Immigration Update: August 2020

The U.S. Supreme Court decision has restored the DACA program – allowing for both renewal and first time DACA applications – but uncertainty about the future of the program remains on June 18, 2020. It found the termination “arbitrary and capricious” and vacated the September 5, 2018 memo terminating DACA. The claim that the DACA termination violated the Equal Protection Clause of the Fifth Amendment did not raise a plausible inference that the recession was motivated by racial animus. (Department of Homeland Security v. Regents of University of California; No. 18–587, 908 F. 3d 476)^[1] However,  on July 28, 2020, the Trump administration issued a memorandum whose provisions limit the availability of DACA^[2]. The memo requires U.S. Citizenship and Immigration Services to reject first time DACA applicants, advance parole applications by DACA recipients unless they are for exceptional circumstances, and to continue processing DACA renewal applications, only to grant renewed DACA and work authorization for one year rather than two years.

[1] Department of Homeland Security v. Regents of University of California; No. 18–587, 908 F. 3d 476; https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

[2] Reconsideration of the June 15, 2020, Memo entitled “Exercising Prosecutorial Discretion with respect to Individuals who came to the United States as children”. https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf

In 2019, under the Department of Homeland Security policy, immigrants who are in the United States legally are considered “public charges” and ineligible if they use any benefits or are declared likely to someday rely on such assistance. On July 29, 2020, the United States District Court for the Southern District of New York^[3] enjoined the Department of State from “enforcing, applying, implementing, or treating as effective” the Department’s October 2019 interim final rule and accompanying Foreign Affairs Manual guidance related to the public charge ground of visa ineligibility.   From the very beginning, Public Charge only applied to direct cash benefits like Temporary Assistance to Needy Families. However, with the new Trump administration rule and changes, accessing most forms of in-kind assistance are now considered public charge, including Medicaid, Food Stamps, and Section 8 Housing. The judge cited the COVID-19 pandemic as the reason for his decision to enjoin the new rule. The Department is complying with the court’s order and is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders.  Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. A parallel nationwide injunction was issued  challenging the Department of State’s (DOS’s) public charge rule as well as the president’s Health Care Proclamation requiring visa applicants to show proof of private health insurance.((July 29, 2020) States v. Department of Homeland Security Case 1:19-cv-07777-GBD Document 195 Filed 07/29/20 ; Make the Road New York, et al. v. Pompeo et al.Case 1:19-cv-11633-GBD Document 88 Filed 07/29/20)

[3] States v. Department of Homeland Security Case 1:19-cv-07777-GBD Document 195 Filed 07/29/20; https://ag.ny.gov/sites/default/files/35_plaintiffs_mol_iso_pi.pdf

The proposed rule would effectively shut down the asylum system in the United States, that also threatens the safety of survivors of all types of human rights abuses, including gender-based violence such as rape, forced marriage, honor crimes, female genital mutilation, domestic violence, and human trafficking, as well as persecution due to sexual orientation and gender identity.

This proposed rule would radically change the definition of “particular social group” making it virtually impossible for a person who is a member of a social group other the four specified in the refugee definition (race, religion nationality and political) from ever qualifying for asylum, whereby intentionally excluding all claims to asylum arising out of gender-based harm of which governmental authorities are unaware or uninvolved, a perverse requirement that applicants show direct failure of their government to intervention. Moreover, the definition of persecution is redefined in such a manner to indicate a severe level of “present” exigency.  This reflects intention to exclude survivors of past and future persecution from being eligible for the relief and destroying claims of well-founded fear of future persecution by excluding social groups who have past associations or activities with criminal or terrorist groups including people escaping gang violence and such violent crimes. These changes would put more burden on the asylum seekers that ensure fast-track deportation for asylum seekers by raising the burden they face to prove their claims in their initial interviews. The Comment Period has ended on July 15, 2020. Administration policies have already seriously undermined the US asylum system – the proposed regulations would eviscerate it. The proposed rule would radically change long-established definitions and standards under US asylum law, in violation of international law binding on the United States^[4].

A Proposed Rule by the Homeland Security Department and the Executive Office for Immigration Review on 06/15/2020;Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review; https://www.federalregister.gov/documents/2020/06/15/2020-12575/procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review

A California federal judge ordered U.S. Immigration and Customs Enforcement on Friday to release migrant children who have been detained longer than 20 days by July 17, following a class action claiming that the detention centers are holding the children unnecessarily. However, the date to release children has been extended to ensure children are not separated from their families. The current administration had failed to provide even the most basic health protections for children and their families amid the pandemic.

