Author: Beth Stickney

U.S. Citizenship and Immigration Services (USCIS) announced on August 25, 2020 that it would not follow through for the remainder of 2020 on its threat to furlough over 13,000 staff, accounting for nearly 70% of its workforce.

Instead, it says it will implement cost-cutting measures that will impact all aspects of its operations, increasing “backlogs and wait times across the board.”

This will translate into longer waits to receive decisions in cases of immigrant and nonimmigrant visa petitions filed by employers for  foreign workers, or  residency applications for immediate family members of U.S. citizens and permanent residents, and applications for work permits,  asylum, and naturalization for U.S. citizenship.

A report analyzing USCIS data found that since 2016, processing times for naturalization had already increased from under 6 months in FY2016 to an average of 10 months, even before COVID-19 caused all USCIS offices to curtail in-person interviews and naturalization ceremonies from March until June 2020.  In Maine, the report shows that the average naturalization application backlog was 9.6 months, and that over 1800 individuals were already stuck in the backlog as of May 2020.  Increased wait times will mean that nationwide, hundreds of thousands of individuals who hoped to naturalize will be unable to do so in time to vote in the November 2020 elections.

While processing of immigration applications may not come to as much of a halt as would have been the case had 70% of USCIS’s staff been furloughed, the predicted backlogs will nonetheless continue the administration’s steady pattern of reducing legal immigration to the U.S.

Update:   In response to the federal court’s order described below,  USCIS published guidance on August 19, 2020 alerting employers that, through December 1, 2020, they can accept work permit application approval notices issued between December 1, 2019 and August 20, 2020  in lieu of the actual work permit cards as proof of work authorization for federal employment authorization verification (form I-9) purposes.  The guidance notes that employers will need to reverify the work authorization of applicable employees by December 1, 2020.   Employees who show their approval notices (while waiting for USCIS to send them their work permit cards)  as a “List C” document for I-9 purposes will also have to provide their employers with an acceptable “List B” identity document.

USCIS posted the guidance as part of a consent decree approved by the federal district court on August 21, 2020.   Plaintiffs lawyers estimate that 75,000 individuals have never received their work permits despite their applications being approved.

Employers with employees or new hires who have work permit application approval notices dated between December 1, 2019 and August 20, 2020 but who not been issued their work permits can find the details about how to proceed when completing the I-9 form here.

Original post:    On August 3, 2020, a federal district court issued a temporary ruling ordering U.S. Citizenship and Immigration Services (USCIS) to issue work permits to individuals whose work permit applications have been approved, but who have not subsequently received the actual work permit cards needed as evidence of their authorization to work in the U.S.   The court also denied the government’s motion to dismiss the lawsuit.

The temporary restraining order is in effect nationwide while the case continues to be litigated.

Work-authorized noncitizens nationwide have lost jobs, or been unable to be hired because, months after approving their work permit applications, USCIS has not mailed them the actual work permit cards that serve as both their proof identity and of their permission to work in the U.S. for Form I-9  employment authorization verification purposes.

The backlog in card issuance allegedly affects at least 75,000 people. and are the result of USCIS’s failure to renew a contract with a card production facility.   Cards that used to be produced and mailed to applicants within a few days of work authorization renewal application approvals are now not being mailed out for months afterwards.  In the meantime, employers may be forced to lay off employees whose work permits, and if applicable, automatic extensions, have expired, or can’t retain new immigrant employees if those employees aren’t able to show an unexpired work authorization card within three days of hire.

Employers should reach out to their immigration counsel if they have employees whose work authorization renewals have been approved but who haven’t received their renewed work permits and whose I-9s will need reverification soon.    Employers who don’t have immigration counsel can reach out to MeBIC to learn more about what their employees can do to benefit from this court ruling.

The administration is extending restrictions on entry to the U.S. via Canadian and Mexican land border posts or ferry services through September 21, 2020 due to the continuing pandemic.  This is the fifth extension of these border restrictions since they were originally imposed in March 2020.

Under the restrictions, only those doing “essential travel” are allowed to enter the U.S., which includes:

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada or Mexico in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada or Mexico);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

The restrictions don’t apply to those arriving by air, but do apply to passenger rail.

You can find the rule regarding Canada here, and about Mexico here.

U.S. Citizenship and Immigration Services (USCIS) issued a temporary final rule partially extending flexibility for certain  H-2A temporary agricultural workers that was first announced on April 20, 2020.  It also published additional guidance about how employers should complete the I-9 Employment Verification form.

The temporary final rule was issued in response to the continuing COVID-19 pandemic, and is effective from August 19, 2020 through August 19, 2023, for any H-2A petitions filed by employers between August 19, 2020 and December 17, 2020.   It allows a new employer to hire an H-2A worker already legally in the U.S. and working for another employer, as soon as the new employer’s extension of stay petition for the worker has been received by USCIS, as long as that hire date is after the start date that was listed on the new employer’s petition.

However, the temporary final rule ended the April 20, 2020 rules’ flexibility permitting H-2A workers to remain working in the U.S. beyond the pre-pandemic regulation’s three-year limit.   Under the August 19, 2020 rule, an H-2A worker who has reached the three year limit will once again have to leave the U.S. for at least 3 months before being eligible to return to work again on an H-2A visa.  The worker’s ability to return with a new H-2A visa will depend on whether the pandemic has affected the U.S. consulate’s operations in the worker’s home country.

USCIS also issued guidance for employers about how to complete the I-9 Employment Authorization Verification form in this situation.

Employers hoping to take advantage of these changes can get more details from the temporary rule and the guidance and should consult with their immigration counsel.

The Los Angeles Times examines the positions and records on immigration of President Trump and Joe Biden, both in the latter’s former Vice-President role and as a presidential candidate.

It’s a succinct snapshot and worth a read.   You can find a deeper dive into the massive changes in immigration policies, practices and regulations by the Trump administration in this post.

Multiple policies of this administration, including many implemented since the onset of the COVID-19 pandemic, have slashed the ability of noncitizens from abroad to enter the U.S..  This includes refugees, asylum seekers, and immigrants who are immediate family members of U.S. citizens and permanent residents, whose employers have petitioned for their residency, those selected in the annual diversity lottery, as well as many nonimmigrant foreign workers and students.

Now, U.S. Citizenship and Immigration Services  (USCIS) is threatening to furlough about two-thirds, or over 13,000, of its employees, claiming COVID-19 related revenue shortfalls.  (The majority of USCIS’s funding comes from fees paid by individuals and business paying for applications and petitions they file with the agency.) USCIS says it needs $1.2 billion from Congress to prevent the furloughs.

An interview in Forbes provides detailed insight into how these furloughs would bring adjudications to a halt, preventing hundreds of thousands of U.S. citizens and permanent residents from initiating the immigration process for their immediate family members, employers from petitioning for valued employees, and individuals from getting their work permits, permanent residency, or citizenship, among many other types of applications.

An example of the inefficiencies that have led USCIS to this point can be found here.   For more details on how USCIS has gotten to this point, and how these furloughts, if they occur, will effectively block what little of our immigration is still function, you can read the Forbes article here.

Update:   On August 21, 2020,  the GAO denied a DHS request to reconsider its decision, and reaffirmed its holding that the appointments of Wolf and Cuccinelli are legally invalid.

On August 20, 2020, a lawsuit was filed challenging a final rule taking effect on October 2, 2020 increasing immigration filing fees.  The lawsuit  argues that the fee rule is invalid in part due to its issuance by the invalidly installed Acting Secretary Wolf.   Similar lawsuits are sure to follow.

On August 25, 2020, the administration announced it would nominate Chad Wolf to officially become the Secretary of the Department Homeland Security, which will require him to go through the Senate confirmation process, after serving in the Acting role since December 2019.

Original post:  On August 14, 2020, the nonpartisan U.S. Government Accountability Office (GAO) issued a decision finding that Department of Homeland Security (DHS) Acting Secretary Chad Wolf, and Senior Official Performing the Duties of DHS Deputy Secretary Kenneth Cuccinelli  were named to their positions under invalid orders of succession.

Neither of these officials has ever received Senate confirmation to occupy their positions.  The GAO is referring the matter to the Inspector General of DHS for further review.

Previously, in a legal challenge to directives issued by Ken Cuccinelli that substantially reduced due process for asylum seekers at the southern border, a federal district court ruled that Cuccinelli’s appointment was not legally valid, and consequently, neither were his directives.  The government appealed.

It is probably not a coincidence that the government agreed to dismiss its appeal of the federal court’s decision on the same day that the GAO issued its report.

The legal invalidity of Acting Secretary Wolf’s and Senior Official Performing the Duties of DHS Deputy Secretary Kenneth Cuccinelli’s roles could have far-reaching consequences.   It’s likely that new legal challenges will be filed to invalidate other actions taken by Wolf and Cuccinelli, such as the decision that USCIS would not accept new DACA applications, in defiance of  the Supreme Court’s DACA ruling, and the rejection and expulsion of asylum seekers at the southern border without any opportunity to request asylum as required by law, among many others.

On August 12, 2020, a federal appeals court narrowed a nationwide injunction that blocked implementation of the “public charge” rule for as long as the pandemic public health emergency lasts in the U.S.

Without explaining its reasoning, the appellate court narrowed the injunction to prevent implementation of the public charge rule in Connecticut, New York and Vermont, only.   As a result, the government can now apply the public charge rule to those seeking residency in all other states, including here in Maine.  (The public charge rule is also applicable to those requesting temporary visas, but as a practical matter, the rule increases paperwork and expense in those cases, but doesn’t pose a substantial risk of denial of their applications).

