Employment Authorization Document (EAD) & Green Card production delays at USCIS
On July 21, 2020 following news coverage of Employment Authorization Document (EAD) and Lawful Permanent Resident (LPR)/Greencard production delays, Department of Homeland Security (DHS) published an Ombudsman’s Alert regarding card production delays. According to the alert, in June 2020, USCIS reduced the capacity to print secure documents after it ended a contract with a third-party card production facility. While USCIS intended to hire federal employees to replace the contractors, the current hiring freeze at USCIS has delayed production of the cards. As such, USCIS has not been producing the permanent resident cards and EAD cards in a timely manner, so some foreign nationals have experienced delays in receiving these secure documents. Such delays are expected to continue for the foreseeable future. Should there be a furlough of USCIS employees at the end of August, card production backlogs will likely increase.
The DHS Ombudsman’s Office is assisting individuals whose applications have been approved but whose cards have not yet been produced by sending weekly spreadsheets to USCIS to verify card requests are in line to be processed. Individuals experiencing a delay in receiving their documents can submit a request for case assistance with the Ombudsman. LPRs may obtain proof of their status by requesting an I-551 stamp of temporary evidence in a valid passport at a local USCIS field office.
NY Federal Court Enjoins Public Charge Rule
On July 29, 2020, the U.S. District Court for the Southern District of New York issued an order stating that the motion for preliminary injunction and temporary stay of the USCIS Final Rule on Inadmissibility on Public Charge Grounds application is granted. The government is enjoined from enforcing, applying, implementing, or treating as effective the Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The order notes, “a nationwide injunction is both necessary to redress the harms caused by the Rule and appropriate given the strong federal interest in uniformity of the national health and immigration policies at issue here.”
The U.S. District Court for the Southern District of New York issued a separate order stating that the motion for preliminary injunction enjoining the application or implementation of the 2018 FAM Revisions, DOS Rule, and Proclamation is also granted. The order notes, “a geographically limited injunction would be especially unworkable in a case such as this, where consular officers on foreign soil would have to determine how to apply different rules to different applicants.”
USCIS announced that it will implement the injunction immediately, although it will likely also challenge the order. Iandoli Desai & Cronin PC will continue to monitor the situation and provide updates when available.
USCIS furloughs delayed
The anticipated August 3 furloughs have been postponed to August 31. The announcement on July 24, 2020 came after Senate Appropriations Committee Vice Chairman Patrick Leahy (D-Vt.) pressed USCIS to reverse course on its intended furloughs after he made public the fact that new revenue estimates showed the agency due to end the fiscal year in a surplus, and not the previously projected $571 million deficit.
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