DACA Supreme Court Decision

The American Immigration Lawyers Association (AILA) applauds the U.S. Supreme Court’s decision blocking the rescission of the Deferred Action for Childhood Arrivals (DACA) program. The decision means that Dreamers across the country will continue to have temporary protection from deportation.

AILA Executive Director Benjamin Johnson stated, “Dreamers across the country, and those who love and depend on them, are breathing a sigh of relief, having lived in fear and uncertainty since the Trump Administration targeted the DACA program for termination. This decision today is particularly important as our country faces the immense challenge of a pandemic and tens of thousands of Dreamers are on the front lines as paramedics, nurses, and other medical professionals. Like many Americans, Dreamers are also grocery store workers, truck drivers and caretakers.  They have stood shoulder to shoulder with Americans in the effort to get healthy and stay healthy. We are a stronger nation when we stand together.

“Despite this great news, and our exhilaration about the decision, the Court has made clear that the President has both the power to continue the program and the power to terminate if he follows the correct legal process. For the sake of not only Dreamers but our nation, this legal limbo must end. AILA urges Congress to act immediately and pass permanent protection for Dreamers once and for all. The great majority of Americans from across the political spectrum want Dreamers protected with permanent residency in America. With such resounding support, Congress can and must pass a bipartisan solution. We stand ready to work with both parties on effective legislation that will quickly address this issue. The time for action is now.” 

Iandoli Desai & Cronin P.C. will continue to monitor the situation and provide updates.

Summary of the Presidential Proclamation Suspending Entry of Certain Nonimmigrants

On June 22 and 29, 2020 the Trump administration amended and expanded its April 22, 2020 Immigration Proclamation. This new order became effective 12:01 A.M. on June 24, 2020 ("Effective Date") and extends to December 31, 2020.

 To review the Proclamation in its entirety, visit:  https://protect-us.mimecast.com/s/ScHHC68VxDT13DZF6CRLU?domain=whitehouse.gov.

Below please find a summary of the key points: 

• The proclamation restricts the entry into the United States of persons in the following non-immigrant visa categories and also applies to their dependent family members:

  • H-1B or H-2B visa holders and their H-4 dependents;

  • J visa holders ONLY in the following categories: intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and their J-2 dependents; and

  • L visa holders and their L-2 dependents.

• The suspension applies to individuals seeking entry into the United States in the visa categories noted above who:

  • are outside the United States as of the Effective Date;

  • do not already have a valid H-1B, H-2B, H-4, J-1, J-2, L-1, or L-2 visa pursuant to which they seek entry; and,

  • do not have a valid official travel document other than a visa (such as transportation letter, boarding foil, or advance parole document) as of the Effective Date or issued thereafter.

• The suspension does not apply to:

  • Lawful permanent residents of the United States (green card holders);

  • Any foreign national who is the spouse or unmarried child under 21 of a United States citizen;

  • Foreign nationals seeking entry to the United States to provide temporary labor or services essential to the United States food supply chain;

  • Foreign nationals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

• The proclamation directs the Secretary of State, Secretary of Labor and Secretary of Homeland Security to establish standards to determine which foreign nationals meet the criteria of "national interest" exemption above, and specifically includes:

  • Foreign nationals critical to the defense, law enforcement, diplomacy, or national security of the United States;

  • Foreign nationals involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

  • Foreign nationals involved with the provision of medical research at United States facilities to help the United States combat COVID-19; and,

  • Foreign nationals who are necessary to facilitate the immediate and continued economic recovery of the United States.

• The proclamation also automatically extends the April 22, 2020 order suspending entry by certain new immigrants until December 31, 2020.  Please refer to our prior summary at:https://protect-us.mimecast.com/s/TN6kC73JyETQPqnFBq6j2?domain=iandoli.com.  

Importantly, the proclamation does not restrict the filing, adjudication, or approval of applications and petitions filed with USCIS.  Therefore, the filing with USCIS of petitions by employers wishing to sponsor H-1B, H-2B, L-1, institutions authorized to issue documents under the J-1 exchange program, individuals seeking to change to or extend these nonimmigrant categories, or those seeking to adjust status are not impacted by this proclamation.

Iandoli Desai & Cronin P.C. will continue  update you as we learn more on how the proclamation is being implemented by various agencies, including visa processing at U.S. embassies and consulates.

