Immigration Updates - September 2020

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Summary

1. EAD Printing Delays Lead To Uscis I-9 Policy Flexibility

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.

2.USCIS Reminds F-1 Nonimmigrants In Post-Completion OPT And DSOS Of Severe Consequences For Not Entering Employer Info In SEVIS

USCIS said that SEVIS "will count each day without employer information toward the total number of unemployment days allowed."

3. DHS Blasts Gao Report On Invalidity Of Appointments Of Wolf And Cuccinelli, Demands Rescission; GAO Refuses

Following last week's bombshell GAO report finding the appointments invalid, DHS asked GAO to rescind its finding. GAO refused.

4. Two Lawsuits Challenge Fee Rule

The suit seeks an emergency injunction to prevent the fee rule from going into effect on October 2, 2020. The rule raises fees on many applications for immigration benefits.

5. State Dept.'S Visa Bulletin Includes Info On Employment Limit For FY 2020 And DV-2021 Results And Timetable

The Visa Bulletin for the month of September 2020 includes information on several topics.

6. Virginia Man Arrested On $21 Million H-1B Visa Fraud Conspiracy Charges

An indictment alleges that a Virginia man's four companies generated gross profits from 2011 to 2016 of approximately $21 million pursuant to a visa fraud scheme.

7. 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 USCIS employees, the agency announced that it was canceling those plans. However, USCIS said backlogs and wait times would increase across the board. Meanwhile, the House of Representatives passed a related emergency funding bill, but its fate in the Senate is uncertain.

8. State Dept. Expands Interview Waiver Eligibility For Certain Nonimmigrants

The Department of State 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.

9. EOIR Proposes Changes To BIA'S Appeals Processing Authority

A new proposed rule would make multiple changes to processing of appeals by the BIA.

10. USCIS Implements Guidance On DACA

USCIS released an alert summarizing how it will implement its recent DACA policy memorandum.

11. USCIS Modifies Policy On CW-1 Departure Requirement

USCIS said it was making the change in response to stakeholder feedback and disruptions caused by the COVID-19 pandemic.

1. 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.

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2. 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.

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3. DHS Blasts GAO Report on Invalidity of Appointments of Wolf and Cuccinelli, Demands Rescission; GAO Refuses

Following last week’s bombshell report from the U.S. Government Accountability Office (GAO) finding invalid the appointments of Chad Wolf as Acting Secretary for the Department of Homeland Security (DHS) and Kenneth Cuccinelli as Senior Official Performing the Duties of Deputy Secretary, DHS asked GAO to rescind its finding. GAO refused.

DHS’s letter to GAO’s General Counsel, Thomas Armstrong, sent August 17, 2020, and signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, states that GAO’s conclusions are “baseless and baffling” and that the report is “premised on multiple errors,” questions GAO’s authority to even issue the report, calls the timing of the report “suspect” because it was released 80 days before the presidential election, questions the staffing of the report, and asserts that GAO “must accept [DHS’s] permissible interpretation” that “[t]he moment that Secretary [Kirstjen] Nielsen invoked her authority, she overrode all past designations.” The letter includes a photo of Secretary Nielsen swearing in Acting Secretary Kevin McAleenan, which GAO had found set in motion a chain of invalid succession.

GAO’s response to DHS’s letter, sent August 21, 2020, and signed by Mr. Armstrong, states that a rescission of its August 14 decision is denied because “DHS has not shown that our decision contains either material errors of fact or law, nor has DHS provided information not previously considered that warrants reversal or modification of the decision.” Among other things, GAO’s letter notes that “GAO will modify or reverse a prior decision only if it contains a material error of fact or law.” GAO further said that an agency’s interpretation “is not entitled to deference unless the controlling language is ambiguous, nor is deference available” to an agency’s rationalization advanced after the fact to defend past agency action.

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4. Two Lawsuits Challenge Fee Rule

Two lawsuits were filed recently challenging U.S. Citizenship and Immigration Services (USCIS) fee hikes and related actions:

AILA/Sidley lawsuit. The American Immigration Lawyers Association (AILA) and Sidley Austin LLP filed a lawsuit on August 20, 2020, challenging the legality of the Department of Homeland Security’s (DHS) final rule increasing the costs of applying for many immigration benefits. The suit seeks an emergency injunction to prevent the fee rule from taking effect on October 2, 2020.

The complaint states that the final rule is unlawful because it was proposed under Kevin McAleenan and issued under Chad Wolf, “both of whom assumed the title of Acting Secretary of [DHS] without constitutional or statutory authority.” The complaint states that the final rule “is therefore void and without effect.”

The complaint notes that for low-income applicants, the final rule increases the cost of applying to naturalize, in some cases from $0 to $1,170, and charges a non-waivable fee for asylum applicants for the first time in U.S. history “even though the fee will deter vulnerable people from seeking statutory protection.” The complaint states that the final rule also requires asylum seekers to pay $580 to obtain their first employment authorization, and calls for an unexplained budget increase of 21 percent.

