Immigration Update: September 2020

The Department of Justice issued a notice of proposed rulemaking^[1] that would greatly limit the rights of noncitizens before the Board of Immigration Appeals (BIA) and immigration court judges. The proposed rule would prevent the BIA or immigration judges from administratively closing cases; prevent them from reopening cases sua sponte (in the interest of justice); and would limit the BIA’s ability to extend briefing deadlines. The great concern shown by the Immigrant Rights organization that the proposed rules would speed up adjudications at the expense of ensuring that noncitizens receive a fair day in court. The deadline to submit comments is September 25, 2020.

[1] Administrative Closure: Appellate Procedures and Decisional Finality in Immigration Proceedings, by the Executive Office for Immigration Review on Aug 25, 2020, 85 FR 52491, Docket (EOIR-2020-0004), 8 CFR Parts 1003 and 1240

The U.S. Department of Justice’s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.^[2] The Round Table of Former Immigration Judges wrote a letter in support of New Jersey Lawyers and said that the New Jersey Immigration Court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building. “EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.” The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.^[3]

[2] American Immigration Lawyers Association et al. v. Executive Office for Immigration Review et al., 2:20-cv-09748.

[3]  Full Article can be found at: Law360: Ex-immigration judges back call to end in-person hearings

New State Department guidelines permit foreign nationals to seek a new H-1B or L-1 visa to return to the United States to resume previously approved employment that has not changed. Under the new guidance, foreign nationals may obtain a new H-1B, L-1A and L-1B visas for a national interest exception if their U.S. employer is fulfilling a critical infrastructure need in a designated industry and the visa applicant meets certain additional eligibility criteria.

After the initial filing period, a second H-1B cap lottery was conducted by USCIS after the FY2021 quota of 85,000 was not reached. Employers whose H-1B registrations were selected in the second drawing will have from August 17 to November 16, 2020 to submit their petitions. Due to COVID-19-related delays in the production of employment authorization documents (EADs), USCIS announced that under certain conditions, employers may accept through December 1, 2020 an EAD approval notice as a List C document when establishing employment verification in the I-9 process.

Due to COVID-19-related delays in the production of Employment Authorization Documents (EADs), USCIS announced that certain foreign nationals may use an EAD approval notice to establish employment authorization during the I-9 verification process, even though such notices explicitly state that they do not establish such authorization. The accommodation comes after a settlement was reached between the parties in Subramanya, et al., v. USCIS, a class action lawsuit filed against USCIS, claiming harm resulting from the recent extensive delays in EAD card issuance.

U.S. Customs and Border Protection (CBP) will continue to implement the Trump Administration’s ban on “non-essential” travel across U.S. land borders and ferry travel, Canada or Mexico, through September 21, according to a DHS Measures Fact Sheet. The restrictions expired on August 20. CBP will no longer detain illegal immigrants in its holding facilities.

In connection with the COVID-19 pandemic, U.S. Immigration and Customs Enforcement is extending its remote I-9 document inspection policy through September 19 and its border restrictions permitting only essential travel across the U.S.-Mexico and U.S.-Canada borders through September 21. This collaborative and reciprocal measure is an extension of that prudent approach.