As of this writing, the Department of State is still enjoined from implementing the public charge rule for those who will be processing their residency or nonimmigrant visa applications at U.S. consulates abroad.  But the Presidential Proclamation blocking entry of most immigrants and many foreign workers through the end of 2020 is effectively stopping immigration, regardless of whether or not the public charge rule can be applied by consular officers.

The administration crafted its public charge rule as a back-door way to substantially reform the nation’s immigration system without involving Congress, and is likely to result in the denial of residency chiefly to hundreds of thousands of immediate family members of U.S. citizens and permanent residents.  Diversity lottery immigrant visa winners are also likely to be denied the ability to immigrate, consistent with the administration’s long-stated goal of repealing the diversity lottery altogether (which Congress as yet has not agreed to do).

The appellate court’s ruling results in a patchwork of the application of the public charge rule, which will result in confusion and likely lead to immigrants being afraid to seek testing and medical care related to COVID-19 due to worry that doing so could jeopardize their, or their relatives’ immigration status.

On August 10, 2020, leading U.S. corporations filed an amicus brief supporting the lawsuit filed by the U.S. Chamber of Commerce and others challenging the Presidential Proclamation banning the entry of many categories of nonimmigrant workers, discussed previously here.

More than 50 companies and organizations signed on to the brief, including Adobe, Apple, Box, Dropbox, Facebook,  HP, Intel, Microsoft, Netflix, Paypal, Reddit, Salesforce, Twitter, Uber, and Zillow.

The brief notes the Adminstration’s own estimate that by the end of 2020, the  Proclamation will have resulted in blocking the entry of over a half-million foreign workers and prevented over 20,000 companies from filling the positions these workers would have occupied.  It argues that the Proclamation, rather than benefiting U.S. workers by reducing job competition,

“fundamentally disserves the interests of the United States by stifling the ability of U.S. businesses to attract the world’s best talent, drive innovation, and further American economic prosperity.”

It argues further that

A recent working paper published by the National Bureau of Economic Research finds that protectionist restrictions on skilled immigrants, such as caps limiting the number of available H-1B visas annually, results in companies offshoring jobs to affiliates located in countries with more liberal policies towards global talent.

Though H-1B caps are couched in terms of protecting jobs of U.S. workers, the paper’s author cautioned that

any policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.

In short, restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be causing the U.S.’s innovative capacity to fall behind.

Recent trends in the increase in the number of noncitizens emigrating from the U.S. to Canada for work, and the growth in international students choosing to study in Canada, a country that has streamlined the path from higher education to work to permanent residency, indicate that the U.S. restrictions on skilled immigration may well be paying off for our northern neighbor, likely to the U.S.’s detriment.

You can find the NBER working paper here.

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.

The reality of resettlement during the current fiscal year is even more stark.  As of July 31, 2020, only 7,905 refugees had been resettled in the U.S, despite record-breaking numbers of refugees and displaced people around the world needing new homes.  Only 522 refugees have been resettled in the U.S. since the end of March, with none resettled since May.

Only 28 refugees have been resettled in Maine so far this fiscal year.  In the last full year of the prior administration, Maine resettled about 650 refugees.

Nationwide, the administration has resettled only 81, 680 refugees since January 2017, fewer than the nearly 85,000 refugees who were admitted in FY 2016 alone.   The numbers clearly reveal this administration’s lack of commitment to provide protection to those experiencing humanitarian crises worldwide.

Update:    Two federal appeals courts issued decisions in challenges to the public charge rule on August 4th and 5th, 2020.   In the first decision, the 2nd Circuit Court of Appeals upheld a lower court ruling blocking application of the public charge rule, but narrowed the nationwide preliminary injunction to cover only Connecticut, New York and Vermont. The second decision from the 4th Circuit Court of Appeals ruled against enjoining the public charge rule.    Both of these decisions, however, have no practical effect due to a prior Supreme Court ruling in January 2020.

The government has appealed from the July 29, 2020 decision blocking application of the “public charge” rule for the duration of the pandemic public health emergency, discussed below, but it is still in effect at this writing.   Both U.S. Citizenship and Immigration Services and the Department of State have issued guidance to comply with the nationwide injunction while it remains in effect.  USCIS has removed Form I-944, the Declaration of Self-Sufficiency created as part of its implementation of the new public charge rule from its website, and says that any applications or petitions postmarked on or after July 29, 2020 should not include that form and should ignore questions on other forms  relating to public benefits.

Since the new public charge rule would prevent hundreds of thousands of immediate family members of U.S. citizens and permanent residents, and diversity lottery winners, from having their residency approved, and adds dozens of hours of paperwork and voluminous document preparation to immigration applications, the injunction is a welcome reprieve, for however long it lasts.

