Author: Beth Stickney

Here’s an update on extensions issued in September 2020 of a few COVID-19 adaptations by various immigration agencies.  Click on the links to get the full details.

• ICE announces that certain I-9 flexibility for employers is extended through November 19, 2020.
• CBP announces continued closure of Canadian and Mexican border posts to non-essential travel, through October 21, 2020.  These closures have been extended monthly since the initial closures took effect in March,  2020.
• USCIS extends deadlines for certain types of filings or responses due to notices, requests or decisions issued between March 1, 2020 and January 21, 2021.

Every year, the Trump administration has  drastically reduced the number of refugees resettled in the U.S.  For FY 2020, it set the ceiling at 18,000,  effectively a rebuke to the promise of safe haven aspired to during the previous 40 years by the Refugee Act of 1980.  Since that bill’s enactment, the average ceiling set by presidents of both political parties has been about 95,000 per year.

On April 22, 2020, a Presidential Proclamation suspended entry for 60 days of most new immigrants coming from abroad, purportedly to reduce job competition during the COVID-19 induced economic downturn.   On June 22, 2020, a further Presidential Proclamation extended that entry bar through December 31, 2020.

Following these proclamations, U.S. consulates refused to schedule visa interviews for intending immigrants, including those who had been selected in the FY 2020 Diversity Visa lottery.

On September 4, 2020, a federal court ordered the State Department to schedule immigrant visa interviews for FY 2020 Diversity Visa lottery winners, who will lose their ability to immigrate if they are not issued their visas by the end of the fiscal year on September 30, 2020.   Immigrant visas are valid for travel for six months after issuance.  So, lottery winners issued  their immigrant visas by September 30th would be able to immigrate to the U.S. in early 2021 if the entry bar is not extended beyond the end of 2020.

Due to a quarantine order for nationals of certain countries, the State Department indicated it would not comply with the federal court’s order for Diversity Visa winners from those countries.  On September 14, 2020, the federal court amended its order to compel the State Department to process the immigrant visa applications of Diversity Lottery winners regardless of the quarantine order, since they would still be able to quarantine after receiving their immigrant visas.

The vast majority  (98%) of those eligible to immigrate following selection in the Diversity Visa lottery enter the U.S. from abroad after immigrant visa interviews at U.S. consulates in their home countries.  At the time of the September 4th court order, only 7,000 individuals had managed to immigrate through  the FY 2020 Diversity Visa lottery, of the 50,000 visas available, largely due to COVID-19 related closures of U.S. consulates abroad.

The court order requires the State Department to act on the remaining winners’ visa applications by September 30th.    On September 17, 2020, the State Department directed the U.S. consulates that have reopened following their COVID-19 shutdowns to comply with the court’s order and prioritize scheduling Diversity Visa winners for their immigrant visa interviews.  It’s doubtful that the State Department can process the remaining diversity immigrant visa applications in that time frame, and it appears that Diversity Visa winners in countries where the U.S. consulates have not fully reopened may be out of luck.

Thousands of lucky FY 2020 Diversity Visa winners are unfortunately likely to find that they were not so lucky after all, as their dreams of immigrating to the U.S. evaporate when the fiscal year ends at midnight of September 30th.  This will be a loss not only for them, but for the U.S., which will lose their future contributions to our communities and economy.

 

 

On September 14, 2020, a divided federal appeals court overturned a lower court’s nationwide injunction blocking the administration from ending Temporary Protected Status (TPS) for citizens of El Salvador, Haiti, Nicaragua, and Sudan.   Maine was one of 21 states that filed a brief supporting the plaintiffs’ challenge to the TPS termination effort.

TPS is offered to citizens of countries that the U.S. deems unsafe due to natural disasters, wars, civil conflict and instability, so that those already in the U.S. on the date that their country is designated for TPS can apply to remain and work here legally.  It is typically offered in 18 month increments, and has often been extended repeatedly.

Approximately 195,000 Salvadorans have had TPS since 2001, and more than 50% of them have lived in the U.S. for over 20 years.  As of 2018, they were parents of 192,000 U.S. citizen children.  Nicaraguans have had TPS since 1999, Haitians since 2010, and Sudan since 1997.

Maine has hundreds of individuals with TPS living and working throughout the state who are integral members of our communities and labor force who face being placed in removal proceedings in 2021 if this ruling stands.  The plaintiffs have indicated they will appeal the ruling, but these individuals, who have solid roots in the U.S. and in Maine, deserve a clear path to permanent residency that only Congress can provide.

The House of Representatives passed H.R. 6, the American Dream and Promise Act in June, 2019, which would provide that path to permanent residency for those with TPS and those with Deferred Action for Childhood Arrivals status (DACA).   The Senate has never taken up the bill.  It is past time that it do so.

 

Maine’s Permanent Commission on the Status of Racial, Indigenous and Maine Tribal Populations, created by 2019 legislation, just issued Recommendations to the Legislature regarding steps Maine’s Legislature should take to help eradicate the systemic racism that perpetuates racial and ethnic inequities and disparities.

The Permanent Commission’s mission is to “to examine racial disparities across all systems and to specifically work at improving the status and outcomes for the historically disadvantaged racial, Indigenous, and Maine tribal populations in the State.”  To guide the Legislature in crafting legislation that will help end the perpetuation of systemic racism and will instead advance equity, the Permanent Commission created a filtering tool as a lens to examine all proposed legislation, asking “10 questions aimed at determining how much potential a piece of legislation has to combat racial inequities, particularly systemic or structural inequities.”

As part of their work, the Permanent Commission, together with 55 members of the State Legislature, applied those filters to 454 pending bills.  This examination resulted in identifying 46 of these bills as priorities for passage, with 26 of those 46 recommended as their “Tier 1” top priorities for passage.

L.D. 647, An Act To Attract, Educate and Retain New State Residents To Strengthen the Workforce, is one of the Permanent Commission’s Tier 1 bills.   L.D. 647 would increase the capacity of adult education programs to offer English as a Second Language classes, as well as combined ESL/Job Skills classes, both of which are broadly recognized as keys to Maine’s immigrants’ economic advancement and their ability to reach their full potential in the workforce.   The bill would also provide funding for Welcome Centers to help immigrants get into jobs commensurate with the education and experience they acquired abroad.

MeBIC helped draft L.D. 647 and was instrumental in achieving its successful passage in both chambers of Maine’s Legislature.  However, the bill was never finally enacted, as it awaited a vote on funding when the Legislature adjourned early due to the pandemic.

Since Maine’s Legislature  is unlikely to reconvene in 2020, L.D. 647 will need to be reintroduced in 2021.   MeBIC is gratified for the Permanent Commission’s endorsement of the bill as one of its top priorities, which may help the next iteration of the bill cross the finish line in 2021.

In a  proposed rule published on September 11, 2020, the Department of Homeland Security (DHS) once again attacks legal immigration, and opens up a new front against lawful permanent residents in the U.S.    While the rule’s title, “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services” may seem benign, the impact and the intent are anything but.

Comments opposing the proposed rule, which would be carried out by U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), are due by midnight on October 13, 2020.

This proposed rule continues the administration’s “death by a thousand cuts” efforts to  end legal immigration almost entirely.  And consistent with other regulatory reforms, such as the 2019 “public charge rule” change, this proposed rule,  while broadly applicable on its face, takes particular aim at immediate family immigration.

At the same time, it represents a sweeping collection of personal identifying data of U.S. citizens and immigrants alike.   The proposed rule estimates that 6.07 million people annually would be required to submit biometrics, a 55% increase from the average of 3.9 million currently.  Applicants for immigration status have long been required to submit biometrics so that DHS can vet them, but this new rule will require biometrics from anyone who files or is “associated with” an immigration application or petition filed on behalf of another.

The proposed rule’s biometrics requirements also apply to most nonimmigrants, but only if their countries require fingerprinting of U.S. citizens “temporarily residing” (a term which the rule fails to define) there.

Key provisions of the proposed rule include:

• Expanding the types of biometrics USCIS will collect to include not just the current photos, fingerprints, and signatures, but also palm prints, voice prints, iris prints, and in many cases, DNA.
• Requiring the following to submit biometrics in order for their  immediate family members to be approved to immigrate, including:
  • • U.S. citizens (native-born or naturalized) petitioning for their spouses, parents, children, siblings, and fiancé(e)s;
    • permanent residents (“green card” holders) petitioning for their spouses and unmarried children;
    • refugees and asylees petitioning for their spouses and children.
• Expanding those subject to providing biometrics to children of any age (currently those younger than 14 are exempt from routine biometrics submission).
• Requiring biometrics of certain immigrant crime victims and human trafficking victims.
• Requiring biometrics from any U.S. citizen or permanent resident joint financial sponsor of an intending immigrant.  Many immediate family members simply cannot immigrate without joint financial sponsors in addition to their petitioning U.S. citizen and permanent resident sponsors.  This change especially raises new barriers to immediate family immigration, by discouraging individuals from agreeing to be a joint financial sponsor due to the privacy concerns raised by the biometrics requirement and by the rule’s more cumbersome, intimidating, and expensive (sponsors must pay an $85 biometrics fee) process.
• Authorizing CBP to designate certain foreign workers as subject to the
  Temporary Worker Visa Exit Program, requiring them to submit biometrics and exit through specified ports of entry.
• Giving immigration agencies unprecedented authority to require biometrics of any noncitizen, including permanent residents , on a repeated basis “for purposes of continuous vetting, unless and until he or she is granted U.S. citizenship.”   This is notwithstanding that the rule states that DHS will store the biometrics digitally and can reuse them.

This last requirement not only casts aspersions that  “continuous vetting” of immigrants is needed, when to the contrary, data indicates that immigrants do not present  elevated crime or terrorism risks, but it also puts immigrants’ legal status at risk, since the rule says that DHS can revoke or rescind an immigrant’s status if s/he misses a biometrics appointment (which can easily happen when DHS sends a biometrics notice to the wrong address).  Put simply, this reflects an administration that doesn’t regard immigrants as the full and equal members of U.S. society that they are, who, like centuries of immigrants before them, have left everything dear to them behind, to come to the U.S. to work and to strive for a better life for themselves and their children.

Immigrants are already choosing to take their talents to other countries due in part to perceived hostility towards immigrants in the U.S.   That perception will only grow if immigrants are harassed through repeated calls to appear for biometrics already electronically stored in DHS’s files.

Even before the onset of the pandemic, since FY 2016 the U.S. has experienced steep legal immigration declines,  and executive actions following the onset of COVID-19 blocking entry of nearly all new immigrants from April 24, 2020 through December 31, 2020 will result in plummeting numbers this year.  The proposed rule, which would apply to those getting permanent residency from within the U.S., would reduce legal immigration even further.

The U.S., and Maine, need immigrants.  The proposed rule must be opposed, both for the reduction in immigration it will cause, and for the hostile message that it sends to immigrants that they are not valued and fully part of the “we” that makes up this nation.

MeBIC will be opposing this rule. 

On September 11, 2020, a federal appeals court stayed an injunction that prevented the controversial “public charge” rule finalized on October 15,  2019 from being implemented in Connecticut, New York, or Vermont.

While litigation challenging the public charge rule continues, as a result of this most recent decision, the rule will be applied nationwide.   As discussed in prior posts, the 2019 public charge rule will result in steep declines in the number of immediate family members of U.S. citizens and permanent residents granted permanent residency.

The rule has also been shown to chill U.S. citizens and permanent residents from getting food, rental and medical supports they are eligible for due to worries that their receipt of public benefits might lead to their immigrant family member being denied residency.  This is particularly concerning as the nation is impacted by COVID-19, when no-barrier access to medical care is of utmost importance.

 

 

 

A Pew Research Center survey of registered voters conducted in late July-early August 2020 found that since 2016, the share of those who say that immigrants  strengthen the country has grown.

In 2020, 60% of the registered voters surveyed said that the growing number of immigrants strengthened the United States, compared to 46% agreeing with that statement in 2016.  In contrast, 37% of those polled in 2020 said that the growing number of newcomers threaten the nation’s customs and values, compared to 50% in 2016.

Responses varied along partisan lines, with wide gulfs between registered voters who identified as supporting Trump in 2016 and 2020, and those supporting Clinton in 2016 or Biden in 2020, as indicated below.

The Pew poll result is consistent with other recent polls that indicate growing support for immigration despite rhetoric that might lead one to think otherwise.

McKinsey & Company has issued US Hispanic and Latino lives and livelihoods in the recovery from COVID-19, a September 2020 report that goes beyond looking at  COVID-19’s disparate health impacts on the U.S. Latinx population, also examining the economic impact and the challenges to economic recovery on these critical members of U.S. society.  As the report summarizes, the disparate impact affects the country as a whole because “(t)he population’s size and composition make it crucial to the US economy and society, and its vulnerability threatens the country’s overall recovery from the pandemic.”

The report notes that pre-pandemic, Latinx ownership of businesses with at least one employee had been increasing at rates higher than the non-Latinx population, but that about half of those businesses are concentrated in the five sectors hardest hit by the pandemic, including construction, hospitality, retail, and transportation.

During the pandemic, Hispanics’ and Latinos’ incomes—and safety—are in jeopardy in jobs that are vulnerable to both the pandemic and automation. The net effect is a drain on families’ financial and emotional reserves, and Hispanics and Latinos are more likely than white Americans to report being concerned about the financial implications of the pandemic….

Hispanic and Latino population growth means the country’s long-term recovery is inextricable from the recovery of Hispanic and Latino families, communities, and businesses. Indeed, the community’s unique assets—such as its relative youth and above-average rates of entrepreneurship—can contribute to more equitable postpandemic recovery and growth.

The report includes recommendations that the private and public sectors could follow, including steps to improve the Latinx population’s access to healthcare, education, housing, and capital.

Access the full report here.

 

 

 

The Department of Homeland Security has announced that it will extend its Temporary Protected Status (TPS) designation for South Sudan through May 2, 2022.  The current TPS period was due to expire on November 2, 2020.  The time frame for eligible South Sudanese to re-register for TPS has not yet been announced.

TPS is offered to citizens of countries that the U.S. deems unsafe due to natural disasters or wars and civil conflict, so that those already in the U.S. on the date that their country is designated  for TPS can apply to remain and work here legally.  It is typically offered in 18 month increments, and has often been extended repeatedly.  South Sudan was first designated for TPS in 2011.

Eligible citizens of South Sudan should check this USCIS webpage frequently for information about when they will be able to re-register for TPS.    Their work permits will be automatically extended for 180 days while their extension applications are in process.

 

 

The Education and Workforce Subcommittee of Governor Mills’ Economic Recovery Committee invited MeBIC to provide information and ideas aimed at ensuring that immigrants are fully included both in Maine’s plans for short term recovery from the coronavirus pandemic, and also in the talent attraction and development goals set out in the Maine Economic Development Strategy 2020-2029.   In addition to presenting and answering questions at a Subcommittee meeting, MeBIC provided its top recommendations to the Subcommittee on September 3, 2020.

MeBIC underscored that the need for Maine to address the lack of affordable, high quality childcare, affordable housing, robust public transportation infrastructure, and no-barrier access to quality healthcare is urgent for Maine’s immigrants, as it is for all workers regardless of immigration status, particularly those who are low-income.

MeBIC also recommended that for talent development, Maine must:

• substantially increase capacity for adult education English as a Second Language (ESL) classes and combined ESL/job skills classes, through full funding of LD 647, An Act To Attract, Educate and Retain New State Residents To Strengthen the Workforce, a bill already approved by both chambers of the State Legislature;
• create a standard driver’s license available to state residents without regard to immigration status, as 15 other states have done, which would improve immigrants’ work and family mobility, and facilitate the ability of asylum seekers who are stuck waiting more than a year for their work permits to work as independent contractors;
• support ongoing efforts to reduce or prevent immigrant “brain waste” by easing barriers to professional licensure for those whose education, skills, and credentials were acquired abroad, and follow the recommendations of those working on this issue, such as Maine’s Department for Professional and Financial Regulation.

To attract new immigrant talent to the state, Maine should:

• ensure immigrant access to General Assistance, which serves as a workforce attraction tool by helping asylum seekers and other immigrants meet their basic needs while they wait for their work permits, and is quickly repaid through their income taxes once they begin work;
• actively engage with Maine’s Congressional delegation to oppose  recent immigration reforms that, among many others, drastically reduce the ability of professional workers, immediate family members of U.S. citizens and permanent residents, as well as refugees and those selected in the visa lottery, to immigrate to the U.S.,  that delay or prevent asylum seekers from working,  and that prevent foreign workers and students from coming to the U.S.,  and work with the delegation to pass legislation modernizing the nation’s outdated immigration system so that it aligns with the U.S.’s and Maine’s economic and family needs.

In addition to these recommendations, MeBIC included more than a dozen other suggested policy initiatives, several of which could be accomplished relatively quickly without legislation or substantial financial investment, to help Maine attract and retain immigrants by becoming a national leader in reducing inequities and advancing immigrants’ opportunities and ability to reach their full potential.

Despite the pandemic, Maine’s demographic challenges as the nation’s oldest state, coupled with low birthrates, mean that Maine still needs new workers to come to and settle in the State.  Becoming a destination of choice for immigrants is critical, if Maine is to have strong communities and a strong workforce in the future.

The Governor’s Economic Recovery Committee appears to be aware of this.  MeBIC was pleased to be invited to contribute to their work through the Education and Workforce Subcommittee.

 

September 30, 2020 UPDATE:  A federal court blocked implementation of the new filing fees mentioned below, in an order issued on September 29, 2020, while litigation challenging the legality of the fees continues.  At this writing, it’s unclear whether USCIS will delay requiring use of the new forms due to this court ruling.

October 1, 2020 Update:  USCIS said it will honor the injunction and continue to accept prior versions of USCIS forms, with no fee changes.  (The Government is still likely to appeal the injunction, however).

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ORIGINAL POST:

Coinciding with a final rule increasing the filing fees for many immigration forms, on September 2, 2020, U.S. Citizenship and Immigration Services (USCIS) announced updates to its Policy Manual reflecting that only the newest versions of certain immigration forms will be accepted as of October 2, 2020, when the new filing fees take effect.

In addition, USCIS is issuing revised forms specific to each subcategory of temporary foreign worker, doing away with the current generic I-129 Petition for a Nonimmigrant Worker form.

Employers will need to use the updated form version dated October 2, 2020 for any nonimmigrant worker petition that will be received by USCIS on or after that date.   In Maine, the most relevant forms that employers must use for petitions filed on or after October 2, 2020 are:

• New I-129H1 form- Petition for Nonimmigrant Worker: H-1B or H-1B1 Classifications
• New I-129H2A form – Petition for H-2A Workers
• New I-129H2B form – Petition for H-2B Workers.

New forms have also been created to petition for other classes of nonimmigrant workers visas, including L and O visas.

USCIS has also updated its Policy Manual to reflect another change from the new filing fees rule, lengthening the allowed time from 15 calendar days to 15 business days for the agency to act on petitions filed by employers who pay the premium processing fee for faster processing.

In addition, noncitizens filing for employment authorization on or after October 2, 2020 must use the October 2, 2020 version of the I-765 form.

 

On August 25, 2020, the State Department announced that it would expand eligibility for waiving the in-person interviews normally required for issuance of nonimmigrant visas.

Through December 31, 2020, consular officers can waive the in-person interview for individuals applying for the same type of visa that they were previously issued within the past 24 months, up from the prior 12 month waiver eligibility criterion.

This could help speed up visa issuance for nonimmigrants who are not otherwise banned from coming to the U.S. under the Presidential Proclamation banning entry of many foreign workers, or the separate policy prohibiting visa issuance to international students whose universities will be conducting classes predominately or completely online.

 

The Trump administration has taken more than 400 actions, through rule making, policy and procedure changes, decrees stripping immigration judges of discretion, attorney general decisions, executive orders and presidential proclamations that have fundamentally restricted legal immigration to the U.S.   The administration has seized COVID-19 as an opportunity to tighten these restrictions even further, bringing legal immigration to the U.S. through the remainder of 2020 to barely a trickle.

An analysis in Forbes finds that taken together, the changes undertaken since 2017 will result in a 49% reduction in legal immigration to the U.S. by 2020’s end.   Not only do these reductions translate into U.S. citizens and permanent residents being separated from their immediate family members, but they also mean that refugees and asylum seekers are not able to find safety in the U.S., and employers cannot access the global talent that they need to stay competitive or to grow.

Additionally, this analysis from the National Foundation for American Policy examines the impact that immigrants have had in the nation’s response to COVID-19.   Apart from the critical roles that immigrants play as essential frontline workers in everything from healthcare to the food supply chain, this analysis points out the many companies offering services used as people isolate or work from home, and creating medical treatments or hoped for vaccines, that were immigrant-created or are immigrant-led.  These include Zoom and Slack, enhancing work from home productivity, Instacart for grocery delivery, Moderna, working on vaccine development, Gilead, whose remdesivir has been found to help speed recovery of some COVID-19 victims, and the inventor of the N95 mask, among many others.

From the COVID-19 health response,  the economic recovery, the family unity and stability, and the humanitarian perspectives, the administration’s attacks on legal immigration are contrary to U.S. interests.   Read more details about the cuts to legal immigration and their impact in the Forbes article.