WEEKLY IMMIGRATION UPDATE – May 13, 2021
- DHS Suspends Biometrics Collection for H-4 and L-2 Spouses Effective May 17 — In a proposed class action filing claiming the agency’s delays in issuing dependent EADs are illegal, U.S. Citizenship and Immigration Services said it will suspend biometric screening requirements for H-4 and L-2 derivative visa holders while it reviews its policy. The suspension will take effect on May 17 and will be in effect for two years.
- USCIS Updates Process to Reschedule Biometrics Services Appointments – Applicants must now call the USCIS National Customer Service Center at 800-375-5283 to reschedule their biometric services appointments scheduled at a USCIS ASC. Previously, applicants were required to submit requests in writing to reschedule biometrics appointments.
- DHS Withdraws Proposed Rule on Expanding Biometrics Collection, Use – The Department of Homeland Security withdrew a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.
- President Biden Raises Refugee Cap to 62,500 in FY 2021 – President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year FY 2021, with a goal of 125,000 admissions for FY 2022.
- Labor Dept. Proposes Rule on H-2A Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range – The Department of Labor proposes to amend its regulations regarding the adjudication of temporary need for employers seeking herding or production of livestock on the range job opportunities under the H–2A program.
- EOIR Announces 17 New Immigration Judges – The Executive Office for Immigration Review announced 17 new Immigration Judges, including one Assistant Chief Immigration Judge and six Unit Chief Immigration Judges, and released biographical information about all of them.
1. DHS Suspends Biometrics Collection for H-4 and L-2 Spouses Effective May 17
U.S. Citizenship and Immigration Services said it would suspend biometric screening requirements for H-4 and L-2 derivative visa holders as of May 17 while it reviews the policy, in a filing in a proposed class action claiming the agency’s delays in issuing dependent Employment Authorization Documents are illegal.
On May 3, 2021, USCIS announced, through a declaration submitted in the Edakunni v. Mayorkas litigation, that it will suspend the biometrics requirements for certain I-539 applicants for a two-year period beginning on May 17, 2021. The biometrics suspension will apply to the H-4, L-2, and E-1, E-2, and E-3 categories of Form I-539 applications if they are 1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, and 2) are new applications received by USCIS from May 17, 2021, through May 23, 2022.
USCIS will not require the biometrics fee for the applicable categories during the effective period, but will not refund any payments already made.
Edakunni is an active class-action lawsuit filed by AILA and Wasden Banias, LLP challenging H-4 and L-2 adjudication delays.
2. USCIS Updates Process to Reschedule Biometrics Services Appointments
USCIS announced that applicants may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center. The prior policy required the applicant to provide written notification to USCIS to reschedule a biometrics appointment. One advantage to the new system for clients is that the applicant may have input as to the date and time of the rescheduled appointment; previously it was not possible to request a specific date for rescheduling.
Prior to calling, applicants should have their appointment notice available for reference, as well as the receipt number(s) of the pending application(s), and if applicable their A number (Alien Registration Number). The USCIS agent will confirm name, address and date of birth. At the conclusion of the call the agent will provide a Service Request Confirmation Number. It is very important to record this number and the time and date of the call.
If you are unable to attend your scheduled biometric services appointment for good cause, you may request to reschedule your appointment by calling the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833). You must make your request before the date and time of the original appointment, and you must establish good cause for rescheduling. If you fail to call before your scheduled appointment or fail to establish good cause, USCIS may not reschedule your ASC appointment. If we do not reschedule your appointment, we will consider your application, petition, or request abandoned and, as a result, it may be denied.
If you need to change your address, please follow the instructions provided on our website.
If you have a serious ongoing medical condition and you cannot leave your home/hospital, you may request a mobile biometrics/homebound appointment by following the instructions in the Notice for People with Disabilities section of your appointment notice.
If you need to reschedule your appointment because you feel sick please follow the instructions above.
3. DHS Withdraws Proposed Rule on Expanding Biometrics Collection, Use
On May 10, 2021, the Department of Homeland Security (DHS) withdrew a proposed rule issued on September 11, 2020 concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.
The proposed rule called for providing DHS with flexibility to change its biometrics collection practices and policies as needed. Included were expanding the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhancing vetting to prove identity and familial relationships, precluding imposters, and improving consistency in biometrics terminology.
DHS said it still supports some of these goals but “not in a way that conflicts” with Executive Order, 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which instructs the Secretary of Homeland Security to identify barriers impeding access to immigration benefits.
In response to the notice of proposed rulemaking published on September 11, 2020, DHS received more than 5,000 comments, most of them in opposition. Commenters mentioned immigration policy, privacy, and economic concerns, and said the rule was “unnecessary, offensive, an invasion of privacy, would infringe on freedoms, and [would] violate the respect, privacy rights, and civil liberties of U.S citizens, legal immigrants, noncitizens, victims of domestic violence, other vulnerable parties, and children.” Many commenters also said the rule was “overly broad, highly invasive, and would impose excessive monetary costs on applicants and result in administration delays,” DHS said.
DHS said it will analyze the entirety of the proposed rule in the context of the directive in EO 14012 and consider what changes may be appropriate. In the meantime, DHS will maintain its current biometrics collection practices and policies.
- DHS withdrawal of the proposed rule on the use and collection of biometrics in the enforcement and administration of immigration laws, which was published at 85 FR 56338 on 9/11/20. (86 FR 24750, 5/10/21)
- USCIS announcement, https://www.uscis.gov/news/alerts/dhs-withdraws-proposed-biometrics-rule
4. President Biden Raises Refugee Cap to 62,500 in FY 2021
President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year (FY) 2021, with a goal of 125,000 admissions for FY 2022. The announcement followed criticism after he announced plans to keep the number of refugee admissions at 15,000 this fiscal year primarily because of logistical concerns.
President Biden said that the “sad truth is that we will not achieve 62,500 admissions this year. We are working quickly to undo the damage of the last four years.” He said that “we are going to rebuild what has been broken and push hard to complete the rigorous screening process for those refugees already in the pipeline for admission.”
- “Statement by President Joe Biden on Refugee Admissions,” White House, May 3, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/03/statement-by-president-joe-biden-on-refugee-admissions/
- “Biden, in Reversal, Raises the Refugee Admission Cap to 62,500 in the Next Six Months,” New York Times, May 3, 2021, https://www.nytimes.com/2021/05/04/us/politics/biden-refugee-numbers.html
5. Labor Dept. Proposes Rule on H-2A Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range
The Department of Labor proposes to amend its regulations regarding the adjudication of temporary need for employers seeking herding or production of livestock on the range job opportunities under the H–2A program. Consistent with a court-approved settlement agreement, the proposed rule would rescind the regulation that governs the period of need for such job opportunities to ensure that “the Department’s adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification.” Comments are due by June 7, 2021.
- Proposed rule, May 6, 2021, https://bit.ly/3bcTzF7
6. EOIR Announces 17 New Immigration Judges
The Executive Office for Immigration Review (EOIR) announced 17 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ) and six Unit Chief Immigration Judges (UCIJs).
Attorney General Merrick B. Garland appointed Megan B. Herndon, Wade T. Napier, Tamaira Rivera, David H. Robertson, Elizabeth Crites, Bryan E. DePowell, Nicholle M. Hempel, Kathy J. Lemke, Martinque M. Parker, David M. Paxton, Bryan D. Watson, Kenya L. Wells, and Mark R. Whitworth to their new positions; former Acting Attorney General Monty Wilkinson appointed Adam Perl to his new position; former Acting Attorney General Jeffrey A. Rosen appointed William H. McDermott to his new position; and former Attorney General William P. Barr appointed Elliot M. Kaplan and Jeb T. Terrien to their new positions.
- “EOIR Announces 17 New Immigration Judges,” Executive Office for Immigration Review, May 6, 2021 (includes biographical information), https://www.justice.gov/eoir/file/1392116/download
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.