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WEEKLY IMMIGRATION UPDATE 12.07.2020

06:40 07 December in News Updates
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HEADLINES: December 7, 2020

 

  1. U.S. District Court Vacates H-1B Interim Final Rules – A U.S. district court vacated two interim final rules promulgated by DOL and DHS that made significant changes to the H-1B program.
  2. Justice Dept. Sues Facebook for Discriminating Against U.S. Workers– The lawsuit alleges that Facebook refused to recruit, consider, or hire qualified and available U.S. workers for more than 2,600 positions. Instead, the lawsuit alleges, Facebook reserved those positions for foreign national employees.  However, a review of the allegations by independent immigration attorneys indicates that Facebook followed regulations set forth by the DOL.
  3. U.S. District Court Orders DHS to Reopen DACA for New Applications, Vacates Wolf Memoa U.S. district court vacated a memorandum issued by Chad Wolf, which made certain changes to the DACA program, and ordered DHS to reopen the program to new applications
  4. Senate-Passed Bill Would Remove Per-Country Limits on All Employment-Based Immigrant Visa Categories; Includes Controversial ProvisionsThe bill now returns to the U.S. House of Representatives.
  5. State Dept. Imposes New Restrictions on Chinese Communist Party MembersA DOS spokesperson said that no current visas would be revoked as a result of the policy changes.
  6. USCIS Updates Guidance for Schedule A OccupationsUSCIS announced updated guidance for adjudicating EB-2 and EB-3 Schedule A petitions for registered nurses, physical therapists, and immigrants who have exceptional ability.
  7. EOIR Proposes to Implement Electronic Filing for All Cases Before Immigration Courts and the BIAEOIR issued a proposed rule to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.
  8. ABIL Global: France This article provides updates on what the Brexit transition means for British nationals residing in France.

 

HEADLINES:  November 30, 2020

  1. Alliance of Business Immigration Lawyers Offers 12 Recommendations for Biden Administration ABIL released a non-exhaustive list of 12 recommendations to reform business immigration in the early days of the Biden-Harris administration.
  2. Alejandro Mayorkas Nominated To Direct Department of Homeland Security On November 23, 2020, President-elect Joe Biden nominated Alejandro Mayorkas to lead DHS.
  3. State Dept. Launches Visa Bond Pilot ProgramDuring the six months of the pilot program, starting on December 24, 2020, consular officers may require nonimmigrant visa applicants falling within the program’s scope to post a bond of $5,000, $10,000, or $15,000 as a condition of B-1/B-2 visa issuance.
  4. 12.  USCIS Issues Alert for Asylum Applicants on Preliminary Injunction USCIS issued an alert noting that a U.S. district court’s preliminary injunction in Casa de Maryland Inc. v. Wolf provides limited injunctive relief to members of two organizations, CASA de Maryland and the Asylum Seeker Advocacy Project, who file Forms I-589 or I-765 as asylum applicants.

 

Please scroll down for additional details

DETAILS

 

  1.  U.S. District Court Vacates H-1B Interim Final Rules

 

On December 1, 2020, a U.S. district court vacated two interim final rules promulgated by the Departments of Labor (DOL) and Homeland Security (DHS) that made important changes to the H-1B program, including to prevailing wage calculations and the definition of “specialty occupation,” among other things. The order prevents the interim final rules from taking effect and prevents the agencies from implementing the rules. The DHS rule was scheduled to take effect December 7, 2020; the DOL rule took effect October 8th.

The court said the question was whether the agencies demonstrated that the impact of the COVID-19 pandemic on domestic unemployment justified dispensing with the “due deliberation” that normally accompanies rulemaking to make significant changes to the H-1B program. The court concluded that the agencies had not done so.

DOL’s Office of Foreign Labor Certification (OFLC) issued a related announcement on December 3, 2020, stating that the agency is “taking necessary steps to comply” with the order, including making required changes to the Foreign Labor Application Gateway (FLAG) system, such as replacing wage data.

For H-1B/ E-3 nonimmigrant cases:  beginning “around” 8:30 a.m. ET on December 9, 2020, “employers and their authorized attorneys or agents will be able to submit new LCAs [labor condition applications], Form ETA-9035/9035E, using the OES [Occupational Employment Statistics] survey data that was in effect on October 7, 2020,” the Office of Foreign Labor Certification said.

For PERM cases: employers desiring review of a prevailing wage determination issued using the interim final rule’s calculations can request review from the National Prevailing Wage Center before January 4, 2021.

