In this issue
- Federal Judge Issues Preliminary Injunction Against Trump Block on H, L, J Foreign Workers
- USCIS Issues Guidance on Fee Rule Following Litigation
- DHS Proposes Rule to Amend Affidavit of Support Regulations
- State Dept. Issues Guidance on National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland
- Federal Judge Rules on DV-2020 Visas
- State Dept. Releases Instructions for DV-2022 Visa Lottery Program
- October Visa Bulletin Shows Major Movement in Employment-Based Cases; USCIS Applies Filing Date Rather Than Final Action Date to Certain Adjustment Applications
- ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Non-immigrant Students, Exchange Visitors, Foreign Media Representatives
- EAD Delays Due to COVID-19: E-Verify/I-9 Guidance
- DOL Announces Permanent Adoption of Electronic Issuance of PERM Labour Certifications
- CBP Publishes Notices Extending Travel Restrictions at Land Ports of Entry Between the United States and Canada, Mexico
- USCIS Issues New Guidance on Application of Public Charge Rule
- DV-2020 Applicants Cannot Be Denied Visas Under COVID Guidance, Court Says
- DOL Interim Final Rule Expected to Raise Wages for H-1B, H-1B1, E-3, and PERM Workers
- USCIS Sends Reminder to Ensure Employees Choose the Correct Attestation on Form I-9
- I-9 Requirements Flexibility Extended for Additional 60 Days
- DHS Extends Measures to Limit Non-Essential Travel Across Land Borders
- USCIS Issues Policy Alert on O Non-immigrant Visa Classifications
Federal Judge Issues Preliminary Injunction Against Trump Block on H, L, J Foreign Workers
On October 1, 2020, a U.S. district judge ruled in NAM v. DHS against aspects of President Trump's June 22, 2020, proclamation that effectively blocked visa issuance to many foreign workers.
More specifically, the proclamation prevented visa issuance to intracompany transferees (L-1A and L-1B), skilled workers in specialty occupations (H-1B), seasonal non-agricultural laborers responding to proven domestic labour shortages (H-2B), and certain exchange visitors in work-study programs (J). The plaintiffs include Intrax, Inc. (a leading operator of cultural exchange programs), the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, the National Retail Federation, and TechNet. Collectively, the plaintiffs' members include hundreds of thousands of U.S. businesses of all sizes and a variety of economic sectors.
Among other things, the court rejected the government's position that the Presidential Proclamation implicated the President's foreign affairs powers simply because it affects immigration. The court noted that this Proclamation deals with a purely domestic economic issue – the loss of employment during a national pandemic – and that in domestic economic matters, the national security and foreign affairs justifications for policy implementations disappear, and normal policy-making channels are the default, which includes the traditional pathway of public rulemaking. Indeed, the court said, "there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative."
The court also noted that the Proclamation at issue nullified significant portions of the Immigration and Nationality Act (INA) by declaring invalid statutorily established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond that deadline. "Until, at a minimum, the end of the year, the Proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories," the court noted, "and rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers." The court said that the work visa provisions of the INA set out a "finely reticulated statutory scheme" that "reflects a set of legislative judgments that the entry of international workers is in the national interest provided they enter the market under the specific terms and conditions provided by the statute." The court found that the President's "wholesale elimination of categories of workers does not supplement this legislative judgment but rather explicitly supplants it by refusing admission to all categories of foreign workers."
The court granted the plaintiffs' request for a preliminary injunction pending trial in this action or further order of the court. The scope of relief applies only to the named plaintiffs and their members. Some practitioners advise employers to consider joining NAM or the U.S. Chamber of Commerce to gain relief under the injunction. The government is expected to appeal.
USCIS Issues Guidance on Fee Rule Following Litigation
On September 29, 2020, a U.S. district court preliminarily enjoined the Department of Homeland Security from implementing or enforcing any part of U.S. Citizenship and Immigration Services' (USCIS) rule on its fee schedule and changes to certain other immigration benefit request requirements.
USCIS said that while the rule is preliminarily enjoined, the agency will continue to:
Accept USCIS forms with the current editions and current fees; and
Use the current regulations and guidance to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator's Field Manual chapters 10.9 and 10.10.
DHS Proposes Rule to Amend Affidavit of Support Regulations
The Department of Homeland Security (DHS) proposes to amend its regulations governing affidavit of support requirements.
