Author: Beth Stickney

The Department of Homeland Security is set to issue a final rule to take effect on October 2, 2020 raising the filing fees on applications for permanent residency, citizenship, employer petitions for foreign workers, and humanitarian protections for abused, neglected or abandoned juveniles, for victims of domestic violence, human trafficking and other crimes, and for asylum seekers.

These fee increases will make it far harder for low-income individuals to apply for immigration benefits for which they are eligible.  In 2019, even before the coronavirus pandemic, nearly 40% of U.S. households were challenged to cover an unexpected $400 expense, and nearly 30% were barely able or were unable to pay all their monthly bills, according to the Federal Reserve.

Here are just some of the fee increases that will affect Maine’s employers and U.S. citizens and permanent residents:

• Petition for specific H-2A temporary agricultural workers:  from $460 to $850, an 85% increase
• Petition for specific H-2B temporary non-agricultural workers:  from $460 to $715, a 55% increase
• Permanent residency application, with accompanying application to work:  from $1140 to $1680, a 47%  increase
• Application for U.S. citizenship: from $640 to $1170, an 83% increase
• Work permit application:  from $410 to $550, a 34% increase

In addition, the U.S. for the first time will make asylum applicants pay to seek asylum, becoming only the fourth country in the world to do so, joining Iran, Fiji, and Australia.   And asylum seekers will no longer be able to request their first work permit for free.   Instead, even though beginning on August 25, 2020, their wait time for eligibility to request a work permit will double from 180 days to a full year after they apply for asylum, asylum seekers will be expected to pay the filing fee – despite having had no means to legally work and earn money to pay the fee.

The rule also eliminates fee waivers for many categories of applications, and makes those waivers far harder to get.  Under the rule, asylum seekers cannot request a fee waiver to apply for asylum or for their first work permit – which can reasonably be viewed as an attempt by the administration to dissuade those fleeing persecution from seeking safety in the U.S.

The new filing fees will make it far more expensive for U.S. employers to petition for many foreign workers, and will make it harder for low income immigrants to be able to apply to get protection, work permits, permanent residency, and citizenship, all applications that add to family stability and can improve income status and civic participation.

 

President Trump entered the presidency following a campaign that was explicitly anti-immigrant, and took his initial action to upend the nation’s immigration system in his very first week of office.

Since then, the reforms his administration has introduced via executive orders, presidential proclamations, agency procedural changes, rewrites of regulations, immigration judge appointments, and revisions of case law by the Attorney General, have been sweeping, leaving virtually no aspect of immigration law untouched.

While the “border wall” was designed to showcase his administration’s attempts to deter entry by those without visas, his attacks on legal immigration to the U.S. have far exceeded what many expected, and all while bypassing Congress, the only entity with Constitutional authority to craft federal statutes.

The administration has seized on COVID-19 to accomplish even more extreme measures that may be couched as “temporary” but are likely to be extended, including blocking virtually all legal immigration.  Administration actions now prevent U.S. citizens and permanent residents from being reunited with their immediate families, employers from accessing the permanent and temporary or seasonal talent they need to stay competitive, refugees from resettling, and asylum seekers from requesting safety from persecution.

The Migration Policy Institute has issued a July 2020 report that catalogues the vast array of changes comprehensively.   As the MPI summarizes,

Now well into its fourth year, the administration has undertaken more than 400 executive actions on immigration, spanning everything from border and interior enforcement, to refugee resettlement and the asylum system, Deferred Action for Childhood Arrivals (DACA), the immigration courts, and vetting and visa processes.

While there is no question that the U.S. immigration system has been badly in need of modernization, the changes made by this administration go far beyond needed reforms, leaning instead towards remaking the country into an unrecognizable one that is no longer a “nation of immigrants.”

Learn more by reading the MPI report here.

On June 18, 2020, the U.S. Supreme Court struck down the administration’s 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) program.

As a result, the administration should have begun accepting new DACA applications, but refused to do so, resulting in a subsequent July 17, 2020 federal court order ordering it to.