Immigrant advocacy groups lawsuit. Northwest Immigrant Rights Project, Ayuda, Inc., and Casa de Maryland, Inc., filed a lawsuit on August 21, 2020, challenging a series of actions by DHS that “make it significantly more difficult and expensive for immigrants to apply for vital immigration benefits: naturalization, employment authorization, asylum, and others.” The complaint notes that in addition to raising fees, in some cases by exorbitant amounts, DHS eliminated fee waivers for all but a few narrow categories of immigrants. “DHS expects that its new rule will force immigrants to pay a combined total of about $1 billion in extra fees to USCIS per year, to fund operations that DHS does not explain and to raise money against an outdated estimated budget,” the complaint states.

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5. 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.

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6. Virginia Man Arrested on $21 Million H-1B Visa Fraud Conspiracy Charges

Ashish Sawhney, of Sterling, Virginia, was arrested on August 20, 2020, on charges of conspiracy to commit visa fraud and for inducing undocumented people to come to the United States using fraudulently obtained H-1B visas.

According to court documents, Mr. Sawhney allegedly used four corporations to orchestrate the improper submission of fraudulent applications for H-1B specialty occupation temporary work visas. The six-count indictment alleges that he used the four corporations to purport to provide information technology staffing and software development services for commercial clients in the United States. He submitted or caused to be submitted H-1B visa application materials stating that the foreign workers named in the applications would fulfill a specific job when, in fact, no such job existed. Through Mr. Sawhney’s ownership and direction of the scheme, the indictment alleges, his companies generated gross profits from 2011 to 2016 of approximately $21 million.

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7. 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.

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8. 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.”

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9. EOIR Proposes Changes to BIA's Appeals Processing Authority

The Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) issued a proposed rule on August 26, 2020, that would make multiple changes to processing of appeals by the Board of Immigration Appeals (BIA).

Among other things, the proposed rule would “make clear that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.” It would shorten the time allowed for the BIA to grant an extension for a party to file an initial or reply brief from 90 to 14 days; decrease the scope of motions to remand that the BIA may consider, including “mak[ing] clear that the BIA cannot remand a case under a ‘totality of the circumstances’ standard”; and delegate authority to the BIA “to issue orders of removal, termination or dismissal, and voluntary departure, and orders granting relief or protection as part of the process to adjudicate appeals.”

The proposed rule also seeks to limit the authority of immigration judges and BIA members to take action “appropriate and necessary for the disposition” of the cases they adjudicate. “The broad sweep of this language has caused confusion,” DOJ said, especially regarding administrative closure. The proposed rule seeks to address that confusion by making it clear that neither the Board nor immigration judges have authority under the regulations to administratively close a case—”either unilaterally or with the consent of the parties—unless authorized by regulation or a judicial settlement.” DOJ also proposes to withdraw, with limited exceptions, the BIA’s authority to sua sponte reopen or reconsider decisions and to certify cases to itself on its own motion.

DOJ said it believes that these and other proposed changes will enable EOIR “to better address the growing number of cases and related challenges, as well as to ensure that all cases are treated in an expeditious manner consistent with due process.”

Comments should be submitted by September 25, 2020, using one of the methods listed in the proposed rule’s summary.

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10. USCIS Implements Guidance on DACA

U.S. Citizenship and Immigration Services (USCIS) released an alert on August 24, 2020, summarizing how it will implement its July 28, 2020, Deferred Action for Childhood Arrivals (DACA) policy memorandum.

Among other things, the alert states that USCIS will reject all initial DACA requests from those who have never previously received DACA, and will return all fees. These applicants will be able to reapply if USCIS begins accepting such new requests in the future. USCIS will continue to accept requests from those who were granted DACA “at any time in the past” and will also accept requests for advance parole. The agency also stated:

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization to no more than one year but will not rescind any currently valid two-year DACA grants or associated employment authorization documents (EADs). USCIS said it will replace two-year EADs that are lost, stolen, or damaged with the same “facial two-year validity period.” DACA recipients should file their renewal requests between 150 and 120 days before their current grant of DACA expires.

For new advance parole requests to travel outside of the United States, USCIS will grant them only for situations it deems as sufficiently constituting “urgent humanitarian reasons or significant public benefit,” in its discretion under the totality of the circumstances. USCIS said it would not rescind any previously granted advance parole documents absent another legal reason to do so, but noted that “parole into the United States is not guaranteed.”

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11. USCIS Modifies Policy on CW-1 Departure Requirement

U.S. Citizenship and Immigration Services (USCIS) has modified its policy on implementing the requirement that foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification. USCIS said it was making the change in response to stakeholder feedback and disruptions caused by the COVID-19 pandemic, and in an effort to protect “the interests of CW-1 employers and workers who may be affected by potential travel disruptions and delays beyond their control.” The agency said this change “also minimizes the likely negative impact on other U.S. businesses and prevents further damage to the CNMI economy.”

Effective August 25, 2020, USCIS will only consider CW-1 petitions approved on or after June 18, 2020, when it applies the requirement that certain CW-1 nonimmigrant workers depart CNMI for a period of at least 30 continuous days. For example, any worker approved on or after June 18, 2020, for a one-year CW-1 validity period beginning October 1, 2020, would be eligible for two more consecutive petition validity periods after the first period of validity expires on September 30, 2021. Previously, USCIS counted all consecutive petition validity periods, even those approved before June 18, 2020, when determining which CW-1 nonimmigrant workers were subject to the temporary departure requirement.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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