COVID-19 Immigration Update

 Department of Homeland Security: USCIS, ICE, and CBP

USCIS

USCIS Extends Time Permitted to Respond to Certain Requests

On September 11, USCIS again extended its policy to additional time to respond to certain agency requests. USCIS permits an additional 60 days to respond to requests for evidence, continuations to request for evidence, notices of intent to deny, notices of intent to revoke, notices of intent to rescind, motions to reopen an N-400, filing date requirements for the N-336, and filing date requirements for the I-290B. This applies to all notices listed on the request, notice, or decision from March 1, 2020 through January 1, 2021.

 ICE and Interior Enforcement

Enforcement Operations and Detention

According to its website, ICE is confident their officers can properly and safely carry out day-to-day operations amidst the pandemic; however, they will limit enforcement to “public safety threats and persons who are subject to mandatory detention.” Social visitation remains suspended at ICE detention facilities. The spread of COVID-19 in ICE detention facilities remains a problem. ICE has been criticized for failing to test individuals exhibiting symptoms of COVID-19, failing to isolate individuals who have exhibited symptoms, failing to release individuals most at risk, failing to appropriately monitor COIVD-19 patients, and continuing to transfer detainees across state lines.

Employment Verification (I-9)

If there are no employees present at a work location and a new employee is working remotely due to COVID-19, employers will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax, or email, etc.)  — and obtain, inspect, and retain copies of the documents — within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice or within three business days after the termination of the national emergency, whichever comes first.

CBP and Border Enforcement

Travel restrictions into Mexico and Canada remain in effect at least through November 21, 2020. Nonessential crossings are not permitted; however, essential crossings, such as returning U.S. citizens and lawful permanent residents, individuals travelling for medical reasons, returning to school, emergency responders, members of the U.S. military, spouses and children of U.S. military members, and cross-border trade can still take place.

Department of State and U.S. Embassies Abroad

 Expansion of Interview Waiver Eligibility

On August 25, Secretary Pompeo, in consultation with DHS, temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. The Secretary temporarily extended the expiration period to 24 months. This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear in person, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff. Eligible NIV applicants are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available, as well as eligibility information and instructions on applying for a visa without an interview. The policy is in effect until December 31, 2020.

Department of Justice and the Immigration Courts

Many immigration courts and the Board of Immigration Appeals (BIA) remain reopened for nondetained hearings. Hearings in nondetained courts without an announced date are postponed through (and including) November 6, 2020.

Department of Labor

During the pandemic, the DOL’s Office of Foreign Labor Certification (OFLC) began emailing certified labor certifications instead of mailing them to the attorney of record. DOL recently announced that it would make this change permanent.

Other Headlines

USCIS Fee Increase Enjoined by Federal Court

On Sept. 29, 2020, the U.S. District Court for the Northern District of California preliminarily enjoined DHS from implementing or enforcing any part of the USCIS fee regulation, which was slated to go into effect on October 2. The rule would have changed the USCIS fee schedule and would have required the use of new versions of several forms. This means that the increased fees, as well as the form and policy changes related to the USCIS fee rule, cannot be implemented by USCIS at this time.

Declaration of Self-Sufficiency (Form I-944) Now Required

After many weeks of uncertainty, the Declaration of Self-Sufficiency, Form I-944, is required in most adjustment of status cases. Unless there is further court action that enjoins its implementation, the form is here to stay. Of course, a new administration could direct USCIS to reverse implementation.

New Rules Governing H-1B Specialty Workers Will Further Restrict Legal Immigration

DHS issued an interim final rule, scheduled to take effect on December 7, that limits an employer’s ability to demonstrate that its job is in a “specialty occupation.” The H-1B classification allows U.S. employers to hire or continue to employ workers in “specialty occupations.” Engineers, information technology professionals, accountants, doctors, and scientists are all examples of “specialty occupations.”

The DHS rule adopts a restrictive definition of “specialty occupation” — including narrowing which field of study will be acceptable — as well as the criteria by which an employer may demonstrate that its job is in a “specialty occupation.” The rule also requires more documentation. Taken together, the rule will result in more H-1B petition denials. The DHS rule also limits how H-1B workers may be employed and includes a restrictive definition of the employer-employee relationship. The rule also sets a one-year limit on employing H-1B workers placed at customer sites. These changes are aimed at restricting certain industries’ use of the H-1B category

Only H-1B petitions filed on or after the rule’s effective date will be impacted. This means that even new petitions to extend H-1B status which were previously approved by USCIS will be subject to these new more restrictive interpretations. The rule will not, however, apply to currently pending or previously approved H-1B petitions.

