COVID-19 Immigration Update

 Presidential Proclamation Extends Travel Ban

Effective June 24, 2020, President Trump issued a proclamation that extends his previous order that banned certain immigrant visas from being issued by the Department of State and suspends the entry of foreign nationals who are outside of the United States who need to apply for an H-1B, H-2B, J-1 and L-1 visa stamp. The restriction also applies to dependent family members who are outside of the U.S. and who need to apply for the corresponding dependent visa stamp. The impacted visa categories are: H-4, J-2, and L-2. Both bans are in effect through December 31, 2020. The ban does not apply to (1) lawful permanent residents; (2) spouses of a U.S. citizen; (3) minor children of a U.S. citizen; (4) certain “aging out” children; (5)  individuals who have a valid Advance Parole document; and (6)  individuals holding other official travel documents other than a visa (transportation letter or boarding foil). Because Canadians are visa-exempt, the ban does not apply to them.

The following FAQs, adapted from guidance provided by the Department of State, provides more details on who is and who is not affected:

Q: Are there any other exemptions to these bans?

A:  Yes, exemptions may be available for foreign nationals providing temporary labor or services essential to the U.S. food-supply chain, as well as for foreign nationals whose entry would be in the national interest of the U.S.  Factors that will be considered to be in the national interest include individuals who are: (1) critical to defense, law enforcement, diplomacy, or national security of the U.S.; (2) involved with the provision of medical care related to COVID-19 for individuals who are currently hospitalized; (3) involved with the provision of medical research at U.S. facilities to help the U.S. combat COVID-19; and (4) necessary to facilitate the immediate and continued economic recovery of the U.S.

Q: I am already in the U.S. on one of the identified visas. What does this mean for me?

A: The Proclamation is not retroactive. No valid visas will be revoked under this Proclamation.

Q: I am in the U.S. but my visa will expire before December 31. Can I extend my stay?

A: Yes. Visa expiration is separate from authorized stay. Visa holders already legally in the U.S. do not need to renew their visa to remain. However, if you depart the U.S., you will need a valid visa to return.

Q:  My dependents are outside the U.S. and do not hold H-4, L-2, or J-2 visas. Can they enter the U.S. as visitors using a B-2 visa stamp or visa waiver (ESTA)?

A: Yes, dependents holding valid B-2 visas as well as those from visa-waiver countries with approved ESTA registrations should be able to enter the U.S. during the entry ban period for brief visits, consistent with B-2 visa requirements or ESTA program restrictions.

Q: Can employers continue to file H-1B and L-1 petitions with USCIS seeking to change, amend, and extend status?

A: Yes, the entry ban does not affect an employer’s ability to file petitions with USCIS.

 Q:  I am currently in the U.S. but my H-1B or L-1 status is expiring during the entry-ban period. What should I do?

  1. Your employer should file a petition to extend your status with USCIS.  A timely filed H-1B petition can extend your work authorization in the U.S. for up to 240 days beyond your I-94 expiration date. For many L-1 workers on “Blanket Ls,” this process will be different than the L-1 Blanket process that you may have used when applying for previous L-1 visas.

Q:  Does the entry ban affect employees on H-1B1 visas?

A:  While the ban does not specifically apply to foreign nationals from Singapore and Chile who hold or will apply (once consulates reopen) for H-1B1 Free Trade visas, caution should be taken as this visa classification is often confused with H-1B visas, which can result in potential entry issues at the border.

Q: Which J visas are subject to the Proclamation?

A: The Proclamation applies to J visa holders “participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien.”  Foreign nationals in J-1 status who are completing degree programs and working pursuant to Academic Training are not affected by the travel ban. Physicians applying for a J visas are not subject to the Proclamation. Physicians seeking to enter the U.S. on an H-1B or L visa to provide medical care, or are involved in research related to COVID-19, may be considered for exceptions.

Q:  Does this proclamation affect my ongoing green card process?

A: No.  this proclamation does not affect a foreign national’s ability to apply for a green card through the filing of an I-485 Adjustment of Status Application.

Q: Will this impact Diversity Visa applicants?

A: Yes, for those outside of the U.S.

Other Travel Restrictions

With specific exceptions, foreign nationals who have been in any of the following countries during the past 14 days may not enter the United States: China; Iran; European Schengen area; United Kingdom; Republic of Ireland; and Brazil. Exceptions are available for essential workers.

