Author: Alan Lee

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.

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 July 12, 2021

1. Preserving F-2B preference at the NVC or consulate.

In an earlier article, this writer questioned the procedure that applicants could use to notify USCIS that they wished to keep the F-2B designation as unmarried son or daughter of a permanent resident even as their petitioners naturalized, which move automatically changed their designations from F-2B to F-1 unmarried son or daughter of a US citizen. The aim of course is to immigrate at the earliest time, and the July 2021 visa chart shows that for all countries of the world except Mexico and the Philippines, there is visa availability for those filing I-130 petitions before 9/15/15 under the F-2 B category while there is only availability under the F-1 category for those filing by 11/15/14. The Child Status Protection Act (CSPA) allows for the preservation of the F-2B category with the agreement of USCIS, and the question was whether there was a fixed procedure for the retention of classification. It appears that there now is and in looking at the Department of State FAQs, the process is stated as the following:

• Applicants whose case is at NVC should submit requests using NVC’s online inquiry form. NVC will forward the request to USCIS and change the visa category back to F2B upon receipt of USCIS’s approval.
• Applicants whose case is at a U.S. Embassy or Consulate overseas should ask the embassy to submit a request on their behalf. The consular officer will forward the request and adjudicate the visa application in the F2B category only upon receipt of USCIS’s approval.

Although F-2B has been the faster category, there have been times in the past when F-1 was quicker. Applicants may wish to hold off making the decision on which category to choose until their cases are closer to visa availability.

2. Video interviews at Immigration.

Do not be surprised if you walk into the interview at USCIS and there is no officer there. From reports, video interviews with remote officers are being implemented to varying extents, and may comprise a good portion of future adjudications. In asylum interviews, attorneys complain about being placed in a chair in the middle of the room with no desk, facing the screen, and having the feeling of being in an interrogation setting. In naturalization cases, it appears that video interviews are being used more commonly, and the New York District office even has a new iPad unit. One attorney noted that at an interview in the New York District office, the iPad officer was from Ohio. While video interviews may be more appealing during the pandemic and take less time than traditional person-to-person interviews, one wonders how a remote officer can look at many items that an applicant brings in on the date of interview, or what happens when the applicant sent all the paperwork and documents through filing online or to a lockbox, and part of the documents for some reason do not make it to the system for the interview. As we all know, the reliance of electronic records is only as good as the people inputting the information. In cases involving bona fide marriage, applicants typically bring in reams of documentation to show an officer that they are living together with their spouses. An officer usually asks to see this or that, and applicants take the relevant documents from their bag or folder. In a video interview, how is an officer to get a good look at the documents or to determine whether they are genuine? Except by sending the applicants to the front desk or a clerk, how are the new documents to reach the remote officer?

3. New ground for denying China NIV applications.

As if we did not see enough bars on immigration during the Trump years, here is another one by the Department of State. In the State Department 5/27/21 liaison meeting with the American Immigration Lawyers Association, AILA raised reports of NIV rejections in China based on INA section 243(d) due to China’s failure to accept deported nationals, and DOS confirmed that 243(d) rejections are possible in China, but that this should not affect most student visa applications. It said that Chinese nationals subject to 243(d) can avoid that ground for denial if they apply at a consular post outside of China. The difficulty of course is the well-known reluctance of consulates in third countries to accept and adjudicate most nonimmigrant applications because of caseload and the belief that consulates in the home country are better equipped to handle cases of their own nationals.

