WEEKLY IMMIGRATION UPDATE – February 1, 2021
1. ICE Extends I-9 Compliance Flexibility – ICE announced an extension of flexibilities in rules related to employment eligibility verification compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.
2. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info – President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.
3. February Visa Bulletin Announces Green Card Projections for the Coming Months – The Department of State’s Visa Bulletin for February 2021 included information on potential monthly movement for employment-based green card categories through May.
4. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review – About 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) are affected, along with their employers.
5. Judge Rules STEM OPT Program Lawful – The order impacts both the 12-month OPT and STEM OPT extension programs.
6. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order – The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders.
7. ICE Cancels Plans for OPT Employment Compliance Unit – The agency determined that the Student and Exchange Visitor Program already addressed many of the same responsibilities.
8. OFLC To Reissue Certain Prevailing Wage Determinations – In response to a court order, OFLC will reissue certain PWDs issued under an interim final rule in two phases.
9. USCIS To Abide by Pre-October 2020 Filing Fee Amounts Under Preliminary Injunction – USCIS will continue to abide by previous filing fee amounts because of two preliminary injunctions.
10. TPS for Syria Extended, Redesignated – DHS announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians, through September 2022.
11. USCIS Extends Flexibility for Responding to Agency Requests – USCIS is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.
12. Judge May Extend Hold on Deportation Moratorium Until February 23 – The Department of Justice may appeal, but it was unclear as of press time whether it would.
13. President Biden Names Jean King as New Acting Director of EOIR – Ms. King is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.
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1. ICE Extends I-9 Compliance Flexibility
U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibilities in rules related to Form I-9 (Employment Eligibility Verification) compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.
About a year ago, the Department of Homeland Security deferred physical presence requirements associated with the I-9 process. The policy applies only to employers and workplaces operating remotely.
- “ICE Announces Extension to I-9 Compliance Flexibility,” ICE, Jan. 27, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-2
2. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info
On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.
U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations.
The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force.
- “Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease,” Presidential Proclamation, Jan. 25, 2021, https://bit.ly/39BmaUi
- “Presidential Proclamations on Novel Coronavirus,” Department of State, Jan. 26, 2021, https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html
3. February Visa Bulletin Announces Green Card Projections for the Coming Months
The Department of State’s Visa Bulletin for February 2021 included the following information on final action priority date projections (potential monthly movement) for employment-based green card categories through May. The bulletin notes that determination of the actual monthly final action dates is subject to fluctuations in applicant demand and other variables affecting processing:
- Visa Bulletin for February 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-february-2021.html
China: Up to six months
India: Up to six months
China: Up to three weeks
India: Up to two weeks
China: Up to one month
India: Up to three weeks
Current for most countries
El Salvador, Guatemala, and Honduras: Up to three months
Mexico: Up to one month
Will remain Current for most countries
China: No forward movement
Vietnam: Up to three weeks
4. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review
The Biden administration withdrew a proposed rule to rescind the H-4 employment authorization document (EAD) program from review by the Office of Management and Budget. This means that about 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) and their employers no longer need to worry about losing their work authorization.
- “Proposed H-4 EAD Rule Withdrawn for Review,” National Law Review, https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review
- “Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization,” Proposed Rule, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202010&RIN=1615-AC15
5. Judge Rules STEM OPT Program Lawful
On January 28, 2021, a U.S. district court judge issued a summary judgment order finding that the STEM OPT (Optional Practical Training for science, technology, engineering, and mathematics students) program is a valid exercise of authority under the Immigration and Nationality Act. This means that both the 12-month OPT and STEM OPT extension programs are lawful.
The plaintiff, Washington Alliance of Technology Workers, has appealed.
- Memorandum opinion, Washington Alliance of Technology Workers v. DHS, https://bit.ly/2MaCWRv
6. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order
On January 25, 2021, President Biden issued an executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders, including “Buy American and Hire American” (Executive Order 13788, April 18, 2017). U.S. Citizenship and Immigration Services used that executive order as a justification to issue several restrictive immigration policy changes.
- Biden Executive Order #14005, Jan. 25, 2021, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers
7. ICE Cancels Plans for OPT Employment Compliance Unit
According to reports, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) canceled plans for a new Optional Practical Training (OPT) Employment Compliance Unit. The agency determined that SEVP already addressed many of the same responsibilities.
- Compliance Whiplash: ICE Establishes, and Then Rescinds, Plan to Create OPT Employment Compliance Unit,” Seyfarth, Jan. 28, 2021, https://www.seyfarth.com/news-insights/compliance-whiplash-ice-establishes-and-then-rescinds-plan-to-create-opt-employment-compliance-unit.html
8. OFLC To Reissue Certain Prevailing Wage Determinations
On January 20, 2021, a U.S. district court issued a modified order governing the manner and schedule in which the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) will reissue certain prevailing wage determinations (PWDs) that were issued from October 8, 2020, through December 4, 2020, under the wage methodology for a related DOL interim rule issued in October, and at the request of employers under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.
OFLC said DOL is taking necessary steps to comply with the modified order issued by the district court. Accordingly, OFLC will reissue certain PWDs issued under the interim final rule in two phases: high priority (within 15 days of receiving the requested list of named plaintiffs from plaintiffs’ counsel) and emergency situations (by March 2, 2021).
Employers that have already submitted a request in response to a December 3, 2020, announcement posted by OFLC have been issued a PWD and do not need to resubmit a second request for reissuance or take other additional action, OFLC said.
- OFLC announcement, Jan. 22, 2021, https://www.dol.gov/agencies/eta/foreign-labor
9. USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction
U.S. Citizenship and Immigration Services (USCIS) will continue to abide by previous filing fee amounts because of preliminary injunctions in ILRC v. Wolf and Nw. Immigrant Rts. Project v. USCIS. USCIS said it is complying with the terms of these orders and “is not enforcing the regulatory changes set out in the Final Rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020, and follow the guidance in place prior to October 2, 2020 to adjudicate fee waiver requests.”
- Notification of Preliminary Injunction, USCIS, 86 Fed. Reg. 7493, Jan. 29, 2021, https://www.justice.gov/eoir/page/file/1361621/download
10. TPS for Syria Extended, Re-designated
The Department of Homeland Security (DHS) announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians. This enables more than 6,700 eligible Syrian nationals (and individuals without nationality who last resided in Syria) to retain their TPS through September 2022, and allows approximately 1,800 additional individuals to file initial TPS applications.
Current beneficiaries as well as Syrian nationals who entered the United States after August 1, 2016, and are otherwise eligible may register. DHS plans to publish a notice in the Federal Register with instructions for re-registration and employment authorization. The DHS Secretary will make the next decision to extend or terminate the designation for Syria on or before July 31, 2022.
- “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” DHS Press Release, Jan. 29, 2021, https://www.dhs.gov/news/2021/01/29/acting-dhs-secretary-pekoske-extends-temporary-protected-status-syria
11. USCIS Extends Flexibility for Responding to Agency Requests
U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2021, that it is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.
Included are Requests for Evidence and Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a USCIS decision, and the agency made that decision between March 1, 2020 and March 31, 2021, inclusive.
- USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-3
12. Judge May Extend Hold on Deportation Moratorium Until February 23
Judge Drew Tipton of the Southern District of Texas, who recently blocked for 14 days the Biden administration’s 100-day pause on deportations in response to a lawsuit led by Texas Attorney General Ken Paxton, said he is likely to extend the block until February 23, 2021.
The Department of Justice may appeal, but it was unclear as of press time whether it would.
- “Judge Likely to Extend Hold on Biden’s Deportation Pause Until Late February,” CNN, Jan. 29, 2021, https://www.cnn.com/2021/01/29/politics/immigration-biden-deportations-texas/index.html
- Texas v. United States, Order Granting Plaintiff’s Emergency Application for a Temporary Restraining Order, Jan. 26, 2021, https://www.courthousenews.com/wp-content/uploads/2021/01/tx-deportation-order.pdf
13. President Biden Names Jean King as New Acting Director of EOIR
According to reports, effective January 31, 2021, Jean King is the new Acting Director of the Executive Office for Immigration Review (EOIR). She is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.
Ms. King replaces James McHenry, who led initiatives to close cases much faster and to limit asylum, among others. Greg Chen, director of government affairs for the American Immigration Lawyers Association, said the organization had “deep concerns” about Mr. McHenry, and other Trump administration appointees leading EOIR, “who have stripped judges of fundamental authorities that make it impossible for them to render fair and consistent decisions.” He said Mr. McHenry was the architect of changes that tarnished the credibility and impartiality of the immigration courts and “converted the courts into conveyor belts for rapid deportation.”
The news of Ms. King’s appointment, signaling a policy shift, came in a memorandum from Acting Deputy Attorney General John Carlin to staff and judges. The memo reportedly stated that Ms. King would provide continuity in EOIR leadership until a new director is selected.
- “Biden Administration Replaces Top Immigration Court Official,” Politico, Jan. 27, 2021,https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053
- “Biden Admin. Takes ‘Essential Step’ in Altering Trump-Era Immigration Policy,” Newsweek, Jan. 27, 2021, https://www.newsweek.com/biden-admin-takes-essential-step-altering-trump-era-immigration-policy-1564924
PUBLICATIONS OF INTEREST
- H-1B denial rates for FY 2020 and impact of court decisions. The National Foundation for American Policy has released a policy brief, “H-1B Denial Rates for FY 2020 and the Impact of Court Decisions.” Among other things, the policy brief states that the Trump administration “managed to carry out what judges determined to be unlawful policies for nearly four years. Those policies resulted in high denial rates for H-1B petitions for initial employment of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. The FY 2020 denial rate would have been much higher without the recent court rulings.” https://nfap.com/wp-content/uploads/2021/01/H-1B-Denial-Rates-For-FY-2020-and-the-Impact-of-Court-Decisions.NFAP-Policy-Brief.January-2021-2.pdf
- Brookings Institution on ways the Biden administration can improve the employment-based immigration system without Congress. In a broad review of immigration policy proposals, a new report from the Brookings Institution identifies four areas for improvement for the Biden administration: removing impediments to immigration, improving the predictability of the immigration system, resuming the use of discretion by immigration officers, and expanding customer service. The new report and proposal guide offer a map to immigration policy proposals from numerous organizations. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars.
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month.
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/
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
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.