Rather than comply, the administration issued a memo on July 28, 2020 stating that it is reconsidering the DACA program.

In the interim, the memo stated that U.S. Citizenship and Immigration Services will not process or accept any new DACA applications, and that renewal applications for those who already have DACA protection will be limited to only one year rather than the two years that had been the prior policy.

The administration’s actions underscore the need for Congress to act.   For years polls have shown that a bipartisan majority of the public overwhelmingly supports providing a path to permanent status for DACA holders.  A June 2020 poll found that even 69% of those who voted for President Trump in 2016 are in favor.  While the conventional wisdom is that immigration is a wedge issue, members of Congress should not fear protecting “Dreamers” and DACA holders.

More than a year ago, the House of Representatives passed H.R. 6, the Dream and Promise Act that would end the uncertainty that DACA holders face as the administration “reconsiders” the DACA program.  It is past time for the Senate to do the same.

On July 21, 2020, President Trump issued a memo instructing the Commerce Department to exclude undocumented immigrants from the Census 2020 count as it relates to apportionment of Congressional representatives.

The move is notable for many reasons.   First, it is unprecedented.   The number of Congressional representatives apportioned among the states has been based on  the count of all “persons” living in each state, without regard to immigration status,  since ratification of the 14th Amendment.

Second, the challenges of accurately discerning who is and isn’t authorized cannot be underestimated.   The Migration Policy Institute estimates that millions of U.S. citizens could be excluded from the apportionment count as a result.

Third, while omitting undocumented immigrants would likely cause blue states like California to lose a representative, the Pew Research Center predicts that it would also result in loss of a Congressional seat in Texas and Florida, both red states.  So, any political motivation behind this unprecedented action would see mixed results.

In any case, the administration’s action is already being challenged in the courts.  Whether the courts will block it, as happened with the administration’s ultimately unsuccessful attempt to add a citizenship question to the 2020 decennial census, remains to be seen.

 

 

 

The U.S. Chamber of Commerce, together with the National Association of Manufacturers, the National Retail Federation, and other business groups, has filed suit seeking to block the administration’s ban preventing entry of nonimmigrant workers, including H-1B and L-1 professionals, through the end of 2020.

As the head of the National Association of Manufacturers stated when it announced the lawsuit:

these visa restrictions will hand other countries a competitive advantage because they will drive talented individuals away from the United States. These restrictions could harm every corner of our economy, as evidenced by the broad coalition that has come together to oppose them.

The administration has couched its entry ban (which expands an earlier ban preventing entry of virtually all new permanent residents) as a protection against job competition during the economic downturn resulting from COVID-19.  However, the CEO of the U.S. Chamber of Commerce refutes that premise, noting that the bans are part of a larger pattern by the administration to restrict legal immigration, that will harm the nation economically.  In a recent op-ed,  he said:

(t)aken together, these decisions form a broader policy that essentially says, “keep out the skilled, the brilliant, the young seeking to help us grow.’ The administration…. should now take the opportunity to promote economic growth and job creation by rescinding last month’s proclamation limiting legal immigration and abandoning its efforts to repeal DACA.

To be globally competitive, the U.S. needs access to global talent.   Several lawsuits against the administration’s entry bans are pending. Rulings are expected soon.

 

Immigration and Customs Enforcement (ICE) announced that it will extend flexibility for certain Employment Authorization Verification Form I-9 documentation requirements through August 19, 2020.   Originally announced in March, these COVID-19 related temporary changes that allow employers to delay in-person review of employment authorization documents of new employees who will be working remotely have been extended multiple times since then.

ICE’s announcement also puts employers on notice that after July 19th, it will grant no more extensions to employers who received notices of inspection from ICE in March 2020.

Update:    On July 30, 2020, Governor Janet Mills announced that $1 million in funding will be directed to efforts to reduce the disparate impact of COVID-19 on Maine’s immigrants and minority communities.   As immigrant leaders had requested (discussed below), funds will be dispersed to community organizations that are already working in the affected communities and have their trust, in order to do more outreach and education and testing to help prevent the spread of COVID-19, and to provide wrap-around services to immigrants and their families who must self-isolate and quarantine.

---

The Washington Post recently reported on the disturbing reality of COVID-19’s disparate impact on Maine’s African American and Immigrant populations.

Immigrants make up a large percentage of Maine’s Black population, and many recent immigrants work in essential jobs such as health and elder-care, in seafood and chicken processing and other food supply chain jobs, and in factories, including those making personal protective equipment (PPE).

MeBIC partner American Roots is one of the latter.   Responding to COVID-19, it pivoted from making vests and hoodies to making PPE for hospital staff.  Its workforce is overwhelmingly immigrant, and as reported in the article, when given the choice to collect Pandemic Unemployment Compensation or to continue to work to produce PPE, all of American Roots’ employees voted to keep working.  The company has now expanded five-fold, and despite spacing work stations six feet apart, placing barriers between work stations, and providing all employees with PPE, recently 11 of the company’s staff tested positive for COVID-19.

Even with the pandemic induced spike in Maine’s unemployment rate, when American Roots was hiring about 80 more employees to meet the production demand for PPE, the vast majority of those applying for their livable wage, good benefits, union shop jobs were asylum seekers and other recent immigrants.

The American Roots experience is just one example of immigrants working in essential jobs that can’t be done remotely.  Given their often congregate work settings, it is devastating that COVID-19 has hit immigrant communities hard, but not unsurprising.  As the article notes, and local media have also reported, while only 2% of Maine’s population are Black, they represent over 23% of COVID-19 cases.

The discrepancy highlights economic and health-care inequities that pre-existed the pandemic, but that COVID-19 has laid bare.   Leaders from Black, Indigenous, People of Color (BIPOC) and immigrant communities have called on the Mills administration to take aggressive steps to address the disparities.  MeBIC supports their calls to be partners at the table with those planning the responses, and for CARES Act funding to go to community organizations that work directly with and have the trust of affected communities. and to recognize that racism is a public health threat.

If you missed the Washington Post article, you can read it here.

On June 18, 2020, the Supreme Court struck down the administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program.   The program was restored to its pre-rescission state as a result of that decision.

The administration failed to comply with the decision, refusing to accept new DACA applications.   Now, the  Federal District Court of Maryland, which had ruled, as the Supreme Court later did, that the DACA rescission was “arbitrary and capricious”, has ordered the government to resume accepting new DACA applications.

The DACA program allowed immigrants lacking legal status who had lived continuously in the U.S. since July 2007 and who were under age 16 when they arrived in the U.S. to apply for protection from deportation and for work authorization.  However, one had to be at least 15 years old to apply.  Since the rescission announcement on September 5, 2017, tens of thousands of otherwise eligible youth who turned 15 after that date could not apply.

The Federal District Court of Maryland’s order means that USCIS must once again accept first time DACA applications.   It remains to be seen if the agency will do so, or if they will continue to defy the courts.

Another question is whether the administration is crafting a new method to undermine the DACA program without overtly rescinding a program in an election year that has overwhelming bipartisan public support.

On July 15, 2020, USCIS announced new policy guidance affecting guidelines for determining whether certain applications, including for many work permit categories, should be denied as a matter of discretion.

A review of the discretionary factors indicates that DACA holders may find their work permits discretionarily denied because they lack a way to get permanent residency soon, and because they may have entered the country (even unwittingly when they were toddlers with their parents) without authorization.  Even if they are granted a work permit, the new policy guidance is likely to lead to long delays in obtaining a work permit after requesting one.

Congress must act once and for all to allow DACA recipients and others who were eligible for DACA but were unable to apply for it since  September 5, 2020 to request permanent residency.  H.R. 6, The Dream and Promise Act, would do just that.  The House passed the bill in June 2019.  It’s high time the Senate did the same.

 

 

Since March 20, 2020, U.S. Consulates abroad have been closed due to the coronavirus pandemic for in-person interviews.  This essentially shut down visa processing for those immigrating to unite with their U.S. citizen or permanent resident immediate family members or through their employers or the visa lottery, and for nonimmigrant (temporary) visa applicants.

On July 14, 2020, the State Department announced that U.S. consulates would begin a phased in resumption of services.  Updates about which consulates have reopened and for which services will be posted on the State Department’s website, or on the website for each individual consulate.

Resumption of services is unlikely to be helpful to many, however, since two Presidential Proclamations have suspended entry for the remainder of 2020 of most immigrants, and of many temporary nonimmigrant workers must process their visas abroad and who have yet to be receive them.  While some people whose entry would be barred may be able to apply for a waiver, most individuals will not, and will have to hope that litigation challenging the Presidential Proclamations succeeds.

 

Update:  Despite the developments described below, on July 24, 2020, the government announced that students applying for F-1 or M-1 student visas, or trying to enter the U.S. with student visas to begin their studies at institutions offering only online courses due to COVID-19, or offering hybrid education where more than three credits would be online, will not be able to do so.

International students already in the U.S. who, according to the policy below, should be able to continue with their educations even if entirely offered in hybrid or online mode, would be well advised to consult with an experienced immigration attorney if they wish to travel abroad before traveling, until there is further clarification on their ability to return.

---

On July 14, 2020, a hearing was scheduled in the first lawsuit, filed by Harvard and MIT, challenging the administration’s week-old position that would have caused international student visa holders whose colleges will offer only online learning this fall to lose their legal status.   Several other lawsuits, representing 18 states and hundreds of higher education institutions have also been lodged.  Under the policy, colleges and universities had until Wednesday July 15th to inform the administration of their fall teaching plans.

On the day of the hearing, the administration rescinded its position, returning to the policy it has had in place since March 2020 providing flexibility to international students whose institutions have had to disrupt and modify their normal academic offerings and operations due to COVID-19.    According to the court,

The Court was informed by the parties that they have come to a resolution to the combined temporary restraining order/preliminary injunction motions. The Government has agreed to rescind the July 6, 2020 Policy Directive and the July 7, 2020 FAQ, and has also agreed to rescind their implementation. The Government will return to the March 9, 2020 and March 13, 2020 policy. This moots the temporary restraining order/preliminary injunction motions, [ECF Nos. 4, 30], and will preclude enforcement of the July 6, 2020 policy directive and July 7, 2020 FAQ, which are being rescinded on nationwide basis.

This is a major victory for international students, for U.S. colleges and universities, and for U.S. competitiveness and the economy.

It remains to be seen whether students will trust this change to last, and whether this misguided action by the administration will turn prospective international students towards study in countries such as Canada instead of  the U.S.

On July 9, 2020, the administration published another proposed rule further dismantling asylum protections in the U.S., following closely on the heels of its June proposed rule nearly obliterating the current U.S. asylum system.

At this point, the administration is not just trying to put the nail in the U.S. asylum system’s coffin; it is making sure the hole where asylum is buried will be ten feet deep, not six.

This newest proposal weaponizes the COVID-19 pandemic against people fleeing persecution and seeking safety in the U.S.

The proposed rule would  categorize as a “danger to the security” of the U.S. any asylum seeker who applies for  asylum who is from, or who has traveled through, a country impacted by an  infectious disease pandemic, or who shows symptoms of the illness.   In the context of the current coronavirus pandemic, this means that with 188 countries and regions of the world experiencing COVID-19, virtually every arriving asylum seeker would be classified as a “danger to security” were this rule to take effect.

Under existing asylum statutes, anyone deemed a “danger to the security” of the U.S is ineligible for asylum, and also for another form of protective relief, “withholding of removal”.   Therefore, under this proposed rule, an asylum seeker would only be able to seek protection if s/he were eligible under the Convention Against Torture, which applies to only a small fraction of asylum seekers.

The “danger to security” provision of U.S. asylum law ordinarily applies to would-be terrorists, spies, persecutors, serious criminals, or similar threats, not to those whose entry may raise public health concerns.   This is a cynical and callous overreach by the administration to impose yet another barrier to legitimate asylum seekers who look to the U.S. for safety and hope.

Comments opposing the proposed rule are due by midnight on August 10, 2020.   MeBIC will be opposing this rule for reasons similar to our opposition to the June proposed rule.   Contact MeBIC if you would like help submitting a comment in opposition.

The administration intends to prevent international students from retaining their legal status if their studies are online, even if required under their college or university’s COVID-19 response.

U.S. colleges and universities had to react quickly as the COVID-19 pandemic intensified this spring and pivoted to online learning.  At that time, the administration announced adjustments so that foreign students could take all of their courses online for the remainder of the spring, and the summer, terms.

Ordinarily,  to remain in valid student visa status, foreign students must take at least 12 credits per term, only three of which can be for online course work.

On July 6, 2020, the administration announced that beginning with the fall 2020 term, foreign students on F-1 or M-1 visas will be out of status if they are taking all their courses online  – even if their college or university is not allowing students to return for in-person classes.  If the institution certifies that it is offering a hybrid model of in-person and online classes, the student will remain in status only if taking no more than the minimum number of online credits required for the degree.   In addition, if a student’s college or university resumes in-person courses this fall, but during the term, switches to entirely online courses in response to a surge in COVID-19 cases, the foreign student will fall out of status.

A student who is out of status must leave the U.S. (even if there are not any available flights back to her/his home country), or prejudice her/his ability to return as a student or with any other visa in the future.

The administration’s position not only creates untenable uncertainty for foreign students, but also for U.S. colleges and universities where they are enrolled.   Moreover, as this statement from the American Council on Education highlights, they have tremendous economic impact –

Some one million international students attend U.S. colleges and universities annually, contributing greatly to this country’s intellectual and cultural vibrancy. They also yield an estimated economic impact of $41 billion and support more than 450,000 U.S. jobs.

The administration’s policy will have an impact in Maine, not just nationally, as a sampling of Maine’s higher education institutions makes clear.   While the University of Maine system plans to resume in-person classes this fall, nearly a quarter of its classes will be delivered online.   At Bowdoin, the majority of its upperclass students will take only online classes.   Under the administration’s policy, foreign students at Bowdoin would fall out of status under this model, and under this rule would be expected to leave the U.S.  or transfer to another college where they can attend in-person classes, rather than complete their studies at Bowdoin- even if this is their senior year.   Both Colby and Bates intend to have students return to campus, but many courses may be taught online.   As Bates has noted,

These new directives from ICE undercut our ability to educate students fully, cause unnecessary fear and anxiety, and run contrary to our national interest in positioning the U.S. as the higher education destination for talented and ambitious students from across the globe. Further, they directly undermine Bates’ ability to fully live up to our commitment to access, equity, and inclusion.

Harvard and MIT filed suit on July 8, 2020 requesting an injunction to block implementation of the administration’s rule.  Another 59 colleges and universities filed an amicus brief supporting their stance, as did 180 more institutions who joined a separate amicus brief.  The state of California also sued the administration on July 9th, with another 17 states filing suit on July 13th.   A ruling on Harvard and MIT’s lawsuit on whether or not to block the administration’s action is expected on July 15th.

If their lawsuits don’t succeed, the economic fallout and loss of access to international student talent could well be to the nation’s long term detriment.

The administration’s action continues its pattern of using the coronavirus pandemic to rapidly advance an agenda dramatically constricting legal immigration, including banning entry of new permanent residents, temporary foreign workers, refugees, and  asylum seekers.  The administration has been hostile to immigration since its outset in 2017, but ordinarily only Congress can change the nation’s immigration laws.  With the pandemic, the administration has ramped up its practice of using executive actions and rulemaking to bypass Congress, to transform the U.S. immigration landscape and close the nation’s doors.