Month: August 2021

As published in the Immigration Daily on August 24, 2021

1. New Texas preliminary injunction against prosecutorial discretion focused on detention only

Judge Drew B. Tipton issued a preliminary injunction against the government last Thursday, August 19, 2021, in Texas v. United States, 6:21-CV-16 (SD Texas 8/19/21), and immediately thereafter ICE’s Office of the Principal Legal Advisor (OPLA) suspended reliance on its May 27, 2021, memorandum, “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities”, which touched on a number of situations in which OPLA attorneys could exercise prosecutorial discretion, including in canceling Notices to Appear (NTAs), continuing and even dismissing proceedings. It is hoped that OPLA will quickly set forth a revised memorandum while the Administration contemplates appealing the court’s order as Judge Tipton’s preliminary injunction only focused on detention, and not other major parts of the May 27, 2021, memorandum. In his order, Judge Tipton did not even mention the May 27, 2021, memorandum, but only certain sections of prior DHS memoranda in January and February 2021. The issue dealt entirely with the suing states’ position that the government should comply with 8 USC §§1226( c) and 1231(a)(2) which provide that the government “shall” detain certain aliens when they are released from custody or during their removal period, respectively.

*Note: On August 23, 2021, the court granted a stay of its preliminary injunction to the government’s emergency motion for administrative stay and stay pending appeal. The stay is in effect until noon on August 30, 2021, to allow the government time to appeal.

2. Visa chart largely humdrum for September except for Indians – will there be an October surprise?

The September visa chart came out last week and it is mostly humdrum with the salient points being – FB (family-based) final action dates: F-1 worldwide moved from 11/22/14 to 12/1/14 and F-4 three weeks from 3/1/07 to 3/22/07 and everything else basically remained the same; FB dates of filing had no movement at all except for Mexico’s F-2B advancing almost 2 months to 10/1/00; EB (employment-based) final action dates: worldwide mainly stayed current with important exceptions that China EB-2 moved three months to 7/1/18, and India three months to 9/1/11, EB-3 China remained the same at 1/8/19 while India moved six months to 1/1/14; EB-3W for China moved one month to 2/1/10 and India six months to 1/1/14, and China EB-5 direct investments gained a week to 11/22/15. EB dates of filing saw China EB-2 advance two months to 9/1/18 with no advance for India, and EB-3 China remained the same at 7/1/19 while India’s EB-3/EB-3W categories moved one month to 3/1/14. Regional center EB-5 cases are still closed due to the lack of extending legislation. The China and Indian movements do not really do a lot for filing cases as everyone who had a labor certification and a priority date before 1/1/15 (India) was eligible to adjust under EB-3 or EB-2 downgraded to EB-3 in October 2020. For China’s EB-2 with the final action date of 7/1/18, China natives could have filed long ago under a downgrade to EB-3. However, the six-month Indian EB-3 movement will allow many of the Indian October filings to be approved if USCIS can work on and prioritize their cases. A word of advice is that those who filed for adjustment of status under the EB categories in the first quarter of this fiscal year (October-December) and whose priority dates will be current in September under the final action dates chart should take their medical examinations (I-693s) now if they did not submit them with the filing or have not already taken such since that time. Amazingly, with a 600,000 Indian backlog in the employment based categories last year, the Department of State has managed to move the Indian EB-3 final action date from its September 2020 availability date of 10/1/09 to a September 2021 date of 1/1/14, a jump of four years and two months within one year. USCIS did not help in other types of cases as its adjustment charts for September showed it sticking to the familiar pattern – filing dates on FB, final action dates on F-2A, and final action dates on EB. One wonders whether the Department of State and USCIS are planning another October surprise akin to the one in this year in which the EB-3 dates of filing moved almost 5 years for India born and 11 months for China born, and USCIS allowed the dates of filing chart for EB cases to be used. It is estimated that there will be at least 290,000 EB numbers available in the next fiscal year, 150,000 over the normal allotment.

3. H-1B restrictions continuing under Biden administration

Note that not all is peaches and cream with the Biden administration in the realm of legal immigration. He did not put up Marty Walsh, the unionist, as Department of Labor Secretary for nothing. The Administration filed a cross motion for summary judgment in defense of the regulation that would base the H-1B selection process on the highest wages to be paid in Chamber of Commerce v. US Department of Homeland Security, Case No. 4:20-CV-7331, and the Chamber just filed a reply in support of its motion for summary judgment and opposition to the government’s cross motion for summary judgment that will be heard before Judge Jeffrey S. White of the Northern District of California on 9/17/21. The regulation was finalized on January 8, 2021, but postponed by the Biden White House in January. USCIS then published a final rule delaying the effective date to December 31, 2021. The Chamber’s reply solidly asserts three grounds for which the regulation should be declared invalid – that it goes against the statutory language that H-1B visas be issued “in the order in which petitions are filed for such visas”; that it was issued under the purported authority of Chad Wolf, who eight district courts unanimously concluded never lawfully occupied the office of Acting Secretary of Homeland Security; and it arbitrarily disregarded relevant comments and vested reliance interests in violation of the Administrative Procedure Act. Hold onto your hats!

4. Multiple reports on dearth of F-1 visa interest worldwide

APM Reports stated on August 3, 2021, that the pandemic, visa restrictions, rising tuition and a perception of poor safety in America have driven new international student enrollment down by 72%. The difficulty now and in the future is that an important part of the innovation in our economy is F-1 students going from OPT to H-1B and then employment-based green cards. SEVIS said in its “2020 SEVIS by the Numbers Report” that in 2019 and 2020, China sent 91,936 fewer students in 2020 as compared to 2019, a -19.38% drop, so that the total of Chinese students in 2020 was 382,561 while India sent 41,761 less, a 16.76% decrease, and its population in 2020 was 207,460 students. A third report in the Washington Post said that from 2020 to now, schooling applications to the US from China have continued to drop and only about 19,000 Chinese students filled in the common application required to attend most undergraduate schools this winter, a 16% decrease from the last cycle. Also that it is no longer very in vogue for Chinese families to send their children to American institutions.

5. Congressional research service report shows in absentia rate for hearings only 17%

The question is at what rate noncitizens appear for their removal hearings, and a Congressional research service report on August 5, 2021, said that in using the all matters method, the total in absentia rate over an 11-year period was 17% taking into account those appearing at initial case completions, pending cases, and administratively closed cases. That was opposed to the Initial Case Completions (ICC) method in use by the Executive Office for Immigration Review (EOIR) that only counts the first dispositive decision rendered by an immigration judge which had a 34% in absentia rate. This is of course a hot button topic with immigration detractors claiming that the majority of illegal immigrants who are released do not show up for their hearings. However, the report showed that EOIR’s methodology only divided the number of annual in absentia orders by the number of annual immigration court decisions involving grants, denials, terminations, and voluntary departures, while not considering persons who showed up but whose cases were not completed, whose cases were administratively closed or moved to an inactive pending docket, and those ordered removed in absentia whose cases were subsequently reopened by the courts.

As published in the Immigration Daily on August 23, 2021

USCIS should prioritize improving its efficiency in adjudicating initial I-765 employment authorization document applications for all groups, but in particular, for those qualifying through adjustment of status (c)(9). Prior to 2016, EADs were required to be issued within 90 days of filing the I-765 form. However, USCIS amended its regulations to remove the 90 day requirement after facing a class action lawsuit for failing to comply with its deadline. Thereafter, the processing times for (c)(9) EADs grew incrementally—3-5 months turned into approximately 5-7 months in 2020. As of the date of this article, the processing times for (c)(9) EADs are 8-10 months at the Texas Service Center, and 8-9.5 months at the National Benefits Center.

I note that EAD processing time issues are not confined to just the adjustment of status (c)(9) category. They are delayed across the board—asylum applicants can expect to wait up to 13 months, H-4 spouses 11.5-14.5 months, DACA applicants 6.5 to 10.5 months, etc. EAD processing times are long and arbitrary for almost all categories at this point. However, the focus of this article is on adjustment of status EADs.

The abovementioned (c)(9) EAD processing delays have left many adjustment of status applicants in unjustifiably tough circumstances. This 8-10 month wait in eligibility to take employment can cause severe financial hardship and career harm for those who do not have an underlying nonimmigrant status providing work authorization. USCIS may expedite EAD applications in limited circumstances for individuals who can prove one or more of the following criteria: (1) severe financial loss to the company or applicant will occur; (2) emergency and urgent humanitarian reasons; (3) clear USCIS error; (4) nonprofit organization whose request is in furtherance of cultural and social interests of the US; or (5) US government interests. In practice, however, these criteria are high standards to clear—for instance, it is not typically enough for USCIS to approve an expedite where an applicant states that he/she will lose a job or be set back financially. As such, expedite requests are most often unsuccessful. For typical cases not meeting expedite criteria, those with dual intent nonimmigrant visas such as H-1B and L-1 that are close to expiration at the time of I-485 / I-765 concurrent filing have a difficult choice to face. They may either wait for their EAD to arrive which may put them out of work for months causing career and business interruption as well as financial hardship to themselves and their families, or extend their employment nonimmigrant visas costing potentially thousands of dollars in application and attorney fees. As an example, one of my clients filed a concurrent I-485 / I-765 application 6 months prior to H-1B expiration and reasonably expected that the EAD should be adjudicated prior to H-1B expiration or at least very soon after. This client decided not to file an H-1B extension expecting that the EAD would soon be granted. This EAD application has now been pending for over 9 months, and the client has been out of work for the past 3 months and does not know when to expect to return to work—causing financial harm to the client’s family as well as the employer as the client’s role is essential to the company. The client also submitted an expedite request on grounds of severe financial loss to the client and the employer, which was summarily rejected.

As such, many adjustment of status applicants are facing a major problem in EAD processing times causing financial and career hardship to themselves and their families, as well as hardship to their employers. Standard or even serious levels of hardship do not meet the criteria for expedite. In my client’s rejection, USCIS conceded that the financial hardship appeared serious, but denied the expedite stating that my client did not “provide evidence of an extreme emergent need.” Therefore, proving severe financial hardship appears in practice to be a very high bar. It is understood that EAD delays are due to USCIS staffing shortages and the need to perform discretionary analysis as EADs are a USCIS discretionary benefit. However, adjudications on discretion in this context should not require extensive time and resources. Adjustment of status applicants will mostly remain in the United States during the pendency of their applications, so what difference in national security does allowing them to work during this time make? Also of note, a full discretionary analysis of the I-485 applicant’s favorable equities and unfavorable factors is performed at the I-485 adjudication stage—therefore, there is no need to perform two full fledged discretionary analyses for the same applicant. Any discretionary examination on an EAD application should be very limited in scope.

The good news regarding budgeting is that USCIS is projected to have a budget of $4,760,784,000 for FY2022, a nearly $500,000,000 increase over FY2021. An appropriate portion of these resources should be allocated to eliminate the backlog of adjustment of status EAD applications. With increased resources, USCIS should consider the following actions to meet this goal: (1) Re-enact a regulation mandating the completion of initial EAD adjudications within 90 days, or at the very least, a reasonable time frame so that applicants are not stuck without work for 10 months; (2) Lower the bar for an expedite request on an EAD to be successful. It should not take an absolute emergency to speed up an EAD application. For example, so long as one can show that he/she has been out of work for an unreasonable amount of time (say 2 months), and it has resulted in significant financial loss to the applicant, and harm to the employer, USCIS should grant the expedite—especially as EADs typically should not take very long to adjudicate; (3) provide guidance for USCIS to accept late filings on nonimmigrant visa petitions that confer work authorization for those who allowed their nonimmigrant employment statuses to expire anticipating sensible adjudication times for their EADs, and treat these extensions as timely filed. Doing such would be consistent with USCIS policy since in such a situation, a delay in filing an NIV extension is commensurate with the circumstances, and due to extraordinary circumstances beyond the control of the applicant—for example, a reasonable expectation of an EAD being adjudicated within 3-5 months, which is not met as an EAD application is still pending a year after application; (4) allow premium processing of EADs. Indeed, the “Emergency Stopgap USCIS Stabilization Act” (HR 8089 passed the House of Representatives, HR 8337 passed Senate and signed by President incorporating HR 8089), signed into law on October 1, 2020 (Pub. L. No. 116-159), authorizes DHS to expand premium processing to some categories which are currently ineligible, including employment authorization. Under this law, EAD premium processing may be implemented without going through the standard regulatory process as long as the enacted fee not greater than $1,500 and processing time is not greater than 30 days. As of today, USCIS still has not enacted the expansion of premium processing to new categories. The most recent update USCIS has provided on this topic through a press release on October 16, 2020 stated: “Pub L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.” USCIS should be urged to expeditiously enact expanded premium processing, especially for EAD applicants as EAD applications in general are taking unreasonably long to adjudicate, and leaving applicants in unjustifiably difficult situations. Enactment of expanded premium processing would benefit both EAD applicants and USCIS. Applicants would have an option to have a result within 30 days as long as they are willing to spend $1,500. USCIS in turn would receive up to $1,500 for a simple EAD adjudication done quickly, which should be an attractive proposition for the agency.