Department of State and U.S. Embassies

According to the American Immigration Lawyers Association’s (AILA) Department of State Liaison Committee, certain consular posts have signaled that services are slowing becoming available at certain embassies.  Each post will reopen on their own timeline based on the situation in the respective country.   AILA has received notice that London and Belfast and certain embassies in Mexico and China are showing appointment availability in August and September but many other embassies and consulates are still closed.  We also have seen clients with initial appointments in July be cancelled at the last minute and rescheduled for 30-60 days later.  Embassies appear to be making future appointments with the hope they will reopen by that time but ultimately still limiting appointments. 

We are warning clients not to travel abroad if at all possible, especially if they require a visa for re-entry.  We will continue to monitor the situation and provide updates.

USCIS to Resume In-Person Services at Field Offices in a Limited Capacity

Beginning June 4, 2020, certain USCIS field offices and asylum offices resumed non-emergency face-to-face services to the public.  USCIS has enacted precautions to prevent the spread of COVID-19 in reopened facilities.  USCIS field offices will send notices to applicants and petitioners with previously scheduled appointments that were cancelled due to COVID.  So far, we are seeing appointments re-scheduled for naturalization (citizenship) applications, swearing-in ceremonies and marriage-based green card applications only.  Those attending appointments must follow the safety guidelines.

We have not heard of USCIS resuming appointments for employment-based green card applications at this time.  Though there was no formal announcement, USCIS seems to have reverted to its pre-October 2017 practice of waiving interviews for employment-based cases and approving them via mail.

Application support centers, which include biometric appointments, will resume services later. 

Please note that USCIS locations are not accepting walk-in visits at this time. You must have a scheduled appointment with USCIS before arriving at a USCIS office.  USCIS is continuing to only schedule local InfoMod appointments for issues where there is an emergent need. USCIS has since updated its “USCIS Response to COVID-19” page to reflect the following:

If you need help with emergency document services (such as ADIT stamps or advance parole), we are working to schedule those appointments as soon as possible. You may experience slightly extended wait times as we gradually and safely resume in-person services. If you need to schedule an emergency document service, you may reach out to the USCIS Contact Center to make an appointment.

 “Emergent need” does not include Adjustment of Status interviews, biometrics appointments, or Naturalization interviews. A handful of Embassies are starting to schedule appointments in July and August but expect significant delays for the remainder of 2020.

Iandoli Desai & Cronin P.C. will continue to monitor the situation and provide updates as to any specific guidance for issues that will currently qualify for a local office appointment.

USCIS Warns of Impending Furloughs Unless Congress Approves Emergency Funds

Beginning in August 2020, approximately 13,400 employees of the United States Citizenship and Immigration Services (USCIS) or 73% of its 20,000+ employees are slated for furlough unless USCIS receives funding from Congress.

Unlike most federal agencies, USCIS is almost entirely funded by application and petition fees.  However, in May, USCIS requested $1.2 billion from Congress.  The reason for the request was that USCIS has seen a 50% drop in receipts and fees starting in March. A USCIS spokesperson reported that “This dramatic drop in revenue has made it impossible for our agency to operate at full capacity. Without additional funding from Congress before August 3, USCIS has no choice but to administratively furlough a substantial portion of our workforce.” USCIS stated that it would pay any congressional funds received back to the Treasury via a 10% surcharge added to applications.

USCIS employees recently received emails notifying them that furloughs would begin on August 3 and last for at least 30 days, with the potential to last three months or longer, according to sources within USCIS. The cuts to staff will vary from office to office. This drastic cut to USCIS’s workforce will likely severely impact processing times, service requests, and possibly result in a temporary suspension of premium processing.  

Iandoli Desai & Cronin P.C. will continue to monitor the situation closely and provide updates as we receive more information.

