In May 2020, U.S. Citizenship & Immigration Services (USCIS) reported a massive funding shortage that threatens the agency’s operations. USCIS is primarily funded by application fees, which have dramatically fallen this year for a number of reasons, including the COVID-19 pandemic, as well as the implementation of unnecessary and inefficient policies like requiring in-person interviews for all employment-based cases and not giving deference to prior adjudications. USCIS has asked Congress for a $1.2 billion dollar bailout which it intends to repay by imposing a 10% surcharge on most immigration-related applications and petitions. Without the bailout, USCIS asserts that it will not have sufficient funds to maintain its operations through the end of the fiscal year (September 30, 2020) and that it will not have enough funds for the first quarter of FY2021. USCIS has begun issuing furlough notices to its employees and estimates that it will need to furlough approximately 13,400 employees (70% of the USCIS workforce) starting August 3, 2020 if Congress does not grant its funding request. If USCIS furloughs its employees, we anticipate even longer processing times, as well as more inconsistent and error ridden adjudications. We hope that the agency’s request for funding is granted along with safeguards to ensure that USCIS institutes policies and procedures to ensure quality adjudications in an efficient and cost-effective manner.
Update to Presidential Proclamation Barring Entry of Certain H, L, & J Visa Holders
On June 30, 2020 Presidential Proclamation 10052 was amended to clarify that individuals (and their dependents) outside of the United States are suspended from seeking entry as an H-1B, H-2B, J-1, or L-1, unless they had a valid H-1B, H-2B, J-1, or L-1 nonimmigrant visa on June 24, 2020 or are eligible for an exemption. For example, an individual outside the U.S. with a valid B-1 visa on the day of the proclamation would be barred from receiving an H-1B, H-2B, J-1, or L-1 visa until the end of the year.
June 22, 2020 Presidential Proclamation does not Bar Entry of Canadians in H, L, or J Status
On June 24, 2020, DHS confirmed that the H, L, and J entry ban announced on June 22, 2020 does not apply to Canadian citizens. However, the U.S./Canadian border restrictions remain in effect until July 22, 2020 and the U.S. Consular Offices in Canada remain closed. At this time, there has been no announcement regarding the reopening of routine visa services at the U.S. Consular Offices in Canada. Nor do we know whether the current U.S./Canadian border restrictions will be extended into August.
FAQ REGARDING PRESIDENTIAL PROCLAMATION ON IMMIGRATION, ISSUED JUNE 22, 2020
The information in this FAQ is general in nature and does constitute legal advice.
GENERAL
When does this proclamation take effect? June 24, 2020. Except the portion extending the suspension of immigrant visas which took effect June 22, 2020.
Till when is this order in effect? Until December 31, 2020. It is also eligible for extension and is to be reviewed for changes and/or extension every 30 days.
To whom does this order apply? It applies to non-permanent resident foreigners who are outside the U.S. at the time it takes effect.
NON-IMMIGRANT APPLICANTS (THOSE SEEKING STATUS SUCH AS H-1B, L-1, TN, J-1, ETC.)
How does this order affect foreigners seeking to come to the U.S. to work temporarily? The order bars entry into the U.S. of those seeking to come to work. in H-1B, H-2B, L-1A, and L-1B status unless they already had a visa of the corresponding type at the time the order took effect, June 24, 2020. It also bars entry of J-1s seeking to work in the U.S. as an intern, trainee, au pair, teacher, camp counselor or in a summer work travel program. It also bars the entry of family members of those barred who would be seeking to enter in H-4, L-2 or J-2 status.
Does it prohibit the issuance of a visa to such individuals or just the entry into the U.S.? The order specifically states that it bars entry of such individuals who did not have a visa prior to the time the order took effect. However, the order also states that it will be a consular officer’s decision whether a visa applicant for meets an exception and is therefore eligible for a visa. Reading these statements together, we believe the order bars the issuance of visas to individuals in the specified categories of H-1B, H-2B, L- 1, H-4, L-2, and certain J-1 and J-2. Additionally, it is important to note that at the time of preparing this FAQ, regular visa services have been suspended at U.S. consulates throughout the world which are open only for emergency situations, and a foreign worker needing to get a visa is not an emergency unless that worker meets one of the exceptions (e.g., medical researcher working in U.S. to combat COVIID-19). As such, though the order does not expressly say that it prohibits issuing specific visas, as a practical matter, such visas will not be issued.
