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VAN DER HOUT LLP

 

AUGUST 2020    

COVID-19 Immigration Update

National Interest Exception to Travel Bans

Foreign nationals who are subject to the current travel bans may apply for what is called a "national interest exception," which are being decided by consular officers abroad. Individuals seeking such are directed to follow the instructions on the nearest U.S. embassy or consulate's website regarding procedures necessary to request an emergency appointment and why they believe they may qualify for an exception. While a visa applicant subject to one or more Presidential Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request; at the time of the interview, the final determination regarding visa eligibility will be made. Because, however, U.S. embassies and consulates may only be able to offer limited visa services, they may not be able to accommodate the request unless the proposed travel is deemed emergency or mission critical. Travelers who are subject to a regional COVID-19 Proclamation but who do not require a visa, such as ESTA travelers, are also directed to follow the guidance on the nearest embassy or consulate's website for how to request consideration for a national interest exception.

Basically, those eligible for the national interest exception are those who enter to provide temporary labor or essential services to the food-supply chain, or those whose entry would be in the national interest, including persons (1) whose entry is critical to defense and law enforcement, and diplomacy; (2) who are involved with the provision of medical care to individuals who have contracted COVID-19 and are hospitalized; (3) who are involved with the provision of medical research at U.S. facilities to help combat COVID-19; (4) who are necessary to facilitate the economic recovery of the U.S.; and (5) who are children who would otherwise age out of visa eligibility. The Department of State has provided a nonexclusive list of situations in which travel would be considered to be in the national interest, and has provided detailed criteria broken down by the four visa types (H-1B, H-2B, J-1, and L-1A/L-1B) that are suspended under the Proclamation. National interest exceptions are also available for those accompanying or following to join a principal applicant whose travel has been deemed in the national interest. It is unclear, however, whether a foreign national's approved National Interest Waiver petition will play a role in determining whether that individual would satisfy the national interest exemption. This is because the National Interest Waiver petition is decided by USCIS and the national interest exemption is decided by DOS consular officers.

In an earlier notice, DOS announced that certain business travelers, investors, treaty traders, academics, and students from the Schengen Area, U.K., and Ireland may qualify for national interest exceptions. F-1 and M-1 students from those areas 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, and treaty traders who have a valid visa or ESTA authorization may qualify for a national interest exception; they also should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, the foreign national may travel on either a valid visa or ESTA authorization, as appropriate. DOS's notice also stated that it 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. Interestingly, the notice also stated:

Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.

We appreciate the transparency and concerted efforts of our European partners and allies to combat this pandemic and welcome the EU's reciprocal action to allow key categories of essential travel to allow key categories of essential travel to continue.

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Other Travel Restrictions Remain

As previously noted, foreign nationals who have been in any of the following countries during the past 14 days may not (with certain specific exceptions) enter the United States: China; Iran; European Schengen area; United Kingdom; Republic of Ireland; and Brazil. Exceptions are available for essential workers.

Border travel restrictions into Mexico and Canada also remain in effect at least through August 20, 2020. Nonessential border crossings are not permitted; however, essential crossings — such as returning U.S. citizens and lawful permanent residents, individuals travelling for medical reasons, returning to school, emergency responders, members of the U.S. military, spouses and children of U.S. military members, and cross-border trade — can still take place. Air, freight rail, or sea travel between the United States and Canada and the United States and Mexico is permitted, but that exception does not apply to passenger rail and ferry travel between the countries.

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Department of Homeland Security:
USCIS, ICE, and CBP

 

U.S. Citizenship and Immigration Services (USCIS)

USCIS Extends 60-Day Period for Responses Due: The due date for responses to all USCIS requests for evidence (RFEs) and Notices of Intent to Deny (NOIDs) dated before September 2 is automatically extended 60 days.

USCIS Offices Reopened for Most Nonemergency Services: USCIS reopened for nonemergency services as of June 4, 2020, and have remained open. Applications service centers also have reopened. USCIS has continued to implement precautions to mitigate the risk associated with attending appointments for in person services.

Asylum Offices: With the exception of the Newark, N.J., asylum office, all asylum offices that reopened in June have remained open. Interviews scheduled during temporary closures will be automatically rescheduled. Asylum offices continue to conduct video-facilitated interviews, where the applicants sit in one room and the interviewer in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative can fully and safely participate in the interview while maintaining social distancing.

