International Law and Immigration

Immigration Update: August 2021

A monthly publication of the International Law and Immigration Section of the California Lawyers Association.

Editor-in-Chief, Payal Sinha

Federal Judge Rules That DACA Violated the APA, Preventing Approval of New DACA Applications

On July 16, 2021, U.S. District Court Judge ruled that the Department of Homeland Security (“DHS”) violated the Administrative Procedure Act (“APA”) when it implemented the Deferred Action for Childhood Arrivals (“DACA”) program in 2012.

It was found that DHS exceeded its power by not going through the APA’s required notice-and-comment rulemaking period. The court’s ruling allows DHS to continue to process DACA renewals and to accept new DACA applications. However, it prohibits DHS from approving new applications.

U.S. Citizenship and Immigration Services (“USCIS”), issued a statement indicating that all individuals whose DACA requests were granted before July 16, 2021, “will continue to have and be eligible to renew DACA, and to request and receive advance parole.” More Information can be found here

This decision affects only those individuals who have not applied for DACA and those whose applications remained undecided as of July 16, 2021.

ICE Withdraws Proposed Regulations Intended to Fix Time Periods and Extension of Duration of Stay for certain nonimmigrant visas.

On July 6, 2021, U.S. Immigration and Customs Enforcement (“ICE”) withdrew its notice of proposed rulemaking published on September 25, 2020, that would have put fixed time periods on F, J, and certain I nonimmigrants, instead of the current “Duration of Status” designation. DHS received more than 32,000 comments during the 30-day public comment period. More than 99 percent of commenters opposed the proposed rule with many commenters specifically requesting that DHS withdraw the NPRM. 

DHS Announces Employment Authorization for Yemini F-1 Students

On July 9, 2021, DHS announced that due to severe economic hardship, it would grant employment authorization for Yemeni F-1 students. This DHS policy will become effective on September 4, 2021, and will remain in effect through March 3, 2023. This extension includes working an increased number of hours while school is in session, and reducing their course load while continuing to maintain F–1 nonimmigrant student status. DHS deems an F–1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a ‘‘full course of study’’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

TPS Extended for Somalia Nationals

DHS announced an 18-month extension and redesignation of Somalia for Temporary Protected Status (“TPS”), which will be effective beginning September 18, 2021, through March 17, 2023. During this period, Somalis given TPS status will have legal authorization to stay and work in the United States.The extension for Somalia allows approximately 447 current beneficiaries to retain TPS, so long as they meet TPS eligibility requirements, and redesignation of Somalia for TPS allows an estimated 100 additional Somali nationals. More information can be found here.

National Interest Exceptions (NIE) Issued for U.S. Entry from COVID-19 Restricted Countries/Regions Are Extended

On July 6, 2021, the U.S. State Department announced that new and previously issued NIE waivers are now valid (i) for 12 months from the NIE waiver’s approval date; and (ii)  for multiple U.S. entries, even if the waiver states that it can only be used for one-time entry.

A visa holder who received an NIE waiver through a U.S. consulate’s or embassy’s email should print that email waiver and present it with their unexpired visa and passport when entering or re-entering the United States. Those who had their NIE waiver stamped in their passport with their visa need only show their unexpired visa and their passport to return to the United States. More information can be found here.

Canada To Ease Border Restrictions in August

Effective August 9, 2021, the Canadian government will begin allowing entry again to vaccinated U.S. citizens and permanent residents for non-essential travel. Regardless of vaccination status, all travelers still have to provide a pre-entry COVID-19 negative test, but they will no longer need a post-arrival test if they’re vaccinated.

US Extends COVID-19 Travel Restrictions with Canada

Despite Canada’s opening of borders to international travel, the current administration is extending non-essential travel restrictions for the U.S. borders (both north and south), can be found here. The decision of the Secretary of Homeland Security to continue to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border.

Harvard Immigration and Refugee Clinical Program v. Department of Homeland Security, U.S District Case of Massachusetts, No. 1:21-cv-10486

On July 12, 2021, The Harvard Immigration and Refugee Clinical Program says the DHS and other agencies have improperly withheld documents related to the implementation of the 2013 program.  A federal judge will hold an initial conference in a lawsuit seeking records on a federal program designed to enhance procedural protections for individuals with mental disorders or conditions who are unrepresented in deportation proceedings. More information can be found here.

Central American Resource Center v. Cuccinelli, U.S. District Court for the District of Columbia, No. 1:20-cv-02363

The Central American Resource Center and seven TPS beneficiaries filed a lawsuit claiming that the policy was not properly adopted because Ken Cuccinelli, who was then the acting director of U.S. Citizenship and Immigration Services, was not legally appointed and dismantled TPS beneficiaries’ means of obtaining lawful permanent residency (LPR). A federal judge will hold a status conference in a lawsuit challenging a Trump-era policy banning beneficiaries of temporary protected status (TPS) with prior removal orders from applying to adjust their status. More information can be found here.

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