plaintiff’s contention

  that the USCIS has established a “pattern and practice of

  arbitrarily and unlawfully denying H-1B petitions for market

  research analysts.”⁴ The judge further said that

  the claims against USCIS involve common questions of law

  surrounding the USCIS’s practices and whether it misinterpreted

  the DOL’s Occupational Outlook Handbook. The judge

  also found that USCIS appeared to approve plaintiff’s petitions

  only after being sued.