As a result of the COVID-19 pandemic, processing issues at

USCIS, and the Trump Administration's efforts to protect U.S.

workers and wages, there have been several U.S. immigration

developments in the last few weeks.  This writing will provide

an update of some of these recent U.S. immigration developments and

the potential impact on U.S. employers and foreign nationals.

  • Lawsuits Challenging Increase in USCIS Filing

    Fees:  On August 20, 2020, the American Immigration

    Lawyers Association (AILA) along with eight (8) other organizations

    filed a lawsuit challenging the legality of the U.S. Department of

    Homeland Security's (DHS) Fee Increase Rule. The plaintiffs are

    seeking an emergency injunction to prevent the Fee Increase Rule

    from taking effect on October 2, 2020. The suit claims that as

    Acting Secretary for Homeland Security, Chad Wolf did not have the

    constitutional or statutory authority to issue the fee

    changes.  There is also a  second lawsuit that has been

    filed by the Northwest Immigrant Rights Project, Ayuda, Inc., and

    Casa de Maryland, Inc., challenging the DHS's Fee Increase

    Rule.  

  • Use of Form I-765 Approval Notices as Evidence of

    Employment Authorization for I-9 Purposes:  On August

    20, 2020, the U.S. Citizenship and Immigration Services (USCIS)

    announced that, due to production delays of Employment

    Authorization Documents (EADs), employees may use Form I-797,

    Notice of Action (i.e., Form I-765 Approval Notice) with a date of

    approval between December 1, 2019, through August 20,

    2020, for Form I-9 employment eligibility verification

    purposes. Employees may present the Form I-765 approval notice for

    the purposes of satisfying Form I-9, List C #7 as a document that

    establishes employment authorization issued by DHS.

  • USCIS to not Furlough Workers for Now

    On August 25, 2020, the USCIS canceled the planned furlough of

    13,000 workers, which was set to go into effect on August 30. The

    anticipated furlough was due to a projected shortfall in the USCIS

    revenues of $1.2 billion that was initially announced in May. Due

    to cost-cutting measures, increased revenues, and bipartisan

    pressure, the USCIS cancelled the furlough for the remainder of the

    fiscal year (until September 30, 2020). The additional cost savings

    come through the descoping of federal contracts that assist USCIS

    adjudicators in processing and preparing case files as well as a

    myriad of other support activities. Anticipated operational impacts

    include 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. The

    USCIS is still projecting a budget shortfall heading into FY 2021

    and is continuing to seek financial support from Congress.

  • New Application for Employment Authorization (Form

    I-765) Issued by USCIS:  On August 25, 2020, a new

    Form I-765, Application for Employment Authorization, went into

    effect. The USCIS will not accept Applications for Employment

    Authorization postmarked on or after August 25, 2020, if not filed

    with the 8/25/2020 edition of Form I765 and the I-765WS and correct

    fees.

  • Visa Restrictions Imposed on Certain Chinese

    Citizens:  On August 26, 2020, as part of the Trump

    administration's latest round of sanctions against the

    People's Republic of China, the DOS announced that it would

    begin imposing visa restrictions on Chinese citizens

    “responsible for, or complicit in, either the large-scale

    reclamation, construction, or militarization of disputed outposts

    in the South China Sea.” These individuals would be barred

    from the United States and their family members may also face visa

    restrictions.1

  • DHS Proposed Rule to Expand Methods for Collecting

    Biometrics of Foreign Nationals:  On Tuesday,

    September 1, 2020, the DHS issued a Notice of Proposed Rulemaking

    that would expand its methods for collecting biometrics. The

    proposed rule would, according to the notice, “modernize

    biometrics collection and authorize expanded use of biometrics

    beyond background checks to include identity verification, secure

    document production, and records management.”2 In

    addition, the proposed rule will enable DHS to utilize facial,

    iris, and voice recognition technologies, and to collect DNA from

    migrant families in custody to verify the genetic relationship of

    family members.

  • USCIS and the U.S. Department of Labor (DOL) submit new

    regulations to the Office of Management and Budget (OMB) for review

    that impact H-1B program:  The Trump Administration

    is in the process of trying to implement new regulations that

    impact the H-1B program. The first regulation is a rule entitled,

    Strengthening the H-1B nonimmigrant Visa Classification

    Program.  The Administration is attempting to publish

    this rule as an Interim Final Rule (IFR), which would take effect

    immediately, and by-pass the usual notice and comment period

    typical in the rule making process.  This rule proposes to

    revise the definition of the term “specialty occupation,”

    and revise the definitions of the term's “employment”

    and “employer-employee relationship” with the aim of

    protecting U.S. workers and wages.  In addition, the rule will

    likely impose additional requirements designed to ensure certain

    wages are paid to H-1B visa holders. While the specific

    language of the draft regulation has not been shared, it is widely

    presumed that it may restrict the ability to sponsor certain

    individuals for the H-1B category, who may be able to be sponsored

    under the current regulations.  OMB has up to 90 days to

    complete its review of the regulation, but it is anticipated OMB

    may complete its review in the near future.

The second regulation is a U.S. Department of Labor (DOL) rule

that was submitted to OMB on September 16, 2020. This new

regulation is entitled, Restructuring of H-1B, H-1B1, E-3 and

PERM Wage Levels.  The text of this new rule has not been

released, either.  However, based on comments made by the

Trump Administration earlier in the year, it is expected that the

rule will aim to tighten wage criteria, increase wage levels and

enhance oversight and enforcement in connection with the above

programs.  It is anticipated that this rule will be issued as

an IFR, as well.  Just like with the DHS rule above, OMB has

90 days to review the DOL rule. 

  • DHS Public Charge Rule Update:  On

    September 11, 2020, the Second Circuit Court of Appeals stayed a

    District Court's nationwide injunction of the DHS Public Charge

    Rule.  (Note:  The Public Charge Rule renders may make

    certain foreign nationals inadmissible, if they have received

    certain public benefits, or if there is a determination made by a

    USCIS examiner, based on a review of the facts of a case, that a

    foreign national is not able to support themselves in the U.S. and

    may become a public charge.3)  This decision means

    that the USCIS is now able to apply its new Pubic Charge Rule

    freely across the U.S. to those foreign nationals that file Green

    Card applications, or have nonimmigrant visa petitions filed on

    their behalf.  However, at the time of this writing (September

    21, 2020), the USCIS has not issued any new guidance.  The

    USCIS website indicates that it will apply the 1999 public charge

    guidance that was in place before the new Public Charge Rule was

    implemented on February 24, 2020.  It is anticipated that

    USCIS will likely update its website regarding the Public Charge

    Rule in the next few days in light of the recent decision issued by

    the Second Circuit Court of Appeals. 

  • U.S. Government Terminates Certain COVID-19 Arrival

    Restrictions:  In order to prevent the spread of

    COVID-19 in the U.S., U.S. Customs and Border Protection (CBP),

    working with the U.S. Center for Disease Control (CDC), designated

    15 U.S. airports that travelers returning to the U.S., who were

    present in certain countries that experienced a surge in COVID-19

    cases, could enter in order to undergo COVID-19 health screening.

    The countries included the following:  The People's

    Republic of China (PRC) (excluding the Special Administrative

    Regions of Hong Kong and Macau); The Islamic Republic of Iran; The

    Schengen Area countries of Western and Central Europe; The United

    Kingdom, excluding overseas territories outside of Europe; The

    Republic of Ireland; and Brazil.

The purpose of directing flights from these countries to a

limited number of U.S. airports was to focus public health

resources to conduct enhanced COVID-19 health screenings in order

to protect the U.S. population.

Recently, U.S. Customs and Border Protection (CBP) and the

Transportation Security Administration (TSA) announced that,

effective September 14, 2020, flights that carry passengers,

present in the above listed countries, are no longer required to

land only at the 15 designated U.S. airports.  Rather,

individuals who are present in these countries may now land at any

U.S. airport for inspection by CBP and the COVID-19 health

screening.  CBP contends that by not restricting entry to the

15 U.S. airports, it will allow public health resources to be more

effective and will stimulate air travel.  CBP indicates that

all other health measures to protect the public health will remain

in place.

Please note that the announcement by CBP and TSA does not

rescind the country-specific COVID-19 health proclamations that

were issued suspending the issuance of U.S. visas and/or entry of

individuals into the U.S., who are present in the above listed

countries, unless the individual is exempt from the proclamations

(Examples:  Green Card holders; Spouses, Children, Parents of

U.S. Citizens or Green Card holders; foreign nationals traveling to

the U.S. at the invitation of the U.S. government for purposes

related to the containment or mitigation of the COVID-19 virus,

etc.), or has obtained a National Interest Exception (NIE) from the

U.S. Department of State prior to boarding a flight to the U.S.

  • Judge Denies USCIS' Motion to Dismiss in H-1B

    Market Research Analyst Class Action Lawsuit:  On

    September 15, 2020, a U.S. Magistrate judge denied USCIS's

    motion to dismiss a class action suit brought by U.S. companies on

    behalf of H-1B applicants who have had their H-1B petitions denied,

    because their occupation was defined as a “market research

    analyst.” The judge agreed with the plaintiff's contention

    that the USCIS has established a “pattern and practice of

    arbitrarily and unlawfully denying H-1B petitions for market

    research analysts.”4 The judge further said that

    the claims against USCIS involve common questions of law

    surrounding the USCIS's practices and whether it misinterpreted

    the DOL's Occupational Outlook Handbook. The judge

    also found that USCIS appeared to approve plaintiff's petitions

    only after being sued.

Footnotes

1 https://www.nytimes.com/2020/08/26/business/economy/trump-sanctions-south-china-sea.htmlhttps://www.law360.com/immigration/articles/1304589/us-issues-new-sanctions-over-south-china-sea-buildup

2 https://www.dhs.gov/news/2020/09/01/dhs-uscis-modernize-define-collection-biometrics

3 A fact sheet on the Public Charge rule can be found at

https://www.uscis.gov/archive/public-charge-fact-sheet#:~:text=Definition%20of%20Public%20Charge,month%20counts%20as%20two%20months).

4 https://www.law360.com/immigration/articles/1310134/uscis-must-face-claims-it-wrongly-denies-h-1b-visas

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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