FOREIGN WORKERS CURRENTLY IN THE U.S.
I am in the U.S. lawfully and need to change my status to H-1B, H-2B, or L-1; or I hold such status and need to extend it. Does this order affect that change or extension of status? No. Individuals lawfully in the U.S. who are eligible to change their status to H-1B, H-2B, or L-1, or the dependent statuses of H-4 or L-2, are not affected by this order and may continue with the process to change or extend status in the U.S.
I am lawfully in the U.S. in H-1B, L-1, H-2B, H-4, or L-2 status, but do not have a valid visa in my passport. Can I leave the U.S., obtain a visa and reenter the U.S.? The language of the order is conflicting. It says it only applies to those who are outside of the U.S. on the day it took effect, but there is sufficient language in it for us to believe that it bars all individuals from obtaining visas in these categories, and therefore, reentering the U.S. Additionally, as noted above, regular visa services are currently suspended throughout the world. Therefore, any individuals who hold the specified statuses, should carefully consider if a trip outside the U.S. is absolutely necessary, because it is highly likely that such individuals will not be able to return before year end, and possibly longer. Additionally, we do not have a way to help those who are stuck outside the U.S. return to the U.S.
I have applied or am eligible to apply for an employment authorization document (EAD). Does this order affect my EAD application or eligibility? No.
I’m a Canadian in the U.S. in L-1/L-2 status. Since I do not need a visa to reenter the U.S., am I safe to leave the U.S. and reenter? Sadly, we do not know. We are awaiting clarification on this point since the order does not expressly address it. As an individual who already holds L-1 or L-2 status and is in the U.S., we believe you should be able to leave and re-enter the U.S., assuming there is no other travel ban in place that effects your entry into the U.S. However, we caution all who are in this situation that they leave the U.S. at the risk of not being able to return until after the end of the year.
INDIVIDUALS OUTSIDE THE U.S. WHO ARE NOT SPECIFICALLY MENTIONED IN THE ORDER
I am a Canadian seeking to enter the U.S. in H, L or J status, will I be able to enter? The USCBP has clarified that the order does not apply to Canadians entering the U.S. in the restricted categories. As such, once travel restrictions at the U.S. – Canada border due to the pandemic are lifted, you should be able to enter the U.S. We recommend entering at the U.S. – Canada border as USCBP officers elsewhere may not be trained on this issue.
Can individuals outside the U.S. enter in other non-immigrant statuses to work in the U.S.? The order does not bar entry for those seeking to enter in other statuses, including E-1, E-2, E-3, O-1, R- 1 and TN. However, those seeking to enter another status, except Canadians seeking TN or O-1, must first obtain a visa to travel to the U.S. Since regular visa services are currently suspended at consulates across the world, it would be difficult for individuals to obtain a visa in one of those statuses. At this point, we believe that Canadians who are eligible to enter in TN or O-1 status may do so.
PERMANENT RESIDENCE / GREEN CARDS / IMMIGRANT VISAS
How does this order affect those applying permanent residence? It extends the order issued April 22, 2020 with respect to those seeking to come to the U.S. as immigrants, until the end of 2020.
Are all individuals applying for green cards or wanting to apply for green cards affected? No. The bar on immigrants only applies to those seeking immigrant visas at a U.S. consulate abroad. It does not apply to individuals in the U.S. who apply to adjust status to permanent residence.
I am in the U.S. and applying for permanent residence or about to apply. Can my application move forward? Yes. As long as your last step of permanent residence is applying to adjust status from your current non-immigrant status (H-1B, H-4, E-3, etc.) to that of a lawful permanent resident (green card holder / immigrant), you are eligible to continue your application (I-485).
I am in the U.S. applying for permanent residence but my spouse (and child) is outside the U.S. and will need an immigrant visa. Will my spouse (and child) be able to continue that process? At this point in time, no. At least until the end of 2020, issuance of immigrant visas is suspended unless the individual meets one of the exceptions.
I am in the process or about to start the process to apply for permanent residence. How can I speed up my permanent residence application? Unfortunately, permanent residence generally cannot be sped up. Some I-140 petitions, which is Step 1 or 2 depending on your application pathway, can be filed with premium processing but none of the other steps are eligible for premium processing.
I have heard that some colleagues who were getting close to having their applications for permanent residence adjudicated have had them held by USCIS because USCIS is not issuing green cards due to the ban. Is this true? USCIS has, in some cases, held up the issuance of green cards because it has interpreted the order to mean that green cards cannot be issued. This is not our interpretation of the order and the American Immigration Lawyers Association is working with USCIS to resolve this issue. Please note that even subsequent to the April 22 order, suspending the issuance of immigrant visas, that we have had applications for permanent residence approved and have had clients receive their green cards. As such, there is confusion in this area, and we hope it is resolved soon.
EXCEPTIONS
What are the exceptions, or who would be eligible to enter the U.S. in one of the barred non- immigrant categories such as H-1B? Only those coming to work in the U.S. in an area of the national interest. These include those coming to work in roles to combat COVID-19, roles which are essential to economic recovery or roles critical to national security. The order is silent regarding family members of such individuals. Children who would turn 21 and thereby lose visa eligibility are also excepted.
Who is excepted from the ban on issuance of immigrant visas? The list is long but exceptions are primarily for those related to U.S. citizens, permanent residents, or members of the armed services, or those seeking a visa to enter the U.S. to work in an area in the country’s national interest.
MORE INFORMATION
Where can I get further updates? This is the latest information as of June 24, 2020. We will post new information to our website www.cyavisalaw.com.
An update regarding today’s executive order re immigration
As you are likely aware, the administration just issued a new executive order restricting entry of H-1B/H-2B, L, and J visa (intern, trainee, teacher, camp counselor, au pair, or summer work travel program) holders and their dependents to the U.S. until the end of the year. We are analyzing the order and will provide more information in the next few days. Our preliminary review of the order indicates that the ban on entry is not all encompassing and there will be a number of exemptions to the ban. We will need to wait for further guidance from the Department of State and the Department of Homeland Security on the exemptions from the ban. Notably, the ban only applies to those who are outside the U.S. on June 22, 2020, who do not already have a valid non-immigrant visa.
USCIS Temporarily Closing Offices to Public
USCIS has announced that it will close all field offices, asylum offices, and Application Support Centers to the public until at least April 1 in an effort to slow the spread of the coronavirus COVID-19. All scheduled interviews will be canceled and new interview notices will be sent out at a later date when they are rescheduled. Individuals with InfoPass appointments will need to reach out to the USCIS Contact Center to reschedule their appointments.
Below is the full announcement from USCIS:
Effective March 18, U.S. Citizenship and Immigration Services is suspending in-person services at its field offices, asylum offices and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). This suspension of services will be effective until at least April 1. In the meantime, USCIS will provide limited emergency services. Please call the Contact Center for assistance with emergency services.
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if your field office has been reopened before reaching out to the USCIS Contact Center.
Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.
SCOTUS Convenes for a New Term, Expected to Rule on DACA
The Obama Administration created Deferred Action for Childhood Arrivals, or DACA, program, in 2012 to establish protections for children who were brought to the U.S. without proper immigration documentation. The program was available for undocumented foreign nationals who met certain requirements, including having arrived in the United States prior to 2007 when they were under the age of 16. Since the program’s inception, nearly 800,000 individuals have acquired status under DACA, which does not offer a permanent path to remain in the United States but protects those individuals from immediate deportation.
In September 2017, despite broad and longstanding bipartisan support for codification of the program’s protections, the Trump Administration announced that it would shut down the program entirely. President Trump argued that the program was illegal in the first place and that allowing undocumented individuals work authorization would undercut native-born Americans by usurping jobs and driving down wages. The president’s actions were swiftly met with several lawsuits, resulting in three nationwide injunctions by federal district courts. Individuals who currently have or have previously had DACA have been able to continue to renew their status in the meantime. In FY2018, USCIS processed approximately 332,500 requests for DACA renewals.
The Supreme Court announced in July that the justices will review the dispute over the termination of the DACA program. With the new term convening this week, the Justices have scheduled to hear oral arguments in November. The case purports to decide two fundamental questions: 1) If the decision to terminate the DACA program is a decision the Court can review at all, and 2) If so, whether the decision to terminate the DACA program is legal. A decision on the case is expected no later than July 2020.
