U.S. Immigration Updates (July 2020)

August 15, 2021

In the last thirty days, there have been several developments in

U.S. immigration policy and practice, which are attributed to the

COVID-19 pandemic, the unemployment rate in the U.S., agency

budgetary shortfalls, and policy changes issued by the Trump

Administration. These recent developments may impact visa

applications, visa petitions, and various applications filed to

obtain a U.S. immigration benefit. 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.

USCIS Green Card and Employment Authorization Document(EAD) Card Production Delays
: In June 2020, the U.S.Citizenship and Immigration Services (USCIS) reduced its capacity

to print secure documents after it ended its contract with an

outside vendor.¹ The USCIS’

current financial situation and hiring freeze has affected the

production of documents. The USCIS Ombudsman’s Office is

assisting foreign nationals whose applications have been approved

but whose cards have not yet been produced and/or issued.

Individuals experiencing a delay in receiving their Green Card or

EAD Card should contact their attorney at FGI for help in this

matter or may submit a request for assistance to the USCIS

Ombudsman’s Office at the following address: https://www.dhs.gov/topic/cis-ombudsman.

Changes to the Discretionary Authority of USCIS’Adjudicators: On July 15, 2020, the USCIS issued a Policy Alert
(PA-2020-10) indicating that it is consolidating existing policy

guidance in Chapter 8 of the USCIS’ Policy Manual regarding the

application of discretion by USCIS examiners in adjudications

process.² The guidance contained in

the Policy Manual is controlling and supersedes any related prior

guidance on the topic. The changes provide a non-exhaustive list of

discretionary factors that USCIS examiners may consider on a

case-by-case basis and explain how USCIS examiners should generally

weigh factors in a given case and properly document the

discretionary determination. The changes are considered to grant

adjudicators greater discretion in their determinations, but their

exact impact on petitions and applications filed with the USCIS

will have to be seen.

U.S. Embassies and Consulates to Resume Routine VisaProcessing: On July 14, 2020, the U.S. Department of State (DOS)
announced that routine visa services would resume on a post-by-post

basis.³ At this time, the DOS is

unable to provide a specific date for when each embassy or

consulate will resume specific visa services, or when each embassy

or consulate will return to processing at pre-COVID-19 workload

levels. All US missions “are continuing to provide emergency

and mission-critical visa services.” Please contact your FGI

attorney with specific questions.

Update on Furloughing USCIS Employees: TheUSCIS announced on July 24, 2020 that it will delay furloughing
13,000 employees through August 2020.⁴ (Note: It is anticipated that

carrying out such a furlough would impact almost three-quarters of

USCIS staff.) Prior to the announcement, it was understood that

USCIS will only delay furloughs if Congress provides to the U.S.

Department of Homeland Security (DHS) the $1.2 billion in

supplemental funding that the USCIS requested in May 2020 from DHS.

However, upon closer scrutiny, it was determined that USCIS has a

surplus of revenue for FY2020, so a decision was made to delay

furloughing employees until late August 2020.

If furloughs of USCIS personnel do take effect, the American

Immigration Lawyers Association (AILA) anticipates U.S. immigration

will be halted, negatively affecting families, businesses,

educational institutions, and medical facilities.⁵ Immigrants who are in the process of

becoming naturalized U.S. citizens will not be able to complete the

process in time to register to vote, DACA recipients will not be

able to renew their benefits, asylum applicants will face increased

delays, and businesses may be unable to hire or retain foreign

national employees.

The HEALS Act, which is the stimulus package released by Senate

Republicans on July 27^th, includes funds for CBP and

would provide a $1.222 billion loan to USCIS for operational

expenses. The loan would be repaid through a 10% surcharge that

would be added to all USCIS fees (this is in addition to the fee

increases called for in the pending fee regulation – see item 12

below).

President Trump’s June 22, 2020 ProclamationSuspending Issuance of Immigrant Visas and H-1B, L-1, H-2B, and J-1
Visas for Certain Foreign Nationals (Update)

: Followingthe President’s April Proclamation denying certain immigrants

entry into the United States, President Trump issued a second

Proclamation (Proclamation 10052) on June 22, 2020 that suspended

entry into the U.S. foreign nationals who were outside of the

country on the effective date (June 24, 2020) of the proclamation,

and did not have a valid H-1B, H-2B, J, or L nonimmigrant visa

(NIV) or a valid, official travel document. Several complaints have

been filed challenging the Proclamation. On July 17, 2020,

litigators from the American Immigration Lawyers Association

(AILA), the Justice Action Center, and the Innovation Law Lab, sued

to challenge the entirety of President Trump’s immigration

ban(s)⁶ Two days later, the U.S.