Moreover, the United States, Canada, and Mexico are still restricting all nonessential travel across the U.S. border, including tourism and recreation. However, essential commercial activity will not be impacted; Americans, Canadians, and Mexicans who cross the land border to do essential work for other urgent or essential reasons will not be impacted. Additionally, U.S. Customs and Border Patrol (CBP) will no longer detain unauthorized migrants in holding facilities and will immediately return them to either the country from which they entered, or where possible, to their country of origin.

Department of Homeland Security: USCIS, ICE, and CBP

USCIS

USCIS Offices Reopened for Most Nonemergency Services

As of June 4, 2020, many domestic USCIS field offices and asylum offices re-opened for normal face-to-face services to the public on an appointment basis. Application support centers (ASCs) remain closed but are expected to open beginning in mid-July. This means all in-person interviews have been resumed. All scheduled appointments are being automatically rescheduled by USCIS. Applicants (and petitioners) do not need to contact USCIS. Visitors may not enter a USCIS facility if they have any symptoms of COVID-19, and visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies). Visitors must also wear facial coverings that cover both the mouth and nose when entering facilities, and visitors are encouraged to bring their own black or blue ink pens. Attorneys will be permitted to accompany their clients or attend an interview telephonically. Naturalization ceremonies will be shorter to limit exposure to those in attendance. However, all legally required portions of the ceremony will take place. Attendance is limited to the naturalization candidate and individuals providing assistance to disabled persons.

While adjustment of status cases are not subject to the Presidential Proclamation, no specific guidance has been provided by USCIS regarding the rescheduling of cancelled interviews or the first time scheduling of interviews for newer cases, now that field offices have reopened. There have been some reports that USCIS is giving priority to naturalization cases. Clients will have to continue to wait.

USCIS Resumes Premium Processing

USCIS has resumed premium processing for all Form I-129 and I-140 petitions, having phased in the process during the month of June. Petitioners who had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, but who received no action and a refund, may refile their Form I-907 consistent with the timeline above, barring any changes USCIS may announce in the future.

Asylum Offices

While asylum offices have reopened for previously scheduled interviews, they remain closed for walk-in assistance and noninterview inquiries. Interviews that were scheduled during temporary closures will automatically be rescheduled. Asylum offices are expected to conduct video-facilitated interviews, where the applicants sit in one room and the interviewer in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.

ICE and Interior Enforcement

According to its website, ICE will continue to only prioritize cases involving foreign nationals who are public-safety risks or who are subject to mandatory detention based on criminal grounds. In-person office and home visits have been temporarily been suspended; however, telephonic and electronic reporting still remains in use. ICE has continued to promise not to make arrests at or near medical facilities, absent extraordinary circumstances. Social visits for ICE detainees continue to be unavailable at this time.

DHS has also announced that it is extending its flexibility in rules related to Form I-9 compliance during the pandemic by an additional 30 days. These include prosecutorial discretion to defer the physical-presence requirements associated with Form I-9 and an additional 30-day extension for notices of inspection (NOIs) served in March 2020. The expiration date for these accommodations is now July 19, 2020. Identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

CBP and Border Enforcement

Unauthorized border crossings along the U.S. border with Mexico have dropped by 50 percent in April, according to federal statistics. CBP officers have detained and expelled migrants at the border, bringing detentions down from about 3,000 to 100. Among the expedited expulsions are hundreds of unaccompanied minors. Under law, these unaccompanied children should be taken to shelters run by Health and Human Services until they can be placed with a guardian in the United States. It appears that the Trump Administration wants to circumvent the legal protections afforded to unaccompanied minors, which they have offensively decried as “loopholes.”

Visa Waiver travelers who are unable to depart because of COVID-19 may still apply for 30-day extensions of their admission periods by contacting any local CBP port of entry or deferred-inspection site.

Department of State and U.S. Embassies Abroad

Routine immigrant and nonimmigrant visa services remain canceled; however, emergency services are available for air and sea crews, medical personnel treating or mitigating the effects of COVID-19. Likewise, services remain available for U.S. citizens abroad.

