Immigration Update: October 2020

The DHS is proposing a regulation that would subject international students, exchange visitors and representatives of foreign information media to fixed periods of stay, eliminating the longstanding “duration of status” policy.  If the rule is finalized as proposed, F, J and I nonimmigrants would be required to apply for an extension of stay to continue their activities beyond their admission period and fulfill the related biometrics requirements. Where F, J and I nonimmigrants stay beyond their fixed periods of stay, they would become subject to the unlawful presence rules currently in place for other nonimmigrant categories.

The rule was published in the Federal Register on September 25, 2020. Public Comments on this proposed rule are due by Oct. 26, 2020. Note that this rule requires comments to be submitted via regulations.gov only. Comments submitted via email, mail, or any other manner will not be accepted.

According to the October 2020 Visa Bulletin Updates, EB-1 China and EB-1 India will advance by three months to June 1, 2018. EB-2 China will advance by six weeks to March 1, 2016, and EB-2 India will advance almost two months to September 1, 2009. EB-3 will become current for all countries except China and India. EB-3 China will advance four and a half months to July 1, 2017, and EB-3 India will advance three and a half months to January 15, 2010. EB-5 China will remain at August 15, 2015 and EB-5 Vietnam will remain at August 1, 2017. The State Department projects rapid advancement in most employment-based categories though January 2021.

U.S. Citizenship and Immigration Services (USCIS) announced on September 22, 2020 that it will resume applying the regulation to affect adjustment of status applications and nonimmigrant extensions of stay and changes of status. The rule is being challenged in several ongoing federal lawsuits. Separately, the State Department remains barred from enforcing its public charge regulation, which is applicable to foreign nationals applying for visas from outside of the United States. USCIS will once again require applicants for adjustment of status to submit Form I-944, the declaration of self-sufficiency, and related documentation, with a brief grace period through October 12.

Federal District Court for the Northern District of California has enjoined the Department of Homeland Security (DHS) from enforcing its new fee rule, which was set to take effect on October 2, 2020, and has prohibited DHS from enforcing the rule while a lawsuit challenging it is litigated in court.[1] The fee rule seeks to significantly increase costs for most employment-based petitioners and applicants and subject them to new forms for H-1B, L-1 and other nonimmigrant petition types as well as for applications related to the adjustment of status process. The fee rule also seeks to increase the premium processing timeline to almost three weeks, from 15 calendar days, imposes new and/or additional fees on asylum and DACA applicants, and requires employers with a high proportion of H-1B and L-1 employees to make additional border security fee payments when petitioning for these employees. This rule would have raised application fees for many essential immigration benefits by as much as 500 percent, while also eliminating most fee waivers for qualifying low-income immigrants, was set to go into effect on October 2, 2020.

[1] ILRC et al. v. Chad F. Wolf, et al. (ND California) (Case 4:20-cv-05883-JSW) (Sept. 29, 2020).

The Department of Labor (DOL) has decided to permanently implement the electronic issuance of PERM labor certifications. According to DOL, the ongoing issuance of electronic labor certifications was established following a memorandum of agreement (MOA) in July 2020, with DHS, that grants DHS access to the DOL’s PERM online system, which allows DHS now to directly confirm the authenticity of a labor certification through the DHS database. This allows DOL to no longer issue certifications on blue security paper. In light of this announcement, DHS will continue to consider an electronically issued PERM that is appropriately signed as evidence of an “original labor certification” for purposes of filing a Form I-140 petition. Where DOL has already issued a labor certification on blue security paper, and it remains valid, the employer should use that labor certification to support the I-140 filing.

The stopgap legislation requires USCIS to permanently expand premium processing to include many employment-based immigration applications and petitions, including applications for employment authorization and applications to change or extend status for the dependents of H-1B, L-1 and other principal nonimmigrant categories. The law also gives the Department of Homeland Security (DHS) the authority to designate other case types for premium service. The legislation also increases the standard premium processing fee to $2,500 for cases types that had already been eligible for premium processing. The new law limits DHS authority to suspend premium processing services, permitting such suspensions only where DHS cannot complete a “significant number” of premium requests within the required time period. It also requires DHS to provide petitioners and applicants with “direct and reliable” access to premium case status information and the ability to communicate with premium processing units at USCIS Service Centers.