Backlogged Naturalization Ceremonies Have Now Been Completed: USCIS announced on July 29, that USCIS completed all pending naturalization oath ceremonies that were put on hold because of the pandemic.

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ICE and Interior Enforcement

According to its website, ICE will continue to only prioritize cases that are public-safety risks and those involving individuals who are subject to mandatory detention based on criminal grounds. In-person office and home visits have temporarily been suspended; however, telephonic and electronic reporting still remain in use. ICE has continued to promise not to make arrests at or near medical facilities, absent extraordinary circumstances. Social visitation remains suspended at ICE detention facilities. According to an International Rescue Committee report, over 20 percent of ICE detainees have tested positive for the COVID-19 virus, and despite the unsanitary conditions in detention, ICE continues to detain tens of thousands of individuals and also has carried out over 450 deportation flights in 2020.

DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic for an additional 30 days. The accommodations now expire on 9/19/20.

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CBP and Border Enforcement

Unauthorized border crossings along the U.S. border with Mexico have steadily increased the past few months, as there were 38,347 apprehensions in July as opposed 16,162 in April. The apprehensions were primarily single adults, as opposed to family units and single children, who made up about 10 percent of the apprehensions in July. The total of apprehensions is still a significant decrease from 2019, where there were nearly double the amount of apprehensions and the majority of those crossing were family units and unaccompanied alien children.

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Department of State and U.S. Embassies Abroad

On July 14, DOS announced a phased resumption of routine visa services on a post-by-post basis. Applicants with urgent matters that need to travel immediately are advised to request an emergency appointment and to follow guidance of the nearest embassy. All embassies continue to provide emergency and mission-critical services.

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Department of Justice and the Immigration Courts

Many immigration courts and the Board of Immigration Appeals (BIA) have reopened for nondetained hearings. All courts continue to accept notices of appeal, briefs, and motions. Almost all courts continue to hear detained hearings. The operation status of all immigration courts can be found on EOIR's special COVID-19 Web page.

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Department of Labor

The DOL's Office of Foreign Labor Certification (OFLC) confirmed in July that the PERM Notice of Filing (NOF) requirement is flexible, and employers can satisfy this regulatory requirement by posting the notice for 10 consecutive business days at the worksite. While there are currently countless different work-from-home and office-closure scenarios, OFLC confirmed that employers could even satisfy the NOF requirement for PERM by posting the NOF "on the exterior door of its building, office, or front entry" even if the work place is 100% closed and employees are 100% remote, so long as the business is operational (i.e., conducting business). While this may not be practicable for employers located in large office buildings, this is what DOL calls "flexible." Go figure.

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Other Headlines

August 30 USCIS Furlough Looms Large

Over 13,000 of USCIS's 20,000 employees are scheduled to be furloughed on August 30 despite the agency's projection of a sizeable carryover balance at the end of the fiscal year. While lawmakers have urged DHS and USCIS to delay the furlough, as of this writing there is no plan in place. What this will mean for foreign nationals, U.S. employers, and others with pending petitions remains to be seen. No guidance has been issued. Stay tuned.

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Naturalization, Adjustment, & Other USCIS Fees
to Increase Significantly on October 2

On October 2, 2020, new fees for filing USCIS applications and petitions go into effect, as well as the elimination of certain fee exemptions and changes to fee-waiver requirements. The final rule increases USCIS fees by a weighted average of 20 percent. By dramatically increasing filing fees for a broad range of benefit requests, reducing fee exemptions and restricting fee waivers, DHS has modified established agency practice of maintaining more reasonable filing fees for certain applications and petitions so that cost was not a barrier to obtaining an immigration benefit. In applying a "beneficiary pays" principle to those who are the beneficiaries of most immigration benefits, the agency has dramatically increased the cost of obtaining and maintaining legal status. Some key changes:

DACA: Removes the proposed fee ($275) for Form I-821D, Consideration of Deferred Action for Childhood Arrivals, filed for renewal of Deferred Action for Childhood Arrivals (DACA). Maintains the DACA fees as in effect before September 5, 2017, at $410 for employment authorization and $85 for biometric service.

Fee Waivers: As of October 2, limits fee waivers to immigration benefit requests for which USCIS is required by law to consider the request or where the USCIS Director exercises favorable discretion as provided in the regulation (e.g., Special Immigrant Juveniles, self-petitioning VAWA applicants, and certain Afghan and Iraqis); changes the income requirements for a fee waiver from 150 percent of the Federal Poverty Guidelines to 125 percent.