Department of Justice and the Immigration Courts

With the exception of the Honolulu Immigration Court, Immigration Courts remained closed for nondetained hearings. The Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis, and New Orleans Immigration Courts are scheduled to resume nondetained hearings on June 29, 2020. Hearings in nondetained cases at all other immigration courts are postponed through, and including, Thursday, July 2, 2020. All immigration courts will be closed Friday, July 3, 2020, in observance of Independence Day. Receipt stamps continue to be issued for defensive applications, motions, pleadings, and evidentiary filings. Similarly, the BIA continues to accept notices of appeal, briefs, and motions.

Fifteen immigration courts experienced closures as a result of protests of police brutality. The latest court closures and standing orders can be found on EOIR’s operational status webpage.

According to a June 11, 2020, EOIR policy memorandum, all visitors of immigration courts are required to wear face coverings, except for children under two years of age. Visitors who do not wear face coverings or observe social distancing will be denied access to EOIR space. EOIR has also announced that it will no longer accept email filings 60 days after the court has resumed nondetained hearings.

Department of Labor

The Department of Labor’s Office for Foreign Labor Certification (OFLC) will continue to issue notifications via email.  On June 16, 2020, the OFLC extended the period during which the Atlanta National Processing Center will issue PERM Labor certification documents electronically through September 30, 2020.  Initially this period was from March 25, 2020 through June 30, 2020.

The OFLC officially confirmed on May 20, 2020 that despite various state requirements for employees to remain at home under the pandemic, the Notice of Filing is required to be posted physically,  stating the notice must be “visible” and posted “where U.S. workers can readily read the posted notice on their way to or from their place of employment” and such requirements cannot be replaced by other electronic means (unlike H-1B posting requirements). Therefore, employers may not be able to meet posting requirements until employees are working back in the workplace.

Other Headlines

Supreme Court Blocks Trump’s Attempt to Terminate DACA

In a narrow 5-4 ruling, the Supreme Court blocked, perhaps only temporarily, President Trump’s attempt to terminate Deferred Action for Childhood Arrivals (DACA). The majority held that the Administration failed to provide adequate reasoning to justify ending the DACA program, in violation of the Administrative Procedure Act. The Court reasoned that in attempting to rescind DACA, the Department of Homeland Security failed to consider “the conspicuous issues of whether to retain forbearance” as well as the hardship to DACA recipients. The court remanded the matter to DHS so that it may reconsider. Even though the Administration has an opportunity to reconsider the issue, this is huge victory for DACA recipients.

The DACA program was created by the Obama Administration in 2012, allowing certain children to be temporarily shielded from deportation and to obtain work authorization if they (1) entered United States before their 16th birthday; (2) continuously resided in the United States since June 15, 2007; and (3) were in school, graduated, or obtained a completion of high school, a GED certificate, or were veterans of  the Armed Forces who were honorably discharged. Since the program’s inception, there have been approximately 700,000 recipients, contributing approximately $42 billion to the United States’ annual gross domestic product (GDP), $1.7 billion in state and local taxes, and $5.7 billion in federal taxes. Efforts to eliminate the program could have thwarted the United States’ pandemic response, as 29,000 DACA recipients work in healthcare as physicians, nurses, health aids, and technicians.

The Supreme Court’s decision unfortunately does not provide permanent protection to DACA recipients. The court noted that the parties agreed that DHS has the legal authority to end the program. USCIS disappointingly issued a statement after the decision indicating the majority’s opinion had no basis in law and merely delays President Trump’s ability to end the program. President Trump said he will attempt to end the DACA program by following the rules set out by the Justices. This, however, seems unlikely to happen before the November election.

As DACA does not provide a pathway to permanent residence, DACA recipients should consult with an experienced immigration attorney to evaluate and screen for other forms of immigration relief. On a positive note, in response to the Supreme Court’s decision, Democratic presidential nominee Joe Biden promised to send a bill to Congress on “Day One” of his presidency to make DACA protections permanent.

Another Blow to Asylum Seekers: Supreme Court Holds Restrictions on Removal Orders Do Not Violate Constitution

In another June decision, the Supreme Court held that restrictions on the ability of asylum seekers to obtain review of expedited-removal orders under a federal habeas statute do not violate the Constitution’s Suspension Clause or Due Process Clause. The Supreme Court ruled that asylum seekers with expedited orders of removal seeking “credible fear” determination cannot seek federal judicial review of administrative denials. This decision furthers the Trump Administration’s goal of deterring immigrants from seeking asylum in the United States by eliminating legal protections and benefits throughout the asylum application process.