J-1 Teachers/Professors/Students

Department of State (DOS) Provides Guidance specific to J-1s for Teachers, Professors and Students regarding “online” courses for the academic sessions starting this Fall.  Specifically, DOS announced:

“The purpose of the Exchange Visitor Program is to facilitate in-person exchanges. Any potential new exchange visitors (i.e., individuals currently in "initial" status in the Student and Exchange Visitor Information System (SEVIS)) may start their exchanges only if their programs and host academic institutions will be able to comply with regulatory requirements. For example, college/university student programs must generally take place "at a degree-granting post-secondary accredited academic institution" (2 CFR 62.23(a)); Teachers must teach "in an accredited primary or secondary school" (22 CFR 62.24(d)(5)); and Professors "must conduct their exchange activity at the site(s) of activity" although occasional lectures or consultations are allowable at other locations (22 CFR 62.20(f)). While these regulations do allow ECA to provide some flexibility in permitting a limited amount of distance learning, ECA reminds sponsors that the Exchange Visitor Program generally requires programs to foster the exchange of ideas between foreign teachers and students and American counterparts. Thus, host academic institutions should have reinstated partial to full-time classroom participation or be able to meet other formal in-person requirements before hosting new participants.

With respect to exchange visitors who are currently in "active" status in SEVIS and are continuing programs that were underway in a manner compliant with regulations when the pandemic reached the United States, ECA understands that program sponsors have adjusted program activities to meet their obligations to provide for the health, safety, and welfare of their exchange participants. In keeping with ECA's message on March 11, 2020 (https://j1visa.state.gov/wp-content/uploads/2020/03/3.11.2020_Exchange-Visitor-Program-Sponsor-Guidance.pdf), ECA continues to ask sponsors and exchange visitors to consult with host organizations to find alternative ways to maintain program objectives, including online classes or other arrangements, while preventing unnecessary exposure to COVID-19. A temporary modification along these lines of a current exchange participant's program due to exigent circumstances beyond a sponsor's or host entity's control does not undermine the program's original consistency with the regulations.”

The following is the DOS Exchange Visitor Program Information on Coronavirus (COVID-19)

Link which has frequent helpful updates to the ongoing pandemic: https://j1visa.state.gov/covid-19/.

BREAKING NEWS …. SEVP Guidance for F-1 Students

As schools start to reimagine academic life during the continue threat of COVID and develop contingency plans for the fall, SEVP announced on July 6, 2020 vague guidance on the flexibility in remote learning, hybrid remote options, eligibility for OPT for students returning from time abroad, permission to file for OPT from abroad, etc.  The July 6 guidance now supersedes SEVP’s current COVID-19 guidance located at ICE.gov/Coronavirus. However, SEVP’s current COVID-19 guidance will remain in effect through the end of a school’s summer semester.

The July guidance returns to the policy that F-1 students in the US are not permitted to take all online courses, despite the fact that many universities and colleges in evaluating the safest situation for their students, staff and communities have turned to online courses for the Fall in response to the ongoing pandemic.  The result is that students enrolled in online only courses will not be permitted to remain in the US.

SEVP subsequently released updated guidance through FAQs the following day, which includes some contradicting information on the guidance.

The new guidance has already been challenged in the courts.  The following is a link to the complaint by Harvard University and MIT filed in Federal district court challenging the July guidance and which includes a request for an injunction against SEVP’s July guidance: http://orgchart.mit.edu/sites/default/files/reports/20200708-Harvard-MIT-Complaint-Injunctive-Relief.pdf

Given the rapidly evolving situation regarding the SEVP guidance and ongoing litigation, Iandoli Desai & Cronin P.C. will continue to monitor the situation and provide updates. In the meantime the following FAQ’s is a helpful tool for the most updated information:  https://www.ice.gov/doclib/sevis/pdf/sevisFall2020_FAQ.pdf

SUMMARY OF THE PRESIDENTIAL PROCLAMATION SUSPENDING ENTRY OF CERTAIN NONIMMIGRANTS

On June 22, 2020 the Trump administration amended and expanded its April 22, 2020 Immigration Proclamation. This new order will become effective as of 12:01 A.M. on June 24, 2020 (“Effective Date”) and extends to December 31, 2020.

To review the Proclamation in its entirety, visit:  https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak.

Below please find a summary of the key points: 

• The proclamation restricts the entry into the United States of persons in the following non-immigrant visa categories and also applies to their dependent family members:

o   H-1B or H-2B visa holders and their H-4 dependents;

o   J visa holders ONLY in the following categories:  intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and their J-2 dependents; and

o   L visa holders and their L-2 dependents.

