Immigration News Update — July 2020 — Trump’s Immigration Proclamation and the War on Foreign Students

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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.

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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 honor 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.

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ICE Issues New Policy Change Barring F-1 and M-1 Students from Online Classes and Mandating their Departure:

 

New guidance for the Student and Exchange Visitor Program issued by the U.S. Department of Homeland Security has stoked anger and confusion from studentsfaculty and immigration advocates.  The new temporary final rule, issued Monday afternoon, prohibits international students from returning to or remaining in the United States this fall if the colleges they attend adopt online-only instruction models amid the pandemic.

 

A growing number of colleges — including Harvard University — have announced that they will reopen their campuses in the fall but conduct classes online. Even with campuses open, international students will be prohibited from studying in the United States under the rule.

This is a shift away from the exceptions put in place during the spring and summer terms, which allowed international students residing in the U.S. to take a fully online course load as colleges transitioned to online instruction in response to the coronavirus pandemic. More than 90 percent of international students chose to remain stateside in the spring, according to a survey by the Institute for International Education. Should the pandemic worsen, the new rule would not allow such flexibility for those students.

 

Sarah Spreitzer, director of government relations at the American Council on Education, said she expects many institutions to try to work around the guidance, and for more colleges to consider hybrid online and in-person instruction models as a result.

 

The rule makes an exception for students enrolled at colleges using a hybrid model this fall. Those students will be able to remain in or return to the U.S. as long as “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.”

 

Several higher education organizations, including ACE and the Presidents’ Immigration Alliance, released statements Monday strongly condemning the rule and urging the Trump administration to rework its position.

 

Details:   https://www.cnn.com/2020/07/08/politics/harvard-mit-lawsuit-ice-foreign-students/index.html

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.

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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 centers
  • 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.

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U.S. District Court Overturns Third-Country Asylum Rule

On June 30, 2020, a U.S. District Judge in Washington, DC, vacated the Trump administration’s third-country asylum interim final rule as unlawful. That rule denied asylum to U.S. asylum claimants who had traveled through another country first without applying for asylum there.

“There are many circumstances in which courts appropriately defer to the national security judgments of the Executive. But determining the scope of an APA [Administrative Procedure Act] exception is not one of them,” wrote U.S. District Judge Timothy J. Kelly, holding that the defendants unlawfully promulgated the rule without complying with the APA’s notice-and-comment requirements.

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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.

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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.

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USCIS Final Rule Imposes New Restrictions on Asylum-Based Work Authorization

U.S. Citizenship and Immigration Services (USCIS) published a final rule on June 26, 2020, “to deter aliens from illegally entering the United States and from filing frivolous, fraudulent, or otherwise non-meritorious claims for asylum to obtain an employment authorization document.” The rule, effective August 25, 2020, does not alter asylum eligibility criteria, the agency said.

The rule prevents those who, absent good cause, entered the United States without authorization from obtaining employment authorization based on a pending asylum application. Additionally, the rule defines new bars and denials for employment authorization, such as for certain criminal behavior; extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the maximum employment authorization validity period to two years; and automatically terminates work authorization when an applicant’s asylum denial is administratively final.

This final rule follows on the heels of USCIS’s final rule to eliminate the 30-day timeframe for processing asylum applicants’ employment authorization documents, effective August 21, 2020.

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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.

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USCIS Issues New H-1B Policy Memo and Rescinds Two Earlier Memos Following Litigation

Following up on an agreement resulting from recent litigation, U.S. Citizenship & Immigration Services (USCIS) has issued a new memorandum and rescinded two policy memoranda regarding the adjudication of certain petitions for H-1B nonimmigrant classification:

  • Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Jan. 8, 2010), which provided guidance on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period; and
  • Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Feb. 22, 2018), which provided guidance relating to H-1B petitions filed for workers who would be employed at one or more third-party worksites, and was intended to be read together with the 2010 memorandum and as a complement to that policy.

Among other things, the new memo states that evidence of specific day-to-day assignments is not required to establish that a position is in a specialty occupation (the so-called “itinerary” requirement). The memo states that USCIS will abstain from applying the itinerary requirement “in the limited instance of applicable H-1B applications until the Department of Homeland Security or USCIS issues new adjudicative and/or regulatory guidance on this requirement.” However, the memo notes, “officers should continue to apply the itinerary requirement at 8 CFR 214.2(h)(2)(i)(F) for H-1B petitions filed by agents.”