Chamber of Commerce, the National Association of Manufacturers

(NAM), the National Retail Federation (NRF), and International

Training and Exchange (Intrax) filed a complaint in federal court

in California for declaratory and injunctive relief against the

Proclamation.

Trump Administration Considering Possible FutureProclamations and Interim Regulatory Changes that Could Have Impact
on Employment-Based Immigration Benefits

: The June20^, 2020 Proclamation also called for the issuance of

regulations to ensure that the admission of EB-2 or EB-3 immigrant

visa beneficiaries and H-1B nonimmigrant visa beneficiaries do not

disadvantage United States workers. We anticipate that these

regulations may begin being issued in August 2020, and will focus

on the definitions of “specialty occupation”,

“employer”, and “employee-employer

relationship”⁷ as well as

changes to the ability of H-4 nonimmigrants to be able to apply for

an EAD, if certain conditions are met. Similarly, the Trump

Administration has been considering the revision of the definition

of term ‘specialized knowledge’ for the L-1B intracompany

transferee program. Finally, the Trump Administration has indicated

that it would like to limit the ability of F-1 students to be able

to engage in Optional Practical Training (OPT) with a U.S. employer

after graduating with a degree from a U.S. college or university,

unless the F-1 student has graduated within the top 15% of their

graduating class.

Further, the Trump Administration has been long advocating the

replacement of the current visa lottery system with a merit-based

system that would prioritize highly-skilled workers over other

immigrant categories.

Trump Administration Attempt to Bar all F-1 and M-1Students whose Schools are Going Entirely Online due to Covid-19
and Subsequent

Settlement in the face ofComplaints Filed by Harvard University and the Massachusetts

Institute Technology (MIT),

: On July 13, 2020, the TrumpAdministration agreed to drop its plan to require foreign national

students in F-1 or M-1 status to leave the U.S., if they are

enrolled in more than one on-line class in the Fall 2020 semester.

The plan, announced on July 6, 2020 on the website of the U.S.

Immigration and Custom Enforcement (ICE), was followed by a lawsuit

by Harvard University and the Massachusetts Institute of

Technology, and later joined by over 200 universities and colleges,

that challenged the plan on administrative procedural grounds⁸

However, the US Immigration and Customs Enforcement (ICE) issued

a notice on Friday, July 24, 2020 indicating that new foreign

national students are still barred from entry into the U.S. if they

enrolled in a fully-online course load in the Fall 2020 semester.⁹ Returning foreign national students

who attended classes during the Spring 2020 semester may remain in

the U.S., or return after a break, but that privilege does not

extend to incoming first-year undergraduate or graduate students.

ICE has clarified that new students would still be able to enter

the U.S., if their schools offered a combination of online and

in-person instruction.

Extension of Northern and Southern U.S. Land BorderClosures to All But Essential Travel
throughAugust 20, 2020

: The U.S.’s northern and southernland borders will remain closed to non-essential travel until

August 20, 2020.¹⁰ The original

border closure was implemented on March 21, 2020, and has been

periodically extended.¹¹ The

northern and southern border closures only impacts those attempting

to enter the U.S. at a land port of entry. It does not affect those

attempting to enter the U.S. by air from Canada or Mexico.¹² The closures are subject to review

and could be again extended by the U.S. government.

U.S./Chinese Relations Continue toDeteriorate
: Relations between the U.S. and thePeople’s Republic of China (PRC) have continued to deteriorate.

On May 29, 2020, the White House issued Presidential Proclamation

10043 that suspends entry into the U.S. as a nonimmigrant any PRC

nationals seeking to study or pursue research on an F or J visa, if

they currently receive funding, or who is currently employed by,

studies, or conducts research, on behalf of any PRC entity that

implements or supports the Chinese government’s

‘military-civilian fusion strategy.” The proclamation also

applies to any PRC national who has ever received funding or had

similar relationship with a PRC entity in the past. The

proclamation does not apply to PRC nationals seeking to come to the

US to study or conduct research as an undergraduate student.

Recently, a Chinese national studying at Stanford University in

California was charged by the U.S. Attorney’s Office with lying

about her relationship to the Chinese military.¹³

On July 14, 2020, President Trump signed an executive order

ending preferential economic treatment for Hong Kong, following the

imposition of new security laws there by the PRC.¹⁴ The PRC condemned the move,

claiming that it was an interference in China’s domestic

affairs, and threatened retaliatory sanctions against U.S.

individuals and entities.

