In this issue
- DHS Sends H-1B, Work Authorization Rules to OMB for Review Before Publication
- DHS To Propose Major Expansion of Biometrics Collection and Use
- USCIS Issues New Policy Guidance on Final Fee Rule
- USCIS Cancels Planned Furloughs But Predicts Further Backlogs and Slowdowns; House Passes Related Bill
- State Dept. Expands Interview Waiver Eligibility for Certain Nonimmigrants
- EAD Printing Delays Lead to USCIS I-9 Policy Flexibility
- USCIS Reminds F-1 Nonimmigrants in Post-Completion OPT and DSOs of Severe Consequences for Not Entering Employer Info in SEVIS
- State Dept.'s Visa Bulletin Includes Info on Employment Limit for FY 2020 and DV-2021 Results and Timetable
- USCIS Suddenly Begins Selecting New H-1B Lottery Winners
- Executive Order Heightens Scrutiny of Contractors Employing Foreign Workers
- Court Extends Temporary Restraining Order in Case Challenging EAD Delays
- Courts Rule, Agencies Issue Guidance on Public Charge Rule Injunction
- State Dept. Issues Additional Guidance on National Interest Exceptions
DHS Sends H-1B, Work Authorization Rules to OMB for Review Before Publication
The Department of Homeland Security (DHS) has sent two rules to the Office of Management and Budget (OMB) for final review before publication:
- An interim final rule on the H-1B nonimmigrant visa program. The rule is expected to redefine what constitutes an H-1B specialty occupation and an employer-employee relationship. In addition, DHS will propose additional requirements "to ensure employers pay appropriate wages to H-1B visa holders." The rule has been listed in DHS's regulatory agenda since 2017.
Some observers see this rule as yet another pre-election move by the Trump administration to restrict immigration. Lawsuits are likely to follow the interim rule's publication, as there will be no notice-and-comment phase before the rule takes effect.
- A proposed rule to eliminate eligibility for employment authorization for certain people who have final orders of removal but are temporarily released from custody on an order of supervision, with limited exceptions. DHS said it will also make other proposals related to eligibility and factors DHS will consider when adjudicating discretionary employment authorization applications filed by those who have been convicted of aggravated felonies or who have committed "violent or dangerous" crimes.
It is unclear when the rules will be published in the Federal Register.
DHS To Propose Major Expansion of Biometrics Collection and Use
The Department of Homeland Security (DHS) is expected to publish a proposed rule on September 11, 2020, to expand the collection and use of biometrics by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE).
Based on an advance copy of the notice of proposed rulemaking, DHS is expected to propose:
- That any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection without regard to age unless DHS waives or exempts the biometrics requirement.
- To authorize biometrics collection, without regard to age, upon arrest, for purposes of processing, care, custody, and initiation of removal proceedings.
- To define the term "biometrics."
- To increase the biometric modalities that DHS collects, to include iris images, palm prints, and voice prints.
- That DHS may require, request, or accept DNA test results, including a partial DNA profile, to prove the existence of a claimed genetic relationship, and that DHS may use and store DNA test results for the relevant adjudications or to perform any other functions necessary for administering and enforcing immigration and naturalization laws.
- To modify how Violence Against Women Act and T nonimmigrant petitioners demonstrate good moral character, and remove the presumption of good moral character for those under the age of 14.
- To further clarify the purposes for which biometrics are collected from individuals filing immigration applications or petitions to include criminal history and national security background checks; identity enrollment, verification, and management; secure document production; and administering and enforcing immigration and naturalization laws.
USCIS Issues New Policy Guidance on Final Fee Rule
U.S. Citizenship and Immigration Services (USCIS) has issued guidance on the final fee rule that was published on August 3, 2020. The new policy guidance describes the final rule's adjustments in fees for specific forms. It also provides guidance on fee exemption and waiver policies, new premium processing time limits, and other changes made by the fee rule.
USCIS Cancels Planned Furloughs But Predicts Further Backlogs and Slowdowns; House Passes Related Bill
Just five days before furloughs were set to begin for more than 13,000 employees of U.S. Citizenship and Immigration Services (USCIS), the agency announced that it was canceling those plans. USCIS said it now expects to be able to maintain operations through the end of fiscal year 2020 due to a combination of "unprecedented" spending cuts and a "steady increase in daily incoming revenue and receipts."
USCIS said, however, that averting the furlough will come at a "severe operational cost" that will "increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs." The agency pled for congressional interventional "to sustain the agency through fiscal year 2021" and return it to normal operating procedures.
Specifically, USCIS said it will achieve additional cost savings through "descoping" federal contracts that assist USCIS adjudicators in processing and preparing case files as well as myriad other support activities. USCIS did not detail what it meant by "descoping," but often that means reducing the deliverables due without terminating a contract, so the contractor is performing less work and getting paid less. USCIS anticipates that these cost-cutting actions will lead to "increased wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing. Naturalization ceremonies will continue."
Meanwhile, the U.S. House of Representatives passed a related bill, H.R. 8089 (the Emergency Stopgap USCIS Stabilization Act). Among other things, the bill would increase premium processing fees for certain visa applications from $1,440 to $2,550 and extend premium processing service to other visa categories. Consideration or passage of this bill in the Senate is uncertain.
State Dept. Expands Interview Waiver Eligibility for Certain Nonimmigrants
The Department of State (DOS) has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for nonimmigrant visas in the same classification.
Previously, only those applicants whose nonimmigrant visas expired within 12 months were eligible for interview waivers. DOS has temporarily extended the expiration period to 24 months. This policy is in effect until December 31, 2020. DOS said this change "will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff."
EAD Printing Delays Lead to USCIS I-9 Policy Flexibility
U.S. Citizenship and Immigration Services (USCIS) has acknowledged production delays in printing Employment Authorization Documents (EADs) due to the COVID-19 pandemic. As a result, USCIS said, foreign nationals may use Form I-797, Notice of Action, with a notice date "on or after December 1, 2019, through and including August 20, 2020," informing the applicant of approval of Form I-765, Application for Employment Authorization, as a Form I-9 (Employment Eligibility Verification) List C #7 document that establishes work authorization, even though the notice states it is not evidence of that. "Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a List C document for Form I-9 compliance until December 1, 2020," USCIS said.
For I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. By December 1, 2020, USCIS said, employers must reverify employees who presented the I-797 Notice of Action as a List C document. "These employees will need to present their employers with new evidence of employment authorization from either List A or List C," USCIS said.
This flexible policy is part of a proposed settlement to resolve a proposed class action lawsuit challenging delays in the printing of EADs. The lawsuit claims the agency has a printing backlog of approximately 75,000 EADs.
USCIS Reminds F-1 Nonimmigrants in Post-Completion OPT and DSOs of Severe Consequences for Not Entering Employer Info in SEVIS
U.S. Citizenship and Immigration Services (USCIS) issued a reminder on August 18, 2020, to
F-1 nonimmigrant students and their designated school officials (DSOs) that they must update the employer information in the Student and Exchange Visitor Information System (SEVIS), including unemployment data, because "exceeding unemployment limits can result in a loss of status." USCIS said that SEVIS "will count each day without employer information toward the total number of unemployment days allowed."
F-1 nonimmigrants must notify their DSOs within 10 days of any changes in their personal or employment information. In turn, DSOs must update SEVIS with the F-1 nonimmigrant's information within 21 days. USCIS said that in addition to a possible loss of status, failure to timely update employer information in SEVIS and thus exceeding unemployment limits could result in USCIS's initiating revocation proceedings for the F-1 nonimmigrant's employment authorization document or negatively affect the F-1 nonimmigrant's future benefit requests filed with USCIS.
State Dept.'s Visa Bulletin Includes Info on Employment Limit for FY 2020 and DV-2021 Results and Timetable
The Department of State's (DOS) Visa Bulletin for the month of September 2020 includes modest forward movement in the family-based immigration categories. There was no movement in the employment-based preference categories, with the exception of a slight move forward for India and China in the EB-1 category. September’s bulletin includes the following information:
- The employment preference numerical limit for fiscal year (FY) 2020 is 156,253. For FY 2020, the per-country limit is 26,758. The dependent area annual limit is 7,645.
- The Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2021 diversity visa lottery. Approximately 132,404 applicants have been registered and notified and may now make an application for an immigrant visa from among the 55,000 permanent resident visas available under this program for the fiscal year. Selected applicants who do not receive visas by September 30, 2021, will derive no further benefit from their DV-2021 registration. The bulletin also includes a country-by-country breakdown of those registered for the DV-2021 program.
Dates for the DV-2022 program registration period will be widely publicized in the coming months.
USCIS Suddenly Begins Selecting New H-1B Lottery Winners
According to reports, U.S. Citizenship and Immigration Services (USCIS) experienced an unexpected decline in H-1B filings and therefore is selecting additional H-1B lottery winners. Some immigration attorneys say they are suddenly receiving email notifications from USCIS. The reports say that the selections are being made from previous H-1B submissions.
Those who applied for the H-1B lottery in the spring are being advised by practitioners to log in to their USCIS online accounts now to check status for new H-1B selections. Reportedly, the new notices say "August 2020 Selection of Reserve Registration" with a filing period of August 17, 2020, to November 16, 2020. Petitions must include a start date of October 1, 2020.
Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.
