December 3, 2020 Newsletter Powered by ABIL

DHS Extends Form I-9 Requirement Flexibility
 The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended until December 31, 2020, flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing precautions related to the COVID-19 pandemic. The temporary guidance was set to expire November 19, 2020.
DHS noted that this provision only applies to employers and workplaces that are operating remotely. The original news release gives more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. DHS said that employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.
E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.
USCIS Reaches H-2B Cap for First Half of Fiscal Year 2021
U.S. Citizenship and Immigration Services announced on November 18, 2020, that it received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2021. November 16, 2020, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2021. USCIS will reject new cap-subject H-2B petitions received after November 16 that request an employment start date before April 1, 2021.
USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including the following types:
  • Current H-2B workers in the United States who are extending their stay and, if applicable, changing the terms of their employment or changing their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.
USCIS noted that Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 through September 30).
DHS Issues Proposed Rule to Expand Biometrics Collection
The Department of Homeland Security (DHS) proposes to “permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure.” In addition, to enable U.S. Customs and Border Protection (CBP) to verify identity by using facial recognition technology, DHS proposes “to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure.”
U.S. citizens may voluntarily opt out of participating in CBP’s biometric verification program.
Details: DHS notice of proposed rulemaking on biometrics collection, https://bit.ly/35Sq9tV
USCIS Updates Guidance on Discretionary Factors for Adjustment of Status Applications 
U.S. Citizenship and Immigration Services (USCIS) is updating existing policy guidance regarding agency discretion in adjudications of adjustment of status applications.
The update provides “a non-exhaustive list of positive and negative factors that may be relevant to whether an adjustment of status applicant warrants a favorable exercise of discretion.” It also lists the privileges, rights, and responsibilities of lawful permanent residents (LPRs) as a reference for officers to consider when determining whether the grant of LPR status is in the best interest of the United States.
USCIS said this update “will assist officers in making more consistent discretionary decisions by providing a foundation to identify and analyze negative and positive factors in adjustment of status applications.”
Alejandro Mayorkas Nominated To Direct Department of Homeland Security
President-elect Joe Biden announced on November 23, 2020, his nomination of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). During the Obama administration, Mr. Mayorkas directed U.S. Citizenship and Immigration Services and then became deputy secretary of DHS. During his more than 30-year career, Mr. Mayorkas also served as a U.S. attorney in California. He is a partner at WilmerHale, leading its COVID-19 Coronavirus Task Force.
Mr. Mayorkas’ accomplishments in the Obama administration included developing and implementing the Deferred Action for Childhood Arrivals (DACA) program, which benefited more than 700,000 youth. President-elect Biden said that Mr. Mayorkas “will play a critical role in fixing our broken immigration system and understands that living up to our values and protecting our nation’s security aren’t mutually exclusive—and under his leadership, they’ll go hand-in-hand.”
Mr. Mayorkas, who was born in Havana and is the son of Jewish refugees who fled Cuba during the Castro revolution, would make history as the first Latino and first immigrant in that position, if confirmed by the Senate. His Romanian mother escaped the Holocaust and met his father, of Sephardic heritage, in Cuba.
On the day of the nomination announcement, Mr. Mayorkas tweeted, “When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”
Details: Biography, Alejandro Mayorkas, Biden-Harris Nominees and Appointees, https://buildbackbetter.gov/the-administration/nominees-and-appointees/alejandro-mayorkas/
“Alejandro Mayorkas, Biden’s Pick for DHS Head, Would Be 1st Latino in Post,” NPR, https://n.pr/2VqjRvD
Biography, Alejandro Mayorkas, WilmerHale, https://www.wilmerhale.com/en/people/alejandro-mayorkas
“Biden Picks Alejandro Mayorkas, a Son of Sephardic Jewish Cuban Refugees, to Lead the Department of Homeland Security,” eSefarad, https://esefarad.com/?p=100825
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