Department of State revises Guidance on Court Order in NAM vs DHS
The Department of State (DOS) issued revised guidance on November 18, 2020regardinga court order issued in National Association of Manufacturers v. Department of Homeland Security (NAM vs DHS). The revised DOS guidance clarified the court’s October 1, 2020, order enjoining the government from enforcing a Trump administration ban on H, L and J nonimmigrants under section 2 of Presidential Proclamation 10052.
Applicants are now considered covered by the NAM court’s order “if the applicant’s petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview. ”The court further ordered that DOS “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.
Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the DOS starts issuing visas.
Department of State Creating Visa Bond Pilot Program
Department of State (DOS) has issued a temporary final rule creating a six-month pilot program under which applicants for B-1/B-2 visas from countries with overstay rates of ten percent or higher and who have been approved by DHS for an inadmissibility waiver may be required to post a bond as a condition of visa issuance.
The Pilot Program is designed to apply to nationals of specified countries with high overstay rates to serve as a diplomatic tool to encourage foreign governments to take all appropriate actions to ensure their nationals timely depart the United States after making temporary visits. The Pilot Program will run for six months. During that period, consular officers may require nonimmigrant visa applicants falling within the scope of the Pilot Program to post a bond in the amount of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount of the bond, should a bond be appropriate, will be determined by the consular officer based on the circumstances of the visa applicant.
The temporary final rule is effective December 24, 2020.Iandoli Desai & Cronin will continue to monitor the situation and provide updates as the program goes into effect.
Receipt Notice Delays for I-485s and I-140s Filed with USCIS
Due to the substantial amount of I-485, Applications to Register Permanent Residence or Adjust Status and I-140, Immigrant Petitions for Alien Worker, filed with USCIS in October and November, there currently are longer than normal delays in the issuance of receipt notices. Immigration attorneys nationwide report USCIS is taking upwards of 4 – 6 weeks to issue and mail receipt notices to applicants and their attorneys for adjustment of status cases the agency has received since late September.
I-9 Flexibility Extended
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification. Because of ongoing precautions related to COVID-19, DHS has extended this policy until December 31, 2020.
This provision only applies to employers and workplaces that are operating remotely.
If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
How does the change in the presidential administration affect the actions taken on immigration during the last four years?
The Trump administration issued numerous executive orders and presidential proclamations greatly affecting immigration. While these are the easiest actions that can be taken, the next administration can also just as easily rescind them. The difficult situation are regulatory actions that have resulted in a final rule. These laws may only be rescinded by a proper rule-making process, or set aside by a court order or by special congressional review. The Trump administration has enacted many final rules with others pending final review before publication and others still under public notice and comment. See this link for information related to immigration executive orders and regulatory actions: AILA - Trump Policies That May Be Finalized Before Inauguration Day 2021
USCIS Updates Guidance on Discretionary Factors for Adjustment of Status Applications
U.S. Citizenship and Immigration Services (USCIS) updated its existing policy guidance in the USCIS Policy Manual regarding the exercise of the secretary of the Department of Homeland Security’s discretion in adjudications of adjustment of status applications.
Under the new policy guidance, USCIS officers may examine positive and negative factors including, but not limited to, an LPR applicant’s:
Community standing and moral character.
Family-based and/or community-based ties to the United States.
Immigration status and history.
Business, employment, and skills.
Additional humanitarian concerns.
When the positive discretionary factors about an individual outweigh the negative factors, officers can make a positive decision and approve an LPR application. The converse is also true: USCIS officers may deny an LPR application when the negative discretionary factors outweigh the positive.
Iandoli Desai & Cronin will continue to monitor the situation and provide updates as this new guidance goes into effect.
December Visa Bulletin Continues to Advance but Announces Scheduled Expiration of Two Employment Visa Categories
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories for family-based and employment-based immigration and states whether or not a backlog exists for each one. In addition, the immigration categories are then placed into two charts: a “Final Action” chart and a “Dates for Filing” chart.
For December 2020, USCIS has indicated that for Employment-Based (EB) immigration, the “Dates for Filing Applications” chart should be used in establishing eligibility to file the I-485 Adjustment of Status (“green card”) applications. This provides significant advancement in nearly all EB preference categories. This means that those who filed an EB Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin are able to file for permanent resident status [Form I-485].
Last month saw significant movement for China and India in the EB-1 preference category, which advanced to November 1, 2020, resulting in many applicants from those countries filing Form I-485 to apply for permanent residency. That activity will continue in December where the category remains current, but it is unclear for how long that trend will continue.