4. Three items from USCIS on June 9, 2021, on EAD’s, RFE’s, and expedites:

• Initial and renewal EAD’s for adjustment of status cases will now be for two years instead of one.
• The old RFE policy from 2013 is back. That policy instructed officers to issue RFE’s in cases involving insufficient evidence before denying such cases unless the officer determined that there was no possibility that the benefit requester could overcome a finding of ineligibility by submitting additional evidence. In 2018, USCIS rescinded the no possibility policy and issued guidance that officers could deny benefit requests for lack of initial evidence without first sending an RFE or NOID.
• The expedite policy is tweaked with USCIS saying that it will generally not consider expedites where premium processing is available, but now will restore that ability for nonprofit organizations whose request is in the furtherance of the cultural and social interests of the United States. Otherwise the criteria are the same – severe financial loss to a company or person; emergencies and urgent humanitarian reasons; US government interests; clear USCIS error. Company financial loss can be recognized where it is at risk of failing, losing a critical contract, or required to lay off other employees – e.g. medical office if a gap in a doctor’s employment authorization would require laying off medical assistants.

The three changes by and large make for fairer and more efficient policy– the EAD change as it has largely been because of the increasing delays in adjudications that adjustment applicants must file second applications for EAD’s; the RFE change as petitioning organizations have a right to believe that USCIS will not unfairly flip-flop on subsequent petitions involving the same individual and same set of facts; and the expedite policy to allow nonprofits to obtain expedites without having to pay the same premium processing fee as private organizations with deeper pockets.

5. Where no administrative closure of cases in I-601A cases, the further actions that can be taken.

In the event that you are unable to adjust status here in the US, but have a good possibility of having an I-601A application for provisional waiver approved to consular interview overseas, yet are stymied by the ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018) which prevents immigration judges from administratively closing cases to allow the filing of such applications, the Biden administration is encouraging DHS to allow another form of relief. On May 27, 2021, DHS sent a memorandum to all OPLA (Office of the Principal Legal Advisor) attorneys entitled “Interim Guidance to OPLA Attorneys regarding Civil Immigration Enforcement and Removal Policies and Priorities” laying out the priority cases for enforcement as those affecting national security, border security against those unlawfully entering the US on or after 11/1/20, and aggravated felons or gang members determined to pose a threat to public security. It also listed all factors for prosecutorial discretion and encouraged that it be exercised at all stages of the enforcement process – and that “it may be appropriate for the Chief Counsel to conclude that a legally sufficient, appropriately documented administrative immigration case warrants non-filing of an NTA.” In light of the lack of administrative closure, it encouraged the use of continuances for “good cause shown” and seeking, opposing, or joining in motions for dismissal of proceedings. In the latter regard, the memo stated that it may be appropriate where the noncitizen has an approved I-130 and appears prima facie eligible for either adjustment of status “or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence.”

Further news on Castro-Tum is encouraging as another dagger to the decision was struck recently by the Sixth Circuit in Garcia-de Leon v. Garland, No 20-3957 (6^th Cir. 6/4/21), the court saying that immigration judges have the authority to administratively close cases for purposes of I-601A’s. Previously the Sixth Circuit had held in Hernandez-Serrano v. Barr, 981 F.3d 459 (6^th Cir. 2020) that the regulations did not give IJ’s or the BIA general authority to administratively close immigration cases. So now, for purposes of I-601A cases, all four circuits that have decided on the matter have gone against Castro-Tum – the Third in Sanchez v. Atty. Gen., No. 20-1843 (3d Cir. 1/26/21), Fourth in Romero v. Barr, 937 F.3d 382 (4^th Cir. 2019), Seventh in Meza-Morales v. Barr, 973 F.3d 656 (7^th Cir. 2020), and now the Sixth.

Note:  Following the writing of the above, Atty. Gen. Merrick Garland overruled Castro-Tum a few days later on July 15, 2021, in its entirety in Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021). This case dealt with an I-601A situation in which the immigration judge and the Board of Immigration Appeals had denied the motion for administrative closure as being foreclosed by Castro Tum. Atty. Gen. Garland determined that it was appropriate to overrule former AG Sessions’ opinion in Castro-Tum and to vacate the decision as well. The move by the Atty. Gen. will now revive the I-601A provisional waiver as an effective avenue of relief for those under immigration proceedings who cannot adjust status in the US.

 

As published in the Immigration Daily on June 1, 2021

New students from China to be admitted, and guidance for distance learning:

Under the regional COVID ban on China, foreign students from China have been generally barred unless able to show that they have been in a non-banned country for 14 days before entry into the US. That policy changed on  April 26, 2021, with the Department of State announcement that National Interest Exceptions (NIE’s) would be given to all students including those from China with valid F-1 and M-1 visas intending to begin or continue an academic program starting August 1, 2021 or later, and that they would not need to contact an embassy or consulate to seek an individual NIE to travel; that they may enter the US no earlier than 30 days before the start of their academic studies. Students seeking to apply for new visas who are found to be otherwise qualified will automatically be considered for an NIE to travel. In other related news, Immigration and Customs Enforcement (ICE) sent a message to all SEVIS users on 4/26/21 that it is extending the guidance in March 2020 for the 2021-22 academic year. That guidance allowed schools and students to engage in distance learning in excess of regulatory limits and applied to nonimmigrant students actively enrolled at a US school on March 9, 2020, who were otherwise complying with the terms of their nonimmigrant status. They can count online classes toward a full course of study in excess of regulatory limits.

EOIR re-openings:

News from The Executive Office for Immigration Review (EOIR) that non-detained cases will begin to be heard in a number of immigration courts that were previously closed including New York City on July 6, which is a Tuesday since July 5 is the official day for holiday as Independence Day falls on Sunday. The notice says that all immigration courts will be holding limited hearings, applying relevant federal best practices relating to communicable disease. In the recent past, hearing notices for non-detained in closed courts could generally be put aside as EOIR announced postponement dates past the calendar dates for hearings. Now affected attorneys and respondents must pay more attention to the notices of hearing.

H-1B registrations for 2021 an all-time high:

News from the DealBook newsletter in The New York Times on May 10, 2021, revealed that H-1B registrations for this year reached approximately 308,000 applicants for the 85,000 allotted slots. This is a record high as 2019 produced approximately 201,000 applicants and 2020 275,000. It also means that organizations had about a 1 in 4 chance of having their candidates selected. So if you as the lawyer or petitioning organization were puzzled as to why more of your applicants were not selected, that is the reason. The remedy would apparently be to allocate more H-1B numbers, especially as it has been shown that most H-1B beneficiaries do not take away available jobs from US workers (see Innova Solutions v. Baran, No. 19-16849 (9^th Cir. 2020)), but such will not likely be happening in a Biden administration attuned to the cries of labor unions and the general lack of sympathy in Congress. The best solution for organizations not interested in off-shoring professional type H-IB work would probably be to not rely on getting new blood every year and to incentivize their current H-1B staff to remain through such means as sponsoring them for permanent residence and giving occasional raises consistent with performance along with other perks and accommodations.

SSA no match letters nixed:

Good news is that the Social Security Administration (SSA) will no longer be sending out no match letters to employers which caused them to be the subject of investigation and to fire employees who could not quickly document their immigration status. In a recent notice, SSA laid out the history that it began mailing no match letters in March 2019 to employers identified as having at least one name and combination submitted on W-2s that did not match SSA records, and that “At present, we are discontinuing EDCOR [Educational Correspondence to Employers] letters to focus on making it a better, easier, more convenient experience for employers to report wages electronically.” To ICE, receipt of the notification created an affirmative duty to investigate the discrepancy and that failure to act was constructive knowledge of unauthorized employment. The no match letter policy was further criticized for the inaccuracy of SSA records.

