Immigration News Update October 2020

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Litigation Works!

One thing that our clients have learned over the time of the Trump administration is that Litigation Works! Here at Kuck Baxter, we have been litigating in federal court against every administration since George H.W. Bush, to fight for saving and expanding the rights of our clients to due process, justice, fairness, and even forcing the various administrations to just obey the law!

Over the course of the last month, we have helped secure victories in federal court that secured the immigration rights of thousands of diversity lottery winners, and for clients as diverse as Iraqi U.S. Army translators, to fiance’s of US Citizens, to employees of small and large U.S. Employers, to those seeking permanent residence stymied by USCIS delays, and even those seeking to naturalize so that can vote in this election. The reality is that sometimes phone calls, emails, or even congressional assistance is simply not enough to get the agencies that control the immigration apparatus, USCIS, ICE, DOL, and DOS, to do their job and to do it justly and fairly. And that is why we litigate, aggressively, fiercely, and daily.

At KBI, we stand on the precipice between our clients hopes, dreams and aspirations, and the despair that awaits if the government is not held accountable. We will never stop fighting for our clients–for you.

Read below for more on these and the other immigration news of the day.

At Kuck Baxter Immigration, we are dedicated to providing you up to the minute information through Twitter, Facebook, Linkedin, our Blog, and our Podcast. Don’t forget to check these out, and don’t hesitate to send your questions or comments. Information and knowledge are power.

Upcoming Events and Kuck Baxter Immigration Media

We have been doing daily Facebook Live events every day on the Kuck Baxter Immigration Facebook Page, in both English and Spanish. You are always welcome to stop by and ask your questions live or send a private facebook message.

During normal times, we regularly speak at community events, continuing legal education seminars, Human Resource conferences, and at universities and colleges around the US. If you would like us to speak to your group for free, let us know! Also, check out our website and come on out to an event! We also do a Facebook live every week, in both English and Spanish, every Friday at 2 pm. Follow us on our Facebook page and catch the action! You can also follow us on our YouTube page, which has hundreds of videos encompassing every immigration topic.

Have You Checked Out Our Blog and our Podcast?

Our Blog is updated each week with information, breaking news, and answers to questions you need to know!

You can also listen to our Top 50 rated podcast, “The Immigration Hour” podcast, that we post each Wednesday. Download it and listen at your leisure. If you have comments on the podcast, or topics you would like us to talk about on The Immigration Hour, let us know!

 

Here is the Immigration News You NEED to Know Now

UP-TO-DATE IMMIGRATION NEWS

Federal Judge Rules on DV-2020 Visas – KBI, along with our co-counsel successfuly obtain a positive ruling helping thousands of DV2020 selectees obtain their visas. A U.S. district court judge ruled in Gomez v. Trump that the Department of State intentionally misinterpreted the Trump administration’s entry ban by not issuing diversity visas.

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 blocked visa issuance to many foreign workers.

USCIS Issues Guidance on Fee Rule Following Litigation – A U.S. district court in Immigrant Legal Resource Center et al. v. Wolf, et al., temporarily enjoined DHS from implementing or enforcing USCIS’ August 3, 2020, fee schedule rule and changes to certain other immigration benefit request requirements.

DHS Proposes Rule to Amend Affidavit of Support Regulations – DHS proposes to amend its regulations governing the affidavit of support requirements.

State Dept. Issues Guidance on National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland – DOS recently released guidance on national interest exceptions for travelers from the Schengen Area, United Kingdom, and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations.

State Dept. Releases Instructions for DV-2022 Visa Lottery Program – DOS has released instructions on the diversity visa program for fiscal year 2022, under which up to 55,000 visas will be available. Applicants must submit entries electronically between noon ET, October 7, 2020, and noon ET, November 10, 2020.

October Visa Bulletin Shows Major Movement in Employment-Based Cases; USCIS Applies Filing Date Rather Than Final Action Date to Certain Adjustment Applications – 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 applications.

ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Nonimmigrant Students, Exchange Visitors, Foreign Media Representatives – 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.

EAD Delays Due to COVID-19: E-Verify/I-9 Guidance – 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 document that establishes employment eligibility.

DOL Announces Permanent Adoption of Electronic Issuance of PERM Labor Certifications – The Department of Labor announced that it is permanently adopting the electronic issuance of PERM labor certifications to employers and their authorized attorneys or agents.

CBP Publishes Notices Extending Travel Restrictions at Land Ports of Entry Between the United States and Canada, Mexico – 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.

USCIS Issues New Guidance on Application of Public Charge Rule – Following litigation, 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.

DV-2020 Applicants Cannot Be Denied Visas Under COVID Guidance, Court Says – 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.

Ninth Circuit Rules President Can End TPS – TPS beneficiaries from Haiti, Nicaragua, and Sudan could be required to leave the United States (or find another legal way to stay) by March 2021. Those from El Salvador, by far the largest group at an estimated 263,000, could be expelled by November 2021. An appeal to the Supreme Court is likely.

DOL Interim Final Rule Expected to Raise Wages for H-1B, H-1B1, E-3, and PERM Workers – No description has been provided for the rule, which is at the OMB awaiting approval.

USCIS Sends Reminder to Ensure Employees Choose the Correct Attestation on Form I-9 – USCIS sent a reminder that employers are not held 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.

I-9 Requirements Flexibility Extended for Additional 60 Days – DHS and ICE announced an extension for 60 days of certain flexibilities for employers in complying with requirements related to Form I-9, Employment Eligibility Verification, because of ongoing precautions related to COVID-19.

DHS Extends Measures to Limit Non-Essential Travel Across Land Borders – DHS said the measures were part of a collaborative “North American” approach intended to limit the further spread of coronavirus.

USCIS Issues Policy Alert on O Nonimmigrant 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.

U.S. Revokes More Than 1,000 Visas for Chinese Students, Researchers – The revocations appear to result from President Trump’s proclamation in May 2020 suspending the entry of certain students and researchers from China.

When Is a Furlough Not a Furlough? – Despite USCIS backing off from plans to furlough thousands of employees nationwide, the agency is going ahead with furloughs of at least 800 private contractors who work for a contractor that provides services at the National Benefit Center in Missouri.

Second Circuit Stays Preliminary Injunction in Public Charge Rule Challenge, Allowing USCIS to Move Forward – The U.S. Court of Appeals for the Second Circuit stayed a preliminary injunction, effectively allowing USCIS to move forward, if it wishes, with requiring use of the new USCIS public charge Form I-944, Declaration of Self-Sufficiency.

Consulates Cannot Refuse to Process DV-2020 Applicant Visas, Court Says – DV-2020 selectees may now pursue their diversity visas at their local consulates immediately.

DHS Terminates Arrival Restrictions for Certain Air Travelers – DHS plans to terminate arrival restrictions applicable to certain flights carrying persons who had recently traveled from, or were otherwise present within, certain countries, effective September 14.

USCIS Extends Flexibility for Responding to Agency Requests – USCIS has extended the flexibilities it announced in March 2020 due to the COVID-19 pandemic to assist applicants, petitioners, and requestors responding to certain notices and requests.

USCIS Launches Effort to Enforce Sponsor Accountability for Reimbursements of Public Benefits – USCIS plans to use shared information with public benefit-granting agencies to enable them to seek reimbursement from sponsors for means-tested public benefits, including seeking a court order for repayment if a sponsor does not reimburse the agency when a sponsored person receives such a benefit.

CW-1 Employers Must Verify Continued Employment and Payment of CW-1 Workers Every Six Months – USCIS said it may revoke an employer’s approved petition or deny its future petitions if it does not comply with the six-month reporting requirement.

Global: United Kingdom and Global Highlights – This article highlights the United Kingdom’s (UK) new immigration system, which starts January 1, 2021, and summarizes key changes to immigration rules in global jurisdictions, including the European Union (EU), Ireland, Belgium, Poland, Luxembourg, Singapore, Australia, Canada, and Barbados.

 

THE DETAILS:

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.

Details:

DV-2020 Applicants Cannot Be Denied Visas Under COVID Guidance, Court Says

Earlier in September, the KBI litigation team secured a ground-breaking decision mandating visa issuance, even when an entry ban is in place!

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 centers (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.”

Details:

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 nonagricultural laborers responding to proven domestic labor 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.

Details:

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.

Details:

 

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.

Details:

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 travelers from the Schengen Area, United Kingdom (UK), and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations. Qualified travelers 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 travelers, 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 travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Details:

 

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.

Details:

 

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. 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, 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 labor 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.

KBI 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.

Contact your KBI attorney for advice in specific situations.

Details:

ICE Proposes a Fixed Time Period of Admission and Extension-of-Stay Procedure for Nonimmigrant 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.

Details:

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.

Details

DOL Announces Permanent Adoption of Electronic Issuance of PERM Labor 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.”

Details:

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.

Details:

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.

Details:

Ninth Circuit Rules President Can End TPS

The U.S. Court of Appeals for the Ninth Circuit ruled on September 14, 2020, that President Trump can phase out temporary protected status (TPS) for more than 300,000 people in the United States. TPS beneficiaries from Haiti, Nicaragua, and Sudan could be required to leave the United States (or find another legal way to stay) by March 2021. Those from El Salvador, by far the largest group at an estimated 263,000, could be expelled by November 2021.

An appeal to the Supreme Court is likely.

Details:

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.

Details:

  • Law360, “Labor Dept. Preps Wage Level Changes for High-Skilled Visas,” https://bit.ly/3iQNdgA (available by registration)

 

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, color, religion, age, gender or disability, or because of any other protected characteristic, USCIS said.

Details:

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.

Details:

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.

Details:

 

USCIS Issues Policy Alert on O Nonimmigrant 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” nonimmigrant 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 nonimmigrant 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 nonimmigrant athletes, coaches and entertainers (P-1, P-2, and P-3 nonimmigrant classifications), and their essential support personnel.

U.S. Revokes More Than 1,000 Visas for Chinese Students, Researchers

According to reports, the Department of State has revoked visas for more than 1,000 Chinese students and researchers. Some report receiving an email stating that their visas were revoked, they cannot travel on their current visas, and they may be required to reappear before a U.S. consular officer to establish eligibility before being permitted to apply for entry to the United States.

The revocations appear to result from President Trump’s proclamation in May 2020 suspending the entry of certain students and researchers from China. The Department of State reportedly said that “high-risk graduate students and research scholars” had been expelled. The Department of Homeland Security’s Chad Wolf was quoted as saying that visas were revoked “for certain Chinese graduate students and researchers with ties to China’s military fusion strategy, to prevent them from stealing and otherwise appropriating sensitive research.”

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When Is a Furlough Not a Furlough?

According to reports, despite U.S. Citizenship and Immigration Services (USCIS) backing off at the last minute from plans to furlough thousands of employees nationwide, the agency is going ahead with furloughs of at least 800 private contractors in the Kansas City area, specifically those who work for a contractor that provides services at the National Benefit Center (NBC) in Missouri. USCIS once again blamed a drop in revenue that began in March, although separately the agency had previously said it had enough to cover its expenses in the short term.

Furloughs of these agency contractors are expected to have a similar effect as furloughs of agency staff, precipitating backlogs and delays along with exacerbating potential economic effects on the local area of the lost jobs and if processing for foreign workers employed by technology and health care companies slows more than it already has.

Sen. Roy Blunt (R-Mo.) and Rep. Emanuel Cleaver (D-Mo.), along with several other lawmakers, sent a letter to USCIS Deputy Director Joseph Edlow, noting that NBC has approximately 1,300 contract employees between its Missouri and Kansas facilities, and that overall USCIS has 3,100 contract and federal employees in the region. “Employees at the NBC conduct pre-processing steps, run background checks, and prepare applications for interviews at field offices around the country,” the letter noted. Rep. Cleaver said that as he understands it, “there is plenty of work to be done to eliminate the backlogs at field offices and Congress has shown willingness to work with the agency to ensure its fiscal stability, so we want to know exactly how they came to this conclusion, what other options were on the table, and what can be done to immediately remedy the situation.”

Although USCIS dropped plans to furlough employees in the short term, it did warn in August that spending cuts would “drastically impact agency contracts,” affect “all agency operations, including naturalizations,” and “increase backlogs and wait times across the board.”

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Second Circuit Stays Preliminary Injunction in Public Charge Rule Challenge, Allowing USCIS to Move Forward

The U.S. Court of Appeals for the Second Circuit issued a decision on September 11, 2020, staying a preliminary injunction granted by a district court and effectively allowing U.S. Citizenship and Immigration Services to move forward, if it wishes, with requiring use of the new USCIS public charge Form I-944, Declaration of Self-Sufficiency.

The Second Circuit explained that the case involves a challenge to the implementation of the Department of Homeland Security (DHS) public charge rule, which introduced a new framework for determining the admissibility of noncitizens to the United States, expanding the meaning of the “public charge” ground of inadmissibility to include significantly more people than would have been found inadmissible previously.

The Second Circuit said it doubted that the district court had jurisdiction to issue the preliminary injunction while the Second Circuit was considering an appeal from a prior, virtually identical preliminary injunction. Accordingly, the Second Circuit stayed the preliminary injunction pending further order by the panel charged with deciding its merits.

The I-944 was issued in conjunction with the Department of Homeland Security’s public charge rule that took effect in February 2020 and was temporarily blocked in July by a federal district court. The Second Circuit had limited the injunction to New York, Connecticut, and Vermont in August. There remains a separate injunction against the Department of State’s implementation of the public charge rule.

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DHS Terminates Arrival Restrictions for Certain Air Travelers

The Department of Homeland Security (DHS) has terminated arrival restrictions applicable to certain flights carrying persons who had recently traveled from, or were otherwise present within, certain countries, effective September 14, 2020. The countries include China (excluding Hong Kong and Macau); Iran; Schengen-Area countries; the United Kingdom (excluding overseas territories outside of Europe); the Republic of Ireland; and Brazil.

DHS said the arrival restrictions directed such flights to land only at a limited set of designated U.S. airports where the government had focused enhanced public health screening. According to anecdotal reports, however, in recent months COVID-19 screenings at the designated airports were being administered inconsistently, if at all.

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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 in March 2020 due to the COVID-19 pandemic to assist applicants, petitioners, and requestors responding to certain notices and requests, specifically:

  • 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
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant
  • 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

The flexibility applies to the above documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021.

USCIS said it will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, the agency will consider a Form N-336 or I-290B received up to 60 calendar days from the date of the decision before it takes any action.

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USCIS Launches Effort to Enforce Sponsor Accountability for Reimbursements of Public Benefits

U.S. Citizenship and Immigration Services (USCIS) is launching a new Systematic Alien Verification for Entitlements (SAVE) initiative to hold sponsors “legally accountable for the financial responsibilities they willingly accept.”

USCIS plans to use shared information with public benefit-granting agencies to enable them to seek reimbursement from sponsors for means-tested public benefits, including seeking a court order for repayment if a sponsor does not reimburse the agency when a sponsored person receives such a benefit.

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UNITED KINGDOM and Global Highlights

This article notes that the United Kingdom’s (UK) new immigration system starts January 1, 2021. The article also highlights key changes to immigration rules in global jurisdictions, including the European Union (EU), Ireland, Belgium, Poland, Luxembourg, Singapore, Australia, Canada, and Barbados.

New Immigration System

The UK will have a new immigration system starting January 1, 2021.

The new immigration system will apply to both EU and non-EU citizens. EU citizens moving to the UK on or after January 1, 2021, will need a visa to be able to work. This also applies to other European Economic Area (EEA) nationals and Swiss nationals. This does not apply to Irish citizens. They will still be free to work in the UK without a visa.

Highlights of Key Changes to Immigration Rules in Global Jurisdictions

European Union (EU). The European Council has updated its list of countries whose residents should be allowed or denied entry into the EU Member States. Travel restrictions were also lifted for highly skilled workers by many EU Member States as well as Schengen Area countries.

Ireland. All immigration permissions that expired between August 20 and September 20, 2020, are automatically extended for an additional one-month period. The Department of Justice Registration Offices also temporarily closed again in light of the ongoing coronavirus outbreak.

Also, as of July 20, 2020, the renewal process for the Online Residence Card (IRP card) is open to all non-EEA nationals and their dependent families residing in Dublin.

Belgium. On July 30, 2020, Belgium implemented the revised EU Posted Worker Directive. This is expected to result in only minimal changes because most of the rules were already in place.

Poland. On July 30, 2020, Poland implemented the revised EU Posted Worker Directive, making changes to its posted worker laws.

Luxembourg. The Luxembourg government published information on what British nationals residing in Luxembourg must do before December 31, 2020 (end of the Brexit transition period) to maintain their right of residence and work in Luxembourg.

Singapore. The minimum qualifying monthly salary threshold for Employment Passes increased to SGD 4,500 as of September 1, 2020. As of October 1, 2020, employers wishing to employ foreign workers must adhere to stricter advertising requirements and job postings when carrying out the labor market test for employers.

Australia. To expedite Temporary Skill Shortage visa application processing, the Australian government introduced a new Priority Migration Skilled Occupation List for certain critical workers. Also, as of October 1, 2020, additional labor market testing requirements are required for certain visa types.

Canada. On July 22, 2020, new restrictions took effect on the Québec

Experience Program (PEQ). The restrictions extend the length of required prior qualifying employment from 24 months to 36 months for foreign nationals seeking permanent residence under PEQ.

Barbados. Barbados introduced New Welcome Stamp Visas to enable foreign nationals to reside and work remotely from Barbados for up to one year. There is a requirement to show sufficient income for this visa.

Details:

For Details on these and other topics, click www.immigration.net!

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of State Visa Bulletin:

https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

Visa application wait times for any post: https://travel.state.gov/content/visas/en/general/wait-times.html/

 

Kuck Baxter Immigration — In The News

Charles Kuck appeared in a Quicktake video, “Court Orders DOS to Reserve 9,095 Additional Diversity Visas,” produced by the American Immigration Lawyers Association. https://www.youtube.com/watch?v=5e4AgamhuVQ&feature=youtu.be

Charles Kuck was quoted by the Times of India in “U.S. Eases Ban on Foreigners Returning to Same Job Role.” Mr. Kuck said, “This is an extraordinary change in policy from the original [Presidential] Proclamations’ exceptions and is clearly meant to stop ongoing litigation against the Proclamations’ legality (which the government is going to lose). The provisions are broad enough, if well argued, to essentially incorporate any job in America.” The article is at https://timesofindia.indiatimes.com/business/india-business/us-eases-ban-on-foreigners-returning-to-same-job-role/articleshow/77534430.cms

Mr. Kuck was also quoted by Bloomberg Law in “New Guidance Details Visa Ban’s National Interest Exceptions .” Mr. Kuck said that this proclamation is “basically a complete walk back of the prior exemptions and prohibitions” found in the original order. For example, the State Department’s definition of jobs that pertain to critical infrastructure industries in the new guidance is a major expansion of how it may have traditionally been defined, he said. Mr. Kuck has filed a friend of the court brief in the Gomez case challenging the ban. “The average person thinks a nuclear plant, but now it encompasses IT firms, communications, food and agriculture. I can’t think of a sector that’s not included” under the H-1B applicants’ exemptions, he said. Mr. Kuck predicted that many visa hopefuls stuck outside the United States will likely be able to prove they qualify for a national interest waiver to the ban. “It seems like most people stuck right now, who have been denied an exemption in the past, will easily qualify. It’s a complete walk back because they know they’re going to lose this litigation.” The article is at https://news.bloomberglaw.com/daily-labor-report/visa-ban-national-interest-exceptions-detailed-in-new-guidance.

Kuck Baxter Immigration LLC published its US legal guide for Corporate Immigration. It can be found at https://iclg.com/practice-areas/corporate-immigration-laws-and-regulations/usa

Member/Firm News

Kuck Baxter Immigration LLC has an office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 6,000 detained immigrants. The new office is managed by our Senior Counsel Elizabeth Matherne, the former Director for the Southern Poverty Law Center’s Irwin Detention Project.

We have changed the location of our podcast–The Immigration Hour— to Stitcher. We are entering our 13th year of continuous broadcasts. Listen each week for our latest take on immigration and immigration law!

You can follow us on Twitter @KuckBaxter or @CKuck

You can also get constantly updated news on our Facebook page.

Feel free to reach out with any questions or for help in your immigration case at 404-816-8611 or immigration@immigration.net.

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