The memo also notes that USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. However, the decision must be accompanied by a brief explanation as to why the validity period has been limited, the memo states. This includes, but is not limited to, instances in which the certified labor condition application has a validity period of shorter duration than that specified on the H-1B petition.

In addition, the memo states that guidance concerning “benching” remains unchanged:

Except in certain limited circumstances, “benching” is prohibited by law to prevent foreign workers from unfair treatment by their employers and to ensure that the job opportunities and wages of U.S. workers are being protected. The failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.”

Some note that this appears to run counter to the court’s reasoning in IT Serve v. Cissna and INA section 212(n)(2)(C)(vii)(1). Among other things, Congress permitted employers to place holders of H-1B visas in “non-productive status” as long as the employer continued to pay the approved full-time wage. These observers say that an employer’s inability to work but still pay this individual the required wage should not result in jeopardy for the foreign national’s status.

Under the recent litigation, USCIS entered into an agreement with ITServe Alliance, Inc., an information technology trade group, to overturn more than 200 H-1B denials. The move came after a federal court ruled in March that USCIS policies narrowly defining employer-employee relationships, as well as other regulatory requirements for H-1B classification, were implemented outside of proper notice-and-comment rulemaking.

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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.

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ICE Announces Extension of I-9 Physical Presence Requirement Flexibility for 30 Days

U.S. Immigration and Customs Enforcement (ICE) announced another extension of physical presence flexibility related to Employment Eligibility Verification (Form I-9) compliance that was granted earlier this year. Due to continued precautions related to the COVID-19 pandemic, the policy for employers operating 100 percent remotely in light of COVID-19 is extended for an additional 30 days, to July 19, 2020.

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the I-9 process. On May 19, DHS extended this policy for an additional 30 days.

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USCIS Eliminates 30-Day Timeframe for Processing Asylee Initial EADs

U.S. Citizenship and Immigration Services (USCIS) plans to eliminate the 30-day timeframe for processing asylum applicants’ employment authorization documents (EADs), effective August 21, 2020.

USCIS said the 30-day timeframe was imposed by regulation more than 20 years ago, and that USCIS needs sufficient time to receive, screen, and process applications; address national security and fraud concerns; verify identity; and “further deter those who may attempt to defraud the legal immigration system.”

The final rule also removes the requirement that asylum applicants submit their work authorization renewal requests to USCIS 90 days before their current employment authorization expires. Under the final rule, asylum applicants will be able to file a renewal work authorization application up to 180 days before the expiration date.

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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).

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DOS Issues Final Rule Changing Special Immigrant ‘Exceptional’ Criteria

The Department of State (DOS) has published a final rule, effective December 16, 2020, that codifies in regulation the eligibility criteria for special immigrant status and the application process. The final rule states that special immigrants are those who have been employed by, and “performed faithful service for,” the U.S. government abroad for at least 15 years, along with their accompanying spouses and children. DOS emphasized that the rule affects only the granting of special immigrant status to long-term employees of the U.S. government abroad under INA section 101(a)(27)(D) and does not affect the granting of special immigrant status under any of the authorities for that status, including any of the other provisions in INA section 101(a)(27) or those specific to nationals of Iraq and Afghanistan.

The rule codifies the circumstances that will be considered “exceptional” for purposes of assessing special immigrant status qualification. DOS said the rule excludes certain criteria (e.g., high visibility in a sensitive position; valuable services and assistance to the U.S. community at post apart from performance of official duties; and others) that were included in the Foreign Affairs Manual and were “the Department’s policies that preceded this rule.” The regulation adds two new criteria.

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USCIS Extends Transitional Parole in Northern Marianas

U.S. Citizenship and Immigration Services (USCIS) will automatically extend transitional parole, and employment authorization if applicable, in the Commonwealth of the Northern Mariana Islands (CNMI) for current parolees whose parole status will expire on June 29, 2020. The parole and work authorization, if applicable, will be extended through August 17, 2020.

USCIS said the purpose of this temporary extension is “to encourage all eligible parolees to apply for CNMI long-term resident status within the application period.”

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USCIS Rescinds Restrictive H-1B Policy Memo Following Litigation

U.S. Citizenship & Immigration Services (USCIS) recently entered into an agreement with ITServe Alliance, Inc., an information technology trade group, to overturn more than 200 H-1B denials. The move comes after a federal court ruled in March that USCIS policies narrowly defining employer-employee relationships, as well as other regulatory requirements for H-1B classification, were implemented outside of proper notice-and-comment rulemaking.