ICE was also ordered to promptly implement better social distancing measures and mask-wearing procedures recommended by the Centers for Disease Control and Prevention to protect against the novel coronavirus. The order applies to all three of the family detention facilities in the United States. Two are located in Texas and a third is in Pennsylvania as well as shelters housing unaccompanied minors. The Court shall hold a further video or telephonic status conference on September 4, 2020 at 11:00 a.m. to discuss the motions to be heard on an expedited basis, the August Juvenile Coordinator reports, and compliance with the Court’s Orders^[5] (Jenny L Flores v. Edwin Meese (2:85-cv-04544))

[5] Jenny L Flores v. Edwin Meese (2:85-cv-04544);National Center for Youth Law; https://youthlaw.org/wp-content/uploads/2020/01/SER-Volume-1.pdf

The memo would seek to have the Commerce Department, which oversees the Census Bureau, to provide the Ppresident with data about the number of people who are undocumented (exclude count only U.S. citizens and certain immigrants) so that when census officials present the Ppresident with the final count, the Ppresident can exclude them from the population totals used to determine how many House seats each state will have. The Constitution directs Congress to conduct a census count of “persons” living in the U.S., and it does not distinguish between citizens and noncitizens. The Supreme Court has not directly ruled on whether “persons” includes immigrants, but lower courts have said undocumented immigrants should be counted^[6].

Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census; https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliens-apportionment-base-following-2020-census/

The Office of Foreign Labor Certifications of the U.S. Department of Labor (“DOL”) published the latest prevailing wage data from the Occupational Employment Survey (“OES”) as generated by the Bureau of Labor Statistics for July 1, 2020, through June 30, 2021. The OES wage data is used as the main source to determine prevailing wages for H-1B and H-2 work authorizations, as well as for filings for the Program Electronic Review Management (“PERM”) Labor Certification with the DOL. New H-1B, H-2, or PERM Labor Certifications to be filed on or after July 1, 2020, may require updated OES wage information^[7].

[7] Office of Foreign Labor Certifications New Wages Data Effective from July 1, 2020 FLCDataCenter.com

President Trump has issued a nonimmigrant proclamation, making it more difficult for foreign nationals to qualify for an exemption from a suspension of the entry of foreign nationals in the H-1B, H-2B, L-1, and certain J-1 categories, as well as related categories for their dependents. 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^[8].

Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, June 22, 2020 https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/

On May 15, 2020, the U.S. House of Representatives passed a COVID-19 relief bill (H.R. 6800) that includes immigration provisions. Among them is a provision to allow immigrant physicians battling COVID-19 in the United States reduced waits for permanent residence, and to expedite visas for health care workers applying for U.S. jobs from abroad.

The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, House provisions are similar to legislation introduced in the Senate, such as S. 3599, introduced May 5, 2020, which would reallocate previously authorized, unused immigrant visas for 25,000 nurses and 15,000 doctors, and family members, to alleviate shortages. President Trump threatened to veto the House bill if it reaches his desk.

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) released new guidance dated July 24, 2020, in the form of “clarifying” questions and answers regarding the Trump administration’s shifting policy on foreign students taking online coursework in the fall. Among other restrictions, the Q&A notes that the SEVP March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and otherwise are complying with the terms of their nonimmigrant status. states that nonimmigrant students seeking to enroll in a “hybrid” program of study that includes both in-person and online components may maintain F-1 or M-1 nonimmigrant status if pursuing such programs during the fall 2020 school term. Nonimmigrant students in new or initial status after March 9, 2020, will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online^[9].

[9] SEVP modifies temporary exemptions for nonimmigrant students taking online courses during fall 2020 semester; https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-students-taking-online-courses-during

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently reported on the agency’s delays in printing lawful permanent resident (LPR) cards (green cards), employment authorization documents, and other secure documents, and offered help.

It is noted that the reduced capacity followed USCIS’ ending of a contract with an outside company responsible for printing the cards.  The Ombudsman said that USCIS “expects these backlogs will continue for the foreseeable future” and that stakeholders are submitting requests for case assistance to the Ombudsman, which is assisting. Specifically, for those whose applications have been approved but whose cards have not yet been produced, the Ombudsman is sending weekly spreadsheets to USCIS to verify that card requests are in line to be processed. Such requests may be submitted at https://www.dhs.gov/topic/cis-ombudsman/forms/7001.

The Ombudsman also noted that LPRs may obtain proof of their status by requesting a stamp of temporary evidence in a valid passport and informed to reach out to USCIS’ Contact Center (800-375-5283) to make an appointment at your local USCIS field office to address such issues. However, this does not address the gaps in issuing biometric notices that delays the process further.

The National Association of Manufacturers was joined by several other prominent business organizations, including the U.S. Chamber of Commerce, National Retail Federation, TechNet and Intrax, in filing a lawsuit in federal court opposing President Trump’s proclamation suspending new nonimmigrant visas. NAM Senior Vice President and General Counsel Linda Kelly condemned the Administration’s action and said that “These overreaching, unlawful restrictions don’t just limit visas—they will restrain our economic recovery at a time when the very future of our country hangs in the balance. Manufacturers and program sponsors are going to court because these restrictions are far outside the bounds of the law and would deal a severe blow to our industry. We cannot let this stand.” (National Association of Manufacturers et al v. United States Department of Homeland Security et al Case Number 3:20-cv-04887)