AILA posted November 3, 2020
On November 2, 2020, a district court ruled that the DHS public charge rule (1) exceeds DHS's authority under the public charge provision of the INA, (2) is not in accordance with law, and (3) is arbitrary and capricious. Therefore, the court immediately set aside the DHS public charge rule nationwide without staying its decision pending appeal. DHS may not apply the public charge rule as of today, which includes the submission of Form I-944 and the information contained therein.
AILA posted November 3, 2020
After some delay, the November Visa Bulletin has finally been released. Although there is some movement in the final action (FA) chart, the dates for filing (DF) chart remains nearly completely unchanged.
October 16, 2020
U.S. Citizenship and Immigration Services (USCIS) today announced it will increase fees for premium processing, effective Oct. 19, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, signed into law on Oct. 1.
USCIS Posting, October 28, 2020
The Department of Homeland Security (DHS) announced the transmission to the Federal Register of a notice of proposed rulemaking (NPRM) that would prioritize the selection of H-1B registrations (or petitions, if the registration process is suspended) based on corresponding wage levels in order to better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive.
We do not yet know details of how this proposal would work or whether it would be in effect for the upcoming H1B season in March-April 2021. A link to the proposed rule is here.
ICE REVERSES ITS REQUIREMENT THAT F1 and M1 STUDENTS MUST LEAVE IF THEY ARE ONLY ENROLLED IN ONLINE CLASSES
On July 15, 2020, the U.S. Immigration and Customs Enforcement (ICE) reached an agreement with Harvard University and the Massachusetts Institute of Technology (MIT) to allowi F-1 and M-1 students to temporarily take all courses online during the COVID-19 pandemic.
Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak
On Monday, June 22, President Trump signed a proclamation suspending entry into the United States of certain immigrants and nonimmigrants who present a risk to the U.S. labor market following the coronavirus outbreak. Effective immediately, the proclamation extends the suspension of entry for certain immigrants (Presidential Proclamation 10014) through December 31, 2020. The new restrictions imposed by the proclamation are effective at 12:01 a.m. EDT on Wednesday, June 24 and expire on December 31, 2020, unless continued by the President. U.S. citizens, lawful permanent residents, and aliens who are or were inside the United States or those holding valid nonimmigrant or immigrant visas on the effective date are not subject to the proclamation.
The proclamation suspends entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L, along with their spouses and children. No valid visas will be revoked under the proclamation. On June 29, 2020, the White House issued an amendment and made an exemption for those individuals that had a valid visa stamp on the day of the proclamation.
Presidential Proclamation 10014 and this proclamation provide exceptions to their restrictions for certain categories of immigrants and nonimmigrants. These exceptions include: certain healthcare professionals, aliens seeking to enter the United States pursuant to an EB-5 investor visa, spouses and children (categories IR1, CR1, IR2, CR2, IR3, IH3, IR4, IH4) of U.S. citizens, members of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces, aliens seeking to enter the United States pursuant to an Afghan and Iraqi Special Immigrant Visa (SQ or SI-SIV), any alien seeking to provide temporary labor services essential the United States food supply chain, and any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. In addition, the proclamation explicitly states that cases involving a child applicant who may age out may be considered for a national interest exception. Please refer to the text of each proclamation for a full list of exceptions.
Routine visas services continue to be suspended at U.S. posts worldwide as a result of the COVID pandemic, but as resources allow, embassies and consulates may continue to provide emergency and mission-critical visa services. Mission-critical immigrant visa categories include applicants who may be eligible for an exception under these presidential proclamations, such as: IR/CR1, IR/CR2, IR/IH-3, IR/IH-4, SQ, SI, certain medical professionals, and certain aliens providing temporary labor or services essential to the United States food supply chain, as well as cases involving an applicant who may age out of his or her visa category. While embassies and consulates may process these types of cases, their ability to do so may be limited by local government restrictions and available resources. In addition, an applicant’s ability to travel may be impacted by local laws, regulations, and travel restrictions.
The full text of the presidential proclamations are available on the White House website at:
WASHINGTON—U.S. Citizenship and Immigration Services today announced a regulatory change to deter aliens from illegally entering the United States and from filing frivolous, fraudulent, or otherwise non-meritorious claims for asylum to obtain an employment authorization document. This rule does not alter asylum eligibility criteria in any way and will be effective on Aug. 25.
