WEEKLY IMMIGRATION UPDATE 12.21.2020
HEADLINES: December 21, 2020
- Ninth Circuit Rejects USCIS Basis for Denial of H-1B Classification for Computer Programmer as ‘Specialty Occupation’– The Ninth Circuit ruled that USCIS’s denial of H-1B classification for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.
- USCIS Update Regarding Delays in Issuance of Receipt Notices at Lockboxes – The agency announced significant delays in issuing receipt notices.
- Cato Institute Proposes 30 Deregulatory Actions for Biden Administration – The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals focus on agency measures to improve the process for legal immigrants.
- In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy – USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020.
- DOJ Finalizes Rule Increasing Fees for Executive Office for Immigration Review [Immigration Court] Applications, Appeals, and Motions – DOJ issued a final rule effective January 19, 2021, adopting proposed fee amounts without change.
- DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules – DOJ issued two final rules on asylum and withholding of removal-related standards and procedures.
- USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status – USCIS expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.
- DOJ Finalizes EOIR Rule on BIA Appeals Processing– DOJ is making multiple changes to the processing of appeals to the BIA, clarifying “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.”
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1. Ninth Circuit Rejects USCIS Basis for Denial of H-1B Classification for Computer Programmer as ‘Specialty Occupation’
In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.
The court was unpersuaded by USCIS’ reasoning, noting among other things that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer, and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’s reasoning “beyond saving.”
- Innova Solutions v. Baran,
- “Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,”
2. USCIS Issues Lockbox Updates re Recent Delays
U.S. Citizenship and Immigration Services (USCIS) announced that its lockbox facilities “have received a significant increase in filings in recent weeks.” The increase, along with COVID-19 pandemic-related restrictions, is causing “significant delays for processing receipt notices,” the agency said.
The notice states that USCIS will send a receipt notice to the mailing address provided on a properly filed form “normally within 30 days.” However, practitioners report receipts remain outstanding from mid-October.
3. Cato Institute Proposes 30 Deregulatory Actions for Biden Administration
The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals “focus entirely on agency measures to improve the process for legal immigrants.”
The report notes that President Trump has reduced immigrant visa approvals by more than 80 percent during his term. The agenda compiled by Cato would “permit more legal migration and legal employment within the confines of the restrictive laws that Congress has passed.” Contributors include several members of the Alliance of Business Immigration Lawyers and other immigration law experts. Their proposals are organized into four sections: reforms affecting green card applicants on the path to permanent residence, reforms affecting nonimmigrants (visitors, students, and temporary workers), reforms affecting refugees, and big-picture reforms affecting more than one category.
- “Deregulating Legal Immigration: A Blueprint for Agency Action,” Cato Institute,
- “Leading Legal Experts Urge Aggressive Immigration Actions,” The Hill,
4. In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy
As a result of litigation in Vangala v. USCIS challenging USCIS’s blank-space rejection policy, where the agency rejected applications because of blank spaces, USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020. According to counsel, the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have had applications rejected.
Those who received a rejection notice datedafter December 24, 2020, can contact plaintiffs’ counsel at email@example.com.
- National Immigration Litigation Alliance’s “Affirmative Litigation Docket” (scroll down to Vangala v. USCIS), includes summary and legal documents
5. DOJ Finalizes Rule Hiking Fees for EOIR Applications, Appeals, and Motions
The Department of Justice issued a final rule effective January 19, 2021, adopting fee amounts proposed in February 2020 without change. The rule increases the fees for Executive Office for Immigration Review (EOIR) applications, appeals, and motions subject to an EOIR-determined fee.
The rule does not affect fees established by the Department of Homeland Security (DHS) for DHS forms for applications filed or submitted in EOIR proceedings. It does not affect the ability of applicants to submit fee waiver requests and does not add new fees. The final rule responds to comments received in response to the notice of proposed rulemaking.
Some practitioners noted that it could be difficult for the incoming Biden administration to quickly come up with a remedy for the higher fees given competing urgent priorities.
6. DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules
The Department of Justice issued two final rules on asylum and withholding of removal-related standards and procedures.
- Final rule on asylum eligibility and procedural modifications. This final rule, effective January 19, 2021, responds to comments received on an interim final rule issued in July 2019 and “makes minor changes to regulations implemented or affected by the [interim final rule] for clarity and correction of typographical errors.”
Among other things, the rule adds a new mandatory bar to eligibility for asylum for those who enter or attempt to enter the United States “across the southern land border after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States.” Some exceptions apply. The rule also adds new limits on asylum eligibility for people who are subject to expedited removal.
- Final rule on procedures for asylum and withholding of removal. This final rule, effective January 15, 2021, responds to comments received in response to a notice of proposed rulemaking issued in September 2020. The final rule adopts the proposed rule “with few changes.” The rule outlines requirements for filing a complete application for relief and the consequences of filing an incomplete application, establishes a 15-day filing deadline for applicants in “asylum-and-withholding-only proceedings” (calculated from the date of the first hearing before an immigration judge (IJ), with “good cause” extensions possible) and clarifies evidentiary standards in deciding such applications. It also adopts changes related to the 180-day asylum adjudication clock.
In a change from the proposed rule, which required the applicant to submit a fee receipt together with the application by the deadline set by the IJ, the final rule allows applicants to meet the filing deadline when they “cannot meet all requirements due to no fault of their own.” As an example, the final rule says an applicant can submit alternative proof of payment if the fee receipt has not yet been received, but in such instance, the fee receipt will be due by the deadline the IJ sets. If the IJ does not set a separate deadline for the fee receipt, the applicant must submit it within 45 days of the date of filing the associated application.
- Final rule on asylum eligibility and procedural modifications,
- Final rule on procedures for asylum and withholding of removal,
7. USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status
U.S. Citizenship and Immigration Services (USCIS) expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.
The updated criteria “are well within the parameters of USCIS’ regulatory authority to determine, on a case-by-case basis, whether an interview is necessary to determine the admissibility of an alien applying for lawful permanent resident status under INA § 209,” the agency said, noting that the updates do not change the eligibility requirements to adjust status. Although the updated criteria “may result in more applicants requested to appear for an interview, the changes are necessary to help ensure program integrity and support USCIS’ efforts to detect and prevent fraud and risks of harm to the United States,” the agency said.
8. DOJ Finalizes EOIR Rule on BIA Appeals Processing
The Department of Justice (DOJ) published a final rule, effective January 15, 2021, making multiple changes to processing appeals to the Board of Immigration Appeals (BIA) and to clarify “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.” The final rule responds to comments made on a proposed rule issued in August 2020 and adopts the proposed rule “with minor changes.”
Among other things, the final rule reduces the maximum allowable time for an extension of the briefing schedule for “good cause shown” from 90 days to 14 days. The rule limits the parties to one possible extension, consistent with BIA policy “not to grant second briefing extension requests.” The rule also “adopts simultaneous briefing schedules instead of consecutive briefing schedules for all cases.” In response to comments, DOJ also made adjustments to the biometrics timeline to allow for circumstances such as delays by the Department of Homeland Security or lack of sufficient notice.
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
- USCIS: USCIS.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/
- Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
- 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
- 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
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.