Author: Beth Stickney

UPDATE:  Under the Presidential Proclamation issued originally on April 22, 2020 and extended on June 24, 2020, entry to the U.S. of anyone selected in the DV-2021 lottery likely won’t be possible before January 1, 2021.  Nonetheless, in the event that the entry ban is rescinded or isn’t extended beyond December 31, 2021, DV-2021 lottery winners  abroad should proceed as normal with the paperwork process to get a consular interview regardless of the entry ban.

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DV-2021 visa lottery entrants can check the State Department’s website to see if they were selected in the lottery beginning on June 6, 2020.  The link to do so is here.

If selected, the individual (and her/his spouse and unmarried children under age 21) would be able as of October 1, 2020 to file the forms necessary to apply for an immigrant visa abroad, or if in the U.S. already and eligible to do so, to apply to adjust status to permanent residency without leaving the U.S.  The DV visa must be issued, or the adjustment to permanent resident application must be approved, by September 30, 2021, or the ability to immigrate evaporates.

Many of Maine’s immigrants, including those seeking asylum or holding other temporary statuses, register for the annual lottery in hopes of gaining permanent residency.  Even if selected in the lottery and already in the U.S., they may be ineligible to apply to adjust their status in the U.S., and would instead have to request an immigrant visa at a U.S. consulate abroad.    This can be extremely complicated, and in many cases, will make it impossible to gain residency through the lottery despite being selected.

Should the April 22, 2020 Presidential Proclamation suspending visa issuance and entry of immigrants to the U.S. be extended into FY 2021, DV lottery winners who must apply for their immigrant visas at U.S. consulates abroad will face additional complications.

Anyone in the U.S. who is selected in the DV-2021 visa lottery should get legal advice from an experienced immigration lawyer as soon as possible, well in advance of the start of FY 2021 on October 1, 2020, to determine whether s/he will actually be able to gain residency through the lottery, and which process to follow if so.

 

At the outset of the current fiscal year, the administration announced that it would cut refugee admissions to no more than 18,000, the lowest cap since passage of the Refugee Act of 1980.

However, it’s likely that far fewer than that number of refugees will have been resettled in the U.S.  when the fiscal year ends on September 30, 2020.

From October 1, 2019 through May 30, 2020, only 7,544 refugees had been resettled in the U.S. – with only four months remaining in the fiscal year.  In contrast, the U.S. resettled nearly 85,000 refugees in FY 2016.

In Maine, only 26 refugees have arrived for resettlement so far in FY 2020, and with COVID-19 restrictions, that number is unlikely to go up significantly by the fiscal year’s end.   In FY 2016, over 600 refugees were resettled in Maine.

UNHCR reports that 134 countries that host refugees waiting for resettlement have been hit by the pandemic, and refugees are at high risk due to their limited access to health care, clean water, and sanitation systems.    Unfortunately, refugees will not be able to count on the U.S. for safe haven.

 

As we’ve noted previously, COVID-19 has revealed the critical role that immigrants play in fields that the pandemic has underscored are essential to the health of our nation, particularly in healthcare, and in the food supply chain.

But many immigrants and people of color work in low wage jobs that are particularly vulnerable to the impacts of the COVID-19 shut-downs.  Restaurant workers, hotel staff, office cleaners, etc. all have faced job losses.   And immigrants in essential jobs also often must choose between staying home if they feel their workplace is unsafe/unhealthy, or working and taking the chance of being infected with COVID-19 in order to keep a roof over their heads or feed their families.

As a result, immigrants disproportionately bear both the health and the economic impacts of the pandemic, nationally, and in Maine.

Here are some resources to learn more:

Bangor Daily News:    Black Mainers are getting the coronavirus more than 10 times the rate of white Mainers, May 24, 2020

Migration Policy Institute: COVID-19 and Unemployment: Assessing the Early Fallout for Immigrants and Other U.S. Workers, June 2020

Pew Research Center:  Financial and health impacts of COVID-19 vary widely by race and ethnicity, May 2020

Urban Institute:   Hispanic Adults in Families with Noncitizens Disproportionately Feel the Economic Fallout From COVID-19 , May 2020

Urban Institute:   How COVID-19 Is Affecting Black and Latino Families’ Employment and Financial Well-Being, May 2020

 

A selection of recent articles and reports MeBIC found of interest that you may have missed.

• Pew Research Center:   Education Levels of Latino Immigrants in the U.S. Reached New Highs  as of 2018, April 7, 2020

About a quarter (26%) of recently arrived Latino immigrants ages 25 and older had a bachelor’s degree or more education in 2018, up from just 10% in 1990. They are among a rapidly growing share of recently arrived Hispanic immigrants who have completed high school – 67% in 2018, up from 38% in 1990. These increases have helped raise the education levels of all Latino immigrants and shifted the group toward high-skill occupations and away from low-skill ones.

• Cato Institute:    12 New Immigration Ideas for the 21st Century, May 13, 2020

Policy analysts, economists, political scientists, journalists, and advocates from around the world offer new policy suggestions that future Congresses could use to liberalize the legal immigration system.

• Brookings:  Less Gratitude Please:  How Covid-19 Reveals the Need for Migration Reform, May 22, 2020

(K)ey, essential workers have been celebrated as heroes during the pandemic, with weekly clappings and accolades from the highest levels of power: Upon leaving hospital after his personal encounter with the virus, U.K. Prime Minister Boris Johnson praised the two migrant nurses who cared for him—Jenny from New Zealand and Luis from Portugal.

So what would it take to turn gratitude into policy and practice change?

• Dallas Morning News:   On the Front Lines:  Latinos Fight the Coronavirus, Poverty, and Vulnerability as Contagion Rages through Texas, May 28, 2020

Latinos are on the coronavirus front lines, providing for people as workers in food factories to the trucking industry to cleaning businesses. They are also at the front of the line to catch the virus because of where they work, lower incomes and health care problems…… Latinos have been losing their jobs at a higher rate than any other demographic group in the nation, with nearly a fifth now unemployed…… Many Latinos who still have jobs face a vicious trade-off: Is the paycheck worth sacrificing their health at a crowded workplace?

• The Texas Tribune and Pro Publica:   The Trump Administration is Rushing Deportations of Migrant Children During the Coronavirus, May 18, 2020

While the deportation of children to dangerous situations is not a new phenomenon for U.S. authorities, what has shocked even veteran immigration attorneys is that the government is trying to so quickly remove, arguably against federal law, those most imperiled — all during a global pandemic.

A May 29, 2020 Presidential Proclamation suspended indefinitely the entry of certain F-1 and J-1 visa Chinese graduate students and researchers into the U.S.   The ban goes into effect at noon EST on June 1, 2020.

Some members of Congress urge an even broader ban on Chinese students, but some rightly dispute whether that would benefit the U.S.  China sends more foreign students to the U.S. than any other nation, and over 133,000 Chinese graduate students were enrolled at U.S. universities during the 2018-2019 academic year.

As summarized by the American Immigration Lawyers Association, the ban applies to:

graduate level and higher students and researchers from the PRC applying for visas or seeking entry into the U.S. who:

• • • receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or
    • have been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s military-civil fusion strategy.

The Proclamation does not apply to individuals from the PRC who are:

• • • Undergraduate students;
    • Lawful permanent residents of the United States;
    • The spouse of a United States citizen or lawful permanent resident;
    • A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;
    • A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;
    • A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;
    • A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or
    • A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Proclamation also authorizes the Secretary of State to determine if any Chinese citizens already in the U.S. should have their F-1 or J-1 visas revoked.

Announcement of a ban on additional categories of temporary visa holders worldwide is reportedly expected soon.

 

U.S. Citizenship and Immigration Services (USCIS), whose offices nationwide have been closed since March 20, 2020 to in-person services due to COVID-19, will begin reopening its offices beginning on June 4, 2020.

Since its closure to in-person services,  USCIS has postponed hundreds of thousands of interviews for residency, asylum and other applications, as well as citizenship swearing-in ceremonies for an estimated 150,000 individuals who had already passed their naturalization interviews.

Even as it begins to reopen, USCIS says that it may have to do massive staff lay-offs if it does not get $1.2 billion from Congress.    Services at USCIS may not be back to normal for some time, despite the pending reopenings.

 

In a May 21, 2020 letter to the administration, over 300 businesses and organizations opposed a widely anticipated action to curtail nonimmigrant visa programs for professional level workers.

The April 22, 2020 Presidential Proclamation suspending entry of immigrants for 60 days promised to examine whether certain categories of nonimmigrants (temporary visa holders) should also be halted since allegedly they compete with and lower the wages of U.S. workers.

Potentially affected nonimmigrants include foreign students doing curricular or post-graduate practical training (OPT), professional level workers such as multinational corporation intracompany transferees (L-1 visas) and specialized knowledge professionals (H-1Bs) and their spouses (H-4s), and reportedly, H-2B seasonal non-agricultural workers.

The letter particularly focuses on the impact that halting or limiting these programs would have in STEM fields.   As this Forbes commentary summarizes:

What is at stake is the ability of U.S. employers to access uniquely skilled professional workers from outside the United States, job creation from the know-how and innovation they bring, and the economic impact their entrepreneurship can provide to reinvigorate the American economy.

A recent report highlights that H-1B visa holders don’t adversely affect the prospects of U.S. workers with similar skills and education, and that during the recovery from the Great Recession, areas with fewer H-1B workers recovered more slowly than those with higher H-1B visa approvals.

This op-ed in the Wall Street Journal (paywall) even predicts that any action to halt professional nonimmigrant visas will end up benefiting China,  giving it  “a critical opportunity ‘to bolster its ranks of high-end talent.’ Chinese companies could win two simultaneous victories: Their U.S. competitors would be weakened, and they could recruit much-needed talent from overseas.”   The op-ed projects that any presidential action would hit the U.S. semiconductor industry particularly hard.

Several Senate Republicans recently wrote to the President asserting that “(g)uest  workers are needed to boost American business, not take American jobs” and that “vulnerable American businesses across all industry sectors, including farming, forestry, packing, hospitality, healthcare, and communications and information technology…rely on non-immigrant guest workers to survive.”

At this writing, the President had yet to announce which nonimmigrant visa categories will be cut, but few expect temporary working visas to remain untouched.

An  April 2020 report issued by the Governor’s Office on Policy Innovation and the Future recommends steps that Maine can take to help foreign educated and trained professionals work in their chosen careers and to their highest potential.

Maine’s foreign born population is highly educated, with nearly comparable rates of undergraduate degrees, and higher rates of graduate degrees (17.2% compared to 11.2%) than native Mainers.  But “brain waste” is prevalent due to multiple barriers preventing  them from putting their education and experience to full use.  Indeed, many are working in jobs that may require at best a high school degree, when they worked as doctors, engineers, accountants, lawyers and judges before coming to the U.S.

The barriers to being able to work to their fullest potential are many, from imperfect English to professional licensing criteria that may not accept their foreign university degrees or experience.

Supporting Maine’s Foreign-Trained Professionals  explains the many challenges, and makes concrete recommendations for short-term actions and long-term strategies the State can take to reduce the barriers they face when trying to get back into their fields in Maine.   While  addressing some of the challenges will require national action (for example, national boards establish the process for licensing doctors to practice medicine), if it has the political will, Maine can make great strides in barrier reduction.

As the State takes steps to recover from the economic damage of COVID-19, it should prioritize the report’s recommendations among them.

 

On May 5th and 8th, 2020 respectively, the Senate and the House of Representatives introduced the Healthcare Workforce Resilience Act (S. 3599, H.R. 6788)  in order to speed up the permanent residency process for foreign-born nurses and doctors in the U.S.   The bill has bipartisan support in both chambers.  Maine’s Senator Angus King is a co-sponsor.

The bill would “recapture” employment-based immigrant visas unused from 1992 through FY 2020, in order to increase the number of visas available to doctors and nurses waiting in the pipeline for permanent residency.  It would also remove annual limits on the number of immigrants that can come from any single country.  Twenty-five thousand recaptured visas would be made available for nurses, and 15,000 for doctors.  Without the bill, the these medical professionals will be waiting for years, and in some cases decades, before they could begin the final steps for permanent residency.  Finally, the bill would require doctors and nurses’ residency applications to be processed under existing expedited “premium processing” procedures, without being charged the usual extra premium for this service.

While on the immigrant visa waiting list, most of these doctors and nurses are on nonimmigrant visas that don’t allow them to work where the need is greatest without violating the terms of their visas, even if their petitioning medical facility approves.  And if they violate  their visas, that can make them ineligible for permanent residency.

Immigrants punch above their weight in the U.S. healthcare system.  While less than 14% of the U.S. population, they represent 28% of doctors, and 15.5% of registered nurses.  The COVID-19 crisis is highlighting flaws in the U.S. immigration system preventing the flexibility for healthcare professionals that this public health crisis demands.

The Healthcare Workforce Resilience Act is common sense legislation that will allow these essential foreign doctors and nurses to gain the permanent status they deserve and to serve wherever they are needed.

MeBIC supports the bill.

 

On May 15, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES Act), another COVID-19 relief bill.

The over-1800 page bill is far ranging, but includes many provisions affecting immigrants, including several fixes to omissions in the prior relief bill, the CARES Act.

Many immigrants pay taxes with Individual Taxpayer Identification Numbers (ITINs), and there are millions of “mixed status” families comprised of U.S. citizens and their undocumented spouses or parents who do not yet have Social Security cards.  As explained here, the CARES Act, with one exception for households with a military spouse, made families with a spouse who lacks a Social Security number,  and ITIN tax filers, ineligible for the up to $1200 per individual or $2400 per married couple economic impact payments.  The Migration Policy Institute estimates that about 15.4 million people who live in mixed status families are ineligible for the payments under the CARES Act, including 5.5 million U.S. citizens and permanent residents.

Under the HEROES Act, immigrants who file taxes with an ITIN, and “mixed status” family members who have Social Security numbers, would be able to receive the economic impact payments if they are income eligible, even if one spouse is ineligible.  This would be both a humane and an economically sound correction, since the stimulus payments are spent in the recipients’ local economies, and may protect them from homelessness and other economic crises.

In addition, the HEROES Act would enable all low-income immigrants, regardless of status, to access free COVID-19 testing and treatment.  Currently, many low-income immigrants, including permanent residents during their first five years of residency, asylum seekers, and the approximately one million individuals with Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA), are ineligible for Medicaid.   The HEROES Act recognizes that COVID-19 makes no immigration status distinctions.  It’s imperative that no one who suspects being infected with COVID-19  be afraid to access testing and treatment due to inability to pay.

The HEROES Act would also:

• • protect immigrants from loss of status by granting automatic extensions for immigration filing deadlines that could not be met due to USCIS office closures during the pandemic;
  • excuse those whose authorized stay expired but could not depart the U.S. due to travel  obstacles caused by the pandemic;
  • require that USCIS create a mechanism for conducting naturalization oath ceremonies remotely (hundreds of thousands of immigrants have passed their naturalization interviews and are waiting to be sworn in);
  • expedite permanent residency for certain foreign-born doctors already practicing in the U.S.;
  • expedite nonimmigrant visas for those who would be working in health care, and provide them with new flexibility to work where the need is greatest;
  • give temporary legal status to undocumented workers in sectors deemed “essential” during the pandemic, such as workers in the food supply chain and health care,

among many other immigration provisions.

Maine’s Representative Pingree voted in favor of the the HEROES Act, while Representative Jared Golden voted no.   The Senate has already objected to much of the HEROES Act,  but  these immigration provisions should be included in any future COVID-19 relief bill that is negotiated.

A May 2020 report from the National Foundation for American Policy finds that the H-1B program, which is under threat of curtailment by the administration, does not adversely affect U.S. workers, and instead has a positive impact.

In April, a Presidential Proclamation suspended entry of new immigrants into the U.S. for 60 days (with extensions likely), and promised to examine nonimmigrant (temporary) visas for possible later suspension.

Signals from the administration indicate that it is considering expanding the entry suspension to the nonimmigrant visa categories most important to the economy, including  H-1B visa specialized knowledge professionals, on the rationale that these workers compete with and lower the wages of U.S. workers.

The new report finds the following:

• •  H-1B workers account for only about 2% of highly educated workers in the U.S;
  • increases in the share of H-1B workers in an occupation results in a slight decrease in unemployment, and a slight boost in earnings of U.S. workers in that occupation;
  • H-1B visa holders do not adversely affect U.S. born recent college graduates;
  • A reduction in H-1B visas would likely result in companies moving those positions abroad, which could slow, rather than enhance the economic recovery following the effects of COVID-19.

Overall, the report notes that

The presence of H-1B visa holders increases innovation, productivity and profits at H-1B employers and boosts total productivity and innovation in the United States.

You can find the report here.

Due to the impact of COVID-19, on May 14, 2020, the Department of Homeland Security issued a new regulation that took effect immediately.  The rule provides temporary flexibility to facilitate  employment in essential food supply chain jobs of seasonal non-agricultural workers already in the U.S. in valid H-2B status as of March 1, 2020.  Employers must request the flexibility created by the new rule before September 11, 2020, although the rule remains in effect through May 15, 2023.