This rule stems from the April 29, 2019, Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System, which emphasizes that it is the policy of the United States to manage humanitarian immigration programs in a safe and orderly manner, and to promptly deny benefits to those who do not qualify.
“Safeguarding the integrity of our nation’s legal immigration system from those who seek to exploit or abuse it is key to the USCIS mission,” said Joseph Edlow, the USCIS Deputy Director for Policy. “The reforms in this rule are designed to restore integrity to the asylum system and to reduce any incentive to file an asylum application for the primary purpose of obtaining work authorization. It also deters frivolous and non-meritorious applications by eliminating employment authorization for aliens who have failed to file for asylum within one year of their last entry until USCIS or an immigration judge determines the alien’s eligibility for asylum.”
The rule prevents aliens who, absent good cause, illegally entered the United States from obtaining employment authorization based on a pending asylum application. Additionally, the rule defines new bars and denials for employment authorization, such as for certain criminal behavior; extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the employment authorization validity period to a maximum of two years; and automatically terminates employment authorization when an applicant’s asylum denial is administratively final.
For more information read the final rule, scheduled to be published in the Federal Register on June 26.
MotherJones, June 11, 2020, Fernanda Echavarri
Over the past couple of years, the Trump administration has been slowingchipping away at asylum seekers’ ability to seek refuge in the United States. With the advent of the coronavirus, Donald Trump and Stephen Miller finally had their chance to shut down the border indefinitely, ending asylum as we know it, at least through the 2020 election.
But on Wednesday, they proved that they won’t stop until the border is virtually sealed to asylum seekers in the future—COVID-19 or not. The Department of Homeland Security posted 161 pages of proposed regulations that, according to advocates and attorneys, include virtually everything the White House has wanted to do to gut asylum in the United States.
Before most of us could finish reading the dense, legalistic document, Aaron Reichlin-Melnick already had broken it down on Twitter, calling the “Kafkaesque” new rules a “sick joke.” So I called Reichlin-Melnick, policy counsel at the American Immigration Council, to make sense of what these proposed changes could mean for tens of thousands of people who are seeking refugee here. “The top line here is that the Trump administration is frustrated that it’s been losing in court on the definition of asylum,” he said. “So rather than accept that its definition is wrong, it wants to simply change the rules and declare itself the winner.”
The proposed changes would create brand new bars for asylum and redefine what asylum means. Essentially, Reichlin-Melnick said, the Trump administration is saying: “If we don’t get you one way, we’re going to get you another way. If we don’t get you a third way, we’ll get you a fourth way. Every single one of these things are overlapping tools to ensure that no one wins asylum.”
Here are some of the most egregious proposed rules that Reichlin-Melnick flagged:
Starting Monday, there will be a 30-day comment period open for responses; by law, the government then has to review the comments before issuing the final rule. Reichlin-Melnick said it’s unlikely that we’ll see a final version of this rule anytime before the fall, and that it may not even be set in stone until after the election (a new president or a new Congress could overturn the rule). He said some of the “more blatantly illegal provisions” could be taken out between now and the final draft: “But the fact that they included those shows how little they’re concerned with following the law and how much they want to simply rewrite asylum law to do what they want.
“This really is death by a thousand cuts,” he added. “Or in the case of some of these bans, it’s death by a huge cut to the neck and then if you manage to survive that one, then it’s death by a thousand cuts.”
The U.S. Citizenship and Immigration Services (USCIS) announced today that routine in-person services at its field offices, asylum offices, and application support centers (ASCs) will resume on June 4, 2020. Per the announcement, the USCIS is following guidelines set by the Centers for Disease Control and Prevention (CDC) in order to protect employees and the public. The USCIS field offices will “… reduce the number of appointments and interviews to ensure social distancing and allow time for cleaning and reduce waiting room occupancy.”
Yesterday evening, President Trump signed an executive order to halt the issuance of immigrant visas for 60 days. On Monday night, the President tweeted that he would “temporarily suspend immigration into the United States.” However, his executive order only halts the issuance of immigrant visas at U.S. consulates. Since most consulates are already closed, the executive order doesn't seem to change current policy and its implementation. Fortunately, the executive does not impact foreign nationals filing applications for adjustment of status in the United States (form I-485).
U.S. visa News
Marty & Ellis keeps you informed of the latest news regarding visas to the United States.