Adjustment of Status: Removes the reduced Form I-485 filing fee for children under the age of 14 filing with their parent. A standard Form I-485 fee of $1,130 will apply to all applicants. Requires separate fees for Forms I-765 ($550) and Forms I-131 ($590) filed in connection with applications for adjustment of status, more than doubling the total cost of filing an adjustment of status application package to $2,270.

Electronic Filing: Provides that the fee for forms currently available for online filing with USCIS and filed online will be $10 lower than the fee for the same paper forms.

Asylum: Establishes a $50 filing fee for Form I-589. Provides a $50 reduction in the fee for Form I-485 filed in the future for principal applicants who pay the $50 fee for Form I-589 and are subsequently granted asylum.

Biometrics: Creates a $30 biometrics fee for TPS initial applicants and re-registrants and asylum applicants and long-term CNMI residents filing a Form I-765. Removes the $85 biometrics fee for most other applications.

Employment-Based Immigration: Creates separate fees and forms for each visa classification filed on Form I-129, with fees increasing as much as 75 percent for an L-1 petition. USCIS is limiting the number of named beneficiaries to 25 that may be included on a single petition for H-2A, H-2B, H-3, O-2, P, Q, E, and TN workers. Fees for employers with significant numbers of H/L employees ("50-50 rule") will now also apply to H-1B and L-1 extension petitions, in addition to initial petitions. It will not apply to amended petitions that are not seeking an associated extension request.

Naturalization: The filing fee for a Form N-400 will increase 83 percent from to $640 to $1,170. The final rule eliminates the reduced Form N-400 fee option for certain applicants.

Intercountry Adoptions: Clarifies that an additional Form I-600 or Form I-800 fee is not required when filing an additional petition for birth sibling, and changes the validity period for Form I-600A approval to 15 months.

Secure Documentation: USCIS will send secure identification documents, such as permanent resident cards (green cards) and employment authorization documents (EADs), only to the applicant or self-petitioner unless they expressly consent to having the document sent to a designated agent, their attorney, or accredited representative; the designated agent, attorney, or accredited representative will be required to provide identification and sign for receipt of the document.

Premium Processing: As part of the same final rule that will increase USCIS filing fees, the time to make decisions for applications filed with premium processing will increase from 15 calendar days to 15 business days.

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Declaration of Self-Sufficiency (Form I-944)

Status of I-944 in Limbo: Courts Decide Fate,
USCIS Reviewing Continued Implementation

As of this writing on August 17, USCIS has not provided guidance on whether the Declaration of Self-Sufficiency, Form I-944, is required in adjustment of status cases outside of Vermont, Connecticut, and New York. The form is clearly not required in those three states. Although the form was enjoined nationwide by a district court order on July 29, on August 12 a court of appeals limited the injunction to the three states. Since issuing guidance in response to the July 29 lower court order, USCIS has not provided updated guidance on the impact of the modified injunction on its Public Charge Injunction page, which continues to discuss only the July 29 decision. Moreover, USCIS has not added the Form I-944 back to its Forms page. According to a CBS News article, a USCIS spokesperson said on August 13 that the agency is reviewing the order to"determine the administrative viability of reimplementing" the policy "where applicable."

This creates significant uncertainty for foreign nationals as to whether Form I-944 is required to be filed at this time for applicants residing in states other than Vermont, Connecticut, or New York. In some instances, clients and their counsel are choosing not to file the Form I-944. Instead, it is advisable to include a screen shot of the USCIS Public Charge Injunction page, as well as the Forms page, dated on the filing date, indicating that it was not available for filing at the time of submission and an explanation of why the Form I-944 is not being submitted. Others are choosing to submit Form I-944 out of an abundance of caution. The decision to include or not include the form should be made with immigration counsel until further guidance is released from USCIS.

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DACA Update

USCIS Refuses to Accept New DACA
Applications in Defiance of Federal Courts

As noted in our last newsletter, the Supreme Court temporarily blocked the Trump Administration's attempt to rescind deferred action for childhood arrivals (DACA). In issuing the decision for the majority, Chief Justice Roberts noted that the DHS may rescind DACA and emphasized that the Court is not deciding whether DACA or its rescission are "sound policies." The Court's decision was rooted in the agency's failure to follow the Administrative Procedure Act (APA), which requires agencies to provide adequate reasoning for their actions.