Students Protest Software Company Over ICE Contract
Over 1,200 students from more than 17 colleges, including Yale, Stanford, Harvard, and the University of California-Berkley, are pledging not to work for software company Palantir over its contract with Immigration and Customs Enforcement (ICE). Palantir has come under recent criticism for providing data-mining software for ICE’s Investigative Case Management system, which is used in workplace raids and deportations. Palantir, who has worked with ICE since 2014, has an estimated $51 million contract with the immigration enforcement agency.
The advocacy campaign, called No Tech For ICE, is specifically targeting Palantir’s recruitment efforts on university and college campuses. “Without these corporate partnerships, Palantir’s recruitment efforts and future growth would stall,” the campaign said in a statement.
Earlier this month, Palantir’s CEO, Alex Karp, authored an op-ed defending the company’s position, stating, “[i]mmigration policy is not a software challenge; it’s a political one. . .[t]he solution lies with our political and judiciary system, not with Silicon Valley’s C-suite.”
Palantir, along with Microsoft, Amazon, Dell, and others, have faced criticism in recent months as part of a growing effort to call out companies for doing business with immigration enforcement agencies.
DHS Proposes Rule to Charge H-1B Cap Registration Fee
On September 4, 2019, The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register that would amend current regulations to require petitioners filing an H-1B cap-subject petition to pay a registration fee. The rule proposes that U.S. Citizenship and Immigration Services (USCIS) would charge a $10 fee for each registration submitted. According to DHS, the purpose of the fee is to offset the cost of the H-1B cap registration system, but also to “deter frivolous [H-1B cap] registrations.”
The notice and comment period for the proposed rule was shortened to 30 days (instead of the usual 60) to allow for the requirement to be finalized before the new electronic registration system goes into operation. Accordingly, written comments on the rule must be submitted on or before October 4, 2019, and can be submitted to:
Federal eRulemaking Portal: http://www.regulations.gov. Follow this site’s instructions for submitting comments.
Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0006 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that we will not accept any comments that are hand delivered or couriered. In addition, we will not accept any comments that are on removable media (e.g. thumb drives, CDs, etc.). All comments that are mailed must be addressed as specifically written above.
This rule is only a proposal and is not yet in effect. The attorneys at Stern & Curray will provide updates as more information becomes available.
“Public Charge” Takes on New Meaning
USCIS publishes new public charge rule that will likely have a negative effect on green card applicants.
This week, the U.S. Department of Homeland Security (DHS) published a final rule that redefines the public charge grounds for inadmissibility. The term “public charge” is used to describe individuals applying for admission to the U.S. or adjustment of status who are considered likely to become a burden on society. The new rule is set to go into effect on October 15, 2019, and may affect somewhere between 60-80% of green card applicants. Lawsuits have already been filed challenging the lawfulness of the new rule and seeking restraining orders to stop the new rule from going into effect.
What was the old public charge rule?
The current rule defines public charge as an individual who is likely to become primarily dependent on the government for support, meaning that they rely on cash assistance programs for income support or government funded long-term care. Immigration officers currently consider whether applicants have used these benefits in the past, which include welfare (TANF) and SSI (Supplemental Security Income). Under existing policy, the use of housing and nutrition programs or publicly-funded health care is not considered.
What has changed?
Under the new rule, any intending immigrant who received public benefits for more than a total of 12 months within a 36-month period has a heavily weighted negative factor against their application for permanent residence, and may be considered a public charge. Benefits considered for public charge determinations now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP/Food Stamps), Section 8 housing assistance, federally subsidized housing, and any form of federal, state, or local cash assistance.
The following are not public benefits under the new rule:
- Medicaid for those under 21;
- Medicaid for pregnant individuals (including 60 days after giving birth);
- Medicaid under the Individuals with Disabilities Education Act;
- Emergency medical care or disaster relief;
- Members of the U.S. armed forces (and their spouses and children) who are enrolled in benefits programs;
- National school lunch programs;
- Student loans or mortgage loans; and
- Food pantries or homeless shelters.
Only benefits received directly by immigrants will be considered, so U.S. Citizen family members who receive benefits are not considered. Also, some immigrants, such as those granted asylum and refugees, are exempt from the public charge rules.
Immigration officers may also consider lack of proficiency in the English language to be a negative factor, and English proficiency to be a positive factor. Additionally, an individual’s medical conditions can weigh negatively against their applications, especially if they will likely require extensive medical treatment, are unable to work, and will likely be uninsured. The rule will still consider an applicant’s entire circumstance, including examining their financial status, size of family, age, education, skills, and employment status.