In the last thirty days, there have been several developments in U.S. immigration policy and practice, which are attributed to the COVID-19 pandemic, the unemployment rate in the U.S., agency budgetary shortfalls, and policy changes issued by the Trump Administration. These recent developments may impact visa applications, visa petitions, and various applications filed to obtain a U.S. immigration benefit. This writing will provide an update of some of these recent U.S. immigration developments and the potential impact on U.S. employers and foreign nationals.
- USCIS Green Card and Employment Authorization Document (EAD) Card Production Delays: In June 2020, the U.S. Citizenship and Immigration Services (USCIS) reduced its capacity to print secure documents after it ended its contract with an outside vendor.1 The USCIS' current financial situation and hiring freeze has affected the production of documents. The USCIS Ombudsman's Office is assisting foreign nationals whose applications have been approved but whose cards have not yet been produced and/or issued. Individuals experiencing a delay in receiving their Green Card or EAD Card should contact their attorney at FGI for help in this matter or may submit a request for assistance to the USCIS Ombudsman's Office at the following address: https://www.dhs.gov/topic/cis-ombudsman.
- Changes to the Discretionary Authority of USCIS' Adjudicators: On July 15, 2020, the USCIS issued a Policy Alert (PA-2020-10) indicating that it is consolidating existing policy guidance in Chapter 8 of the USCIS' Policy Manual regarding the application of discretion by USCIS examiners in adjudications process.2 The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. The changes provide a non-exhaustive list of discretionary factors that USCIS examiners may consider on a case-by-case basis and explain how USCIS examiners should generally weigh factors in a given case and properly document the discretionary determination. The changes are considered to grant adjudicators greater discretion in their determinations, but their exact impact on petitions and applications filed with the USCIS will have to be seen.
- U.S. Embassies and Consulates to Resume Routine Visa Processing: On July 14, 2020, the U.S. Department of State (DOS) announced that routine visa services would resume on a post-by-post basis.3 At this time, the DOS is unable to provide a specific date for when each embassy or consulate will resume specific visa services, or when each embassy or consulate will return to processing at pre-COVID-19 workload levels. All US missions "are continuing to provide emergency and mission-critical visa services." Please contact your FGI attorney with specific questions.
- Update on Furloughing USCIS Employees: The USCIS announced on July 24, 2020 that it will delay furloughing 13,000 employees through August 2020.4 (Note: It is anticipated that carrying out such a furlough would impact almost three-quarters of USCIS staff.) Prior to the announcement, it was understood that USCIS will only delay furloughs if Congress provides to the U.S. Department of Homeland Security (DHS) the $1.2 billion in supplemental funding that the USCIS requested in May 2020 from DHS. However, upon closer scrutiny, it was determined that USCIS has a surplus of revenue for FY2020, so a decision was made to delay furloughing employees until late August 2020.
If furloughs of USCIS personnel do take effect, the American Immigration Lawyers Association (AILA) anticipates U.S. immigration will be halted, negatively affecting families, businesses, educational institutions, and medical facilities.5 Immigrants who are in the process of becoming naturalized U.S. citizens will not be able to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face increased delays, and businesses may be unable to hire or retain foreign national employees.
The HEALS Act, which is the stimulus package released by Senate Republicans on July 27th, includes funds for CBP and would provide a $1.222 billion loan to USCIS for operational expenses. The loan would be repaid through a 10% surcharge that would be added to all USCIS fees (this is in addition to the fee increases called for in the pending fee regulation - see item 12 below).
- President Trump's June 22, 2020 Proclamation Suspending Issuance of Immigrant Visas and H-1B, L-1, H-2B, and J-1 Visas for Certain Foreign Nationals (Update): Following the President's April Proclamation denying certain immigrants entry into the United States, President Trump issued a second Proclamation (Proclamation 10052) on June 22, 2020 that suspended entry into the U.S. foreign nationals who were outside of the country on the effective date (June 24, 2020) of the proclamation, and did not have a valid H-1B, H-2B, J, or L nonimmigrant visa (NIV) or a valid, official travel document. Several complaints have been filed challenging the Proclamation. On July 17, 2020, litigators from the American Immigration Lawyers Association (AILA), the Justice Action Center, and the Innovation Law Lab, sued to challenge the entirety of President Trump's immigration ban(s)6 Two days later, the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Retail Federation (NRF), and International Training and Exchange (Intrax) filed a complaint in federal court in California for declaratory and injunctive relief against the Proclamation.