 

2.  Justice Dept. Sues Facebook for Discriminating Against U.S. Workers

The Department of Justice announced on December 3, 2020, that it filed a lawsuit against Facebook for discriminating against U.S. workers. The lawsuit alleges that Facebook refused to recruit, consider, or hire qualified and available U.S. workers for more than 2,600 positions. Instead, the lawsuit alleges, Facebook reserved those positions for “temporary visa holders it sponsored for permanent work authorization (or ‘green cards’) in connection with the permanent labor certification process (PERM).”

Facebook told National Public Radio that it is “cooperating with [DOJ] in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation.”

 

3.  U.S. District Court Orders DHS to Reopen DACA for New Applications, Vacates Wolf Memo

On December 4, 2020, a U.S. district court vacated a memorandum issued by Chad Wolf on July 28, 2020, which made certain changes to the Deferred Action for Childhood Arrivals (DACA) program, and ordered DHS to reopen the program to new applications.

The court found that Chad Wolf was without lawful authority to serve as Acting Secretary of the Department of Homeland Security (DHS) when he issued the memorandum, and that therefore the DACA program must be governed by the terms in existence before the attempted rescission of September 2017, when the Trump administration began its efforts to dismantle DACA. The court said that attempts by Administrator Peter Gaynor and Mr. Wolf to ratify Wolf’s prior actions were “dead letter” and had no legal significance because the order of succession was not followed as designated under the Homeland Security Act.

Among other things, the court ordered DHS to post a notice on its website and on the websites of “all other relevant agencies,” within three calendar days of the order, stating that:

  • DHS is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program before September 5, 2017, and in accordance with the court’s memorandum and order of November 14, 2020; and
  • Deferred action and employment authorization documents granted for only one year are extended to two years, in line with pre-Wolf memorandum policy.

The court also ordered the government to provide individual mailed notices to all class members by December 31, 2020, and to produce a status report on the DACA program by January 4, 2021.

 

4.  Senate-Passed Bill Would Remove Per-Country Limits on All Employment-Based Immigrant Visa Categories; Includes Controversial Provisions

On December 2, 2020, the U.S. Senate passed its version of H.R. 1044, the “Fairness for High-Skilled Immigrants Act of 2020.” The Senate version of the bill now returns to the U.S. House of Representatives. If the Senate version passes in the House and is signed into law by the President, it would remove the per-country limits on all employment-based immigrant visa categories, among other things. Since Congress is scheduled to end its session shortly, chances for passage in the House are unclear.

The bill includes several controversial provisions, such as an annual limit on the number of immigrants who could adjust from H-1B status to that of permanent resident and a bar on those affiliated with the military forces of the People’s Republic of China or the Chinese Communist Party or the Chinese military.

 

5.  State Dept. Imposes New Restrictions on Chinese Communist Party Members

As part of a continued chilling of relations between the United States and China under the Trump administration, on December 4, 2020, the Department of State announced several new restrictions on Chinese Communist Party members, including:

  • New rules limiting the validity of B1/B2 visas to one month and single-entry for Chinese Communist Party members and their families. B1/B2 visas for Chinese nationals are normally valid for 10 years and allow multiple entries.
  • Termination of five exchange programs, including the Policymakers Educational China Trip Program, the U.S.-China Friendship Program, the U.S.-China Leadership Exchange Program, the U.S.-China Transpacific Exchange Program, and the Hong Kong Educational and Cultural Program.

A Department of State spokesperson told the New York Times that no current visas would be revoked as a result of the policy changes.

 

6.  USCIS Updates Guidance for Schedule A Occupations

On December 2, 2020, U.S. Citizenship and Immigration Services (USCIS) announced updated guidance for adjudicating EB-2 and EB-3 Schedule A petitions for registered nurses, physical therapists, and immigrants who have exceptional ability.

USCIS said the update does not change policy but clarifies how agency adjudicators should apply Department of Homeland Security and Department of Labor (DOL) regulations when deciding Schedule A petitions. Generally, USCIS noted, EB-2 and EB-3 petitioners must obtain a labor certification from DOL verifying that there are no qualified U.S. workers available. However, DOL has pre-certified certain occupations, known as Schedule A, so those petitioners do not need to obtain a labor certification. Instead, EB-2 and EB-3 Schedule A petitioners file Form I-140, Immigrant Petition for Alien Workers, directly with USCIS.