• The suspension applies to individuals seeking entry into the United States in the visa categories noted above who:

o   are outside the United States as of the Effective Date;

o   do not already have a valid non-immigrant visa; and,

o   do not have a valid official travel document other than a visa (such as transportation letter, boarding foil, or advance parole document) as of the Effective Date or issued thereafter.

• The suspension does not apply to:

o   Lawful permanent residents of the United States (green card holders);

o   Any foreign national who is the spouse or unmarried child under 21 of a United States citizen;

o   Foreign nationals seeking entry to the United States to provide temporary labor or services essential to the United States food supply chain;

o   Foreign nationals whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

• The proclamation directs the Secretary of State, Secretary of Labor and Secretary of Homeland Security to establish standards for which foreign nationals meet the criteria of “national interest” exemption above, and specifically includes:

o   Foreign nationals critical to the defense, law enforcement, diplomacy, or national security of the United States;

o   Foreign nationals involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

o   Foreign nationals involved with the provision of medical research at United States facilities to help the United States combat COVID-19; and,

o   Foreign nationals who are necessary to facilitate the immediate and continued economic recovery of the United States. 

• The proclamation also automatically extends the April 22, 2020 order suspending entry by certain new immigrants until December 31, 2020.  Please refer to our prior summary at this link.

Importantly, the proclamation does not restrict the filing, adjudication, or approval of applications and petitions filed with USCIS.  Therefore, the filing with USCIS of applications by employers wishing to sponsor H-1B, H-2B, L-1 or institutions authorized to issue documents under the J-1 exchange program, or individuals seeking to change to or extend these nonimmigrant categories are not impacted by this proclamation.

We hope this brief summary is helpful.  We will seek to update you as we learn more on how it will be implemented by various agencies, as we expect this proclamation will be challenged in court in the days ahead.

Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People's Republic of China

On Friday, May 29, 2020, President Trump issued an Executive Proclamation effective June 1, 2020  suspending and limiting entry of any national of the People’s Republic of China (PRC) seeking to enter the United States pursuant to an F or J visa to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”.

The Secretary of State shall consider, in the Secretary’s discretion, whether nationals of the PRC currently in the United States pursuant to F or J visas and who otherwise meet the criteria described in section 1 of this proclamation should have their visas revoked pursuant to the Immigration and Nationality Act.

Within 60 days of the effective date of this proclamation, the Secretary of State and the Secretary of Homeland Security, in consultation with the heads of appropriate agencies, shall review nonimmigrant and immigrant programs and shall recommend to the President, through the Assistant to the President for National Security Affairs, any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.

Iandoli Desai and Cronin PC is monitoring this news and will provide any updates that may become available.

Expansion of HHS J-1 Waiver for Clinical Care Physicians

International medical graduates (IMG) enrolled in a graduate medical education or training program applying for a J-1 nonimmigrant visa are subject to a two-year home residency requirement.  This means the physician must return to his or her home country or country of last permanent residence for at least two-years in the aggregate prior to being eligible to apply for H-1 or L-1 nonimmigrant status or permanent residence.  This restriction is heavily burdensome, tricky to navigate from a career and timing perspective and sometimes difficult to waive.  J-1 visa holders who do not wish to return homecan apply for a waiver of the two-year home residency requirement typically by providing clinical care in underserved communities as designated by the Health Resources & Services Administration (HRSA). The most common is known as the Conrad 30 Waiver Program, administered by a state’s Department of Public Health.  Other waivers include those obtained through sponsorship by Department of Health and Human Services (HHS) as an interested government agency (IGA) for clinical care.J-1 physicians must agree to deliver health care services for three years in a mental health or primary care Health Professional Shortage Area (HPSA) in the U.S.  Previously, only Federally Qualified Community Health Centers (CHC), as designated by the government, were eligible to request clinical care waivers under the HHS program. Recently, HHS updated its guidelines so that any facility, such as a hospital or private practice, can apply for an HHS waiver as long as they have an HPSA score of at least 7 and the physician will provide primary care treatment. HPSA scores are developed by the National Health Service Corps to determine the areas in most need of assigned physicians. The higher the score, the greater the need. Primary care and mental health clinicians are scored between 1-25. The waiver is not available for specialists. Requirements for an HHS clinical care waiver request can be found under the Supplement B section here.

If you would like more information, please contact our attorneys at info@iandoli.com to schedule a consultation.