While many immigration advocates believed the decision would at least temporarily restore the program in its entirety, USCIS issued a statement the day after the decision indicating that the agency believed the decision had no basis in law and only delayed the termination of the program. Most unfortunately, in the months since the decision, USCIS has actively defied parts of the Court's decision by not fully restoring the DACA program.

Even though a federal district court ordered USCIS to accept new DACA applications, the agency pushed back, indicating it would reject initial applications for DACA. USCIS will continue to accept renewal applications for individuals who previously filed and received DACA benefits. USCIS will accept and process applications for advance parole only under exceptional circumstances and will limit the renewed deferred action grant to one year.

Even though the Supreme Court's decision was a remarkable victory for DACA recipients, DHS continues to have authority to end the program in compliance with the APA, and the Administration's lack of compliance with the decision have limited its potential benefits. Ultimately, lasting relief for DACA recipients would need to come at the congressional level; however, DACA recipients still could benefit from consulting with an immigration attorney to screen for and explore other avenues for permanent residence in the United States.

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More Cap-Subject H-1B
Petitions Being Selected

Without any notice, some petitioners who registered for the H-1B lottery in early March but did not get selected are now being notified that new H-1B registrations are being selected for submission. Petitioners should login to their USCIS online account and check the status of their H-1B registration accounts for new selections. The new deadline for submitting cap subject H-1B petitions for the October 1 start date is 11/16/2020.

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Executive Order Issued on
H-1B Workers on Federal Contracts

On August 3, President Trump signed another Executive Order, barring H-1B workers from replacing American workers on a federal contracts. The EO creates an extra step for federal contractors and agencies intending to hire foreign workers on H-1Bs by requiring them to prove that the position could not be filled by a qualified U.S. worker. Specifically, the EO will require federal employers to complete an internal audit to determine compliance with the requirement that only U.S. nationals are employed for competitive positions. The Department of Labor is also finalizing guidance to prevent employers from moving H-1B workers to job sites where U.S. workers may be displaced. While the new EO is not a significant change from current policy, it reflects yet another attack on the H-1B program by the Administration.

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Wondering Where Your
Green Card or Combo Card Is?

In early July, it was widely reported that USCIS had shut down printing of documents evidencing legal status and work authorization for immigrants and nonimmigrants, including green cards and employment authorization documents (EAD). According to a USCIS, approximately 50,000 green cards and 75,000 other employment authorization documents promised to immigrants and nonimmigrants hadn't been printed. While printing seems to have resumed, it is unclear how the massive shutdown will continue to impact foreign nationals. And, with the announced August 30 furlough of 13,000 USCIS employees still on the horizon, more delays can be expected.

In response to this massive delay, a class action lawsuit and temporary restraining order (TRO) have been filed with district court, requesting that the court issue various legal writs that compel USCIS to issue EADs to plaintiff and class members immediately, and in no event later than seven calendar days after the date of the court's order. The lawsuit is in response to USCIS approving EAD applications but failing to provide the actual card.

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NEWS IN BRIEF

Acting DHS Secretary and Deputy Named to Posts Illegally: The Government Accounting Office found that, under the Federal Vacancies Reform Act of 1998, current Acting DHS Secretary, Chad Wolf, as well as Kenneth Cuccinelli, the current "Senior Official Performing the Duties of" DHS Deputy Secretary, were named to their positions by reference to an invalid order of succession. Any orders issued during their tenure arguably should be voided, but it remains to be seen what the current Administration to do.

Attempt to Decertify Immigration Judge Union Fails: Last year the Department of Justice petitioned the Federal Labor Relations Authority (FLRA) in an attempt to strip immigration judges of their right to unionize. In late July, the FLRA rejected and dismissed that petition, noting that immigration judges are not management officials and are thus permitted to unionize.

New EAD Form Required August 25: A new edition of the Form I-765, Application for Applications for Employment Authorization (EADs), to take effect August 25, has been issued by USCIS. USCIS will not accept EAD applications postmarked on or after August 25 if not filed with the 8/25/20 edition of Form I-765 and I-765WS (worksheet). (Note that, as of August 19, the USCIS has not yet posted the new edition on the I-765 Web page.)

Trusted Traveler Programs Enrollment Centers Remain Closed: CBP announced that it is postponing the reopening of Trusted Traveler Programs Enrollment Centers until at least September 8. Applicants who scheduled interviews at enrollment centers before September 7 must reschedule their appointments.

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