U.S. Immigration Updates (July 2020)
In the last thirty days, there have been several developments in
U.S. immigration policy and practice, which are attributed to the
COVID-19 pandemic, the unemployment rate in the U.S., agency
budgetary shortfalls, and policy changes issued by the Trump
Administration. These recent developments may impact visa
applications, visa petitions, and various applications filed to
obtain a U.S. immigration benefit. 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.
- USCIS Green Card and Employment Authorization Document(EAD) Card Production Delays
: In June 2020, the U.S.Citizenship and Immigration Services (USCIS) reduced its capacity
to print secure documents after it ended its contract with an
outside vendor.1 The USCIS’
current financial situation and hiring freeze has affected the
production of documents. The USCIS Ombudsman’s Office is
assisting foreign nationals whose applications have been approved
but whose cards have not yet been produced and/or issued.
Individuals experiencing a delay in receiving their Green Card or
EAD Card should contact their attorney at FGI for help in this
matter or may submit a request for assistance to the USCIS
Ombudsman’s Office at the following address: https://www.dhs.gov/topic/cis-ombudsman.
- Changes to the Discretionary Authority of USCIS’Adjudicators: On July 15, 2020, the USCIS issued a Policy Alert
(PA-2020-10) indicating that it is consolidating existing policy
guidance in Chapter 8 of the USCIS’ Policy Manual regarding the
application of discretion by USCIS examiners in adjudications
process.2 The guidance contained in
the Policy Manual is controlling and supersedes any related prior
guidance on the topic. The changes provide a non-exhaustive list of
discretionary factors that USCIS examiners may consider on a
case-by-case basis and explain how USCIS examiners should generally
weigh factors in a given case and properly document the
discretionary determination. The changes are considered to grant
adjudicators greater discretion in their determinations, but their
exact impact on petitions and applications filed with the USCIS
will have to be seen.
- U.S. Embassies and Consulates to Resume Routine VisaProcessing: On July 14, 2020, the U.S. Department of State (DOS)
announced that routine visa services would resume on a post-by-post
basis.3 At this time, the DOS is
unable to provide a specific date for when each embassy or
consulate will resume specific visa services, or when each embassy
or consulate will return to processing at pre-COVID-19 workload
levels. All US missions “are continuing to provide emergency
and mission-critical visa services.” Please contact your FGI
attorney with specific questions.
- Update on Furloughing USCIS Employees: TheUSCIS announced on July 24, 2020 that it will delay furloughing
13,000 employees through August 2020.4 (Note: It is anticipated that
carrying out such a furlough would impact almost three-quarters of
USCIS staff.) Prior to the announcement, it was understood that
USCIS will only delay furloughs if Congress provides to the U.S.
Department of Homeland Security (DHS) the $1.2 billion in
supplemental funding that the USCIS requested in May 2020 from DHS.
However, upon closer scrutiny, it was determined that USCIS has a
surplus of revenue for FY2020, so a decision was made to delay
furloughing employees until late August 2020.
If furloughs of USCIS personnel do take effect, the American
Immigration Lawyers Association (AILA) anticipates U.S. immigration
will be halted, negatively affecting families, businesses,
educational institutions, and medical facilities.5 Immigrants who are in the process of
becoming naturalized U.S. citizens will not be able to complete the
process in time to register to vote, DACA recipients will not be
able to renew their benefits, asylum applicants will face increased
delays, and businesses may be unable to hire or retain foreign
national employees.
The HEALS Act, which is the stimulus package released by Senate
Republicans on July 27th, includes funds for CBP and
would provide a $1.222 billion loan to USCIS for operational
expenses. The loan would be repaid through a 10% surcharge that
would be added to all USCIS fees (this is in addition to the fee
increases called for in the pending fee regulation – see item 12
below).
- President Trump’s June 22, 2020 ProclamationSuspending Issuance of Immigrant Visas and H-1B, L-1, H-2B, and J-1
Visas for Certain Foreign Nationals (Update)
: Followingthe President’s April Proclamation denying certain immigrants
entry into the United States, President Trump issued a second
Proclamation (Proclamation 10052) on June 22, 2020 that suspended
entry into the U.S. foreign nationals who were outside of the
country on the effective date (June 24, 2020) of the proclamation,
and did not have a valid H-1B, H-2B, J, or L nonimmigrant visa
(NIV) or a valid, official travel document. Several complaints have
been filed challenging the Proclamation. On July 17, 2020,
litigators from the American Immigration Lawyers Association
(AILA), the Justice Action Center, and the Innovation Law Lab, sued
to challenge the entirety of President Trump’s immigration
ban(s)6 Two days later, the U.S.
Chamber of Commerce, the National Association of Manufacturers
(NAM), the National Retail Federation (NRF), and International
Training and Exchange (Intrax) filed a complaint in federal court
in California for declaratory and injunctive relief against the
Proclamation.
- Trump Administration Considering Possible FutureProclamations and Interim Regulatory Changes that Could Have Impact
on Employment-Based Immigration Benefits
: The June20, 2020 Proclamation also called for the issuance of
regulations to ensure that the admission of EB-2 or EB-3 immigrant
visa beneficiaries and H-1B nonimmigrant visa beneficiaries do not
disadvantage United States workers. We anticipate that these
regulations may begin being issued in August 2020, and will focus
on the definitions of “specialty occupation”,
“employer”, and “employee-employer
relationship”7 as well as
changes to the ability of H-4 nonimmigrants to be able to apply for
an EAD, if certain conditions are met. Similarly, the Trump
Administration has been considering the revision of the definition
of term ‘specialized knowledge’ for the L-1B intracompany
transferee program. Finally, the Trump Administration has indicated
that it would like to limit the ability of F-1 students to be able
to engage in Optional Practical Training (OPT) with a U.S. employer
after graduating with a degree from a U.S. college or university,
unless the F-1 student has graduated within the top 15% of their
graduating class.
Further, the Trump Administration has been long advocating the
replacement of the current visa lottery system with a merit-based
system that would prioritize highly-skilled workers over other
immigrant categories.
- Trump Administration Attempt to Bar all F-1 and M-1Students whose Schools are Going Entirely Online due to Covid-19
and Subsequent
Settlement in the face ofComplaints Filed by Harvard University and the Massachusetts
Institute Technology (MIT),
: On July 13, 2020, the TrumpAdministration agreed to drop its plan to require foreign national
students in F-1 or M-1 status to leave the U.S., if they are
enrolled in more than one on-line class in the Fall 2020 semester.
The plan, announced on July 6, 2020 on the website of the U.S.
Immigration and Custom Enforcement (ICE), was followed by a lawsuit
by Harvard University and the Massachusetts Institute of
Technology, and later joined by over 200 universities and colleges,
that challenged the plan on administrative procedural grounds8
However, the US Immigration and Customs Enforcement (ICE) issued
a notice on Friday, July 24, 2020 indicating that new foreign
national students are still barred from entry into the U.S. if they
enrolled in a fully-online course load in the Fall 2020 semester.9 Returning foreign national students
who attended classes during the Spring 2020 semester may remain in
the U.S., or return after a break, but that privilege does not
extend to incoming first-year undergraduate or graduate students.
ICE has clarified that new students would still be able to enter
the U.S., if their schools offered a combination of online and
in-person instruction.
- Extension of Northern and Southern U.S. Land BorderClosures to All But Essential Travel
throughAugust 20, 2020
: The U.S.’s northern and southernland borders will remain closed to non-essential travel until
August 20, 2020.10 The original
border closure was implemented on March 21, 2020, and has been
periodically extended.11 The
northern and southern border closures only impacts those attempting
to enter the U.S. at a land port of entry. It does not affect those
attempting to enter the U.S. by air from Canada or Mexico.12 The closures are subject to review
and could be again extended by the U.S. government.
- U.S./Chinese Relations Continue toDeteriorate
: Relations between the U.S. and thePeople’s Republic of China (PRC) have continued to deteriorate.
On May 29, 2020, the White House issued Presidential Proclamation
10043 that suspends entry into the U.S. as a nonimmigrant any PRC
nationals seeking to study or pursue research on an F or J visa, if
they currently receive funding, or who is currently employed by,
studies, or conducts research, on behalf of any PRC entity that
implements or supports the Chinese government’s
‘military-civilian fusion strategy.” The proclamation also
applies to any PRC national who has ever received funding or had
similar relationship with a PRC entity in the past. The
proclamation does not apply to PRC nationals seeking to come to the
US to study or conduct research as an undergraduate student.
Recently, a Chinese national studying at Stanford University in
California was charged by the U.S. Attorney’s Office with lying
about her relationship to the Chinese military.13
On July 14, 2020, President Trump signed an executive order
ending preferential economic treatment for Hong Kong, following the
imposition of new security laws there by the PRC.14 The PRC condemned the move,
claiming that it was an interference in China’s domestic
affairs, and threatened retaliatory sanctions against U.S.
individuals and entities.
Finally, on July 22, 2020, the Trump Administration ordered the
closure of the PRC’s consulate in Houston, Texas following
Department of State (DOS) allegations that Chinese agents have been
attempting to steal data from Texas medical facilities.15 The closure will make it more
difficult for China to provide assistance to its citizens in the
southern United States and for U.S. nationals seeking visas and
other forms of assistance. The PRC retaliated on Friday, July 24,
2020, by ordering the closure of the US consulate in Chengdu,
capital of China’s Sichuan province.16 According to China experts,
Chengdu is especially important to the US government as it is the
only consulate in western China where a number of major US
companies operate. President Trump is also considering further
Chinese consulate closures.