Certain immigrants must submit an Affidavit of Support executed by a sponsor who agrees to provide financial support to the sponsored immigrant and accepts liability for reimbursing the costs of any means-tested public benefits a sponsored immigrant receives while the affidavit is in effect. In its October 2, 2020, notice of proposed rulemaking, DHS proposes to clarify how a sponsor demonstrates the means to maintain income, such as revising the documentation that sponsors and household members must submit. DHS also proposes to modify when an applicant is required to submit an affidavit from a joint sponsor, who may be a household member for purposes of executing a Contract Between Sponsor and Household Member, and who is considered as part of a sponsor's household size. DHS also proposes to update reporting and information-sharing requirements between authorized parties and U.S. Citizenship and Immigration Services.
Written comments on the proposed rule and related information collection should be submitted by the deadlines and using the methods specified in the notice.
State Dept. Issues Guidance on National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland
The Department of State (DOS) recently released updated guidance on national interest exceptions for travellers from the Schengen Area, United Kingdom (UK), and Ireland. Certain business travellers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations. Qualified travellers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) authorization may travel to the United States following the procedures below:
- Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
- Business travellers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class, an ESTA authorization that was issued before Presidential Proclamations' 9993 or 9996 effective dates, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception, should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
DOS said it also continues to grant national interest exceptions for qualified travellers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.
Federal Judge Rules on DV-2020 Visas
A U.S. district court judge ruled on September 30, 2020, that the Department of State intentionally misinterpreted the Trump administration's entry ban by not issuing diversity visas. The court reserved 9,095 DV-2020 visas for issuance after the final order in the case, which extends the FY 2020 deadline well into FY 2021. The court also granted class status to all non-plaintiffs whose visas had not been issued when Presidential Proclamation 10014, later extended by Presidential Proclamation 10052, took effect.
State Dept. Releases Instructions for DV-2022 Visa Lottery Program
The Department of State (DOS) released instructions on the diversity visa (DV) program for fiscal year 2022, under which up to 55,000 immigrant visas will be available. Applicants must submit entries for the DV-2022 program electronically at https://dvprogram.state.gov/ between noon ET, October 7, 2020, and noon ET, November 10, 2020. DOS recommends entering earlier in the registration period due to likely heavy demand and consequent website delays toward the end of the period. Submission of more than one entry will result in ineligibility.
There is no cost to register for the program. Applicants must meet "simple but strict" eligibility requirements. DOS determines selectees through a randomized computer drawing and distributes diversity visas among six geographic regions. No single country may receive more than 7 percent of the available diversity visas in any one year.
For DV-2022, persons born in the following countries are not eligible to 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, and Vietnam.
October Visa Bulletin Shows Major Movement in Employment-Based Cases; USCIS Applies Filing Date Rather Than Final Action Date to Certain Adjustment Applications
On September 24, 2020, the Department of State released the October 2020 Visa Bulletin, which shows major movement in employment-based cases.
Among other things, the Filing Date for an EB-3 from India has advanced nearly five years to January 1, 2015, from February 1, 2010, while the Filing Date for an EB-1 from India advanced to September 1, 2020, from July 1, 2018. By contrast the Filing Date for EB-2 India advanced to only May 15, 2011, from August 15, 2009.
USCIS issued guidance the same day stating that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status (AOS) applications. The Alliance of Business Immigration Lawyers (ABIL) said that in the past, USCIS has been reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.
As an example, ABIL noted, since USCIS will accept I-485 filing, a new I-140 would need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3. If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate "professional" or "skilled worker" category would need to be checked on the form. The individual may still rely on an old labour certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.
There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2 and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice.
Hodkinson Law Group also recommends that AOS applicants also file applications for an employment authorization document (EAD) and advance parole (AP), to enable work and travel in the event of a disruption in the applicant's current immigration status, ability to obtain a visa, or position.
ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Non-immigrant Students, Exchange Visitors, Foreign Media Representatives
U.S. Immigration and Customs Enforcement (ICE) proposes to amend its regulations by changing the admission period of F, J, and I individuals from duration of status to admission for a fixed time period. ICE said that admitting individuals in those categories for a fixed period will require those who wish to remain in the United States beyond their authorized admission period to apply for an extension of stay with U.S. Citizenship and Immigration Services or to leave the United States and apply for admission with U.S. Customs and Border Patrol at a port of entry.
If finalized without change, the rule would make the biggest changes to regulation of international students and scholars in 20 years. Written comments on the proposed rule are due by October 26, 2020, via the method identified in the notice.
EAD Delays Due to COVID-19: E-Verify/I-9 Guidance
U.S. Citizenship and Immigration Services (USCIS) issued a notice on September 23, 2020, stating that issuance of certain employment authorization documents (EADs) may be delayed due to the COVID-19 pandemic.