- Trump Administration Considering Possible Future Proclamations and Interim Regulatory Changes that Could Have Impact on Employment-Based Immigration Benefits: The June 20, 2020 Proclamation also called for the issuance of regulations to ensure that the admission of EB-2 or EB-3 immigrant visa beneficiaries and H-1B nonimmigrant visa beneficiaries do not disadvantage United States workers. We anticipate that these regulations may begin being issued in August 2020, and will focus on the definitions of "specialty occupation", "employer", and "employee-employer relationship"7 as well as changes to the ability of H-4 nonimmigrants to be able to apply for an EAD, if certain conditions are met. Similarly, the Trump Administration has been considering the revision of the definition of term 'specialized knowledge' for the L-1B intracompany transferee program. Finally, the Trump Administration has indicated that it would like to limit the ability of F-1 students to be able to engage in Optional Practical Training (OPT) with a U.S. employer after graduating with a degree from a U.S. college or university, unless the F-1 student has graduated within the top 15% of their graduating class.
Further, the Trump Administration has been long advocating the replacement of the current visa lottery system with a merit-based system that would prioritize highly-skilled workers over other immigrant categories.
- Trump Administration Attempt to Bar all F-1 and M-1 Students whose Schools are Going Entirely Online due to Covid-19 and Subsequent Settlement in the face of Complaints Filed by Harvard University and the Massachusetts Institute Technology (MIT),: On July 13, 2020, the Trump Administration agreed to drop its plan to require foreign national students in F-1 or M-1 status to leave the U.S., if they are enrolled in more than one on-line class in the Fall 2020 semester. The plan, announced on July 6, 2020 on the website of the U.S. Immigration and Custom Enforcement (ICE), was followed by a lawsuit by Harvard University and the Massachusetts Institute of Technology, and later joined by over 200 universities and colleges, that challenged the plan on administrative procedural grounds8
However, the US Immigration and Customs Enforcement (ICE) issued a notice on Friday, July 24, 2020 indicating that new foreign national students are still barred from entry into the U.S. if they enrolled in a fully-online course load in the Fall 2020 semester.9 Returning foreign national students who attended classes during the Spring 2020 semester may remain in the U.S., or return after a break, but that privilege does not extend to incoming first-year undergraduate or graduate students. ICE has clarified that new students would still be able to enter the U.S., if their schools offered a combination of online and in-person instruction.
- Extension of Northern and Southern U.S. Land Border Closures to All But Essential Travel through August 20, 2020: The U.S.'s northern and southern land borders will remain closed to non-essential travel until August 20, 2020.10 The original border closure was implemented on March 21, 2020, and has been periodically extended.11 The northern and southern border closures only impacts those attempting to enter the U.S. at a land port of entry. It does not affect those attempting to enter the U.S. by air from Canada or Mexico.12 The closures are subject to review and could be again extended by the U.S. government.
- U.S./Chinese Relations Continue to Deteriorate: Relations between the U.S. and the People's Republic of China (PRC) have continued to deteriorate. On May 29, 2020, the White House issued Presidential Proclamation 10043 that suspends entry into the U.S. as a nonimmigrant any PRC nationals seeking to study or pursue research on an F or J visa, if they currently receive funding, or who is currently employed by, studies, or conducts research, on behalf of any PRC entity that implements or supports the Chinese government's 'military-civilian fusion strategy." The proclamation also applies to any PRC national who has ever received funding or had similar relationship with a PRC entity in the past. The proclamation does not apply to PRC nationals seeking to come to the US to study or conduct research as an undergraduate student. Recently, a Chinese national studying at Stanford University in California was charged by the U.S. Attorney's Office with lying about her relationship to the Chinese military.13
On July 14, 2020, President Trump signed an executive order ending preferential economic treatment for Hong Kong, following the imposition of new security laws there by the PRC.14 The PRC condemned the move, claiming that it was an interference in China's domestic affairs, and threatened retaliatory sanctions against U.S. individuals and entities.
Finally, on July 22, 2020, the Trump Administration ordered the closure of the PRC's consulate in Houston, Texas following Department of State (DOS) allegations that Chinese agents have been attempting to steal data from Texas medical facilities.15 The closure will make it more difficult for China to provide assistance to its citizens in the southern United States and for U.S. nationals seeking visas and other forms of assistance. The PRC retaliated on Friday, July 24, 2020, by ordering the closure of the US consulate in Chengdu, capital of China's Sichuan province.16 According to China experts, Chengdu is especially important to the US government as it is the only consulate in western China where a number of major US companies operate. President Trump is also considering further Chinese consulate closures.
