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WEEKLY IMMIGRATION UPDATE 7.27.2021

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WEEKLY IMMIGRATION UPDATE 7.27.2021

IMMIGRATION UPDATE – July 27, 2021

HEADLINES

International Travel

1. U.S. Extends Nonessential Travel Restrictions at Canada, Mexico Land Borders through at least August 31; Canada Opens to U.S. Citizens/Permanent Residents August 9 – Canadians and many other U.S.-bound international travelers can fly into the United States if they receive a negative COVID-19 test.

DACA

2. Justice Dept. Issues Reminder for DACA Recipients and Employers – Among other tips, DOJ noted that “existing DACA recipients are allowed to retain their grant of DACA and apply for renewal” and that employers are not expected to know which employees, if any, have DACA.

3. New DACA Applications Blocked by Federal Judge – New Deferred Action for Childhood Arrivals applications will not be allowed under a ruling by a U.S. district judge. The judge temporarily stayed his ruling for nearly 650,000 current DACA recipients.

F-1 Students 

4. Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’ – New USCIS policy guidance eliminates the need for individuals who have applied for a change of status to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 change of status application is pending.

Temporary Protected Status

5. Temporary Protected Status Updates: Somalia, Burma, Syria, Venezuela, Yemen – DHS announced the extension and redesignation of Somalia for TPS through March 17, 2023. Also, TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file their TPS applications online if they are applying for TPS for the first time.

Filing changes

6. USCIS Updates Addresses for Filing Locations for Certain Forms I-131 – USCIS did not change any filing locations but “refined attention lines and ZIP codes to improve internal processes at our lockboxes.”

H-2B Non-agricultural Seasonal Workers

7. Employers May File H-2B Petitions for Returning Workers for FY 2021, USCIS Says – Employers may file H-2B petitions for returning workers under the FY 2021 H-2B supplemental visa temporary final rule if they are likely to suffer irreparable harm without these additional workers, USCIS said.

USCIS Processing

8. No Surprise: Ombudsman’s Annual Report Says USCIS Faces ‘Unprecedented Challenges’ Due to Pandemic, Backlogs, Financial Issues – The Covid-19 pandemic “created unique challenges for USCIS,” the report notes, including temporary office closures and a lack of the ability for “end-to-end electronic processing.”

I-9 / E-Verify/ Worksite enforcement

9. USCIS Reminds Employers to Take Action Within 10 Federal Government Working Days on Tentative Nonconfirmation Cases – Although most Social Security Administration offices are currently closed, this does not affect the 10-day requirement.

10. USCIS Updates Guidance on Acceptable I-9 Documents for Refugees and Asylees – Refugees and asylees are eligible for employment due to their status “and are authorized to work indefinitely because their immigration status does not expire.”

11. Justice Dept. Settles Retaliation Claim – The settlement resolves DOJ’s finding that the company violated the law by retaliating against a worker because he asked for the agency’s help in addressing his concerns about an immigration-related employment practice.

Prevailing Wage/ PERM

12. OFLC Releases FAQ on Implementation of Revised ETA-9141 –OFLC released Round 3 of frequently asked questions from the National Prevailing Wage Center on implementing the revised Application for Prevailing Wage Determination.

13. OFLC’s Atlanta Processing Center to Move in August – The mailing address for the Atlanta National Processing Center will change on August 25, 2021, with the exception of mail associated with the processing of applications requesting permanent labor certification subject to supervised recruitment.

DETAILS

 

1. U.S. Extends Nonessential Travel Restrictions at Canada, Mexico Land Borders; Canada Opens to U.S. Citizens/Permanent Residents August 9

The United States has once again extended travel restrictions at its borders with Canada and Mexico for nonessential travel into the United States at least through August 21, 2021. The United States has done so monthly since March 2020 in response to the pandemic.

Canadians and many other U.S.-bound international travelers can fly into the United States if they receive a negative COVID-19 test. Canada announced on July 19, 2021, that fully vaccinated U.S. citizens and permanent residents can enter the country as of August 9, 2021. U.S. travelers to Canada must submit information electronically through ArriveCAN, meet eligibility and testing requirements, and bring vaccination documentation.

Canada plans to open its borders for discretionary travelers from any country, traveling by any means, on September 7, 2021, if they have been fully vaccinated with Canadian government-accepted vaccines at least 14 days before entering Canada and meet specific entry requirements, “provided that Canada’s COVID-19 epidemiology remains favourable,” the government announced on July 19, 2021.

U.S. and Mexican officials “have mutually determined that non-essential travel between the United States and Mexico currently poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID–19,” the Federal Register notice for Mexico states. “Moreover, given the sustained human-to-human transmission of the virus, coupled with risks posed by new variants, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19.” The Federal Register notice for Canada makes similar statements.

2. Justice Dept. Issues Reminder for DACA Recipients and Employers

The Department of Justice (DOJ) released a reminder for Deferred Action for Childhood Arrivals (DACA) recipients and employers on July 21, 2021. The reminder notes that on July 16, 2021, a federal court found DACA unlawful, which means that the government cannot grant new DACA applications. But existing DACA recipients are allowed to retain their grant of DACA and apply for renewal, DOJ noted. “The district court ruling does not affect ICE’s [U.S. Immigration and Customs Enforcement] existing enforcement guidelines. The ruling made clear that it did not ‘require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.’ In light of the court decision, DOJ said, “we are issuing these reminders about employment discrimination and immigrant employee rights.”

The reminders include these and other points:

  • DACA recipients with current, unexpired Employment Authorization Documents (EADs) continue to be authorized to work.
  • For the time being, workers who already have DACA can continue to renew their DACA EADs.
  • USCIS will provide additional guidance for DACA requestors and recipients in the coming days.
  • DACA recipients are not required to tell employers they have DACA.
  • Employers are not expected to know which employees, if any, have DACA, and the court’s decision does not require employers to review Forms I-9, reverify employment authorization, or take any action at all.
  • Employers are not required or encouraged to ask their employees or job applicants about their immigration status or whether they have DACA.
  • When hiring a new employee, employers are required to verify the employee’s identity and authorization to work, not their immigration status.
  • The court decision does not require employers to review or audit their Forms I-9. If an employer decides to review its Forms I-9, it should do so in a non-discriminatory way.
  • “Reminders for DACA Recipients and Employers,” Dept. of Justice, July 21, 2021, https://www.justice.gov/crt/reminders-daca-recipients-and-employers (English), https://www.justice.gov/crt-espanol/recordatorios-para-beneficiarios-de-daca-y-empleadores (Spanish)
  • Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision, July 19, 2021, https://www.uscis.gov/news/news-releases/statement-from-uscis-acting-director-tracy-renaud-on-deferred-action-for-childhood-arrivals-daca

3. New DACA Applications Blocked by Federal Judge

New Deferred Action for Childhood Arrivals (DACA) applications will not be allowed under a ruling by a U.S. district judge in Texas on July 16, 2021. The judge ruled that DACA violated the Administrative Procedure Act but temporarily stayed his ruling for the nearly 650,000 current DACA recipients, referred to as “Dreamers.” Current DACA recipients may seek renewal of their authorization to remain and work in the United States.

Tech companies, including Twitter, Google, Microsoft, and Adobe, expressed their disappointment with the ruling and urged Congress to protect the program. President Biden echoed those comments and said the U.S. will appeal the ruling, noting that it “relegates hundreds of thousands of young immigrants to an uncertain future.” He said it was his “fervent hope” that Congress would pass legislation to provide a permanent status for DACA recipients.

4. Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’

U.S. Citizenship and Immigration (USCIS) announced on July 20, 2021, new policy guidance that eliminates the need for individuals who have applied for a change of status to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 change of status application is pending.

Under the previous policy, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial change of status and subsequent extensions ensuring that they would not have a “gap” in status, USCIS explained.

To prevent a gap in status, USCIS said it will grant the change of status to F-1 effective the day the agency approves an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If USCIS approves an application more than 30 days before the student’s program start date, the student must not violate F-1 status during that time. An example of a violation, USCIS said, “would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.”

USCIS said it is revising the Form I-539 instructions to reflect these changes.