 

  1. EOIR Proposes to Implement Electronic Filing for All Cases Before Immigration Courts and the BIA

 

The Department of Justice’s Executive Office for Immigration Review (EOIR) issued a proposed rule on December 4, 2020, to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

Under the proposed rule, electronic filing would become mandatory for the Department of Homeland Security and for attorneys and accredited representatives who represent respondents, applicants, and petitioners before the EOIR. Among other things, EOIR proposes “to allow for an extended filing deadline when the electronic filing system is unavailable due to an unplanned outage and to provide immigration judges with the authority to accept paper filings in open court in limited circumstances.”

Comments on the proposed rule are due by January 4, 2021.

 

8.  ABIL GLOBAL:  FRANCE

This article provides updates on what the Brexit transition means for British nationals residing in France.

 On December 31, 2020, at midnight, the Brexit transition period will end. The United Kingdom (UK) will become a third country to the European Union (EU).

British nationals already residing in France can submit “Withdrawal Agreement” residence permit applications now. The request can be made on the internet. All British nationals already residing in France before December 31, 2020, are eligible to apply for a residence permit, in accordance with the provisions of the Brexit agreement signed between the UK and the EU. By June 30, 2021, all British nationals wishing to benefit from the provisions of the Brexit agreement to retain their rights to stay and work in France must have a French residence permit.

Applicants must upload documentation, including passport identity pages; proof establishing the date the applicant moved to France, such as a property certificate issued by a notary, a home insurance contract, a home insurance certificate or an employment contract; and documents relating to the specific situation of each applicant. For example, an employee must provide a copy of their most recent pay slip, while a student must provide proof of enrollment in a school or university. After completing these steps, the applicant will receive an application confirmation by email, with a reference number confirming the filing.

Once the file has been processed, an email will be sent to the candidate to make an appointment at the prefecture to finalize the file (fingerprinting, photo, and proof of payment of fees).

It is not yet clear how the applicant will receive the residence permit when it becomes available, whether by post to his or her home in France or by going to the Prefecture a second time.

Permit Types

 

Presence of less than five years

British nationals who have resided in France for less than five years as of December 31, 2020, must apply for a residence permit, depending on their status (e.g., student, employee, temporary worker, posted worker, self-employed professional, unemployed person, family member, long-term visitor). They will be issued a residence permit in accordance with the agreement bearing the specific category, such as “Withdrawal agreement-employee.”

Although the list of required documents is not yet available, applicants are advised to prepare:

  • Passport or identity card
  • Proof of address in France
  • Identity photographs
  • Proof of resources: employment contract, payslips, bank statements
  • Proof of professional activity: work certificate signed by the employer confirming the date of the start of employment in France
  • Proof of the purpose of the stay in France over the past five years (e.g., employment contract)

British nationals who have resided in France for less than five years as of December 31, 2020, can also apply for a resident card when they can prove that they have lived in France for five years. For example, a British national residing in France as of December 31, 2017, can apply for a resident card as of December 31, 2022.

Presence of five years or more

British nationals who have resided for five years or more in France as of December 31, 2020, are eligible to obtain a resident card valid for 10 years.

Although the list of required documents is not yet available, applicants are advised to prepare:

  • Passport or identity card
  • Proof of address in France
  • Three identity photographs
  • Proof of presence in France over the past five years: one document per half-year (e.g., rent receipts, energy bills)
  • Proof of resources: employment contract, payslips, bank statements

 

  1. Alliance of Business Immigration Lawyers Offers 12 Recommendations for Biden Administration

 

The Alliance of Business Immigration Lawyers, Inc. (ABIL) released a non-exhaustive list of 12 recommendations to reform business immigration in the early days of the Biden-Harris administration. The recommendations align with the consensus recognition by the incoming administration and the Joint Economic Committee of Congress regarding the economic value that immigrants and immigration bring to the United States.