To complete the Form I-9 work authorization verification process, new employees who are waiting for their EADs, and current employees who require reverification, may present certain Forms I-797, Notice of Action, as a List C #7 document issued by the Department of Homeland Security that establishes employment eligibility, even though the notice states it is not evidence of employment authorization, USCIS said. For the notice to be acceptable, it must include a Notice Date issued between December 1, 2019, and August 20, 2020, and indicate that USCIS has approved the employee's Form I-765, Application for Employment Authorization. Both new and current employees may present this notice to complete the I-9 until December 1, 2020. New employees must also present an acceptable List B identity document.
USCIS said that by December 1, 2020, employers must reverify employees who presented the notice as a List C document. Those employees must present new evidence of employment authorization—either their new EADs or any other acceptable documentation they choose—from either List A or List C.
DOL Announces Permanent Adoption of Electronic Issuance of PERM Labour Certifications
The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) announced on September 25, 2020, that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.
On March 24, 2020, OFLC announced that due to the impact of the COVID-19 pandemic, it would electronically issue PERM labor certifications to employers and their authorized attorneys or agents through June 30, 2020. On June 16, 2020, OFLC announced that it was extending that period through September 30, 2020. On July 30, 2020, DOL signed a memorandum of agreement (MOA) providing access to the Department of Homeland Security (DHS) to all applications for permanent labor certification submitted to OFLC through the PERM online system, including the ability to verify that a PERM application has been certified. OFLC said the MOA "eliminates the need for duplicate certification requests and increases the integrity of the PERM program by supporting efforts to combat instances of fraud and abuse in connection with labor certification and employment-based immigrant and nonimmigrant programs."
CBP Publishes Notices Extending Travel Restrictions at Land Ports of Entry Between the United States and Canada, Mexico
U.S. Customs and Border Protection (CBP) issued notices extending temporary restrictions on travel of individuals from Canada and Mexico into the United States along land ports of entry at the border. Such travel is limited to "essential travel," as defined in the notice, effective through October 21, 2020.
CBP said the restrictions were necessary to lower the risk of transmission and spread of the virus associated with COVID-19.
USCIS Issues New Guidance on Application of Public Charge Rule
U.S. Citizenship and Immigration Services (USCIS) said it will apply the public charge final rule and related guidance in the USCIS Policy Manual to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. For those who sent their applications or petitions by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.
USCIS released the guidance on September 22, 2020, on its application of the public charge final rule and related guidance to applications and petitions in light of a September 11, 2020, decision by the U.S. Court of Appeals for the Second Circuit (State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli) that allows the Department of Homeland Security (DHS) to resume implementing the rule nationwide, including in New York, Connecticut, and Vermont. The decision stays a July 29, 2020, injunction issued during the COVID-19 pandemic that prevented DHS from enforcing the public charge final rule during the national health emergency.
DV-2020 Applicants Cannot Be Denied Visas Under COVID Guidance, Court Says
In Gomez v. Trump, a federal judge preliminarily stayed a presidential proclamation suspending immigrant visas as applied to diversity visa (DV)-2020 selectees and their derivative beneficiaries. The order states that the government must undertake "good-faith efforts" to expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications and issue or reissue diversity and derivative beneficiary visas to eligible applicants by September 30, 2020, giving priority to the named diversity visa plaintiffs in several consolidated cases and their derivative beneficiaries.
Among other things, the court preliminarily enjoined the government from interpreting and applying COVID-19 guidance to DV-2020 selectees and their derivative beneficiaries in any way that requires embassy personnel, consular officers, or administrative processing centres (such as the Kentucky Consular Center) to refuse processing, reviewing, adjudicating 2020 diversity visa applications, or issuing or reissuing diversity visas on the ground that the DV-2020 selectee or derivative beneficiary does not qualify under the "emergency" or "mission critical" exceptions to the COVID guidance.
The court ordered the Department of State to report, by September 25, 2020, which of the named DV-2020 plaintiffs received diversity visas, the status of processing of the named DV-2020 plaintiffs' applications who have not yet received visas, and the number of unprocessed DV-2020 visa applications and unused diversity visas remaining for fiscal year 2020.
U.S. District Judge Amit P. Mehta signed an amended order on September 14, 2020, rejecting as "illogical" related Department of State guidance announcing that applicants subject to a 14-day quarantine rule would not receive visas if they were not exempt or had not quarantined for 14 days in another location. DOS subsequently updated its guidance on September 17 to state that consistent with the court's order, "no DV-2020 applicants will be prevented from applying for or receiving a visa due to these regional COVID [Presidential Proclamations] if otherwise eligible. The DOS guidance, however, maintains restrictions for other reasons, such as based on Presidential Proclamations related to country of origin. The guidance also warns that "due to resource constraints, limitations due to the COVID-19 pandemic, and country conditions, it will be unable to accommodate all DV applicants before September 30, 2020."