Federal District Court for the Northern District of California has enjoined the Departments of State (DOS) and Homeland Security (DHS) from enforcing the Trump administration’s June 22 proclamation that suspended the entry of H-1B, L-1, H-2B and certain J-1 nonimmigrants, as well as their spouses and dependents, through December 31, 2020, with some exceptions. It was found that the proclamation exceeds President Trump’s presidential authority, as it is Congress’s authority to restrict immigration for purely domestic economic interests. Moreover, the proclamation “unlawfully eviscerates” portions of the Immigration & Nationality Act by declaring invalid statutorily-established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond the [December 31] deadline.[2]

[2] NATIONAL ASSOCIATION OF MANUFACTURERS, et al. v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Case No. 20-cv-04887-JSW

Section 287(g) allows the DHS and law enforcement agencies to make agreements, which require the state and local officers to receive training and work under the supervision of U.S. Immigration and Customs Enforcement. Recently, ICE renewed seventy-five 287(g) agreements around the country with revised MOUs (Memorandum of Agreement).[3] Some of the changes will have a significant impact on how 287(g) operates. ICE also made other more administrative changes to the MOUs and related procedures, including changes to reduce requirements and qualifications for designated 287(g) officers, eliminating details on required training and background checks, and getting rid of the requirement that individual officers make a 2-year commitment, allowing LEAs more flexibility to move officers in and out of the 287(g) program. ICE also took on payment responsibility for the travel and expenses of local officers during the training program.

[3] Source: Immigrant Legal Resource Center, ICE has changed the standard language for 287(g) agreements. This resource highlights and explains the most significant changes and provides a line by line comparison of old and new contracts.

On September 30, 2020, a proposed rule was published by EOIR, called Professional Conduct for Practitioners – Rules and Procedures, and Representation and Appearances. The proposed regulation change is in response to the settlement reached in NWIRP v. Barr. This rule distinguishes between “representative practice” and “non-representative practice,” with EOIR allowing the latter for limited legal representation. As part of “non-representative practice,” this rule would allow practitioners to assist immigrants in EOIR proceedings with the drafting, writing or filing of applications, petitions, motions, briefs, appeal notices and other documents in proceedings before EOIR as long as the nature of the assistance is disclosed on an amended Form EOIR-27 or EOIR-28. The rule would require both legal practitioners assisting an immigrant without full representation and non-legal personnel who assist in completing forms, transcribing or translating to file an amended Form E-27 or E-28 to disclose the nature of their assistance. Public Comments on this proposed rule are due by Oct. 30, 2020.

The Trump administration announced its decision to set the refugee resettlement limit for fiscal year 2021 at 15,000. This continues the trend of the limit being reduced each year of the administration: starting from 110,000 before President Trump took office, to 54,000, to 45,000, to 18,000, and now to 15,000. The administration failed to consult with Congress regarding the limit, and failed to officially announce its determination in a timely manner.

The health and welfare of immigrants in the custody of ICE, who are currently detained at the Irwin County Detention Center (ICDC), operated by LaSalle Corrections, are horrific as the reports of mass hysterectomies which are performed on detained women in the facility, without their full, informed consent have been reported. One detained immigrant reported that she knew “five women who had hysterectomies within a three-month period between October and December, 2019”. This woman likened the facility to an “experimental concentration camp”. The reports of mass hysterectomies cause grave concern for the violation of the bodily autonomy and reproductive rights of detained people. Everyone, regardless of their immigration status, their language, or their incarceration deserves to control their own reproductive choices, and make informed choices about their bodies. A bipartisan vote of H. Res 1153 – “Condemning unwanted, unnecessary medical procedures on individuals without their full, informed consent” in the House of Representatives, can be seen as a start for holding authorities responsible for the woefully lack of medical care to the detainees over the past few years. The Committee on Oversight and Reform and the Committee on Homeland Security launched a joint investigation into whistleblower allegations detailing medical neglect, unsanitary conditions, and abuse at the Immigration and Customs Enforcement (ICE) Irwin County Detention Center in Georgia.