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.

  1. 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.

  1. 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.

  1. U.S. Embassies and Consulates to Resume Routine Visa

    Processing: 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.

  1. Update on Furloughing USCIS Employees: The

    USCIS 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 27th, 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).

  1. President Trump's June 22, 2020 Proclamation

    Suspending Issuance of Immigrant Visas and H-1B, L-1, H-2B, and J-1

    Visas for Certain Foreign Nationals (Update): Following

    the 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.

  1. Trump Administration Considering Possible Future

    Proclamations and Interim Regulatory Changes that Could Have Impact

    on Employment-Based Immigration Benefits: The June

    20, 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.

  1. Trump Administration Attempt to Bar all F-1 and M-1

    Students whose Schools are Going Entirely Online due to Covid-19

    and Subsequent Settlement in the face of

    Complaints Filed by Harvard University and the Massachusetts

    Institute Technology (MIT),: On July 13, 2020, the Trump

    Administration 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.

  1. Extension of Northern and Southern U.S. Land Border

    Closures to All But Essential Travel through

    August 20, 2020: The U.S.'s northern and southern

    land 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.

  1. U.S./Chinese Relations Continue to

    Deteriorate: Relations between the U.S. and the

    People'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.

  1. 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.

  1. DOL publishes new ETA Form 9089 in

    Federal 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.

  1. Office of Information Regulatory Affairs (OIRA)

    completed Review of Final Rule Increasing USCIS Filing

    Fees: OIRA completed its review of the final rule

    increasing 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.

  1. Department of Homeland Security Announces Changes to

    DACA: On July 28, 2020, the Department of Homeland

    Security (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

17. “Biden, Sanders unity

task forces release policy recommendations.” Politico

(July 8, 2020): https://www.politico.com/news/2020/07/08/biden-sanders-unity-task-force-recommendations-353225.

See also “6 Takeaways from the Biden-Sanders Joint Task Force

Proposals.” New York Times (July 9, 2020): https://www.nytimes.com/2020/07/09/us/politics/biden-sanders-task-force.html

20. https://www.dhs.gov/news/2020/07/28/department-homeland-security-will-reject-initial-requests-daca-it-weighs-future

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