Immigration Update: July 2021

Garland determined that the decision of former Attorney General Sessions threatened “to create confusion and discourage careful case-by-case adjudication of asylum claims” because it improperly created a “strong presumption against asylum claims based on private conduct” rather than the actions of government officials. The decision will apply to the immigration courts and to the Board of Immigration Appeals, both of which are under the umbrella of the Department of Justice.

The vacated two opinions, Matter of A-B (here) and Matter of L-E-A,(here) are intended to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group.

Employers preparing for return to in-person work should review any Form I-9 completed during COVID-19. The temporary policies for Form I-9 compliance in effect since March 20, 2020, will expire on August 31, 2021. (can be found here). Once the temporary policy ends, employers will have only three business days to complete in-person, physical verification of an employee’s identity and employment authorization. However, employers could begin in-person verification of these documents at any time before the expiration of such requirements. 

The Court held that the regulations were not lawfully promulgated because then-acting Department of Homeland Security (DHS) secretary Kevin McAleenan was not properly serving in his position. The Judge noted that  the regulations set forth on November 21, 2019, have no force or effect, they must be “set aside” as an “action taken in excess of statutory … authority” and the government made no specific showing of harm, vacating the regulations is the appropriate remedy. 

Accordingly, the minimum investment amount for an investment located in a targeted Employment Area is now $500,000,  not $900,000 and the other changes noted in the Judgment are no longer in effect, and can be found here. 

On May 27, 2021, U.S. Immigration Customs and Enforcement (ICE) issued a memo that elaborated on the power of prosecutors to dismiss cases of immigrants with certain special concerns or situations. The memo encourages ICE prosecutors to consider dismissing cases for immigrants who have been long-time permanent residents, who are pregnant or elderly or have a serious health condition, or have been in the U.S. since a young age and to consider humanitarian factors more heavily. Certain criminal convictions will be a major factor in prosecutors deciding to delay the cases.

More information can be found here.

New National Interest Exception Waivers (NIE) issued by the State Department are now being issued with a 12-month, multiple-entry validity. e NIE was issued on January 1, 2021, the expiration date would be December 31, 2021. 

Individuals issued an NIE more than a year ago or whose purpose of travel has changed will be required to apply for an NIE under the eligibility standards, which changes frequently. Those traveling on immigrant, fiancé(e) and F and M student visas will have the benefit of blanket NIEs and do not need to seek individual NIEs. However, students under certain regional bans must comply with some limitations on their dates of travel.

More information can be found here.

On June 23, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 4:20-cv-07331, vacating the January 14, 2021 final rule, and remanding the matter back to DOL. (Final order can be found here.)The vacatur and remand was in response to DOL’s own motion for voluntary remand. On June 29, 2021, DOL announced on its website: “In light of these delays and now the June 23, 2021 order vacating the Final Rule, the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020, prior to the publication of the IFR.”