  • Restore the customer-service ethos and recognition of our heritage as a nation of immigrants in the USCIS mission statement
  • Eliminate racial and national-origin profiling in immigration cases
  • Rescind the three H-1B regulations (DOL wages, specialty occupation, and lottery registration selection) published this fall
  • Direct USCIS and the State Department to reinstate and exercise freely their respective authority to waive the requirement that employment-based applicants for adjustment of status or nonimmigrant visa reissuance be interviewed
  • Rescind recently revised policies on the use of discretion in adjudications
  • Return to the prior 90-day adjudicatory timeframe and automatic 180-day extensions for timely filed work authorization applications
  • Stop counting derivatives separately under the family and employment-based immigrant visas preferences
  • Take USCIS out of investigations and limit its role to adjudicating requests for immigration benefits
  • Promote entrepreneurial immigration.
  • Rapidly advance “Dates for Filing” (DFF) cutoffs in the Visa Bulletin to maximize the number of I-485 adjustment applications
  • Use the DFF to freeze the age of children under the Child Status Protection Act
  • Parole into the United States beneficiaries of approved I-130 and I-140 petitions who are waiting overseas

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  1. Alejandro Mayorkas Nominated To Direct Department of Homeland Security

 

President-elect Joe Biden announced on November 23, 2020, his nomination of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). During the Obama administration, Mr. Mayorkas directed U.S. Citizenship and Immigration Services and then became deputy secretary of DHS. During his more than 30-year career, Mr. Mayorkas also served as a U.S. attorney in California. He is a partner at WilmerHale, leading its COVID-19 Coronavirus Task Force.

Mr. Mayorkas’ accomplishments in the Obama administration included developing and implementing the Deferred Action for Childhood Arrivals (DACA) program, which benefited more than 700,000 youth. President-elect Biden said that Mr. Mayorkas “will play a critical role in fixing our broken immigration system and understands that living up to our values and protecting our nation’s security aren’t mutually exclusive-and under his leadership, they’ll go hand-in-hand.”

Mr. Mayorkas, who was born in Havana and is the son of Jewish refugees who fled Cuba during the Castro revolution, would make history as the first Latino and first immigrant in that position, if confirmed by the Senate. His Romanian mother escaped the Holocaust and met his father, of Sephardic heritage, in Cuba.

On the day of the nomination announcement, Mr. Mayorkas tweeted, “When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”

 

  1. State Dept. Launches Visa Bond Pilot Program  

 

On November 24, 2020, the Department of State (DOS) published a temporary final rule providing for a visa bond pilot program from December 24, 2020, through June 24, 2021.

The six-month pilot program aims to assess the operational feasibility of issuing visa bonds to inform future decisions regarding the use of such bonds to address temporary business visitor/tourist (B-1/B-2) overstays. Those potentially subject to the pilot program include B-1/B-2 visa applicants who are from countries with high visa overstay rates and have been approved by the Department of Homeland Security (DHS) for an inadmissibility waiver. DOS said the program is intended to serve as a “diplomatic tool” to encourage foreign governments to ensure that their nationals timely depart the United States after temporary visits.

During the six-month pilot program, consular officers may require nonimmigrant visa applicants falling within the program’s scope to post a bond of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount will be determined by the consular officer “based on the circumstances of the visa applicant.” The consular officer can also recommend a waiver of the visa bond if he or she believes a waiver would advance a humanitarian or national interest.

The pilot program will focus on nationals of Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen. The program does not apply to those traveling under the Visa Waiver Program.

 

  1. USCIS Issues Alert for Asylum Applicants on Preliminary Injunction

 

U.S. Citizenship and Immigration Services (USCIS) issued an alert noting that a U.S. district court’s September 11, 2020, preliminary injunction in Casa de Maryland Inc. v. Wolf provides limited injunctive relief to members of two organizations, CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), who file Forms I-589 or I-765 as asylum applicants. Specifically, the court preliminarily enjoined enforcement of the following regulatory changes for CASA and ASAP members:

  • Removal of the 30-day adjudicatory period for Form I-765 based on an underlying asylum application;
  • The requirement to submit biometric information as part of the filing of a Form I-765 based on an asylum application;
  • The 365-day waiting period for employment authorization document (EAD) eligibility based on an underlying asylum application;
  • The bar on EAD eligibility for asylum applicants subject to the one-year filing bar for asylum, applicable to a Form I-765 based on an asylum application filed on or after August 25, 2020;
  • The discretionary review rule providing that the agency has discretion as to whether to grant a Form I-765 based on an asylum application; and
  • Removal of the rule deeming a Form I-589, Application for Asylum and for Withholding of Removal, complete if USCIS does not reject it within 30 days of receipt.

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USCIS alert, https://www.uscis.gov/i-765

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COVID-19 RESOURCES

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.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

CBP:

–        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:

State Department: https://www.state.gov/coronavirus/

Justice Department

AGENCY TWITTER ACCOUNTS

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

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.

 

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

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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.

 

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