The EB-2 preference category remains “current” for all countries other than China and India, which means that individuals in these categories may immediately file Form I-485 applications. China and India have held at October 1, 2016 and May 15, 2011, respectively.
The EB-3 preference category is now “current” for all countries other than China and India which means that individuals in these categories may also immediately file Form I-485 applications. China and India continue to hold at June 1, 2018 and January 1, 2014, respectively.
Because of the difference in dates between the Filing and Final charts, Form I-485 applications filed now may be pending for lengthy periods of time; however, the opportunity to file the I-485 applications is available now. There are substantial benefits for some in applying sooner rather than later including employment authorization for dependents and the ability to travel internationally on Advance Parole instead of continually applying for visas at U.S. Embassies.
Furthermore, December Visa Bulletin announced the expiration of both the Employment Fourth Preference Certain Religious Workers (SR) and Employment Fifth Preference Pilot (I5 and R5) Categories on December 11, 2020. If there is legislative action extending these categories, the December dates would be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective midnight December 10, 2020. This issue is common due to the need for Congress to reauthorize these programs annually, typically as part of budget discussions.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).
Court Holds That a TPS Recipient Is Eligible to Adjust to Legal Permanent Resident Status in states covered by the Eighth Circuit
On October 27, 2020, a Federal Court of Appeals in the 8th Circuit held that a noncitizen who entered the United States without inspection or admission, but later received Temporary Protected Status (TPS), is deemed “inspected and admitted” for purposes of adjusting their status to that of lawful permanent resident (LPR). The court thus affirmed the district court’s decision reversing USCIS’s denial.
This is an important victory for TPS beneficiaries residing in the in the 8th Circuit because it reaffirms the fact that such individuals are considered “inspected and admitted” under the law when applying for adjustment of status. Accordingly, USCIS has no lawful basis to deny applications for adjustment of status filed by TPS beneficiaries in the 8th Circuit on grounds that they entered the United States without inspection. (Velasquez, et al. v. Barr, et al., 10/27/20). So far, the 6th, 9th and now the 8th circuits are in agreement on this issue. Therefore, eligibility to file permanent residence is limited to those living in these jurisdictions.
Department of Homeland Security Cracks Down on Alleged Optional Practical Training Fraud
On October 21, 2020, Immigration and Customs Enforcement (ICE) arrested15 nonimmigrant F-1 status students for OPT-related fraud in an investigation called Operation OPTical Illusion. As reported by Inside Higher Ed, the Acting Director of USCIS Kenneth Cuccinelli “warned of coming actions against DSOs or designated school officials, employees of individual colleges who are responsible for maintaining international students' records in a federal government database and overseeing their institutions’ compliance with federal student visa regulations, including the OPT regulations.
Cuccinelli said DHS expects to terminate ‘a fair number’ of designated school officials. ‘What we have seen in this area is what I would call not likely complicit, but a willful ignorance or a level of negligence that leads us down the path of terminating their role as designated school officials,’ he said.”
Department of State Issues Update on Court Order Regarding President Proclamation on H-1B visa issuance
On October 9, 2020, the Department of State posted on its website guidance about how it will comply with a federal court ruling enjoining the operation of section 2 of Presidential Proclamation (PP) 10052, which among other things bans the issuance of H-1B visas, against the plaintiffs in the suit. The plaintiffs in the suit include membership organizations such as the National Association of Manufacturers, the U.S. Chamber of Commerce, and the National Retail Federation. Therefore, any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the above named organizations is no longer subject to PP 10052’s entry restrictions.
The Department of State provides:
H-1B, H-2B, and L-1 Applications: Applicants must be prepared to demonstrate that a U.S. employer/petitioner is a named plaintiff or member of any of the named plaintiff associations. Applicants may provide evidence directly to the consular officer at the time of visa interview. Applicants may provide to a consular officer a letter issued by one of the named plaintiffs to the applicant’s petitioner attesting that the petitioner is a member in good standing of one of the named plaintiff associations. Consular officers will take steps to independently verify that the petitioner or sponsor is indeed a member of one of the plaintiff associations. Once the consular officer is able to confirm membership, they will be able to process the application to conclusion without regard to PP 10052.
Spouse and Child (derivative applications): The NAM court’s order also enjoined the government from enforcing section 2 of Presidential Proclamation (PP) 10052. Section 2 of PP 10052 extended entry restrictions to H-4, J-2, and L-2 applicants who would accompany or follow to join the principal H-1B, H-2B, J-1, or L-1 applicants. Accordingly, consular officers will not apply PP 10052 to these derivative applicants if the principal applicant is covered by the NAM court’s order. The principal applicant is not required to apply with the derivative applicants and may already be admitted into the United States at the time of their application.