Finally, on July 22, 2020, the Trump Administration ordered the

closure of the PRC’s consulate in Houston, Texas following

Department of State (DOS) allegations that Chinese agents have been

attempting to steal data from Texas medical facilities.¹⁵ The closure will make it more

difficult for China to provide assistance to its citizens in the

southern United States and for U.S. nationals seeking visas and

other forms of assistance. The PRC retaliated on Friday, July 24,

2020, by ordering the closure of the US consulate in Chengdu,

capital of China’s Sichuan province.¹⁶ According to China experts,

Chengdu is especially important to the US government as it is the

only consulate in western China where a number of major US

companies operate. President Trump is also considering further

Chinese consulate closures.

Immigration Policy Platform of Biden Campaign:On July 8, 2020, Biden-Sanders Unity Task Force released its
recommendations on policy platform for the presidential campaign.¹⁷ This proposed policy platform has

been submitted to the campaign and the Democratic National

Committee, and presents a series of objectives and proposals

addressing a broad range of fields, including immigration.¹⁸ At its most basic level, the

proposed policies issued by the Biden campaign would reverse the

Trump Administration’s policies, including the suspension on

entry for new H-1B and L-1 visa beneficiaries. The Biden

Presidential Campaign immigration policies include provisions for

reinstating and protecting Deferred Action for Childhood Arrival

(DACA) recipients, and propose removing certain restrictions that

currently make it difficult for foreign nationals to apply for

asylum. In addition, the Biden Presidential Campaign policies

provide a path to U.S. citizenship for the eleven million

undocumented foreign nationals in the U.S. Furthermore, in a July

2, 2020 digital town hall meeting organized by NBC News, Vice

President Biden noted support for the H-1B visa program, and that

he would end President Trump’s current proclamation suspending

entry of certain H-1B nonimmigrants.

DOL publishes new ETA Form 9089 inFederal Register: On July 20, 2020, the
US Department of Labor (DOL) invited comments in connection with a

new ETA Form 9089 it has drafted and published in the Federal

Register.¹⁹ The ETA Form 9089

is used in connection with the PERM Green Card application process.

The filing of the ETA Form 9089 is often the first step in the U.S.

Green Card application process for many foreign national

professionals. Comments will be accepted until September 18, 2020,

and can be made through the Federal Register’s webpage: https://www.federalregister.gov/documents/2020/07/20/2020-15592/agency-information-collection-activities-comment-request.

Office of Information Regulatory Affairs (OIRA)completed Review of Final Rule Increasing USCIS Filing
Fees

: OIRA completed its review of the final ruleincreasing many of USCIS’ filing fees. It is anticipated that

the final rule will be posted in the Federal Register in

the next few days, as of the date of this writing. Based on a draft

of the proposed rule, DHS indicated that once the rule is

finalized, it would not take effect for a 60-day period after

publication. The proposed rule included provisions that would

significantly increase fees for many visa categories and also make

policy changes, including extending the collection of the

additional fees required of petitioners with 50 or more employees

and whose US workforce consists of at least 50% L-1 or H-1B visa

holders on extension requests as well as original petitions.

Department of Homeland Security Announces Changes toDACA
: On July 28, 2020, the Department of HomelandSecurity (DHS) announced several changes to the Deferred Action for

Childhood Arrivals (DACA) program. Beginning immediately, the DHS

will reject all initial requests for DACA and associated Employment

Authorization Documents (EAD). DHS will also reject new and pending

requests for Advance Parole, absent exceptional circumstances. In

addition, DHS will be considering the full rescission of the DACA

program.²⁰

Footnotes

1. https://www.aila.org/infonet/cis-ombudsman-provides-update-on-card-production

2. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20200715-Discretion.pdf

3. https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html

4. https://www.rollcall.com/2020/07/24/uscis-postpones-plans-to-furlough-13400-employees-for-now/

5. https://www.aila.org/advo-media/issues/all/uscis-furloughs

https://www.forbes.com/sites/stuartanderson/2020/07/22/h-1b-visa-lawsuit-trump-takes-sledgehammer-to-immigration-law/#6df3e0d94617

https://www.forbes.com/sites/stuartanderson/2019/11/21/trump-plans-far-reaching-set-of-new-immigration-regulations/#e1ebaf3262a7

8. https://www.cnbc.com/2020/07/13/more-than-200-schools-17-states-back-lawsuits-against-trump-over-international-student-rule.html

9. https://www.law360.com/immigration/articles/1295302/ice-still-blocking-some-student-visas-as-colleges-go-online

10. https://www.usatoday.com/story/travel/2020/07/17/us-canada-mexico-border-closures-extended-into-late-august/5437557002/

11. https://www.dhs.gov/news/2020/06/16/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus