WEEKLY IMMIGRATION UPDATE 8.25.2020
1. Breaking News: USCIS Averts Furlough of Nearly 70% of Workforce — U.S. Citizenship and Immigration Services announced today that the agency will avert an administrative furlough of more than 13,000 employees, scheduled to begin Aug. 30 as a result of unprecedented spending cuts and a steady increase in daily incoming revenue and receipts.
2. Extreme Wait Times at Baja California Land Border Ports of Entry: New protocols to deter unnecessary border crossings are causing wait times in the non-SENTRI lanes to exceed 6 hours at many times of the day, having a significant impact on daily border crossers. To reduce the spread of COVID-19 in the U.S., CBP said it is making adjustments to its operations at entry ports in Mexico to limit non-essential travel. Affected ports of entry in Baja California include San Ysidro, Otay Mesa and Calexico, CBP said.
3. EAD Printing Delays Lead to USCIS I-9 Policy Flexibility – Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a List C document for Form I-9 compliance until December 1, 2020.
4. USCIS Reminds F-1 Nonimmigrants in Post-Completion OPT and DSOs of Severe Consequences for Not Entering Employer Info in SEVIS – USCIS said that SEVIS “will count each day without employer information toward the total number of unemployment days allowed.”
5. DHS Blasts GAO Report on Invalidity of Appointments of Wolf and Cuccinelli, Demands Rescission; GAO Refuses – Following last week’s bombshell GAO report finding the appointments invalid, DHS asked GAO to rescind its finding. GAO refused.
6. Two Lawsuits Challenge Fee Rule – The suit seeks an emergency injunction to prevent the fee rule from going into effect on October 2, 2020. The rule raises fees on many applications for immigration benefits.
7. State Dept.’s Visa Bulletin Includes Info on Employment Limit for FY 2020 and DV-2021 Results and Timetable – The Visa Bulletin for the month of September 2020 includes information on several topics.
8. Virginia Man Arrested on $21 Million H-1B Visa Fraud Conspiracy Charges – An indictment alleges that a Virginia man’s four companies generated gross profits from 2011 to 2016 of approximately $21 million pursuant to a visa fraud scheme.
Please scroll down to view the full updates.
1. USCIS Averts Furlough of Nearly 70% of Workforce — USCIS expects to be able to maintain operations through the end of fiscal year 2020. Aggressive spending reduction measures will impact all agency operations, including naturalizations, and will drastically impact agency contracts.
While the cancellation of imminent furloughs is good news, without Congressional approval of additional funding USCIS still anticipates slowing in adjudications, responses to inquiries, and the processing of adjustment of status and naturalization applications due to cost cutting measures.
2. CBP Imposes New Measures to Curb Non-Essential Travel Across US-Mexico Border
The agency said that in a recent survey, 60% of travel across the border was for non-essential reasons.
By Ana Gomez * Published August 23, 2020 * Updated on August 23, 2020 at 9:22 pm
To reduce the spread of COVID-19 in the U.S., CBP said it is making adjustments to its operations at entry ports in Mexico to limit non-essential travel. Affected ports of entry in Baja California include that of San Ysidro, Otay Mesa and Calexico, CBP said.
The agency said that in ports of entry, secondary inspections will be conducted on those who are suspected of traveling for an unnecessary reason. During the secondary inspection, individuals will be given educational materials on the coronavirus issued by the Centers for Disease Control and Prevention. It will be to raise awareness on the pandemic and to ensure travelers understand the risk of border crossing.
According to CBP, non-essential travelers, including U.S. citizens and permanent residents, will face increased wait times and the possibility of being subjected to a secondary inspection.
“U.S. citizens, lawful permanent residents are legally entitled to enter the U.S. and will not be refused entry, however, it is highly recommended that they do so for only essential purposes, consistent with the series of DHS notices published Federal Register,” the agency said in a statement.
CBP said the measures are being taken because Mexico is experiencing an increase in positive COVID-19 cases along the border with the U.S.
“It is our duty to do everything we can to protect our nation, including educating citizens and even discouraging non-essential travel to Mexico,” CBP’s statement continued.
The agency confirmed it began practicing the new measures on Aug. 21. On Saturday, NBC 7’s sister station, Telemundo 20, witnessed long waiting lines at the border for people coming to San Diego from Tijuana at the San Ysidro Port of Entry. A large majority of booths at the entry port were closed.
This article was originally written in Spanish on Telemundo 20. Click here to read the original story.
3. EAD Printing Delays Lead to USCIS I-9 Policy Flexibility
U.S. Citizenship and Immigration Services (USCIS) has acknowledged production delays in printing Employment Authorization Documents (EADs) due to the COVID-19 pandemic. As a result, USCIS said, foreign nationals may use Form I-797, Notice of Action, with a notice date “on or after December 1, 2019, through and including August 20, 2020,” informing the applicant of approval of Form I-765, Application for Employment Authorization, as a Form I-9 (Employment Eligibility Verification) List C #7 document that establishes work authorization, even though the notice states it is not evidence of that. “Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a List C document for Form I-9 compliance until December 1, 2020,” USCIS said.
For I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. By December 1, 2020, USCIS said, employers must reverify employees who presented the I-797 Notice of Action as a List C document. “These employees will need to present their employers with new evidence of employment authorization from either List A or List C,” USCIS said.
This flexible policy is part of a proposed settlement to resolve a proposed class action lawsuit challenging delays in the printing of EADs. The lawsuit claims the agency has a printing backlog of approximately 75,000 EADs.
4. USCIS Reminds F-1 Nonimmigrants in Post-Completion OPT and DSOs of Sever Consequences for Not Entering Employer Info in SEVIS
U.S. Citizenship and Immigration Services (USCIS) issued a reminder on August 18, 2020, to F-1 nonimmigrant students and their designated school officials (DSOs) that they must update the employer information in the Student and Exchange Visitor Information System (SEVIS), including unemployment data, because “exceeding unemployment limits can result in a loss of status.” USCIS said that SEVIS “will count each day without employer information toward the total number of unemployment days allowed.”
F-1 nonimmigrants must notify their DSOs within 10 days of any changes in their personal or employment information. In turn, DSOs must update SEVIS with the F-1 nonimmigrant’s information within 21 days. USCIS said that in addition to a possible loss of status, failure to timely update employer information in SEVIS and thus exceeding unemployment limits could result in USCIS’s initiating revocation proceedings for the F-1 nonimmigrant’s employment authorization document or negatively affect the F-1 nonimmigrant’s future benefit requests filed with USCIS.
5. DHS Blasts GAO Report on Invalidity of Appointments of Wolf and Cuccinelli, Demands Rescission; GAO Refuses
Following last week’s bombshell report from the U.S. Government Accountability Office (GAO) finding invalid the appointments of Chad Wolf as Acting Secretary for the Department of Homeland Security (DHS) and Kenneth Cuccinelli as Senior Official Performing the Duties of Deputy Secretary, DHS asked GAO to rescind its finding. GAO refused.
DHS’s letter to GAO’s General Counsel, Thomas Armstrong, sent August 17, 2020, and signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, states that GAO’s conclusions are “baseless and baffling” and that the report is “premised on multiple errors,” questions GAO’s authority to even issue the report, calls the timing of the report “suspect” because it was released 80 days before the presidential election, questions the staffing of the report, and asserts that GAO “must accept [DHS’s] permissible interpretation” that “[t]he moment that Secretary [Kirstjen] Nielsen invoked her authority, she overrode all past designations.” The letter includes a photo of Secretary Nielsen swearing in Acting Secretary Kevin McAleenan, which GAO had found set in motion a chain of invalid succession.
GAO’s response to DHS’s letter, sent August 21, 2020, and signed by Mr. Armstrong, states that a rescission of its August 14 decision is denied because “DHS has not shown that our decision contains either material errors of fact or law, nor has DHS provided information not previously considered that warrants reversal or modification of the decision.” Among other things, GAO’s letter notes that “GAO will modify or reverse a prior decision only if it contains a material error of fact or law.” GAO further said that an agency’s interpretation “is not entitled to deference unless the controlling language is ambiguous, nor is deference available” to an agency’s rationalization advanced after the fact to defend past agency action.
6. Two Lawsuits Challenge Fee Rule
Two lawsuits were filed recently challenging U.S. Citizenship and Immigration Services (USCIS) fee hikes and related actions:
AILA/Sidley lawsuit. The American Immigration Lawyers Association (AILA) and Sidley Austin LLP filed a lawsuit on August 20, 2020, challenging the legality of the Department of Homeland Security’s (DHS) final rule increasing the costs of applying for many immigration benefits. The suit seeks an emergency injunction to prevent the fee rule from taking effect on October 2, 2020.
The complaint states that the final rule is unlawful because it was proposed under Kevin McAleenan and issued under Chad Wolf, “both of whom assumed the title of Acting Secretary of [DHS] without constitutional or statutory authority.” The complaint states that the final rule “is therefore void and without effect.”
The complaint notes that for low-income applicants, the final rule increases the cost of applying to naturalize, in some cases from $0 to $1,170, and charges a non-waivable fee for asylum applicants for the first time in U.S. history “even though the fee will deter vulnerable people from seeking statutory protection.” The complaint states that the final rule also requires asylum seekers to pay $580 to obtain their first employment authorization, and calls for an unexplained budget increase of 21 percent.
Immigrant advocacy groups lawsuit. Northwest Immigrant Rights Project, Ayuda, Inc., and Casa de Maryland, Inc., filed a lawsuit on August 21, 2020, challenging a series of actions by DHS that “make it significantly more difficult and expensive for immigrants to apply for vital immigration benefits: naturalization, employment authorization, asylum, and others.” The complaint notes that in addition to raising fees, in some cases by exorbitant amounts, DHS eliminated fee waivers for all but a few narrow categories of immigrants. “DHS expects that its new rule will force immigrants to pay a combined total of about $1 billion in extra fees to USCIS per year, to fund operations that DHS does not explain and to raise money against an outdated estimated budget,” the complaint states.
7. State Dept.’s Visa Bulletin Includes Info on Employment Limit for FY 2020 and DV-2021 Results and Timetable
The Department of State’s (DOS) Visa Bulletin for the month of September 2020 includes modest forward movement in the family-based immigration categories. There was no movement in the employment-based preference categories, with the exception of a slight move forward for India and China in the EB-1 category. September’s bulletin includes the following information:
- The employment preference numerical limit for fiscal year (FY) 2020 is 156,253. For FY 2020, the per-country limit is 26,758. The dependent area annual limit is 7,645.
- The Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2021 diversity visa lottery. Approximately 132,404 applicants have been registered and notified and may now make an application for an immigrant visa from among the 55,000 permanent resident visas available under this program for the fiscal year. Selected applicants who do not receive visas by September 30, 2021, will derive no further benefit from their DV-2021 registration. The bulletin also includes a country-by-country breakdown of those registered for the DV-2021 program.
- Dates for the DV-2022 program registration period will be widely publicized in the coming months.
8. Virginia Man Arrested on $21 Million H-1B Visa Fraud Conspiracy Charges
Ashish Sawhney, of Sterling, Virginia, was arrested on August 20, 2020, on charges of conspiracy to commit visa fraud and for inducing undocumented people to come to the United States using fraudulently obtained H-1B visas.
According to court documents, Mr. Sawhney allegedly used four corporations to orchestrate the improper submission of fraudulent applications for H-1B specialty occupation temporary work visas. The six-count indictment alleges that he used the four corporations to purport to provide information technology staffing and software development services for commercial clients in the United States. He submitted or caused to be submitted H-1B visa application materials stating that the foreign workers named in the applications would fulfill a specific job when, in fact, no such job existed. Through Mr. Sawhney’s ownership and direction of the scheme, the indictment alleges, his companies generated gross profits from 2011 to 2016 of approximately $21 million.
Government Agency Links
Immigrant and Employee Rights Section webinars. The Department of Justice’s Immigrant and Employee Rights Section, of the Civil Rights Division, is offering free webinars June through August for workers, employers, and advocates. For more information or to register, see https://www.justice.gov/crt/webinars (scroll down for the listings by date).
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
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 the public in April, May, and June. These include 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 April 2020 calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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.