Congress enacted expedited removal in 1996, which allowed lower level immigration officers to issue deportation orders to unauthorized immigrants arrested within 100 miles of any port of entry and within 14 days of arrival in the United States. A limited exception to deportation is that immigrants fleeing persecution can seek a credible fear interview with an asylum officer. If the foreign national is found to have demonstrated a credible fear of persecution or torture, they are then entitled to pursue their asylum claim in immigration court. If the asylum officer determines that credible fear does not exist, the foreign national’s only recourse is to request review of the decision from an immigration judge. If the immigration judge finds that there isn’t a credible fear, there is no right to appeal the decision. In this case, the foreign national sought federal judicial review of the immigration judge’s affirmation through a petition for a writ of habeas.

It is important to note the near absence of legal protections and due process available to individual’s seeking credible fear. For starters, a person seeking review of an asylum officer’s decision is not entitled to legal representation, does not have the right to call witnesses, cross examine witnesses, or present evidence in support of their claim, or object to evidence. Furthermore, immigration judges are not part of the judicial branch but rather executive, meaning they are not truly independent fact finders. Their decisions on asylum cases vary widely with some immigration judges averse to asylum, denying close to 100% of their cases while others are more favorable.

By eliminating judicial review for those fleeing persecution and torture and relying on a court system with virtually no due process, the court risks mistakenly deporting persons with viable asylum claims which could result in their death. Human rights groups have found a causal relationship between the deaths of hundreds of deportees and the reasons why they fled their countries. The continued absence of judicial review in the credible fear process will undoubtedly allow many of these preventable egregious errors to continue.

Regressive Changes to Employment Authorization for Foreign Nationals Seeking Asylum

In an upsetting move, USCIS issued a new rule drastically limiting foreign national’s eligibility for employment authorization based on a pending asylum application. The rule is scheduled to go into effect on August 25, 2020. Absent good cause, foreign nationals who entered the United States without authorization are ineligible for work authorization based on a pending asylum application. As asylum requires individuals to be physically present in the United States, for many, entering without inspection is the only way to seek asylum in the United States.

The new rule also creates a longer waiting period for an asylum applicant to apply for employment authorization, increasing the wait period from 150 days to 365 days. Other changes include new criminal bars, limitations on the validity of the employment authorization documents, and creating automatic termination of employment authorization when an applicant’s asylum application is administratively final, even if they are seeking federal court review of the administrative decision.

The new limitations on employment authorization for asylum seekers is part of the current Administration’s broader attack on asylum and legal immigration. As immigration courts have more than a million cases pending, most asylum cases in court take several years to resolve. Similarly, the asylum office has nearly 340,000 pending cases and can also take many years to adjudicate a case. Given the proposed changes, most asylum seekers will be unable to legally work while they seek protection from persecution. The collateral consequences of this myopic rule change are dire. The United States will lose tax revenue from these individuals, many of whom will be forced to exploitation and poor working conditions from employers who wish to take advantage of the fact that are not lawfully authorized to work.

USCIS Seeks $1.2 Billion in Emergency Funding to Avoid Furloughing Employees

In May, USCIS first notified Congress of a projected budget shortfall and asked for $1.2 billion in emergency funding that would stretch into the beginning of the next fiscal year. Recently, USCIS formally notified the American Federation of Government Employees that nearly 70 percent of the agency’s employees could face extended furloughs starting as early as August 3 unless Congress provides the funding. USCIS, which is largely funded by application fees, has nearly 20,000 federal employees overall, not including contractors. USCIS confirmed in a statement that without additional appropriations from Congress, the agency “will need to administratively furlough approximately 13,400 employees.”

USCIS has stated that due to the COVID-19 pandemic, it has seen a dramatic decrease in revenue and is seeking a one-time emergency request. USCIS does not believe it will not have sufficient funding to maintain operations through the September 30 end of the fiscal year, nor will USCIS have balances to fund its operations during the first quarter of FY 2021.

The potential furlough of so many federal employees could lead to a significant increase in wait time for people waiting for immigration benefits and delay the naturalizations of hundreds of thousands of immigrants on the cusp of becoming U.S. citizens but have seen their oath ceremonies delayed by the pandemic.