Executive Order Heightens Scrutiny of Contractors Employing Foreign Workers
President Donald Trump issued a new executive order on August 3, 2020, "Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers." The order instructs the Secretaries of Labor and Homeland Security to take action to protect U.S. workers from "any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites), including measures to ensure that all employers of H-1B visa holders, including secondary employers, adhere to the requirements of section 212(h)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1))."
The order, which makes no immediate changes, also instructs the heads of each executive department and agency that entered into contracts in fiscal years 2018 and 2019 to assess whether contractors (including subcontractors) used temporary foreign labor for contracts performed in the United States. The order further asks for information on:
- The nature of the work performed by temporary foreign labor on such contracts; whether opportunities for U.S. workers were affected by such hiring; and any potential effects on national security;
- Whether contractors (including subcontractors) performed in foreign countries services previously performed in the United States and, if so, whether opportunities for U.S. workers were affected; whether affected U.S. workers were eligible for assistance under the Trade Adjustment Assistance program; and any potential effects on national security; and
- Any negative impact of contractors' and subcontractors' temporary foreign labor hiring practices or offshoring practices on the economy and efficiency of federal procurement and on national security.
Among other things, the order also asks the heads of each agency that enters into contracts to "propose action, if necessary and as appropriate and consistent with applicable law, to improve the economy and efficiency of Federal procurement and protect the national security."
Court Extends Temporary Restraining Order in Case Challenging EAD Delays
On August 3, 2020, the U.S. District Court for the Southern District of Ohio extended a temporary restraining order (TRO) in a case challenging delays in issuance of employment authorization documents (EADs). On August 6, the court extended the TRO to August 24, 2020. The latest extension is intended to allow the parties time to negotiate a consent decree to resolve the plaintiff's claims.
The plaintiff, arguing on behalf of approximately 75,000 putative class members, sought emergency relief requiring USCIS to print and issue EADs immediately. The plaintiff stated that USCIS significantly slowed and/or stopped printing EADs, which are essential for those with work authorization to obtain or keep their jobs. The plaintiff noted that USCIS had not provided the EADs to which the plaintiff and class members were legally entitled because the agency terminated its contract with a third party without any intention or plan to replace that contract with another contract or method to print and issue EADs in a timely manner.
Courts Rule, Agencies Issue Guidance on Public Charge Rule Injunction
On August 4, 2020, the U.S. Court of Appeals for the Second Circuit extended a temporary restraining order in Connecticut, New York, and Vermont, upholding a prior injunction against the public charge final rule implemented by the Trump administration in February 2020.
Also, on July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) issued a nationwide injunction barring the Department of Homeland Security from enforcing, applying, implementing, or treating as effective the public charge final rule for any period during which there is a declared national health emergency in response to the COVID-19 pandemic.
U.S. Citizenship and Immigration Services (USCIS) stated that as long as the SDNY decision is in effect, the agency will apply the 1999 public charge guidance that was in place before the public charge rule was implemented on February 24, 2020, to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS said it will adjudicate "any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition."
For applications and petitions that USCIS adjudicates on or after July 29, 2020, pursuant to the SDNY injunction, USCIS will not consider any information provided by an applicant or petitioner that only relates to the evidence required by the Public Charge Rule, including information provided on the Form I–944 or any supporting documentation included with that form, or information on the receipt of public benefits in Part 5 on Form I–539, Part 3 on Form I–539A, Part 6 on Form I–129, or Part 6 on Form I–129CW, or any additional documentation pertaining to the public benefit condition. Applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I–944 or provide information about the receipt of public benefits on Form I–485, Form I–129, Form I–129CW, Form I–539, or Form I–539A.
USCIS will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I–485 on the basis of the inclusion or exclusion of Form I–944, nor Forms I–129 and I–539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.
In any public charge inadmissibility determination, USCIS said, it will consider the receipt of public benefits consistently with prior public charge guidance.
The Department of State (DOS) also issued a statement on August 7, 2020, in relation to the SDNY ruling. DOS said it is complying with the order and is updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, DOS said:
[V]isa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders. Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. Applicants are not required to complete nor should they present the DS–5540, Public Charge Questionnaire.
Read "Injunction of the Inadmissibility on Public Charge Grounds Final Rule," USCIS
State Dept. Issues Additional Guidance on National Interest Exceptions
COVID-19-related travel bans remain in place for several countries and regions. The Department of State (DOS) released guidance on July 22, 2020, stating that certain travelers may qualify for national interest exceptions. Subsequently, DOS updated its guidance on July 30, 2020, on national interest exceptions.
The July 30 guidance lists exceptions for certain H-1B, H-2B, H-4, J-1, J-2, L-1, and L-2 visas, and for those aging out of their current immigrant visa classifications.
Read "National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak," DOS, issued July 30, 2020
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: