Author: Alan Lee

As published in the Immigration Daily on January 18, 2022

1. New H-1B Cap Season ramping up.

About 1 ½ months from now, USCIS will begin the employer registration process for new H-1B candidates who will be able to begin work in October 2022 or later if they are selected and their subsequently filed H-1B petitions approved. (Please note that this notice does not affect current H-1B holders except possibly H-1B cap exempts attempting to move to H-1B cap organizations). All employers who have not already done so should begin to put together a list of those candidates (many of whom may be on practical training) that they are interested in sponsoring.

There are encouraging signs that this H-1B season will go more smoothly than those in the recent past. Three regulations that could have adversely affected H-1B processing have been abandoned by the Biden administration – one by the Department of Labor which would have significantly raised the wages to be paid H-1B workers, and two by DHS that would have 1.) made it more difficult for candidates to qualify for H-1B status and 2.) changed the selection process from random selection to highest wages paid.

Unfortunately, the number of new H-1B visas to be awarded still remains 85,000, far short of the number of eligible candidates. For many, however, this may be the most viable means for companies and other organizations to acquire new talent and for candidates to establish a foothold in this country. H-1B holders are allowed to remain in the country for up to six years and even longer if the company takes timely steps to sponsor them for permanent residence. Many employers have been happy with the ability to retain bright, hard-working staff members for a number of years.

2. Dropbox use expanded for US visas overseas.

The Department of State announced a change of policy on December 23, 2021, allowing waivers for even first time applicants for many employment-based visas, including H-1B and L intracompany transferees. This discretionary waiver of in-person interview applies to those who have had a petition approved by USCIS, are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility.

Although this is good news, persons thinking of taking advantage of this development should be aware that a waiver of the interview is discretionary and up to the consulate or embassy; and that the schedule of interviews or waivers of such is dictated by consul or embassy. In addition, a further risk for those who are interviewed and refused is being stuck in administrative processing, which may take time to resolve assuming that resolution is possible.

With such said, this is indeed good news as it will reduce the risk of consular processing for many nonimmigrant work visa seekers. Applicants should also be aware of the effect of Covid on the process in the country or region of which the following three are described in which they will ultimately be dropping passports and other documents:

• China – Fully vaccinated with inactivated vaccine – take PCR test at U.S. departure city of flight seven days before boarding at either Avass Bioscience or Real-time Laboratories; monitor your health for seven days at the departure city; take second PCR test within 48 hours before departure. If fully vaccinated with non-inactivated vaccines, do all of the above plus take S protein IgM antibody and an N protein IgM antibody tests within 48 hours before departure at one of the two companies. If not fully vaccinated or unvaccinated, do the same.
  
  Persons with a history of infection have more to do including lung CT or x-ray and 14 day quarantine.
  
  Once in China, there are further restrictions including a quarantine period.

• Hong Kong – Suspension of flights from the United States, Australia, Britain, Canada, France, India, Pakistan and the Philippines for two weeks beginning on 1/8/22.
  
  
• India – India is usually on the backend of infections after Europe and the Omicron variant is fast spreading in India since late December. The government has introduced night curfews, shut down movie theaters, and slashed restaurant and public transport to half capacity. It is known that the Oxford AstraZeneca vaccine which has been used for about 90% of India vaccinations does not protect against omicron infections, although it appears to help reduce the severity of the illness. Persons interested in making an appointment by dropbox have been frustrated by the lack of appointments, and the Department of State has promised to release another 20,000 dropbox appointments in the spring. One wonders, however, whether Covid will begin to disrupt the schedule of appointments.

3. F-1, M-1, and J-1 visa applications made easier.

 Good news for student visa applicants applying for the first time or for renewals with the Department of State reverting to pre-Trump policy in an update to the Foreign Affairs Manual making the question of nonimmigrant intent easier to meet. Establishing that a person has nonimmigrant instead of immigrant intent is essential to gaining approval of student visas. The FAM guidance makes clear to consular officers that such applications are to be given latitude on the question of nonimmigrant intent:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify the applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future… In the circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States. Therefore, the residence abroad requirement for student applicants is to be considered in the context of the usual limited ties that a student would have, and their immediate intent.

With this revision, the US under the Biden administration is showing a more open and welcoming America.

4. MFL termination letters and NVC need for quality control.

One wonders whether the National Visa Center requires more quality control in its issuance of MFL-1 termination letters as we recently received three which were clearly unwarranted. Under NVC policy, communication with the agency within a one-year period of time stops the case from going into deregistration. Yet on two of these cases, we had clearly sent in communications on time. It may have been that NVC receipt of communications and acknowledgment of such have been impacted by Covid, but if so, there should also be appropriate lag time for NVC to coordinate the communications before sending out MFL letters. Under NVC policy also, an applicant’s filing an I-601A Application for Provisional Unlawful Presence Waiver stops the case from going into the deregistration process, and yet we also had to fend off the third MFL letter when we had filed the I-601A application in January 2021.

5. Flexibility extended for time to respond to USCIS actions.

USCIS is again extending flexibilities because of the pandemic for responding to certain actions of the agency between March 1, 2020 and March 26, 2022 inclusive. Such allows another 60 calendar days past the due date for requests for evidence (RFE’s), continuations to request evidence (N-14), notices of intention to deny (NOID’s), notices of intention to revoke (NOIR), notices of intent to rescind, notices of intent to terminate regional centers, and motions to reopen N-400 naturalization applications after receipt of derogatory information after a grant. In addition, flexibilities are further extended to I-290B notices of appeal or motions and N-336 requests for hearings on a decision in naturalization proceedings if the form is filed up to 90 days from the issuance of the decision, and USCIS made the decision between 11/1/21 – 3/26/22.

6. Visa problems where applicants leave US before decisions on extension/change of status requests.

During the time of Covid, it has oftentimes been difficult for visitors to the US to leave the country on time as international flights are canceled with little or no notice, or countries have multiple restrictions on reentry that cannot be met within a short period of time. So, many visitors have been forced to file for extensions or changes of status to remain in a quasi-legal status while making arrangements to leave, and then leave the US before decisions are rendered on their requests. The questions are what is the status of their visas since there is an automatic visa cancellation provision in the law where individuals overstay their visas, and whether the US consulates and CBP are on the same page.

The Foreign Affairs Manual states that a person departing after the date on the I-94 passes but before an application for extension or changes status has been decided by USCIS has a blanket exemption from visa cancellation, if the application was filed in a timely manner and was nonfrivolous in nature. It is not clear that CBP is entirely onboard in light of its response from the American Immigration Lawyers Association New York Chapter/CBP meeting on December 2, 2021, in which CBP reportedly said, “Application of INA 222 (G) is quite case specific. Detailed reference as to the application of INA 222 (G) can be found in 9 FAM 302.1-9 which has specific helpful scenarios (which CBP may refer to but is not bound by). Recommend carrying the receipt notice if an extension application was timely filed even if later abandoned.”

To have CBP be on the same page insofar as visa cancellations are concerned would promote certainty in travel and prevent a situation of which we heard a few weeks ago in which the parent of an LPR traveled back to the US on the same visa five months after departing only to have a CBP officer cancel the visa on ground that the extension application was abandoned as the applicant had not shown up for her biometrics appointment.

As published in the Immigration Daily on December 20, 2021

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous proposals we have considered. The proposal, which would increase the deficit by $131 billion over 10 years, creates a class of eligible people (those who have been in the country for 10 years or more) who will qualify for a grant of parole in place status. This new class would make eligible for parole 6.5 million people – nearly the same number of people as the previous two plans. CBO estimates that 3 million people would adjust to LPR status – 2 million of whom would be otherwise ineligible under -current law. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award of status for qualifying applicants rather than the current discretionary use of the Secretary’s authority and assessment, which the USCIS website states that the Secretary grants “only sparingly.” The grant of parole will be accompanied by the mandatory issuances of work authorization, travel documents, a deeming of qualification for REAL ID and automatic renewal of PIP. These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.

As published in the Immigration Daily on November 23, 2021

1. USCIS does third round of H-1B picks for first time.

USCIS surprised just about everyone in holding a third round of H-1B selections for fiscal year (FY) 2022 on November 19, 2021, over a month and a half after the beginning of the fiscal year on October 1, 2021. In FY-2021, the agency conducted two rounds, and with the large number of H-1B registrants for this year (308,613 for the 85,000 slots), it was assumed that the second round in July 2021 was the final word. This was a happy surprise for organizations and those selectees now willing and able to move forward with H-1B processing. The downside is that a number of organizations may not be so willing and able to sponsor as they were earlier in the year and that the selectees may have moved on to other jobs, gone back to school, taken other nonimmigrant/immigrant options, or left the country. Nevertheless, the third round will solve problems for a number of individuals whose statuses are or may become questionable. Notice was given to petitioners’ attorneys/representatives and petitioning organizations on their myUSCIS accounts including details on when and where to file. Petitioning organizations have from November 22, 2021 until February 23, 2022, to file petitions with USCIS.

2. Filing addresses extremely important to pay attention to.

USCIS announced that it is planning to open a new lockbox in Elgin, Illinois, next year; that now certain adjustment of status applicants submit their applications to the Phoenix lockbox instead of the Chicago or Dallas lockbox; that it has streamlined filing locations for certain employment based forms to a single lockbox location and that people can find the latest filing instructions on I-130, I-131, I-360, I-485, I-601, I-765, I-824, and I-864 pages; that in the coming year, USCIS is planning a few more filing location changes and will direct some family-based adjustment of status applications to Dallas; and that next summer, USCIS will move the lockbox facility in Arizona from Phoenix to Tempe. So the watchword for all is to check the filing locations for every petition or application going out!

3. EAD changes for H-4, L and E dependents.

On the heels of the H-4 and L dependent spouse automatic extension EAD settlement in Shergill, et al v. Mayorkas, 2:21-cv-01296 (WD Wash 11/10/21), USCIS issued a policy alert on November 12, 2021, “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses”, PA-2021-25, on the procedures to follow for three nonimmigrant classes of spouses, H-4, E, and L –that all of them are eligible for automatic EAD extensions of work authorizations if they properly filed an application to renew their EADs before expiration and have an unexpired I-94 form showing their status as H-4, E, or L nonimmigrant. The automatic extension continues until the earlier of 180 days from date of expiration of the previous EAD, end date of the I-94 showing valid status, or the approval or denial of the EAD renewal application. For automatic extension of the previous EAD, employers for I-9 purposes need to see the form I-94 indicating the unexpired nonimmigrant status, I-797C receipt for timely filed EAD renewal application stating “Class requested” as “(a)(17)”, “(a)(18)”, or “(c)(26)”, and facially expired EAD issued under the same category.

The policy alert also provides that E and L dependent spouses are employment authorized incident to their status and are no longer required to request employment authorization by filing for I-765 but may continue to file form I-765 if they choose to receive an EAD. The problem with the new policy for E and L dependent spouses is that at present, there are no distinguishing markers on their I-94’s to distinguish them from children, and so on until USCIS can implement changes to the I-94 to distinguish them, an I-94 solely indicating H or L nonimmigrant status is insufficient evidence of employment authorization under list C of the I-9 form. So until that time, E and L spouses still need to rely upon an EAD as evidence of employment authorization. USCIS noted that three classes of E dependents are not recognized under the new policy – spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO) must continue to apply for EAD’s under 8 CFR 274a .12(c)(2); spouses of long-term investors in the Commonwealth of the Northern Mariana Islands under 8 CFR 274a .12(c)(12); and spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

4. December visa chart holds a few bright spots.

A few bright spots in the December visa chart were the advances in the Mexico family-based categories, EB-5 open availability for direct investments for all countries, and China’s advance in EB-2 and EB-3W categories under dates for filing. Both family-based (FB) charts remained the same except for final action dates for Mexico that moved from 1-4 months and for dates for filing F-2A advancing worldwide to 9/1/21 (unimportant as the category is open under the final action dates chart and USCIS allows that date to be used for filing purposes), and Mexico preferences advancing 0-4 months; employment based (EB) final action dates remained current worldwide* except for regional center investments under EB-5 being unavailable for all countries, China moved one and a half months in EB-2 to1/1/19, and EB-3W (other workers) two years to 3/1/12; and India EB-2 advanced six months to 5/1/12 (not especially helpful for most Indian cases that had already downgraded to EB-3 in 2020 when the availability date reached 1/1/15); in EB dates of filing, China’s EB-2 advanced two months to 4/1/19, EB-3W 5 years to 5/1/15, and EB-5 direct for all countries including China became current. EB-5 regional investment cases remain unavailable as there is no implementing legislation. (Unless investors are involved in direct EB-5 investments (only about 5% of investors), the EB-5 movement in the December visa chart was not very exciting).

For the month, USCIS is allowing final action dates to be used for the F-2A category, and dates for filing for both FB and EB categories.

*Worldwide here meaning all but oversubscribed countries China and India (EB-1 to EB-3) and El Salvador, Guatemala, Honduras, and Mexico (EB-4 religious cases).

5. New York District Office/Contact Center meeting points.

The Contact Center meeting of 10/21/21 was reported by the New York chapter of the American Immigration Lawyers Association (AILA), and the following are some interesting items which readers may or may not know in working with the Center:

• Urgent inquiries for the Center to call back are up to 72 hours, but currently 48 hours.
• Cases classified as nonurgent for the Center are up to 30 days for callback, but currently 20 days.
• Representatives are supposed to take two phone numbers.
• For cases without receipt numbers, the attorney/representative should state that the inquiry is for a specific filing that doesn’t have a receipt number and tier 1 will escalate to tier 2 to research/special handling and then generate a service request to the office where the case is pending.
• While a tier 1 officer should provide the name and the agent ID number, a tier 2 immigration services officer (ISO) only needs to provide the last name.
• On biometrics appointments where the person is turned away because the ID is not sufficient or for other reasons, the person should contact USCIS and let them know why the biometrics was not collected on the scheduled date and the officers would try to accommodate.
• Good cause for rescheduling biometrics appointments may include but are not limited to medical reasons, employment reasons, necessary travel, travel that was previously planned, coverage on the job (people cannot take a particular day off), illness/Covid.
• The Contact Center encourages applicants to use their myUSCIS account to request rescheduling.
• On callbacks, representatives can ask about another two cases when they receive a call back.
• It was confirmed that USCIS is not speaking to paralegals, only to the lawyer on the G-28 authorization of representation.

Happy Thanksgiving to all!

As published in the Immigration Daily on October 19, 2021

1. Naturalization practice and procedure

Q&A’s from the CIS Ombudsman’s webinar on naturalization and immigrant integration on 6/23/21 gave the following:

• Demonstrating the general usage of tablets for naturalization applicants’ reading and writing tests, the question was how naturalization applicants can request to take the reading and writing tests on paper with the answer being a variety of ways including through the Contact Center, online at uscis.gov/accommodations, or by asking the field office at any time during the naturalization process.
• On how common video interviews are becoming in USCIS field offices, the question was how citizenship educators can find out if their local field office is conducting video interviews so they can prepare students, the answer being that the use of video interviews varies across offices based on determinations that consider a variety of factors, such as office capacity, office workloads, and health and safety considerations; that select USCIS offices began testing in person video interview technology in June 2020; the testing was successful, and USCIS has now conducted video interviews in all USCIS field offices.

From the New York District office/stakeholders liaison meeting of 9/29/21:

• There was an interesting question as to what the District would do in an N-400 case where the person had a green card that expired prior to filing the N-400 or during the pendency of the application. The first answer was that the person had to file form I-90 even if that person filed for naturalization as the law required that a person have a valid green card in all times. In a later follow-up question as to whether lack of the green card would cause the immigration officer not to adjudicate the N-400, the District answer was that the lack would have no effect since not having a green card had nothing to do with good moral character.

 

2. The retrogressive visa chart for November

While FB (family-based) dates of filing and final action dates in the November visa chart were the same as in October, EB (employment based) dates of filing and final action dates for China and India took a big hit in the EB-3 category – Final action dates: EB-3 China retrogressed from 1/8/19 to 3/22/18 and India from 1/1/14 to 1/15/12. There is little solace that the EB-2 China date advanced from 7/1/18 to 11/15/18 and India from 9/1/11 to 12/1/11 as those dates had been reached for the vast majority of EB-2 to EB-3 downgraded petitions. Dates of filing: EB-3 China moved backwards from 1/15/19 to 4/1/18 and India from 1/8/14 to 1/22/12. There is some solace that China’s EB-2 date of filing advanced from 9/1/18 to 2/1/19 as that is an advance over past usable visa availability dates for China EB-2 and EB-3 categories, but the India EB-2 move from 7/8/12 to 1/8/13 provided little solace except for those that could not downgrade to EB-3 previously.

What reason(s) can be ascribed for the retrogression? The November visa bulletin section on page 8 said, “This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases.”

An article in the 10/6/21 Immigration Daily, “The Biden Administration Let over 200,000 Green Cards Go to Waste This Year” by Walter Ewing, charges that roughly 150,000 FB and as many as 80,000 EB immigrant visas went unused by September 30 – that while the 150,000 FB IV numbers can go to the EB category for the next year (regular quota of 140,000+150,000 FB numbers = 290,000 for use in FY 2022), the 80,000 EB numbers went to waste. Mr. Ewing pointed out that in FY 2021, there were 122,000 FB leftover numbers from FY 2020 for use in that year for EB purposes (140,000+122,000 = 262,000), but that as many as 80,000 went unused and cannot be resurrected without congressional action.

Between the wasted numbers and that the Department of State must balance out the annual quota among the four quarters of the fiscal year, therein lies (in this writer’s opinion) the roots of the problem to the retrogressed categories.

In the continuing tease, USCIS adjustment dates for November allow dates of filing for FB cases, final action dates for F-2A, and filing dates for EB cases.

 

3. H-1B by highest salary still being advocated by Biden Administration.

The Biden administration is defending the H-1B by highest salary Trump policy once again – this time before a DC federal judge in Humane Society of New York et al. v. Alejandro Mayorkas, et al., 1:21-CV-01349, saying that the policy is procedurally valid and consistent with the INA. It argued on October 11 in a new motion both that the wage dependent model for awarding the limited number of visas for specialty workers is valid and that the policy was implemented legally in the final weeks of the Trump administration under the then acting DHS Sec. Chad Wolf. The administration lost in the California District Court on the same issue about a month ago. There, District Court Judge Jeffrey S White of the Northern District of California in Chamber of Commerce of the United States of America v. US Department of Homeland Security, 20-CV-07331, granted summary judgment to the Chamber of Commerce on 9/15/21 only on the ground that Chad Wolf was not lawfully appointed as Acting Secretary at the time that DHS promulgated the rule. The judge noted that DHS abandoned the argument that a memorandum issued by FEMA Administrator Peter Gaynor cured any deficiencies in Wolf’s appointment. The judge did not rule on the merits of the plaintiffs’ argument that the government’s regulation offended the statute that H-1B cap case people “shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” §1184(g)(3).

It is becoming increasingly clear that while the Biden administration is much better than that of Mr. Trump in most areas of immigration, Mr. Biden is heavily invested in the unions and in the belief that employers should pay the highest wages to their workers, regardless of the circumstances. Practitioners should plan accordingly if this becomes a reality.

 

4. Ban on travel from Canada and Mexico ending in stages.

The White House announced that it is ending the ban on nonessential travel from Canada and Mexico and that those travelers who are fully vaccinated can enter the US for nonessential reasons such as tourism or visiting family travelers starting November 8, the same date that international air travelers can enter. The vaccination requirement does not apply to essential Canadian and Mexican workers who will have until January to be vaccinated. Children are excepted. All FDA approved and authorized vaccines, as well as all vaccines that have an emergency use listing from the WHO are to be accepted for air travel, and a White House official said that it was anticipated that the same would be true at the land borders. At this time, only seven vaccines have been approved for use by WHO – Moderna, Pfizer, Johnson & Johnson, AstraZeneca, Covishield, Sinopharm’s BBIBP-Corv (Vero Cells), and Sinovac’s CoronaVac. The Russian Sputnik vaccine is not included.

 

5. New York State and federal government efforts to protect immigrants.

On October 9, 2021, New York Gov. Kathy Hochul signed legislation (S343-A/A.3412-A) which will apply the legal standard of extortion or coercion to a person threatening to report another person’s immigration status. Previously threats to report could only be treated as a crime in cases of labor trafficking and sex trafficking, but were not treated as potential extortion or coercion offenses. The bill allows prosecutors to prosecute efforts to blackmail an individual by threatening to cause deportation proceedings even when unrelated to labor or sex trafficking.

On the federal side, the Biden administration has suspended the use of expanded expedited removal. A DHS spokesperson said in a statement, “DHS’s review of expanded expedited removal is ongoing. This particular application of expedited removal was used in an exceedingly small number of cases under the Biden administration and will not be used moving forward until the Department’s review is completed.” Under expanded expedited removal, the previous bounds of only employing the procedure on those unlawfully entering within two weeks and discovered within 100 miles of the borders were expanded by Mr. Trump to those unlawful entrants discovered in any location in the country who could not prove their presence in the US for at least two years.

In a DHS memo from Secretary Alejandro Mayorkas on 10/12/21, “Workforce Enforcement: The Strategy to Protect the American Job Market, the Conditions of the American Worksite, And the Dignity of the Individual” to Tae D. Johnson, Acting Dir., US ICE, Ur M. Jaddou, Director of USCIS, and Troy A. Miller, Acting Commissioner, US CBP, the Secretary stated DHS policy against mass worksite operations – that “The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even acting as a tool of retaliation for, worker cooperation and workplace standards investigations. Moreover, such operations are inconsistent with the Department’s September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.”

 

 

As published in the Immigration Daily on September 16, 2021

1. October “surprise” in the opposite direction as DOS does not do its part while USCIS does its.

Contrary to our speculation in the sub-article, “Visa Chart Largely Humdrum for September except for Indians – Will There Be an October Surprise?” The Immigration Daily, August 24, 2021 (that the Department of State and USCIS would use the opportunity of an overabundance of employment based visa numbers to both advance the employment based (EB) dates for China and India (DOS) and to use the dates of filing chart (USCIS) to allow the filing of many cases), that scenario will not unfold in October as USCIS did its part in allowing the dates for filing chart instead of final action dates chart to be used for October, but DOS severely crimped the visa flow by delivering static charts for both family-based (FB) final action dates and filing dates charts, very little change in EB final action dates chart, and a retreat for the EB filing dates chart except for the Indian second and backwards movement on the China and India third preference categories. The China EB-3 category backed up 5 ½ months from 7/1/19 to 1/15/19, India EB-2 advanced 7 months from 12/1/11 to 7/8/12; and India’s EB-3/EB-3W moved backwards almost 2 months from 3/1/14 to 1/8/14. So in this case, USCIS was left without a dance partner as its allowing the use of the dates of filing chart for EB cases was largely ineffective in allowing more people to file for adjustment of status under both China and India EB categories. The China EB-3 date only allows persons to file who have priority dates seven days later than the date on the October final action dates chart (1/15/19 versus 1/8/19) and the forward movement of the India EB-2 to July 2012 benefits very few as most Indian EB-2 petitions were downgraded to EB-3 in October 2020 when Indian dates of filing for that category were advanced to 1/1/15. Hopefully, USCIS will have a partner in the upcoming months and continues to extend its acceptance of the dates of filing chart past October. It should be noted that USCIS maintained acceptance last year for dates of filing from October-December 2020.

2. Immigration medical exams to require proof of Covid vaccination.

The CDC announced in late August that Covid-19 vaccination would be required for immigration beginning on October 1, 2021 – that person seeking to immigrate would have to show proof of full vaccination with a vaccine authorized for use or listed for emergency use by the WHO. Self-reports of vaccination would not be accepted without written documentation. If a person is not vaccinated and the panel physician overseas or US civil surgeon has available Covid-19 vaccine, the doctor is permitted to vaccinate the applicant. However, an applicant must receive the full Covid-19 vaccine series before the medical examination can be completed, so case processing may be delayed if the applicant attends an exam unvaccinated. A blanket waiver can be given to those younger than the lowest age limit and for those who can document a medical contraindication. Also in certain circumstances, if the Covid-19 vaccine is not routinely available in the jurisdiction of the doctor. Applicants must receive the vaccination regardless of evidence of immunity or prior Covid-19 infection. The question is what happens to those who have already taken medical examinations before October 1. Will they be required to supplement their examinations, take another, or show proof of vaccination either before or at interview with USCIS or an American consular post? USCIS appears to have answered the question in its release on 9/14/21 that the vaccination requirement will be confined to medical examinations on or after October 1, 2021. In “Covid-19 Vaccination Required for Immigration Medical Examinations,” USCIS emphasized that, “This requirement is effective October 1, 2021, and applies prospectively to all Forms I-693 signed by the civil surgeons on or after that date.” Pending further instructions to the contrary, it would appear that medical examinations taken before 10/1/21 in pending cases will be valid for all purposes.

3. $3.5 trillion reconciliation package has hope for many undocumented immigrants.

It appears that real hope is here for the legalization of many undocumented immigrants in the country, but judgment day may come as early as this week or next. The $3.5 trillion budget reconciliation bill contains immigration provisions that would allow legalization for the Dreamers who came to the country as children (DACA), farmworkers, TPS recipients, and “essential” workers. The House passed the framework of the bill on August 24 which the Senate previously approved on August 11 on a 50-49 vote. Estimates are that between 6-11 million people could be granted a path to citizenship in the bill, depending on how the legislation is written. Under budget reconciliation, there is no filibuster, and as long as the Democrats hold all 50 senators plus the vice president, the legislation will pass. The one big caveat other than Democratic unity is that the immigration part has to have the approval of the Senate parliamentarian Elizabeth McDonough, who will rule on whether the provisions either raise revenue or add to the deficit, and that the immigration provisions’ impact are not merely “incidental”. She could reject the immigration provisions if she finds that they do not have a real impact on the country’s overall budget. Both parties presented their arguments to Ms. McDonough on September 10 with the Democrats saying that giving legal status to an estimated 8 million would cost the government $139.6 billion over 10 years while Republicans argued that the impact would be incidental to the budget. Part of the reason for the uncertainty over the number of eligible people will undoubtedly hang on the question of who is an “essential worker” as everybody has their own idea on what that is. It obviously means more than a “frontline” essential worker, but who will set the standard? Congress, each state, DHS? Is it the janitor in the hospital, cashier at the bodega, restaurant waiter, restaurant owner, actor or actress, trash collector, news reporter, gas station attendant, car factory worker, Amazon line worker, other factory worker, gardener, lawn worker, home maintenance man, dockworker, bank clerk? We will have to wait to see how it all shortly plays out. *The parliamentarian unfortunately ruled against including the immigration provisions on Sunday, September 19, not on whether the provisions were incidental or not to the budget, but that the grant of permanent residence to millions of immigrants would be a “tremendous and enduring policy change that dwarfs its budgetary impact.” The Democratic leadership has said that it will keep trying to add immigration to the budget plan and will soon offer alternate plans to Ms. McDonough including setting a more recent registry date.

4. Market research analyst H-1B proposed nationwide class-action suit settlement.

There is a proposed settlement in a nationwide class-action suit, Madkudu v. USCIS, No. 5:20-cv-2653-SVK (USDC N. Dist. CA. 2021) providing a remedy for class members – all US employers who filed market research analyst H-1B petitions on or after January 1, 2019, until the date that the court approves the settlement, which were denied on grounds that the Occupational Outlook Handbook (OOH) does not establish that market research analyst is a specialty occupation and that but for USCIS’s finding regarding the OOH entry for market research analyst, the H-1B petitions would have been approved. Class members have until October 4, 2021, to file objections to the proposed settlement agreement, and the court scheduled the fairness hearing for October 19, 2021. Cases that qualify under Madkudu for reopening 180 days after the judge’s decision with no fee to be charged are:

• Bachelor’s or higher degree in business administration with official minor, major, concentration, or specialization in market research, marketing, or research methods, as annotated on a transcript, diploma, or other official document from the registrar. If no documentation from the registrar is available, the petitioner can submit for consideration a letter from the chair of the relevant department, a professor in the relevant department, or an official academic advisor from the institution of higher education that issued the degree confirming the above. Also an unofficial transcript may be considered.
• Bachelor’s or higher degree in communications, statistics, computer and information technology, and/or social science may qualify if the petitioner is able to demonstrate an unofficial minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform the job duties.
• To demonstrate class membership, a petitioner will submit with the reopening request a copy of USCIS’s denial of the original H-1B petition and those who appealed and had their appeals dismissed by the AAO will submit a copy of the AAO decision instead of the service center denial.
• USCIS is to provide within 10 business days of the court’s order an announcement with directions for class members to send a motion to reopen on form I-290B, with a cover sheet to clearly identify the motion is filed by a claimed member of the class, to a designated USCIS service center(s) for the receipt and adjudication of class members’ reopening requests. The 180 days commences on the date that USCIS announces directions for class members to send a motion to reopen.

The proposed settlement is another rebuke to USCIS’ reliance on the OOH to decide what is a specialty occupation for purposes of H-1B petitions, and serves as more than an indication that specialty occupation is not to be defined by one specialized field of study.

5. Reporting to ICE ERO to become simpler.

ICE is instituting a new online scheduling tool for persons having final orders to schedule their own check-in appointments with ICE ERO (Enforcement and Removal Operations). This device is called the ICE Appointment Scheduler and is available at https://www.ice.gov/check-in. Previously, appointments had to be made via phone or in person. People can create the appointment online using information found on their I-385 alien booking record form. So there is the good possibility in many cases that after they schedule their check-in appointments through this new tool, they may go in and only be met by the kiosk. Kiosk reporting in New York was mentioned in the AILA New York Chapter – ICE/ERO meeting agenda on 5/13/21 of which there were a few interesting points:

• The Ninth floor for reporting for persons with orders of supervision now has three kiosk machines, and so many people will just be reporting to ICE/ERO through the machines.
• Kiosk cases are regularly reviewed for compliance and cases are removed from kiosk cart reporting if the noncitizen is noncompliant with the program requirements or there is a change in case status warranting in-person reporting.
• To the AILA observation that many with orders of supervision have not had in-person reporting over the last year plus, have transferred jurisdictions or have otherwise not reported or been able to report, ICE/ERO says that in general noncitizens have always had reporting requirements and it would need to know the specifics of why they have not been complying in order to ascertain the next steps; that although many have not had in-person reporting, many were telephonically interviewed due to COVID-19 restrictions.

In the age of Covid, contactless reporting in most cases benefits the undocumented immigrant along with DHS staff members.