WEEKLY IMMIGRATION UPDATE – January 12, 2021
Acting DHS Chief Chad Wolf Resigns – U.S. Department of Homeland Security Acting Secretary Chad Wolf resigned Monday following several federal court decisions finding that he was not lawfully appointed to the post. He will be replaced by Pete T. Gaynor, head of the Federal Emergency Management Agency.
- USCIS Issues Final Rule Prioritizing Higher Wages in H-1B Cap Selection Process – USCIS published a final rule prioritizing the selection of new H-1B petitions in 2021 based on proffered wages.
- USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities – USCIS announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. Applicants see delays exceeding 10 weeks for several case types.
- SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA –The Systematic Alien Verification for Entitlements program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals.
- Judges Block Trump Asylum Rule, Refugee Local Placement Order – A U.S. district judge blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.
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Breaking News: Acting DHS Chief Chad Wolf Resigns – U.S. Department of Homeland Security (DHS) Acting Secretary Chad Wolf resigned Monday following several federal court decisions finding that he was not lawfully appointed to the post. He will be replaced by Pete T. Gaynor, head of the Federal Emergency Management Agency.
After 14 months in the position, Wolf’s resignation follows several federal court rulings that he was not lawfully appointed to the post, which in turn invalidated his changes to immigration regulations.
Mr. Wolf said it was his “intention to serve the department until the end of this administration,” but that his resignation “is warranted by recent events, including the ongoing and meritless court rulings regarding the validity of my authority as acting secretary.” In his letter to colleagues, Wolf wrote that DHS has “positioned itself for an orderly and smooth transition to President-elect Biden’s DHS team.” He also encouraged DHS employees to welcome, educate and learn from the incoming team.
President-Elect Biden has announced plans to nominate Alejandro Mayorkas to lead DHS. Mayorkas is a former federal prosecutor and later U.S. attorney for the Central District of California. He also has extensive experience at DHS, having served as director of U.S. Citizenship and Immigration Services and then deputy DHS secretary during the Obama administration.
1. USCIS Issues Final Rule Prioritizing Higher Wages in H-1B Cap Selection Process
On January 7, 2021, U.S. Citizenship and Immigration Services (USCIS) published a final rule prioritizing the selection of new H-1B petitions in 2021 based on higher proffered wages.
The new rule gives priority to petitions that offer “Level IV” wages (wages around the 75th-80th percentile of local wages for the occupation) based on the Department of Labor’s Occupational Employment Statistics (OES) survey, and then gives priority in descending order to petitions offering Level III, Level II, and Level I wages. The selection of new H-1B petitions when demand exceeds the available 85,000 numbers has been by random selection, or “lottery,” for over a decade. The final rule states that random selection will happen only for petitions in the lowest wage band for which numbers are still available.
The rule is scheduled to go into effect March 9, 2021, before the FY 2022 H-1B visa lottery. However, there are several potential impediments. President-elect Biden’s inauguration will occur well before the rule’s effective date. Practitioners note that he may eliminate or delay late-breaking final rules, such as this one. Moreover, the rule could be challenged in court based on the argument that Congress mandated that H-1B visas be made available in the order in which petitions are filed, not based on wages offered.
- USCIS final rule, https://bit.ly/38s6r9s
- USCIS news release, https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages
- “With Democratic Senate Majority, Biden Has Power To Quickly Undo Trump Regulatory Rollbacks,” Forbes, https://bit.ly/3i0pQBF
- “DHS Publishes Final Rule To End H-1B Visa Lottery,” https://www.forbes.com/sites/stuartanderson/2021/01/08/dhs-publishes-final-rule-to-end-h-1b-visa-lottery/?sh=7b8df1f94af0
2. USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities
U.S. Citizenship and Immigration Services (USCIS) announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. The agency said a variety of factors were to blame, including “COVID-19 restrictions, an increase in filings, current postal service volume and other external factors.” Among other things, USCIS said there may be “significant delays” in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students.
USCIS said its lockbox workforce was working extra hours and redistributing its workload to minimize delays. “We do not anticipate any receipting delays that would result in a payment that is past its validity date,” the agency said.
Although the USCIS alert references delays of four to six weeks, practitioners and applicants report delays of more than ten weeks in many cases.
3. SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA
The Systematic Alien Verification for Entitlements (SAVE) program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals (DACA).
SAVE noted that applicants may present an unexpired Form I-766, Employment Authorization Document (EAD), in combination with an I-797, Extension Notice, issued by USCIS showing that their deferred action has been extended for one year. This unexpired EAD must contain a Category code of C33 and be issued on or after July 28, 2020, SAVE said, adding that SAVE user agencies may need to institute additional verification in these situations.
Note that this process applies to DACA recipients who are renewing EADs initially granted for one year rather than two. A December 2020 court decision requires USCIS to extend such applicants’ deferred action status and work authorization for the additional year if they meet the above criteria.
- USCIS notice, https://www.uscis.gov/save/whats-new/verifying-applicants-extended-deferred-action-under-daca
4. Judges Block Trump Asylum Rule, Refugee Local Placement Order
On January 8, 2021, a U.S. judge in the Northern District of California blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. Judge James Donato blocked the rule on the basis that Chad Wolf, whom President Trump appointed as Acting Secretary of Homeland Security, did not have the authority to impose rules because he was not lawfully appointed. Noting that limiting the decision “would result in a fragmented and disjointed patchwork of immigration policy,” Judge Donato said the temporary restraining order applies nationwide.
Judge Donato said the government “has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”
Asylum at the U.S.-Mexico border is otherwise also limited due to COVID-19 pandemic-related and other reasons. President Trump reportedly withdrew his nomination of Mr. Wolf to serve as Secretary of Homeland Security after Mr. Wolf condemned those who rioted and invaded the U.S. Capitol and said he supported an orderly transition to the Biden administration.
In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.
- “Judge Blocks Dramatic Overhaul of U.S. Asylum System From Taking Effect,” Reuters, https://reut.rs/3s40ZBs
- U.S. Judge Blocks Trump Administration’s Sweeping Asylum Rules,” Associated Press, https://apnews.com/article/donald-trump-immigration-courts-local-governments-3d6ab9e79153e67d974cee1bf592862f
Naturalization civics test webinar. The USCIS Office of Citizenship will host a two-hour webinar on the 2020 revised naturalization civics test on January 14, 2021, at 10 a.m. and 2 p.m. For more information or to register, see https://www.uscis.gov/citizenship/resources-for-educational-programs/register-for-training.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.