Entrepreneur parole program returns:

More good news that Biden is bringing back the entrepreneur parole program – what some people mistakenly called the EB-6 program and that the past USCIS head L. Francis Cissna boasted to Sen. Charles Grassley of Iowa in April 2018 that USCIS had not approved any parole requests by that time. The program was first introduced in January 2017 in regulatory form to take effect in July 2017, but disfavored by the Trump Administration and DHS moved in a 2018 notice of proposed rulemaking to remove it entirely, yet the removal was never completed. Current Acting USCIS Director Tracy Renaud said that “Immigrants in the United States have a long history of entrepreneurship, hard work, and creativity, and their contributions to this nation are incredibly valuable. The international entrepreneur parole program goes hand-in-hand with our nation’s spirit of welcoming entrepreneurship and USCIS encourages those who are eligible to take advantage of the program.” Under the rule, DHS may use its parole authority to grant a period of authorized stay to foreign entrepreneurs who demonstrate that their presence in the US would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. Entrepreneurs granted parole would be eligible to work only for their start-up businesses. Dependent family members would also be eligible for parole, but not work privileges. The parole can be granted for up to three entrepreneurs per startup entity.

Applicants would have to demonstrate that they possess a substantial ownership interest in a startup entity created within the past five years in the US that has substantial potential for rapid growth and job creation; have a central and active role in the start of entities such that they are well-positioned to substantially assist with the growth and success of the business; and that they will provide a significant public benefit in the US based on their role as an entrepreneur of the start-up entity by showing either that the start-up entity has received a significant investment of capital from certain qualified US investors with established records of successful investments; or the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants rewards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. An entrepreneur qualifying through investment by qualified US investors must have received $250,000 within the 18 month period prior to filing the application for parole; if through government entities $100,000 in grants or awards; and if only partially satisfying one of the two above conditions, can provide other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Expanded biometric rule nixed:

There was an announcement on Friday, May 7, 2021, that USCIS is withdrawing the proposed rule that would have everybody take biometrics and even enhanced biometrics including eye scans and some DNA tests for not only applicants, but for petitioners and those who are providing affidavits of support. The notice from USCIS said that the rule “would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waives or exempts the biometrics requirement…”

Biden backup plan for legalization:

It appears that the Democrats are considering pushing through a revised immigration package through budget reconciliation if they cannot get the 60 votes in the Senate. Created by the Congressional Budget Act of 1974, reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. In the Senate, reconciliation bills are not subject to filibuster and the scope of amendments is limited, giving this process real advantages for enacting controversial budget and tax measures. The Congressional Budget Act permits using reconciliation for legislation that changes spending, revenues, and the federal debt limit. This backup plan would legalize about 8 million or fewer undocumented immigrants according to The New York Times reporting on May 4, 2021. They would include legal status to Dreamers, those granted TPS, and close to 1 million farmworkers. Nancy Pelosi last month endorsed the idea of using reconciliation citing the “budget impacts of immigration in our country”, and Sen. Patty Murphy of Washington, the number three Democrat came out in favor of this approach. Reconciliation requires agreement by the parliamentarian, Elizabeth McDonough, that the policy change would have a budgetary impact that is more than merely incidental. Researchers have found past precedents in which changes to immigration policy were allowed as part of a budget reconciliation package, and they are tallying up the budgetary effects of the immigration proposals which total in the tens of billions. Republicans are of course not agreeing to anything on immigration saying that Biden needs to fix what is happening at the border before anyone can do anything meaningful on immigration. The contemplated moved by Democrats is dicey, but if successful would accomplish many of Mr. Biden’s immigration goals.

Tips in dealing with the NVC:

The below are a couple of pointers from the Department of State from the AILA Virtual Spring Conference on 4/16/21.

• To expedite interviews for emergency cases, make the request through the nvcexpedite@state.gov. When NVC receives the request, it will reach out to the post where consular officers will determine if the case qualifies. The cases must be current, at the NVC, and the case parties must have good articulated reasons for the request. Requesters should receive an automated request answer and timeframe for response. Repeated inquiry can slow down the process.
• What do you do when documents are not available or unobtainable? At the NVC, click “document unavailable” with an explanation in the upload space provided to send the case to the documentarily completed stage. The party should be able to later upload the document to CEAC.