In this issue
- Trump Amends Proclamation to Suspend Entry of Nonimmigrant Workers, With Exceptions; USCIS Issues Statement
- New Restrictions for F-1 Students
- USCIS Updates Fee Payment System Used in Field Offices
- USCIS Extends Flexibility for Responding to Agency Requests
- USCIS Expected to Furlough Many Workers on August 3
- Immigration Judges Sue Trump Administration
- State Dept., USCIS Issue Statements on Proclamations Suspending Entry of Immigrants and Nonimmigrants
- Texas Service Center Has Moved
- Supreme Court Rules DHS Violated APA, DACA Stands (At Least for Now)
- State Dept. Faces Backlog in 'Phase One' Reopening of U.S. Passport Operations
Trump Amends Proclamation to Suspend Entry of Nonimmigrant Workers, With Exceptions; USCIS Issues Statement
On June 29, 2020, President Trump issued an amendment to his Presidential Proclamation issued June 22, 2020. The initial Proclamation restricted foreign workers who did not hold a valid U.S. visa stamp in their passports but appeared to exempt individuals who held any type of valid U.S. visa (i.e., individuals who held a B-1/B-2 visa would still be able to get one of the specified work visas to enter the United States).
The June 29, 2020, Amendment clarifies that a foreign worker must have possessed a valid visa in the same visa category as the one in which they are seeking to enter the United States in order to be exempt from the bar. In other words, an H-1B visa applicant who was outside the United States as of June 24, 2020, who did not hold a valid H-1B visa stamp as of that date is prevented from securing an H-1B visa (whether he or she held any other type of U.S. visa on June 24).
The provision in the in the June 22, 2020, Proclamation regarding limited exceptions is not affected by the amended proclamation.
The new Proclamation expires on December 31, 2020, but "may be continued as necessary." It also calls for additional restrictions to be considered through rulemaking. U.S. Citizenship and Immigration Services (USCIS) released a related statement.
New Restrictions for F-1 Students
The Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security issued unofficial guidance indicating that, effective for the Fall 2020 term, if a school's program is completely online and students are attending online courses exclusively, the students will not be allowed to remain in the US in the F-1 or M-1 status. Official rules are expected to be published shortly.
Provisions which are likely to be include:
- Students attending schools operating entirely online may not take a full online course load and remain in the United States.
- For those who are hoping to enter the US, the State Department will not issue visas for such students and the US Customs and Border Protection officers will not allow such students to enter the US.
- For those already in the US, they will not be allowed to remain, unless they transfer to schools with in-person classes.
- Students attending schools operating under normal in-person classes are bound by existing rules; these students are only allowed to take a maximum of one class or three credit hours online.
- Students attending schools adopting a mixture of online and in-person classes, will be allowed to take more than one class or three credit hours online. The assumption is that these students will not be able to take all classes on-line. ICE specifically indicates that "These schools must certify through the Form I-20, 'Certificate of Eligibility for Nonimmigrant Student Status,' that the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program." F-1 students in English language training programs or M-1 students are not permitted to enroll in any online classes.
USCIS Updates Fee Payment System Used in Field Offices
U.S. Citizenship and Immigration Services (USCIS) has made updates to its fee payment system used in field offices to "increase transaction security and reduce processing errors." Effective immediately, a long list of field offices will only accept payments in the form of a personal, attorney, or business check; debit or credit card; or reloadable prepaid credit or debit card. Money orders will not be accepted.
USCIS Extends Flexibility for Responding to Agency Requests
U.S. Citizenship and Immigration Services (USCIS) has extended the flexibilities it announced on March 30, 2020, to assist applicants and petitioners responding to certain agency requests. The flexibility applies to the requests/notices listed below if the issuance date listed on the request, notice, or decision is between March 1 and September 11, 2020, inclusive:
- Requests for Evidence
- Continuations to Request Evidence (N-14)
- Notices of Intent to Deny
- Notices of Intent to Revoke
- Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centres
- Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)
- Filing date requirements for Form I-290B, Notice of Appeal or Motion
USCIS said it will consider a response to the listed requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.
USCIS Expected to Furlough Many Workers on August 3
According to reports, U.S. Citizenship and Immigration Services (USCIS) is expected to furlough more than two-thirds of its employees as of August 3, 2020, for at least a month and up to three months or more.
Agency revenues have dropped precipitously due to a combination of factors, including availability of its fee-based services during the COVID-19 pandemic and Trump administration decisions to severely curtail immigration. USCIS is expected to exhaust its funding in early August unless Congress passes a $1.2 billion emergency supplemental funding request USCIS submitted in mid-May, the agency said.
The furlough of approximately 13,400 USCIS employees is likely to have an enormous negative impact on the U.S. immigration system, effectively halting most adjudications.
Immigration Judges Sue Trump Administration
On July 1, 2020, the Knight First Amendment Institute at Columbia University filed a lawsuit on behalf of the National Association of Immigration Judges (NAIJ) on freedom-of-speech constitutional grounds. They seek to overturn a policy of the Executive Office for Immigration Review (EOIR) that prevents immigration judges (IJs) from speaking publicly on law and policy. There are 460 IJs in 69 immigration courts across the United States.
The Institute explained that for years, EOIR allowed IJs to speak in their personal capacities on issues relating to immigration, so long as they made clear that they were not speaking on behalf of the agency. EOIR changed this policy in 2017 to require IJs who wished to speak publicly in their personal capacities to get prior approval. In January of this year, the Institute noted, EOIR issued an even more restrictive policy that categorically prohibits IJs from speaking in their personal capacities about immigration law or policy or about EOIR programs or policies. On all other topics, the policy requires IJs to obtain EOIR's prior approval. EOIR's 2020 policy follows a petition filed by the Department of Justice to decertify NAIJ for which a decision is pending, the Institute noted.