- Immigration Policy Platform of Biden Campaign: On July 8, 2020, Biden-Sanders Unity Task Force released its recommendations on policy platform for the presidential campaign.17 This proposed policy platform has been submitted to the campaign and the Democratic National Committee, and presents a series of objectives and proposals addressing a broad range of fields, including immigration.18 At its most basic level, the proposed policies issued by the Biden campaign would reverse the Trump Administration's policies, including the suspension on entry for new H-1B and L-1 visa beneficiaries. The Biden Presidential Campaign immigration policies include provisions for reinstating and protecting Deferred Action for Childhood Arrival (DACA) recipients, and propose removing certain restrictions that currently make it difficult for foreign nationals to apply for asylum. In addition, the Biden Presidential Campaign policies provide a path to U.S. citizenship for the eleven million undocumented foreign nationals in the U.S. Furthermore, in a July 2, 2020 digital town hall meeting organized by NBC News, Vice President Biden noted support for the H-1B visa program, and that he would end President Trump's current proclamation suspending entry of certain H-1B nonimmigrants.
- DOL publishes new ETA Form 9089 in Federal Register: On July 20, 2020, the US Department of Labor (DOL) invited comments in connection with a new ETA Form 9089 it has drafted and published in the Federal Register.19 The ETA Form 9089 is used in connection with the PERM Green Card application process. The filing of the ETA Form 9089 is often the first step in the U.S. Green Card application process for many foreign national professionals. Comments will be accepted until September 18, 2020, and can be made through the Federal Register's webpage: https://www.federalregister.gov/documents/2020/07/20/2020-15592/agency-information-collection-activities-comment-request.
- Office of Information Regulatory Affairs (OIRA) completed Review of Final Rule Increasing USCIS Filing Fees: OIRA completed its review of the final rule increasing many of USCIS' filing fees. It is anticipated that the final rule will be posted in the Federal Register in the next few days, as of the date of this writing. Based on a draft of the proposed rule, DHS indicated that once the rule is finalized, it would not take effect for a 60-day period after publication. The proposed rule included provisions that would significantly increase fees for many visa categories and also make policy changes, including extending the collection of the additional fees required of petitioners with 50 or more employees and whose US workforce consists of at least 50% L-1 or H-1B visa holders on extension requests as well as original petitions.
- Department of Homeland Security Announces Changes to DACA: On July 28, 2020, the Department of Homeland Security (DHS) announced several changes to the Deferred Action for Childhood Arrivals (DACA) program. Beginning immediately, the DHS will reject all initial requests for DACA and associated Employment Authorization Documents (EAD). DHS will also reject new and pending requests for Advance Parole, absent exceptional circumstances. In addition, DHS will be considering the full rescission of the DACA program.20
Footnotes
3. https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html
6. https://www.forbes.com/sites/stuartanderson/2020/07/22/h-1b-visa-lawsuit-trump-takes-sledgehammer-to-immigration-law/#6df3e0d94617
7. https://www.forbes.com/sites/stuartanderson/2019/11/21/trump-plans-far-reaching-set-of-new-immigration-regulations/#e1ebaf3262a7
8. https://www.cnbc.com/2020/07/13/more-than-200-schools-17-states-back-lawsuits-against-trump-over-international-student-rule.html
9. https://www.law360.com/immigration/articles/1295302/ice-still-blocking-some-student-visas-as-colleges-go-online
10. https://www.usatoday.com/story/travel/2020/07/17/us-canada-mexico-border-closures-extended-into-late-august/5437557002/
11. https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus
12. https://www.usatoday.com/story/travel/2020/07/17/us-canada-mexico-border-closures-extended-into-late-august/5437557002/
13. https://www.nbcnews.com/news/us-news/justice-department-charges-visiting-stanford-researcher-lying-about-ties-chinese-n1234426
17. "Biden, Sanders unity task forces release policy recommendations." Politico (July 8, 2020): https://www.politico.com/news/2020/07/08/biden-sanders-unity-task-force-recommendations-353225. See also "6 Takeaways from the Biden-Sanders Joint Task Force Proposals." New York Times (July 9, 2020): https://www.nytimes.com/2020/07/09/us/politics/biden-sanders-task-force.html
18. The entire document can be accessed at https://joebiden.com/wp-content/uploads/2020/07/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf
19. https://www.federalregister.gov/documents/2020/07/20/2020-15592/agency-information-collection-activities-comment-request
20. https://www.dhs.gov/news/2020/07/28/department-homeland-security-will-reject-initial-requests-daca-it-weighs-future
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