In recent years, USCIS has increasingly challenged employers seeking H-1B classification for highly skilled workers in specialty occupation positions, e.g., technology, pharmaceutical, healthcare, and university professionals.

Under the resulting May 20, 2020, agreement, USCIS will rescind a February 2018 policy memorandum and reopen H-1B denials that were the subject of the ITServe Alliance lawsuit.

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New Joint Proposed Rule Would ‘Streamline’ Asylum Adjudications

A new joint proposed rule would alter asylum adjudications by having the claims for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) of those found to have a credible fear adjudicated by an immigration judge in “streamlined proceedings” rather than in regular removal proceedings under section 240 of the Immigration and Nationality Act. The Departments further propose changes to the regulations regarding asylum, statutory withholding of removal, and withholding and deferral of removal under the CAT regulations. The Departments also propose amendments related to the standards for adjudication of applications for asylum and statutory withholding.

Among other things, the Departments propose raising the standard of proof in “credible fear” screenings for those in expedited removal proceedings and for stowaways from a “significant possibility” that the person can establish eligibility for statutory withholding of removal to a reasonable possibility that the person would be persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion. Similarly, for those expressing a fear of torture, the Departments propose raising the standard of proof from a significant possibility that the person is eligible for withholding or deferral of removal under the CAT regulations to a reasonable possibility that the person would be tortured in the country of removal.

The proposed rule would also specify certain types of claims that, in general, will not be expected to be favorably adjudicated, such as asylum or statutory withholding of removal claims based on persecution due to gender.

The proposed rule will be published in the Federal Register on June 15, 2020, by the Executive Office for Immigration Review of the Department of Justice and U.S. Citizenship and Immigration Services of the Department of Homeland Security. Comments are due within 30 days after the date of publication.

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State Dept. Opens DV-2021 Entrant Status Check

As of June 6, 2020, the Department of State’s (DOS) Entrant Status Check for diversity visa (DV) 2021 applicants is open, postponed from May 5. DOS said the delayed opening “will not negatively impact our ability to pre-process and schedule DV-2021 interviews, which are scheduled to begin on October 1, 2020.”

The DV-2021 season’s registration period opened on October 2, 2019, and closed on November 5, 2019. The Alliance of Business Immigration Lawyers advises these DV-lottery entrants to keep their confirmation numbers until at least September 30, 2021. Not everyone notified that they have been selected will receive a visa.

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State Dept. Announces ‘Phase One’ Reopening of U.S. Passport Operations

The Department of State (DOS) announced that as of June 10, 2020, various passport agencies and centers have entered Phase One of the agency’s reopening plan. In Phase One, some employees have returned but processing is still limited. Applications will be processed on a first-in, first-out basis, beginning with the oldest applications received. The agency will prioritize services for customers with “life-or-death emergencies” by appointment only.

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ABIL Global: Schengen Area

Schengen Area countries are restoring freedom of movement across their borders following COVID-19-related restrictions. The EU has agreed to reopen for international travel also, but only to countries on a safe list.

The Schengen Area consists of 26 countries that have agreed to remove regular checks at their internal borders to facilitate the free and unrestricted movement of people. According to the Schengen Code, which lays down the common rules governing the management of internal and external European Union (EU) borders, it is possible to reintroduce border controls between the associated countries in specific circumstances and for strictly limited periods of time if there is a serious threat to public policy or internal security. Each country must notify the European Commission and the other Member States of the reintroduction of border controls before taking action, specifying the reasons, scope, and duration of the measures.

As of March 2020, the COVID-19 pandemic had pushed many EU Member States to reintroduce border controls at their internal borders on grounds of an immediate threat to public health. As of April 27, 2020, 17 Schengen countries had notified the European Commission on the reintroduction of controls at internal borders due to threats related to the spread of COVID-19.

Unfortunately, the border controls disrupted the free flow of people, goods, and services across the EU. They mainly affected commuters, tourists and transport companies. In addition there were administrative and infrastructure costs for the public sector.

As the epidemiological situation improves, countries are gradually restoring freedom of movement. The EU agreed to reopen for international travel also, but only to countries on a safe list. The United States is among those countries from which travel to the EU remains banned.

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