"We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced," said Ramya Krishnan, staff attorney at the Institute.
State Dept., USCIS Issue Statements on Proclamations Suspending Entry of Immigrants and Nonimmigrants
The Department of State (DOS) has issued several statements on President Trump's recent proclamations suspending the entry of immigrants and nonimmigrants, with exceptions. U.S. Citizenship and Immigration Services (USCIS) also issued a statement, as did several other entities. Highlights are below:
DOS statement issued June 23, 2020. This statement appears to restate certain details of the Presidential Proclamation issued June 22, 2020.
DOS statement issued June 17, 2020. This statement appears to restate certain details the Presidential Proclamation issued April 23, 2020, which was extended and amended by the proclamation issued June 22, 2020.
Both of the DOS statements note that routine visas services have been suspended at U.S. posts worldwide as a result of the COVID-19 pandemic, but that as resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Mission-critical immigrant visa categories may include applicants who may be eligible for an exception under this presidential proclamation, such as: IR/CR1, IR/CR2, IR/IH-3, IR/IH-4, SQ, SI, and certain medical professionals, as well as cases involving an applicant who may age out, the statements say. The June 23 statement also includes in the mission-critical category "certain aliens providing temporary labor or services essential to the United States food supply chain." The statements note that "[w]hile embassies and consulates may process these types of cases, their ability to do so may be limited by local government restrictions and available resources. In addition, an applicant's ability to travel may be impacted by local laws, regulations, and travel restrictions."
USCIS statement issued June 23, 2020. The USCIS statement notes that the June 22 proclamation does not affect those currently working in the U.S. on valid H-1B "or similar" visas. USCIS said the proclamation also does not prevent individuals in possession of valid visas before the effective date of the proclamation from entering or re-entering the United States if they have been abroad, provided they have not otherwise rendered themselves inadmissible. "The U.S. will continue to honour these already valid visas as we help American workers get back on their feet," said Joseph Edlow, USCIS Deputy Director for Policy.
CBP response. Also, in response to questions, a spokesperson from U.S. Customs and Border Protection said the proclamation does not apply to foreign nationals who are normally visa-exempt, such as most Canadians. For foreign nationals requiring a visa, he said that consular officers will determine if exemptions apply before issuing a visa.
U.S. Embassy FAQ. In addition to the statements noted above, the U.S. Embassy and Consulate in Spain and Andorra posted a FAQ on visa questions on June 18, 2020, which mentions the earlier proclamation.
Texas Service Center Has Moved
U.S. Citizenship and Immigration Services' Texas Service Center has moved as of June 26, 2020. The new address is:
Texas Service Center
6046 N. Belt Line Rd.
Irving, TX 75038-0001
USCIS said those submitting forms should refer to the form filing address pages at uscis.gov to find the specific address information, including suite numbers, to be included depending on which form is being submitted. USCIS noted that service centers do not provide in-person services, conduct interviews, or receive walk-in applications, petitions, or questions.
Supreme Court Rules DHS Violated APA, DACA Stands (At Least for Now)
On June 18, 2020, the Supreme Court ruled that Elaine C. Duke, then-Acting Secretary of the Department of Homeland Security (DHS), violated the Administrative Procedure Act (APA) in 2017 when she rescinded the Deferred Action for Childhood Arrivals (DACA) program, in place since 2012, at the direction of the Attorney General. DACA granted certain people who entered the United States as children the ability to apply for a two-year "forbearance of removal" and to be eligible for work authorization and various benefits. There are approximately 700,000 DACA recipients.
The Court noted in its decision that the Department of Homeland Security may rescind DACA and that the dispute instead was primarily about the procedure the agency followed in doing so. The government had argued that its decision was unreviewable, but the Court disagreed. For several reasons, the Court found the rescission of DACA to be "arbitrary and capricious," noting that "[w]e do not decide whether DACA or its rescission are sound policies," but only "whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients." The appropriate recourse, the Court found, was "to remand to DHS so that it may consider the problem anew."
USCIS subsequently issued a statement calling DACA recipients "illegal aliens" and asserting that the Court's decision "has no basis in law and merely delays the President's lawful ability to end the illegal [DACA] amnesty program."
According to some observers, it is unlikely that the DACA program can be discontinued this year. Any such effort, and ensuing legal challenges, could take months or years. In the meantime, it is possible that a lower court could open the program once again to new applicants, and a presidential election looms. Stay tuned.
State Dept. Faces Backlog in 'Phase One' Reopening of U.S. Passport Operations
The Department of State (DOS) reportedly faces a backlog of approximately 1.7 million applications as it begins opening passport agencies and centers under Phase One of its reopening plan in response to the COVID-19 pandemic. A spokesperson said that was a "slight increase" over the usual monthly amount, and that capacity to handle the backlog is growing.
Passport centers that have reopened recently include Arkansas; Atlanta, Georgia; Boston, Massachusetts; Buffalo, New York; Chicago, Illinois; Colorado; Connecticut; Dallas, Texas; Detroit, Michigan; El Paso, Texas; Honolulu, Hawaii; Houston, Texas; Los Angeles, California; Miami, Florida; Minneapolis, Minnesota; National Passport Center (Portsmouth, New Hampshire); New Orleans, Louisiana; New York; Philadelphia, Pennsylvania; San Diego, California; San Francisco, California; San Juan, Puerto Rico; Seattle, Washington; Vermont; Washington; Western Passport Center; and Special Issuance Agency (Washington, DC).
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: