Immigration News You Can Use— December 2020

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DACA is BACK—For Good Now!

It took three years of fighting, but DACA is not back in its original form. So, if you entered the US before 15 years of age, AND before June 12, 2007, and you were in the US on June 12, 2012, AND, you are currently enrolled in school (of any kind), or have a GED or High School Diploma, NOW it the time to file! Call today for your free appointment to file your new DACA Application (or to renew your DACA for two years, if you are within six months of expiration).
Read below for more on these and the other immigration news of the day.
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Here is the Immigration News You NEED to Know Now

UP-TO-DATE IMMIGRATION NEWS
U.S. District Court Orders DHS to Reopen DACA for New Applications, Vacates Wolf Memo – a U.S. district court vacated a memorandum issued by Chad Wolf, which made certain changes to the DACA program, and ordered DHS to reopen the program to new applications.
U.S. District Court Vacates H-1B Interim Final Rules – A U.S. district court vacated two interim final rules promulgated by DOL and DHS that made important changes to the H-1B program.
State Dept. Imposes New Restrictions on Chinese Communist Party Members – A DOS spokesperson said that no current visas would be revoked as a result of the policy changes.
USCIS Updates Guidance for Schedule A Occupations – USCIS announced updated guidance for adjudicating EB-2 and EB-3 Schedule A petitions for registered nurses, physical therapists, and immigrants who have exceptional ability.
Justice Dept. Sues Facebook for Discriminating Against U.S. Workers – The lawsuit alleges that Facebook refused to recruit, consider, or hire qualified and available U.S. workers for more than 2,600 positions. Instead, the lawsuit alleges, Facebook reserved those positions for foreign national employees.
EOIR Proposes to Implement Electronic Filing for All Cases Before Immigration Courts and the BIA – EOIR issued a proposed rule to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.
Global: France – This article provides updates on what the Brexit transition means for British nationals residing in France.
U.S. District Court Orders DHS to Reopen DACA for New Applications, Vacates Wolf Memo
On December 4, 2020, a U.S. district court vacated a memorandum issued by Chad Wolf on July 28, 2020, which made certain changes to the Deferred Action for Childhood Arrivals (DACA) program, and ordered DHS to reopen the program to new applications.
The court found that Chad Wolf was without lawful authority to serve as Acting Secretary of the Department of Homeland Security (DHS) when he issued the memorandum, and that therefore the DACA program must be governed by the terms in existence before the attempted rescission of September 2017, when the Trump administration began its efforts to dismantle DACA. The court said that attempts by Administrator Peter Gaynor and Mr. Wolf to ratify Wolf’s prior actions were “dead letter” and had no legal significance because the order of succession was not followed as designated under the Homeland Security Act.
Among other things, the court ordered DHS to post a notice on its website and on the websites of “all other relevant agencies,” within three calendar days of the order, stating that:
·        DHS is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program before September 5, 2017, and in accordance with the court’s memorandum and order of November 14, 2020; and
·        Deferred action and employment authorization documents granted for only one year are extended to two years, in line with pre-Wolf memorandum policy.
The court also ordered the government to provide individual mailed notices to all class members by December 31, 2020, and to produce a status report on the DACA program by January 4, 2021.
Details:
·        “Judge Orders Trump Administration To Restore DACA As It Existed Under Obama,” NPR, https://www.npr.org/2020/12/04/943355234/judge-orders-trump-administration-to-restore-daca-as-it-existed-under-obama
U.S. District Court Vacates H-1B Interim Final Rules
On December 1, 2020, a U.S. district court vacated two interim final rules promulgated by the Departments of Labor (DOL) and Homeland Security (DHS) that made important changes to the H-1B program, including to prevailing wage calculations and the definition of “specialty occupation,” among other things. The order prevents the interim final rules from taking effect and prevents the agencies from implementing the rules. The DHS rule was scheduled to take effect December 7, 2020; the DOL rule took effect in October.
The court said the question was whether the agencies demonstrated that the impact of the COVID-19 pandemic on domestic unemployment justified dispensing with the “due deliberation” that normally accompanies rulemaking to make significant changes to the H-1B program. The court concluded that the agencies had not done so.
DOL’s Office of Foreign Labor Certification (OFLC) issued a related announcement on December 3, 2020, stating that the agency is “taking necessary steps to comply” with the order, including making required changes to the Foreign Labor Application Gateway (FLAG) system, such as replacing wage data. Beginning “around” 8:30 a.m. ET on December 9, 2020, “employers and their authorized attorneys or agents will be able to submit new LCAs [labor condition applications], Form ETA-9035/9035E, using the OES [Occupational Employment Statistics] survey data that was in effect on October 7, 2020,” the Office of Foreign Labor Certification said. Employers desiring review of a prevailing wage determination issued using the interim final rule’s calculations can request review from the National Prevailing Wage Center before January 4, 2021.
Details:
·        OFLC announcement, https://www.dol.gov/agencies/eta/foreign-labor
·        Foreign Labor Certification Data Center, https://www.flcdatacenter.com/
·        “Court Strikes Down Trump Admin’s H-1B Restrictions,” Times of India, https://bit.ly/3ghomSt
·
Senate-Passed Bill Would Remove Per-Country Limits on All Employment-Based Immigrant Visa Categories; Includes Controversial Provisions
On December 2, 2020, the U.S. Senate passed its version of H.R. 1044, the “Fairness for High-Skilled Immigrants Act of 2020.” The Senate version of the bill now returns to the U.S. House of Representatives. If the Senate version passes in the House and is signed into law by the President, it would remove the per-country limits on all employment-based immigrant visa categories, among other things. This means HUGE wait times, over a decade, for non-Indian Nationals. Since Congress is scheduled to end its session shortly, chances for passage in the House are unclear, but advocates for this bill are pushing it with renewed vigior in the House.
The bill includes several controversial provisions, such as an annual limit on the number of immigrants who could adjust from H-1B status to that of permanent resident and a bar on those affiliated with the military forces of the People’s Republic of China or the Chinese Communist Party or the Chinese military. This could effectively bar Chinese nationals from adjusting status in the United States, as each Chinese national is mandatorily conscripted by law into its military. This provision is the new Chinese Exclusion Act.
Details:
State Dept. Imposes New Restrictions on Chinese Communist Party Members
As part of a continued chilling of relations between the United States and China under the Trump administration, on December 4, 2020, the Department of State announced several new restrictions on Chinese Communist Party members, including:
·        New rules limiting the validity of B1/B2 visas to one month and single-entry for Chinese Communist Party members and their families. B1/B2 visas for Chinese nationals are normally valid for 10 years and allow multiple entries.
·        Termination of five exchange programs, including the Policymakers Educational China Trip Program, the U.S.-China Friendship Program, the U.S.-China Leadership Exchange Program, the U.S.-China Transpacific Exchange Program, and the Hong Kong Educational and Cultural Program.
A Department of State spokesperson told the New York Times that no current visas would be revoked as a result of the policy changes.
Details:
·        “U.S. Imposes Sanctions on People’s Republic of China Officials Engaged in Coercive Influence Activities,” Department of State, https://www.state.gov/u-s-imposes-sanctions-on-peoples-republic-of-china-officials-engaged-in-coercive-influence-activities/
·        “Termination of PRC-Funded Propaganda Programs,” Department of State, https://www.state.gov/termination-of-prc-funded-propaganda-programs/
·        U.S. Tightens Visa Rules for Chinese Communist Party Members,” New York Times, https://www.nytimes.com/2020/12/03/world/asia/us-visa-china-communist-party.html
·        “Trump Restricts U.S. Visas for Chinese Communist Party Members and Families,” Washington Post, https://www.washingtonpost.com/world/asia_pacific/us-visas-china-communist-trump/2020/12/03/bf6694ea-3551-11eb-9699-00d311f13d2d_story.html
USCIS Updates Guidance for Schedule A Occupations
On December 2, 2020, U.S. Citizenship and Immigration Services (USCIS) announced updated guidance for adjudicating EB-2 and EB-3 Schedule A petitions for registered nurses, physical therapists, and immigrants who have exceptional ability.
USCIS said the update does not change policy but clarifies how agency adjudicators should apply Department of Homeland Security and Department of Labor (DOL) regulations when deciding Schedule A petitions. Generally, USCIS noted, EB-2 and EB-3 petitioners must obtain a labor certification from DOL verifying that there are no qualified U.S. workers available. However, DOL has pre-certified certain occupations, known as Schedule A, so those petitioners do not need to obtain a labor certification. Instead, EB-2 and EB-3 Schedule A petitioners file Form I-140, Immigrant Petition for Alien Workers, directly with USCIS.
Details:
Justice Dept. Sues Facebook for Discriminating Against U.S. Workers
The Department of Justice announced on December 3, 2020, that it filed a lawsuit against Facebook for discriminating against U.S. workers. The lawsuit alleges that Facebook refused to recruit, consider, or hire qualified and available U.S. workers for more than 2,600 positions. Instead, the lawsuit alleges, Facebook reserved those positions for “temporary visa holders it sponsored for permanent work authorization (or ‘green cards’) in connection with the permanent labor certification process (PERM).”
Facebook told National Public Radio that it is “cooperating with [DOJ] in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation.”
To be clear, what Facebook did here was follow the DOL Labor Certification Rules TO THE LETTER. They did nothing illegal. This is one government agency (DOJ) accusing another government agency (DOL) of creating artificial rules that allegedly discriminate against US workers.
Details:
·        Department of Justice complaint, https://www.justice.gov/opa/press-release/file/1342786/download
·        “Facebook Sued by Justice Dept. for Allegedly Discriminating Against U.S. Workers,” NPR, https://www.npr.org/2020/12/03/942335472/facebook-sued-by-justice-dept-for-allegedly-discriminating-against-u-s-workers
EOIR Proposes to Implement Electronic Filing for All Cases Before Immigration Courts and the BIA
The Department of Justice’s Executive Office for Immigration Review (EOIR) issued a proposed rule on December 4, 2020, to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.
Under the proposed rule, electronic filing would become mandatory for the Department of Homeland Security and for attorneys and accredited representatives who represent respondents, applicants, and petitioners before the EOIR. Among other things, EOIR proposes “to allow for an extended filing deadline when the electronic filing system is unavailable due to an unplanned outage and to provide immigration judges with the authority to accept paper filings in open court in limited circumstances.”
Comments on the proposed rule are due by January 4, 2021.
Details:
·        EOIR proposed rule, https://bit.ly/2LbgAhM
ABIL Global: France
This article provides updates on what the Brexit transition means for British nationals residing in France.
On December 31, 2020, at midnight, the Brexit transition period will end. The United Kingdom (UK) will become a third country to the European Union (EU).
British nationals already residing in France can submit “Withdrawal Agreement” residence permit applications now. The request can be made on the internet. All British nationals already residing in France before December 31, 2020, are eligible to apply for a residence permit, in accordance with the provisions of the Brexit agreement signed between the UK and the EU. By June 30, 2021, all British nationals wishing to benefit from the provisions of the Brexit agreement to retain their rights to stay and work in France must have a French residence permit.
Applicants must upload documentation, including passport identity pages; proof establishing the date the applicant moved to France, such as a property certificate issued by a notary, a home insurance contract, a home insurance certificate or an employment contract; and documents relating to the specific situation of each applicant. For example, an employee must provide a copy of their most recent pay slip, while a student must provide proof of enrollment in a school or university. After completing these steps, the applicant will receive an application confirmation by email, with a reference number confirming the filing.
Once the file has been processed, an email will be sent to the candidate to make an appointment at the prefecture to finalize the file (fingerprinting, photo, and proof of payment of fees).
It is not yet clear how the applicant will receive the residence permit when it becomes available, whether by post to his or her home in France or by going to the Prefecture a second time.
Permit Types
Presence of less than five years
British nationals who have resided in France for less than five years as of December 31, 2020, must apply for a residence permit, depending on their status (e.g., student, employee, temporary worker, posted worker, self-employed professional, unemployed person, family member, long-term visitor). They will be issued a residence permit in accordance with the agreement bearing the specific category, such as “Withdrawal agreement—employee.”
Although the list of required documents is not yet available, applicants are advised to prepare:
·        Passport or identity card
·        Proof of address in France
·        Identity photographs
·        Proof of resources: employment contract, payslips, bank statements
·        Proof of professional activity: work certificate signed by the employer confirming the date of the start of employment in France
·        Proof of the purpose of the stay in France over the past five years (e.g., employment contract)
British nationals who have resided in France for less than five years as of December 31, 2020, can also apply for a resident card when they can prove that they have lived in France for five years. For example, a British national residing in France as of December 31, 2017, can apply for a resident card as of December 31, 2022.
Presence of five years or more
British nationals who have resided for five years or more in France as of December 31, 2020, are eligible to obtain a resident card valid for 10 years.
Although the list of required documents is not yet available, applicants are advised to prepare:
·        Passport or identity card
·        Proof of address in France
·        Three identity photographs
·        Proof of presence in France over the past five years: one document per half-year (e.g., rent receipts, energy bills)
·        Proof of resources: employment contract, payslips, bank statements
New Publications and Items of Interest
COVID-19 resources.The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
General Information
·        American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security:DHS.gov/coronavirus
–      Overview and FAQs: https://www.ice.gov/coronavirus
–      Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  • CBP:
–      Updates and Announcements:https://www.cbp.gov/newsroom/coronavirus
–      Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
  • Office of Foreign Labor Certification:
–      OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
–      COVID-19 FAQs:
Justice Department
Agency Twitter Accounts
·        EOIR: @DOJ_EOIR
·        ICE: @ICEgov
·        Study in the States: @StudyinStates
·        USCIS: @USCIS
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars.
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month/202004.

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:

Kuck Baxter Immigration — In The News

Member/Firm News

Charles Kuck was quoted in several media outlets about a recently filed case in which they represented plaintiffs—approximately 245 family, employment, and diversity-based visa applicants and their U.S. sponsors—who sued the Trump administration seeking relief from a Presidential proclamation banning the entry of skilled foreign workers into the United States:
·        Law360, “Visa Seekers Say Trump Can’t Use Virus to Limit Immigration.” https://www.law360.com/california/articles/1327468/visa-seekers-say-trump-can-t-use-virus-to-limit-immigration
·        Moneycontrol News, “U.S. Visa Ban: Another Lawsuit Filed in U.S. Court Against June 22 Proclamation.” https://www.moneycontrol.com/news/business/us-visa-ban-another-lawsuit-filed-in-us-court-against-june-22-proclamation-6099511.html
For more on this case, Anunciato v. Trump, see the related article in this newsletter.
Mr. Kuck was quoted by Law360 in “Biden’s Win Means Big Business for BigLaw.” Mr. Kuck said, “In the immigration area of law, the Trump administration has made, on average, one regulatory or policy change each day since January 20, 2017. [Biden] will spend the next four years reversing virtually all of these administrative changes, and hopefully seeking a complete restructure of our immigration laws.” He added, “Virtually all immigration lawyers are busier than they have ever been. But we have been busy holding back the floodwaters in the dike, like the little Dutch boy. A President Biden will bring sanity back to our system, and a restorative effort to allow us to affirmatively assist our clients.”
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.”
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/usae
mber/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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