The rule is likely to face court challenges. Not only has the Administration lost several court cases where it argued for the same interpretations now found in the regulations, but Congress in legislation already defined “specialty occupation.”

New Rules on Prevailing Wages for PERMs and H-1Bs, H-1B1s, and E-3s

On October 8, 2020, with less than two days’ notice, DOL issued an interim final rule that significantly and adversely affects Prevailing Wage Applications for PERM labor certification for sponsorship purposes. This new rule applies to any Prevailing Wage Application that was pending on or after October 8, but does not affect wages issued prior to that date.

This rule, which is already being challenged in federal court, significantly raises the wage requirements for employers who are sponsoring their employees and who need to obtain a “prevailing wage” from DOL to begin the sponsorship process. The rule changed how DOL computes wage levels, which in turn affects the wages that employers are obligated to pay for PERM sponsorship and nonimmigrant workers in the H-1B, H-1B1, or E-3 category.  While the wage levels remain under a four-tiered wage structure, even the lowest Level 1 wage will now be closer to the Level 2 or Level 3 wage. This rule changes the wage levels so significantly that employers will find it difficult to sponsor a worker.

Fortunately, employers are still allowed to use acceptable prevailing wage surveys when filing Prevailing Wage Applications.

The rule also affects applications for high-skilled workers with H-1B, H-1B1, or E-3 nonimmigrant visas. For these nonimmigrant visas, DOL makes a determination of the wage level on the Labor Condition Application (LCA), which is filed with DOL and must be certified for the nonimmigrant petition to be approved. The rule affects any LCA filed on October 8, 2020 or thereafter, because again the LCA must reflect the higher wage based upon the new method DOL uses to compute wages.  However, the new rule does not affect LCAs already pending as of October 7, 2020, nor does it affect USCIS petitions pending or already approved as of October 7.

Pending litigation should provide interim relief in the next few weeks, and possibly permanently. For example, at least one lawsuit, if successful, would result in an order prohibiting the DOL from using these new prevailing wages until the courts determine whether the new rule is lawful. If employers have been issued a prevailing wage determination under the new rule, there may be temporary relief by requesting a redetermination by DOL of the wage. If current pending litigation is successful and the federal court judge issues a preliminary injunction, the DOL could be required to reissue prevailing wages within 10 days.

Premium Processing Fees Increase for All Petitions

Effective October 19, premium processing fees have increased, from $1,440 to $2,500, for benefit requests that are already eligible for premium processing through Form I-907 (Request for Premium Processing), except for H-2B and R-1 petitions, which are only increasing from $1,440 to $1,500. USCIS advises that any Form I-907 that is postmarked on or after October 19 must include the new fee amount. Filings postmarked on or after October 19 that include the incorrect premium processing fee will see the Form I-907 rejected and the fee returned, although the underlying case itself will not be rejected. (This fee increase was not part of the fee increase reported above, which was enjoined on September 29.)

Provisions relating to premium processing — increasing fees and expanding services — were included in the stop-gap Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on September 30, which funds the government through December 11, 2020. Included in that Act is language that requires USCIS to permanently expand premium processing. While the Continuing Appropriations Act took effect immediately, changes to premium processing do not take effect until USCIS is able to implement them. The increase noted above is the first measure in the legislation to be implemented by USCIS.

Other provisions relating to premium processing but not yet implemented by USCIS include expanding premium processing services to: (1) employment-based nonimmigrant petitions and associated applications for dependents; (2) Form I-140 petitions currently not permitted to be premium processed; (3) Form I-539 used to extend of change nonimmigrant visa status; (4) Form I-765 used to request work authorization; and (5) any other immigration benefit type deemed appropriate by the Secretary. The legislation provides clear guidelines on the maximum amount of fees that can be charged for these expanded categories.

Pending Removal of Conditions (I-751) and Filing for Naturalization

Because USCIS takes well over a year to process a Form I-751, Petition to Remove Conditions on Residence, conditional permanent residents married to U.S. citizens find themselves eligible to file for naturalization — even though their removal of conditions case remains pending. These individuals are permitted to file both cases, assuming, of course, the applicant is eligible.

What is the process? Sometimes, the removal of conditions case will be adjudicated while the naturalization case is pending and before any scheduled interview, but sometimes not. If the naturalization case is scheduled for an interview before the removal of conditions is adjudicated, the U.S. citizen spouse is advised to attend the naturalization interview with the foreign national. This is because the USCIS officer first will adjudicate the removal of conditions, and then conduct the naturalization interview.

It should be noted that if the foreign national spouse entered on an immigrant visa after consular processing abroad, there should always be an in-person interview for the removal of conditions application. Historically, this has not been USCIS practice, but it is now. (If your I-751 case has a receipt number that starts with NBC, then this is a good indicator that your case ultimately will be scheduled for an interview.) In all other instances, it is the service center’s discretion to decide whether to schedule an in-person interview. That decision is based on the quality of evidence submitted and whether a determination can be made based upon a review of the documentary evidence alone.

Finally, it should be noted that sometimes USCIS mistakenly issues a two-year conditional green card when it should have issued a 10-year card. If a foreign national has been married to the U.S. citizen spouse for at least two years at the time of admission, residency should be granted with no conditions attached and no requirement to file for removal of conditions. If you believe that you were issued conditional residency when you should have been granted residency with no conditions, you can file a Form I-90, Application to Replace Permanent Resident Card, choose reason 2.d (USCIS error), and include a copy of your marriage certificate proving the date of marriage. If you have already filed for removal of conditions based on a wrongly issued conditional resident green card, USCIS should recognize the error, administratively close the case, return your filing fee, and instruct you to file the I-90 for a corrected green card.

Because the removal of conditions takes so long to process, in most instances it is recommended that a person file as early as possible in the 90-day window. Further, there is no reason to wait to file for naturalization if eligible and the removal of conditions case is still pending. A naturalization application can be filed as early as 90 days before the three-year anniversary of conditional residency. You can be in line for both benefits at the same time.

TPS Updates: Status of Federal Litigation and New USCIS Policy Memorandum on Advance Parole

Court Holds DHS Has Authority to End TPS Designation for El Salvador, Haiti, Sudan, and Nicaragua

On September 14, 2020, the United States Court of Appeals for the Ninth Circuit ruled that DHS acted within the limits of its authority to end Temporary Protected Status (TPS) for recipients from El Salvador, Haiti, Sudan, and Nicaragua. The decision to end TPS protections for these nations could ultimately displace 400,000 recipients, all of which have passed criminal background checks and many of whom have U.S. citizen children and established lives in the United States. The Trump Administration has agreed to maintain the protections at least until March 5, 2021 for the people in the affected countries, and until November 2021 for Salvadoran TPS recipients. Meanwhile, USCIS recently extended TPS designation for South Sudan for 18 months, through May 2, 2022.

The plaintiffs in the Ninth Circuit case stated that they are likely to seek reconsideration in front of an 11-judge panel hearing. Many legal scholars believe the case will eventually be decided by the Supreme Court. It is possible that the decision will become moot if Joe Biden is elected president and his administration decides to restore TPS benefits to the affected nations.

USCIS Limits Ability of TPS Recipients to Adjust Status

The Ninth Circuit’s decision to allow DHS to end TPS comes just weeks after USCIS issued a legal memorandum severely limiting the ability of TPS recipients to obtain permanent residence in the United States. The memorandum adopts an administrative appellate decision in Matter of Z-R-Z-C-, holding that TPS recipients who obtained advance parole, travel, and then reenter on their travel document, resume the same status they had when they departed the United States. In other words, they will be deemed to have not made a new entry where they were “inspected and admitted” by an immigration officer, which is required for adjustment of status. This policy will prohibit most TPS beneficiaries from being able to adjust status based on a family-based petition if they initially entered without inspection.

This new policy will be applied only prospectively to TPS recipients who traveled and returned on advance parole after the date of the adopted decision, August 20, 2020. Therefore, TPS recipients who traveled on parole and returned prior to August 20 still would be eligible to adjust. USCIS also will limit the application of this new policy by not implementing it against recipients who already adjusted status. Thus, lawful permanent residents who were previously in TPS status and adjusted status after travelling on advance parole will not be prevented from naturalizing.

For years, many USCIS officers and ICE trial attorneys in immigration court have been making similar legal arguments about how travelling on advance parole does not satisfy the legal requirements to adjust status. It also comes after a similar policy decision, issued on December 20, 2019, indicating that travel on parole does not execute orders of removal, and therefore TPS recipients continue to have unexecuted orders of removal upon returning to the United States on parole.

A separate legal battle is being waged in federal courts regarding whether a grant of TPS satisfies the requirements of “inspection and admission” for purposes of adjustment of status. If courts hold that TPS satisfies this requirement, TPS recipients would be eligible to adjust status even if they entered without inspection and had never been paroled. On a positive note, the U.S. District Court for the District of Minnesota recently ruled in favor of the TPS recipients, following precedent for the Sixth and Ninth Circuit Court of Appeals that it does satisfy the requirement. This comes after a decision from the Third Circuit that followed the precedent established in the Eleventh Circuit and USCIS that it does not satisfy the requirement for purposes of adjustment. Given that the federal courts cannot reach a consensus on this issue, it is possible this matter will also be addressed by the Supreme Court.

Unprecedented Animus and Hostility Towards Asylum Seekers

The Trump administration has continued its hostility towards persons seeking asylum, issuing new restrictions on eligibility. The regulation prohibits granting asylum to those who have re-entered illegally, used fake documents, were convicted of any felony, committed public benefits fraud, or were convicted for driving under the influence. The rule change is scheduled to go into effect on November 20, 2020.

These policy changes come into effect shortly after the administration issued new regulations impacting persons with pending asylum application’s eligibility for employment authorization. A preliminary injunction was granted by a district court in September temporarily preventing these regulations from going into effect.

Trump abhorrently stated he believes persons fleeing persecution make up stories and called the asylum system in the United States a scam. Since his inauguration in 2017, the administration has waged endless legal attacks on asylum seekers and refugees. The 2020 cap of refugee admissions into the United States is 18,000, a historical low. (See more in this newsletter below.) Trump’s Attorney Generals issued precedential decisions attempting to limit survivors of gang and gender violence from obtaining asylum. Attorney General Barr released another precedential decision on September 24, in another attempt to further limit asylum eligibility. Nine of Trump’s recent hires to the Board of Immigration Appeals include judges who denied over 90 percent of asylum requests. The administration also has attempted to reassign appellate immigration judges who were appointed before his administration.

In addition to legal restrictions, policy changes, and selection-biased adjudicators, the Trump administration implemented several measures prohibiting asylum seekers from even entering the country to litigate their cases. Citing COVID-19, the Trump administration has sought to expel asylum seekers based on a false presumption that they are a public health risk. The administration previously fought against federal judicial review of expedited orders of removal and won in the Supreme Court. The legality of the remain-in-Mexico policies will also be decided by the Supreme Court in its coming term.

October Surprise: USCIS Follows Visa Bulletin’s “Dates for Filing” in Most Employment-Based Categories

The DOS Visa Bulletin for October took effect on October 1, the first day of the new fiscal year, FY2021. Not only did priority dates in the employment-based (EB) preference categories (except EB-5) advance dramatically, but USCIS announced that it would follow the “dates for filing” chart for the employment-based categories. This means many employment-sponsored foreign nationals, many of whom have been waiting years, are now eligible to file their I-485 adjustment of status applications this month.

This rapid advancement in the employment-based priority dates reflects the impact of travel bans and consular closures due to the coronavirus pandemic, which meant that many family-based immigrants were unable to obtain their immigrant visas in FY2020. The unused family-based numbers from FY2020 were added to the FY2021 employment-based visa allocation, as permitted by law.

Adjustment of status cases filed according to the “dates for filing” chart will not, however, be adjudicated until they are current under the “final action date” chart. Applications for work authorization and travel permits will be adjudicated while the adjustment application is pending, and work and travel permits can be renewed until the underlying adjustment case is decided.

DV Lottery Registration Period is Open Until Noon EST 11/10/2020

DOS recently released instructions for registering for the 2022 Diversity Immigrant Visa lottery. Registration began on October 7 and will continue until 12:00 noon (Eastern Time) on November 10, 2020. There is no cost for registering. DOS makes selections by randomized computer drawing from applicants who meet eligibility requirements. For 2022 DVs, persons from the following high-immigration countries/regions may NOT apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Vietnam, Macau SAR, and Taiwan. For instruction, see dvprogram.state.gov.