5. Temporary Protected Status Updates: Somalia, Burma, Syria, Venezuela, Yemen

On July 21, 2021, the Department of Homeland Security announced the extension and redesignation of Somalia for Temporary Protected Status (TPS) for 18 months, from September 18, 2021, through March 17, 2023, due to “the ongoing armed conflict and extraordinary and temporary conditions in Somalia.”

Also, TPS applicants who are eligible nationals of Burma, Somalia, Syria, Venezuela, or Yemen, or individuals without nationality who last habitually resided in one of those countries, can now file Form I-821, Application for Temporary Protected Status, online if they are applying for TPS for the first time. The option to file Form I-821 online is only available to initial TPS applicants from these five countries. USCIS said it is starting with these countries because they are either new designations or recently announced re-designations.

All other TPS applicants and current beneficiaries who are re-registering under the extension of a TPS designation must continue to file a paper Form I-821. If an initial TPS applicant from a country other than Burma, Somalia, Syria, Venezuela, or Yemen or a re-registrant files Form I-821 online, USCIS “will deny the application and retain the fee. USCIS is working to make online filing available for re-registrants and initial applicants for all TPS designations in the future.”

6. USCIS Updates Addresses for Filing Locations for Certain Forms I-131

U.S. Citizenship and Immigration Services (USCIS) has adjusted the addresses for certain applicants filing Form I-131, Application for Travel Document. USCIS did not change any filing locations but “refined attention lines and ZIP codes to improve internal processes at our lockboxes.” The address update affects:

  • Applicants with a pending Form I-485, Application to Register Permanent Residence or Adjust Status, who are filing Form I-131 alone with a Form I-485 receipt notice;
  • Haitian family members filing for advance parole under the Haitian Family Reunification Parole program;
  • Cuban family members filing under the Cuban Family Reunification Parole program;
  • Deferred Action for Childhood Arrivals recipients;
  • Humanitarian parole applicants;
  • Refugee travel document applicants;
  • Temporary Protected Status applicants; and
  • All other applicants as noted on the Direct Filing Addresses for Form I-131 page.

USCIS said that it will still process any I-131 applications that were already mailed to the previous lockbox address.

7. Employers May File H-2B Petitions for Returning Workers for FY 2021, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced on July 23, 2021, that employers may file H-2B petitions for returning workers under the fiscal year (FY) 2021 H-2B supplemental visa temporary final rule. “Employers may take this action if they are likely to suffer irreparable harm without these additional workers,” USCIS said. Petitions will be accepted until September 15, 2021, or until the remainder of the cap is reached, whichever occurs first.

The agency noted that a petitioner must file a new Form I-129, Petition for a Nonimmigrant Worker, together with an approved and valid temporary labor certification that states an employment start date for the second half of the fiscal year, and attest that these noncitizens will be returning workers. USCIS defines returning workers as “workers who were issued an H-2B visa or otherwise granted H-2B status in FY 2018, 2019, or 2020.”

USCIS received requests for an unspecified “significant number” of Northern Triangle (El Salvador, Guatemala, and Honduras) workers, “nearly enough to reach the 6,000 allocation,” but did not receive enough petitions by the July 8, 2021, deadline. According to the temporary final rule, “the few remaining visas are now available to eligible H-2B returning workers, regardless of their country of origin.”

8. No Surprise: Ombudsman’s Annual Report Says USCIS Faces ‘Unprecedented Challenges’ Due to Pandemic, Backlogs, Financial Issues

The Citizenship and Immigration Services (CIS) Ombudsman’s Annual Report for 2021 states that U.S. Citizenship and Immigration Services (USCIS) “faces unprecedented challenges this year on virtually every front—from financial pressures to substantial backlogs across applications and petitions of all types.” The Covid-19 pandemic “created unique challenges for USCIS,” the report notes, including temporary office closures and a lack of the ability for “end-to-end electronic processing.” Once USCIS returned to operations at a reduced capacity, the agency had substantial backlogs of in-person appointments that needed rescheduling. The pandemic also exacerbated the agency’s preexisting financial issues and “decimated carryover funding needed to maintain its operations.” The problems began in 2020 and persisted into 2021: “The lingering effects of temporary office closures, insufficient revenue, and budget cuts continue to impact processing time and customer service functions.”

The report also identified other key areas of focus, including persistent problems with the issuance of Notices to Appear; challenges in the medical disability test waiver process; continuing complications in USCIS’s digital strategy; and issues in international student programs, among others.

The report identifies several key objectives, including expanded electronic filing and processing capabilities, increased outreach with stakeholders, and improved coordination between USCIS and other government agencies.

9. USCIS Reminds Employers to Take Action Within 10 Federal Government Working Days on Tentative Nonconfirmation Cases

U.S. Citizenship and Immigration Services (USCIS) reminded employers that they must take action on Tentative Nonconfirmation (TNC) cases for their employees within 10 federal government working days. USCIS noted that although most Social Security Administration offices are currently closed, this does not affect the 10-day requirement.

The reminder sets forth specific steps employers should take in E-Verify within the timeframe after issuance of a TNC result.

10. USCIS Updates Guidance on Acceptable I-9 Documents for Refugees and Asylees

U.S. Citizenship and Immigration (USCIS) updated its Handbook for Employers (M-274) to remind employers that refugees and asylees may present any acceptable documents in their possession to fulfill I-9 employment authorization verification requirements.

USCIS noted that refugees and asylees are eligible for employment due to their status “and are authorized to work indefinitely because their immigration status does not expire.” They may present any List A document or combination of List B and List C documents from the Form I-9 lists. They may also present an “acceptable receipt” instead of the List A, B, or C document. The handbook includes additional details.

11. Justice Dept. Settles Retaliation Claim

The Department of Justice (DOJ) announced on July 15, 2021, that it reached a settlement agreement with Around the Clock Dispatch Inc., a freight and delivery services company in Queens Village, New York. The settlement resolves DOJ’s finding that the company violated the law by retaliating against a worker because he asked for the agency’s help in addressing his concerns about an immigration-related employment practice.

The worker filed a charge and the company suspended the worker for three days without pay. Under the settlement, the company will pay $3,600 in civil penalties to the United States and nearly $900 in back pay to the worker. The settlement also requires the company to train employees on the Immigration and Nationality Act’s anti-discrimination provision and be subject to DOJ monitoring and reporting requirements.

12. OFLC Releases FAQ on Implementation of Revised ETA-9141

On July 16, 2021, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released Round 3 of frequently asked questions (FAQs) from the National Prevailing Wage Center (NPWC) to respond to inquiries from a webinar on implementing the revised Form ETA-9141, Application for Prevailing Wage Determination. The revised form provides a separate section to be completed by employers who accept alternative job requirements in addition to the minimum job requirements.

OFLC said the new alternative job requirements section (1) improves NPWC’s ability to ensure that prevailing wages provided to employers and listed on the Form ETA-9089 do not adversely affect U.S. workers and support a valid labor market test in instances where the alternative requirements would result in a higher wage; and (2) reduces employers’’ burden of completing a separate Form ETA-9141 for each set of requirements.

13. OFLC’s Atlanta Processing Center to Move in August

The Department of Labor’s Office of Foreign Labor Certification (OFLC) mailing address for its Atlanta National Processing Center (ANPC) will change on August 25, 2021, with the exception of mail associated with the processing of applications requesting permanent labor certification subject to supervised recruitment.

Effective August 25, 2021, any mail, including U.S. Postal Service and other courier mail or parcel delivery packages, sent to ANPC must be submitted to the following new mailing address, according to an OFLC notice: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, 200 Constitution Avenue, NW, Room N-5311, Washington, DC 20210. One exception is mail associated with Supervised Recruitment under 20 CFR 656.21, which must continue to be submitted to: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Atlanta National Processing Center, Attn: Supervised Recruitment, P.O. Box 56625, Atlanta, GA 30343.

OFLC said employers must provide ANPC’s correct new mailing address on the Notice of Filing (NOF) posted when employers file a Form ETA-9089, Application for Permanent Employment Certification. “If the required 10-day posting period for a NOF commences after September 5, 2021, employers must include the new mailing address contained in the notice,” OFLC said.

I-94/E-VERIFY WEBINARS

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

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

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)

NAFSA

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

USCIS: USCIS.gov/coronavirus

ICE:

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

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

ReqsCleanFacilities.pdf

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:

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/

Justice Department

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.

___________________________________________________________________________________________

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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