Obtaining Stamp (I-551) That Extends Green Card

There are times when a lawful permanent resident (LPR), in order to extend his green card, needs a stamp in her passport, called an I-551 (ADIT) stamp. In the past, an LPR typically was able to schedule an appointment with a local USCIS office to obtain an ADIT stamp from USCIS when the green card was expiring. Many ASCs routinely would place a sticker on the back of a permanent resident card (green card) during a biometrics appointment in connection with an I-90 application.

While USCIS Contact Centers (1-800-375-5283) continue to schedule local office appointments for those seeking an ADIT stamp, they will only do so “where there is an emergent need.” Examples of a situation where an appointment will likely be scheduled include a need to document continued status for employment-verification purposes or for necessary international travel. By itself, the fact that an LPR’s 18-month extension based on a pending Form I-751 has expired is likely insufficient to warrant a local appointment while USCIS field offices are closed. Furthermore, it is unclear if needing an ADIT stamp in order to extend an LPR’s driver’s license is considered an emergent need by USCIS. If the state has not automatically extended driver’s licenses during the crisis, or the extension period has already elapsed, an appointment may be requested at a local USCIS office. Nevertheless, it  is important to demonstrate the critical or emergent need to obtain an extension. The greater the need for the LPR to have to drive, the greater the chance that USCIS will consider the need meets the standard for an appointment.

When calling the USCIS Contact Center to request a field office appointment for an I-551 stamp, the caller should clearly explain the reason for which the request is being made (e.g., employment authorization, emergency international travel, driver’s license extension, etc.) and be prepared to document to both the USCIS Contact Center representative and the local USCIS officer why the stamp is needed. For the purpose of business verification, examples of documents to include would be a letter from the employer documenting the need for a demonstration of the applicant’s continued status, or documentary evidence of the applicant’s credentials.

Additional Employment-Based Visas Expected Starting October 1 – One Silver Lining of the Pandemic

The State Department’s Visa Control and Reporting Division – the division that is responsible for establishing cut off dates in the monthly Visa Bulletin – estimates that there will be an additional 57,200 visas available for employment-based immigrants in the FY2021, which begins October 1, 2020. This is because there has been a significant amount of unused FY2020 family-based visa numbers, and the law requires that unused family-sponsored visas be added to the FY2021 employment-based annual limit. While this is good news for all employment-based visa categories, the EB-1, EB-2, and EB-3 categories would benefit most with most of the additional visas going to these three categories collectively. The additional visas translate to a 14,000 per country limit—a 21.5% increase over FY2020. The excess numbers will create the possibility of significant advancement for EB-1 China, EB-1 India, and EB-5 China, as well as the possibility of EB-3 Worldwide becoming current. We shall see…October 1 is not far away.

News in Brief

The following additional items may be of interest to our readers:

Children Currently in Detention Ordered Released: Due to COVID-19, U.S. District Court Judge Dolly M. Gee ordered that all children currently held at ICE Family Residential Centers (FRCs) for more than 20 days must be released by July 17, 2020, stating that FRCs are “on fire” and there is no more time for half measures.

Lawsuit Filed to Compel USCIS to Conduct Oath Ceremonies: The plaintiffs, naturalization applicants who have been unable to take the oath of allegiance in order to complete the last step of the naturalization process for months due to the COVID-19 pandemic, filed a proposed class action lawsuit in federal court in Pennsylvania seeking an order instructing USCIS to conduct administrative naturalizations permissible under the law, using all available technologies, by September 28, 2020, which is the last day on which Pennsylvania voters may register to vote in the national November election.

 Visa Sanctions Imposed on Burundi: DHS announced that it has imposed visa sanctions on Burundi “due to lack of cooperation in accepting its citizens and nationals ordered removed” from the U.S. As of 6/12/20, the Bujumbura U.S. embassy has discontinued issuance of all NIVs, with exceptions, for Burundian citizens and nationals.

CBP To Reopen Trusted Traveler Programs Enrollment Centers: CBP announced that it plans to reopen Trusted Traveler Programs enrollment centers in early July. Beginning July 6, 2020, conditionally approved Global Entry, SENTRI, and U.S.-Mexico FAST applicants will be able to complete in-person interviews at most Trusted Traveler Programs enrollment centers.