- Immigration Policy Platform of Biden Campaign:On July 8, 2020, Biden-Sanders Unity Task Force released its
recommendations on policy platform for the presidential campaign.17 This proposed policy platform has
been submitted to the campaign and the Democratic National
Committee, and presents a series of objectives and proposals
addressing a broad range of fields, including immigration.18 At its most basic level, the
proposed policies issued by the Biden campaign would reverse the
Trump Administration’s policies, including the suspension on
entry for new H-1B and L-1 visa beneficiaries. The Biden
Presidential Campaign immigration policies include provisions for
reinstating and protecting Deferred Action for Childhood Arrival
(DACA) recipients, and propose removing certain restrictions that
currently make it difficult for foreign nationals to apply for
asylum. In addition, the Biden Presidential Campaign policies
provide a path to U.S. citizenship for the eleven million
undocumented foreign nationals in the U.S. Furthermore, in a July
2, 2020 digital town hall meeting organized by NBC News, Vice
President Biden noted support for the H-1B visa program, and that
he would end President Trump’s current proclamation suspending
entry of certain H-1B nonimmigrants.
- DOL publishes new ETA Form 9089 inFederal Register: On July 20, 2020, the
US Department of Labor (DOL) invited comments in connection with a
new ETA Form 9089 it has drafted and published in the Federal
Register.19 The ETA Form 9089
is used in connection with the PERM Green Card application process.
The filing of the ETA Form 9089 is often the first step in the U.S.
Green Card application process for many foreign national
professionals. Comments will be accepted until September 18, 2020,
and can be made through the Federal Register’s webpage: https://www.federalregister.gov/documents/2020/07/20/2020-15592/agency-information-collection-activities-comment-request.
- Office of Information Regulatory Affairs (OIRA)completed Review of Final Rule Increasing USCIS Filing
Fees
: OIRA completed its review of the final ruleincreasing many of USCIS’ filing fees. It is anticipated that
the final rule will be posted in the Federal Register in
the next few days, as of the date of this writing. Based on a draft
of the proposed rule, DHS indicated that once the rule is
finalized, it would not take effect for a 60-day period after
publication. The proposed rule included provisions that would
significantly increase fees for many visa categories and also make
policy changes, including extending the collection of the
additional fees required of petitioners with 50 or more employees
and whose US workforce consists of at least 50% L-1 or H-1B visa
holders on extension requests as well as original petitions.
- Department of Homeland Security Announces Changes toDACA
: On July 28, 2020, the Department of HomelandSecurity (DHS) announced several changes to the Deferred Action for
Childhood Arrivals (DACA) program. Beginning immediately, the DHS
will reject all initial requests for DACA and associated Employment
Authorization Documents (EAD). DHS will also reject new and pending
requests for Advance Parole, absent exceptional circumstances. In
addition, DHS will be considering the full rescission of the DACA
program.20
Footnotes
3. https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html
https://www.forbes.com/sites/stuartanderson/2020/07/22/h-1b-visa-lawsuit-trump-takes-sledgehammer-to-immigration-law/#6df3e0d94617
https://www.forbes.com/sites/stuartanderson/2019/11/21/trump-plans-far-reaching-set-of-new-immigration-regulations/#e1ebaf3262a7
8. https://www.cnbc.com/2020/07/13/more-than-200-schools-17-states-back-lawsuits-against-trump-over-international-student-rule.html
9. https://www.law360.com/immigration/articles/1295302/ice-still-blocking-some-student-visas-as-colleges-go-online
10. https://www.usatoday.com/story/travel/2020/07/17/us-canada-mexico-border-closures-extended-into-late-august/5437557002/
11. https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus
12. https://www.usatoday.com/story/travel/2020/07/17/us-canada-mexico-border-closures-extended-into-late-august/5437557002/
13. https://www.nbcnews.com/news/us-news/justice-department-charges-visiting-stanford-researcher-lying-about-ties-chinese-n1234426
17. “Biden, Sanders unity
task forces release policy recommendations.” Politico
(July 8, 2020): https://www.politico.com/news/2020/07/08/biden-sanders-unity-task-force-recommendations-353225.
See also “6 Takeaways from the Biden-Sanders Joint Task Force
Proposals.” New York Times (July 9, 2020): https://www.nytimes.com/2020/07/09/us/politics/biden-sanders-task-force.html
18. The entire document can be
accessed at https://joebiden.com/wp-content/uploads/2020/07/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf
19. https://www.federalregister.gov/documents/2020/07/20/2020-15592/agency-information-collection-activities-comment-request
20. https://www.dhs.gov/news/2020/07/28/department-homeland-security-will-reject-initial-requests-daca-it-weighs-future
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