As explained in this U.S. Citizenship and Immigration Services (USCIS) summary, the temporary rule allows an employer  “with an approved temporary labor certification (to) start employing H-2B workers already in the United States for positions essential to the U.S. food supply chain, immediately after USCIS receives the H-2B petition and the new attestation, but no earlier than the start date of employment listed on the petition. Additionally, DHS is temporarily amending its regulations to allow certain H-2B workers to stay beyond the three-year maximum allowable period of stay in the United States.”

In addition to completing the normal recruiting requirements and usual paperwork with the Department of Labor and USCIS, the employer must also attest via new Form ATT-H2B that the H-2B worker is needed for an essential non-agricultural food supply chain position, defined as:

• Processing, manufacturing, and packaging of human and animal food;
• Transporting human and animal food from farms or manufacturing or processing plants to distributors and end sellers; and
• Selling human and animal food through a variety of sellers or retail establishments, including restaurants.

USCIS also issued guidance on May 21, 2020 to employers on how to complete the I-9 Employment Authorization Form for any H-2B workers hired under the new rule.

Unfortunately, the temporary rule fails to address the shortage of H-2B visas overall due to the 66,000 annual H-2B visa cap.  Nor does it raise the cap to the full extent allowed for the remainder of FY 2020 by Congress.  It also doesn’t help employers unable to get their H-2B workers to the U.S. from abroad after U.S. consulates suspended processing their visas due to COVID-19.

As a practical matter, therefore, the impact of this temporary rule during the current fiscal year may be extremely limited.

 

 

 

On April 10, 2020, USCIS published a proposed change to forms I-864, I-864A and I-864EZ,  the Affidavit of Support forms required for virtually all immediate family members of U.S. citizens or permanent family members to be approved for permanent residency.  The public is able to comment until 11:59 p.m. on May 11, 2020.

The proposed changes will likely result in decreased immediate family immigration.  Apart from the damage this will cause the divided families of U.S. citizens and permanent residents, it will also harm Maine, which needs continued immigration due to our aging population, low birthrates, and shrinking workforce.  Two-thirds of Maine’s immigrants arrive through immediate family immigration.  Reduced immigration by relatives of U.S. citizens and permanent resident harms Maine’s communities and the economy.

The proposed changes would require any U.S. citizen or permanent resident who petitioned for their immediate family member, or any person serving as a joint sponsor, to provide their detailed bank account information on the Affidavit of Support forms.   This would include their bank’s routing number, account number, and names of any other joint owners on the account.  This change is an enormous invasion of privacy and raises concerns of increased potential exposure to identity theft.   U.S. citizens and permanent residents should not have to trade off the privacy of their bank account details for unification with their loved ones.

USCIS is also proposing that the forms, which since 1997 have been signed under pains and penalties of perjury, be signed before a notary public, adding additional burden to sponsors and joint sponsors, particularly if they live in rural areas with no nearby notary.  The forms have long required that income be verified by attaching tax transcripts obtained from the IRS, making this proposed change unnecessary.

Both of the proposed changes exceed Congress’s mandate when it created the Affidavit of Support requirement.

MeBIC submitted a comment strongly opposing the changes.

 

 

 

The Department of Homeland Security (DHS) has announced several temporary policy changes introducing flexibility into the normal I-9 or E-Verify Employment Authorization verification process.

 

• Effective May 1, 2020, employers will be allowed to temporarily accept identity documents on “List B” that expired on March 1, 2020 or later, such as drivers’ licenses that could not be renewed because of COVID-19 closures of state motor vehicles departments.  Affected employees will later need to provide an unexpired document within 90 days of DHS’s eventual termination of the temporary policy.    Read the announcement for more details.

 

• On May 1, 2020, DHS instructed agricultural employers who do not use E-Verify about how to complete the I-9 form when they hire H-2A seasonal agricultural visa workers who are the subject of increased flexibility under a temporary rule change that took effect on April 20, 2020.   Under the COVID-19 related rule change, an H-2A visa holder already in the country whose work with one employer has ended can begin work with another employer if an extension of stay petition was filed with USCIS on the worker’s behalf on or after March 1, 2020 and is still pending, without having to wait for the petition’s approval.   Read the announcement for more details about how employers can properly complete Form I-9 in these circumstances.

 

•  We have noted previously announced temporary changes to the normal I-9 or E-Verify completion requirements here.