USCIS Employs Yet Another Form of Ridiculous and Insidious Tactics to Discourage Applications and Petitions: Illegitimate Rejections

USCIS recently advised caution that all fields on forms should be answered. Yet, many such fields are irrelevant to the adjudication of a case. Recently, a dozen senators formally requested of USCIS immediate answers and a review of recent USCIS adjudication procedures whereby asylum, U visa, and other routine applications are being rejected for failure to complete irrelevant or immaterial fields that have no bearing on the information needed for final adjudications. They note:

“These new, unannounced requirements and frequent rejections have caused confusion among applicants, created new and additional burdens on legal representatives and community advocates, and have likely dissuaded individuals from pursuing benefits they are legally entitled to request under our laws. By contrast, no legitimate need has been articulated to explain this change, nor have instructions been updated to ensure applicants are aware of the requirements.”

Some of the more ridiculous rejections including USCIS rejecting applications that include “N-A” or “NA” in field while accepting “N/A”. Another is rejecting an application that requires a photo but rejecting that application if the name and A-number is missing from the back of the photo even where the photo is stapled to the application. Moral of the story: be super especially careful when completing immigration forms! Go figure.

DOS and Au Pair Program

DOS announced recently an immediate moratorium on program growth in the au pair category of the Exchange Visitor Program. DOS will not designate new sponsor organizations or allow program expansions for existing sponsors. The moratorium restricts the size of the category to calendar year 2019 program participant levels. The notice states that DOS expects the moratorium to remain in effect while it completes a review of the program and determines next steps, including potential modifications to the program.

The au pair category allows foreign nationals the opportunity to live with American host families and participate directly in their home life. In addition, au pairs attend U.S. post-secondary educational institutions, participate in cultural activities, and provide childcare services. In operation in the United States since 1989, the au pair program supports public diplomacy efforts by fostering beneficial, personal ties with foreign youth and offering them a positive view of the United States that they can then share when they return to their home countries. In calendar year 2019, approximately 21,550 au pairs and 15 au pair sponsor organizations participated in the Exchange Visitor Program.

News in Brief

E-verify Employers Are Reminded to Take Action on TNCs Within 10 Working Days: USCIS issued a reminder to employers enrolled in E-Verify that they must take action on Tentative Nonconfirmations (TNCs) for their employees within 10 federal-government working days. Starting 11/5/20, E-verify will begin notifying employers not in compliance to take action to meet the requirement. USCIS also reminds employers to review the Employee Information and Attestation area in Section 1 of Form I-9 for two common mistakes employees make: falsely attesting to being a U.S. citizen, and choosing “noncitizen national of the United States.” Employers can be held liable for these errors.

K Visas May be Prioritized at Consulates: DOS announced that as consular operations resume, posts are authorized to give K visa cases high priority. Consular officers may revalidate the I-129 petition in four-month increments. For most cases impacted by suspension of visa services, it will not be necessary to file a new I-129 petition.

 Refugee Admissions for FY2021 Set at 15,000: DOS and HHS submitted the President’s Report to Congress on the Proposed Refugee Admissions for the new fiscal year. In FY2021, the United States will admit 15,000 refugees through the Refugee Admissions Program. This paltry number is shameful. (The UNHCR estimates that in 2019 there were 26 million refugees worldwide, one half of whom were under the age of 18.)

More on Detained Minors: A California district court ordered the government to stop placing minors detained by DHS in unlicensed hotels because it violated a 1997 settlement agreement in the Flores case. DHS may implement brief hotel stays for the minors of no longer than 72 hours “as necessary and in good faith” to alleviate bottlenecks in the intake processes at licensed facilities in the process of expelling them from the United States. On another issue, the Government Accounting Office (GAO) issued a report finding that the HHS Office of Refugee Resettlement (ORR) needs to improve the review process for grant applications from care providers for unaccompanied children. GAO found that ORR does not systematically confirm information submitted by applicants and lacks information about ongoing issues at its facilities. Meanwhile, some 545 minor children remain separated from their parents since they entered the U.S. in 2017 and were detained and separated by DHS.