Original July 29, 2020 post: 

On July 29, 2020, a federal court issued a nationwide injunction temporarily blocking the administration’s application of the controversial “public charge” rule during the COVID-19 national public health emergency.

Litigation challenging the “public charge” rule has been pending since October 2019, but the Supreme Court had allowed the administration to apply the rule while those lawsuits proceeded.  (Maine is a party to one of the pending lawsuits challenging the rule.)

The public charge rule has resulted in immigrants, even those who have had residency and have paid taxes for years and who are eligible for public benefits, being afraid to access medical care and other public health and food programs to help them stay healthy and safe due to fears and confusion around the rule.

The federal court found that

Plaintiffs provide ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts in the Governmental Plaintiffs’ jurisdictions to stem the spread of the disease. Doctors and other medical personnel, state and local officials, and staff at nonprofit organizations have all witnessed immigrants refusing to enroll in Medicaid or other publicly funded health coverage, or forgoing testing and treatment for COVID-19, out of fear that accepting such insurance or care will increase their risk of being labeled a “public charge.”

COVID-19 has increased economic pressures on low-income immigrants. During the public health emergency, it’s imperative that everyone in the U.S. have access to healthcare and financial and health supports needed to stay housed, safe, and healthy, even if that means turning to government benefits.

The court’s injunction should help reassure immigrants, who data shows are disproportionately impacted by COVID-19 as they often work in “essential jobs” and in jobs where working from home is not an option, that they are not risking their or their families’ immigration status if they seek out the help they need.

However, the government is likely to appeal the decision.  If it does, it will be putting the health of everyone, not just immigrants, at higher risk of COVID-19.

A recent Washington Post op-ed accurately details a new practice by U.S. Citizenship and Immigration Services (USCIS) that appears to be another front in the administration’s efforts to stymie legal immigration.

In the past year, USCIS has begun rejecting applications that include any fields not filled out, even if the omission is because the requested information doesn’t exist.   This is a dramatic break with decades of practice, where, for example, if a person had no children, s/he could simply leave the fields requesting children’s names and dates of birth blank.  Without warning, USCIS began rejecting applications unless every field was filled out with “N/A” or “none”.

This new practice began with applications filed by some of the most vulnerable individuals, including asylum applicants and domestic violence and crime victims, the majority of whom don’t have attorneys to help them complete their applications.  The op-ed provides a window into the world of USCIS that increasingly feels as coherent as that encountered in Alice in Wonderland.

As it weighs USCIS’s request for $1.2 billion due to budget shortfalls, Congress should insist on transparency and changes within the agency to increase efficiency in its processing of applications.   Practices such as the “no blanks” policy should be eliminated immediately.

The Administration has once again aimed its sights at the H-1B visa program, this time in an August 3, 2020  Executive Order (E.O.) ostensibly directed at federal agencies, contractors and subcontractors.

The order requires federal agencies to review the extent to which federal agencies and their contractors and subcontractors are employing foreign professional H-1B visa temporary workers or are offshoring work and any resulting adverse effects to U.S. workers, and to submit a report within 120 days of the order’s issuance.

But the E.O.  also directs the Secretaries of the Departments of Labor and Homeland Security to “take action” within 45 days “to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites)”  and to ensure that employers with H-1B staff complied with existing laws requiring them to ensure that U.S. workers are not disadvantaged through the hiring of foreign workers. This section appears to apply to all employers, including those with no connection to federal agencies or contracts.

While this Executive Order may have little immediate impact, it underscores the administration’s antipathy towards the H-1B visa program.  It’s another example, following on the heels of the June 22, 2020 Presidential Proclamation barring entry of H-1B visa holders through the remainder of 2020,  of COVID-19’s  economic impact being used by the administration as a platform to diminish employers’ confidence in relying on H-1B program to get the talent they need.

In August 2018, the administration issued a policy change revising how and when F or M student visa or J exchange visa holders could be considered “unlawfully present,”  making it more challenging, and sometimes impossible for years, for them to extend or change their visas or to gain permanent residency in the U.S.

In February 2020, a federal court issued a nationwide permanent injunction prohibiting the administration from applying the new policy.  The administration then appealed.

On August 3, 2020, the appeals court dismissed the case after the administration decided to drop its appeal.

This is a tremendous victory for foreign students, definitively blocking this attempt by the administration to upend  a decades-long policy on when these visa holders can be considered to be out of status and unlawfully present.

It is also a victory for employers who hope to employ foreign students upon completion of their undergraduate or graduate degrees, many of whom the policy change would have prevented from remaining and working in the U.S. for years.

You can read a more detailed explanation of the importance of this legal victory here.