DOL Interim Final Rule Expected to Raise Wages for H-1B, H-1B1, E-3, and PERM Workers
According to reports, with no advance notice or publication in the regulatory agenda, the Department of Labor submitted an interim final rule on September 16, 2020, to the Office of Management and Budget (OMB) to change the wage minimums and related requirements for H-1B, H-1B1, E-3, and PERM workers. Expected to be included are the H-1B1 visa for Chile and Singapore professionals and the E-3 for Australia professionals.
This follows on the heels of another interim final rule sent to OMB by the Department of Homeland Security that will redefine the H-1B specialty occupation, the employer-employee relationship, and H-1B employment.
No description has been provided for the latest rule, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels,” but it is expected to raise the minimum wage for such workers. Publication as an interim final rule means that the rule will take effect without an opportunity for public comment beforehand, although comments can be made later. OMB has up to 90 days to review the rule before publication. Litigation is likely.
USCIS Sends Reminder to Ensure Employees Choose the Correct Attestation on Form I-9
U.S. Citizenship and Immigration Services (USCIS) disseminated a reminder on September 17, 2020, noting that employers are not liable for any erroneous attestations an employee makes in Section 1 of Form I-9, Employment Eligibility Verification. Rather, an employer must ensure that the employee checks only one box to complete Section 1. To ensure employees can complete Section 1 accurately, the employer must provide them with the entire Form I-9, including the instructions for completing the form.
Employers must not treat any employee different from others because of their selected or perceived citizenship, immigration status, or national origin, USCIS said in its email. Employers should never demand that employees select a specific attestation or ask for or demand documents for completion of Section 1. Additionally, when completing Section 2 of Form I-9, the employer should never ask or require employees to show specific documents because of their national origin, ethnicity, immigration or citizenship status, race, colour, religion, age, gender or disability, or because of any other protected characteristic, USCIS said.
I-9 Requirements Flexibility Extended for Additional 60 Days
On September 15, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification. This temporary guidance was set to expire September 19, but because of ongoing precautions related to COVID-19, DHS has extended the policy for an additional 60 days.
This provision only applies to employers and workplaces that are operating remotely. USCIS said employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.
DHS Extends Measures to Limit Non-Essential Travel Across Land Borders
On September 18, 2020, the Department of Homeland Security (DHS) announced an extension until October 21, 2020, of measures to limit all non-essential travel across the U.S. borders with Canada and Mexico. DHS said in a statement, "The U.S., Mexican, and Canadian governments are taking necessary action to fight against this pandemic together."
A DHS statement said that nonessential travel includes travel related to tourism or recreation. Essential travel includes travel to preserve supply chains between the countries. "These supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border," DHS said. Americans, Canadians, and Mexicans also cross the land borders every day to do essential work or for other urgent or essential reasons, and that travel will not be affected, DHS said. Also, U.S. citizens, lawful permanent residents, and "certain other travelers" are exempt.
DHS said the measures, first announced in March 2020, were part of a collaborative "North American" approach intended to limit the further spread of coronavirus. They were extended multiple times throughout the spring and summer.
USCIS Issues Policy Alert on O Non-immigrant Visa Classifications
On September 17, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert and published a new section in its Policy Manual related to the "O" non-immigrant visa classifications. The new guidance (1) expands on how officers determine whether an O-1 petitioner has satisfied the evidentiary criteria and established in the totality of the evidence that a beneficiary has extraordinary ability, or extraordinary achievement in the motion picture and television industry, as applicable; and (2) clarifies the circumstances under which a petitioner may rely on "comparable evidence" to meet the evidentiary requirements for certain O-1 beneficiaries.
O-1 non-immigrant status is available to individuals of "extraordinary ability" in the sciences, arts, business, education, and athletics, and to those with a record of "extraordinary achievement" in the motion picture or television industry, who are coming to the United States temporarily to work in their areas of extraordinary ability or achievement. O-2 status is available for essential support personnel coming to the United States solely to assist an O-1 artist or athlete.
USCIS is also incorporating into the Policy Manual existing guidance relating to certain non-immigrant athletes, coaches and entertainers (P-1, P-2, and P-3 non-immigrant classifications), and their essential support personnel.
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: