Category: Articles

Article: “The Congressional Review Act and Freeze on Regulations Give Immigrants Hope for Relief ” by Arthur Lee, Esq.

As published in the Immigration Daily on January 11, 2021

Notwithstanding the debacle in the Capitol this past week and fears that an unstable president will unleash actions to further endanger or divide the country during his last nine days in office, the victory of the Democrats in the two senatorial races in Georgia promises hope to immigrants as well as others affected by the steady parade of regulations that the Trump administration has been marching out in the last months.

Some of the regulations that could be canceled under the Congressional Review Act or an immediate regulatory freeze are the H-1B rule tying lottery selection to highest wages offered (86 FR1676 finalized on 1/8/21 with implementation date of 3/9/21); the no traditional administrative closure rule as used by immigration judges and the BIA despite over 1 million plus pending asylum cases (85 FR 81588 in effect on 1/15/21); the DHS/ EOIR joint rule tying eligibility for asylum to health concerns as affecting the security of the US (85 FR 84160 effective 1/22/21); the DHS/DOJ joint rule barring asylum to those who transit third countries without applying for asylum in one of the countries (85 FR 82260 effective 1/19/21); and the USCIS/EOIR rule imposing seven mandatory bars on asylum (85 FR 67202 effective 11/19/20).

  1. The Congressional Review Act:

The Congressional Review Act, established in 1996, allows a joint resolution of Congress to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. Now that the Senate is in the hands of the Democrats, a simple majority of both houses of Congress allows a joint resolution of disapproval to be made and signed by the president. This is the expedited procedure envisioned by Congress in 1996 to cancel midnight regulations of the previous administration.

60 legislative days are not the same as 60 calendar days, and although the author does not have complete calendars of the days that Congress was in session in 2020, the look back conceivably affects all passed regulations since August 2020. In looking forward and seeing the Congressional calendar for 2021, and taking into account that changes can be made and that the counting of the 60 days does not begin until January 15, Congress could conceivably pass joint resolutions through April 2021. An example of the applicable timeline is that on March 27, 2017, a Department of Defense, General Services Administration, and National Aeronautics and Space Administration rule amending the Federal Acquisition Regulation (FAR); Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 (Aug. 25, 2016)) was overturned (see Pub. L. No. 115-11 (March 27, 2017)).

The Act can also be used to nullify other agency memos, guidance documents, statements of policy, and interpretive rules that are in effect rules but were never submitted to Congress. In such case, the General Accountability Office (GAO) would verify that such qualify as rules, and Congress then has 60 legislative days to pass a joint resolution of disapproval. This is another tool by which agency rulemaking without going through the regulatory process during the Trump years can be further nullified. Since a “rule” is not legally a rule without being submitted to Congress, another choice of the Biden administration in that situation would be to publish a notice that the rule not being in effect is being withdrawn or abandoned.

  1. The Regulatory Freeze:

Implementation of a regulatory freeze on January 20, the day of inauguration, would immediately stop whatever regulations have not yet been finalized as of that date. Jen Psaki, a Biden spokesperson, said that the Biden-Harris White House would issue a memo to take effect on the afternoon Eastern time on January 20 to halt or delay midnight regulations, actions taken by the Trump administration that will not have taken effect by Inauguration Day. If it is similar to the memos put out by Rahm Emanuel in January 2009 and Reince Priebus in January 2017, the memo would have three components:

  • Subject to some exceptions for emergencies, no regulation should leave the Office of Information and Regulatory Affairs (OIRA) or agencies to be published in the Federal Register.
  • For regulations sent for formal publication, they should be withdrawn and reviewed.
  • For recent regulations that have been published, temporarily postpone the effective date by 60 days, subject to certain exceptions. In addition, agencies should consider proposing for notice and comment a rule to delay the effective date beyond 60 days.

With reference to published regulations yet not implemented, an agency like DHS could temporarily postpone the effective date of the regulation by 60 days while reopening the regulation for further notice and comment, and upon receiving comments, either withdraw the final rule or extend the effective date of it.

  1. The Dawn of a New Day?

Joe Biden and Kamala Harris have great opportunity early in the administration to capture many goals, especially with Republican legislators not so beholden to Trump and his agenda after the bloodshed and violence incited by the president against the Congress on January 6. Memories are short, however, and action should be quick as Republican legislators voicing outrage now may be less inclined to go against the Trump agenda dependent upon time and Trump’s ability to hold onto his base. Also the Democrats’ hold on power in the Congress is tenuous, one vote in the Senate and a few votes in the House. A major difficulty of introducing any bill related to immigration now of course is the pandemic and the ability to move the legislation in the face of an out-of-control pandemic and so many Americans out of work. The question is also whether the Democrats can have a united caucus in both houses of Congress on immigration issues. Added into the mix on employment-based matters is the willingness of the Biden administration to rescind the Trump changes given that Democrats in the past have been the party sounding the clarion call against foreigners taking jobs in this country. The recent designation of Boston mayor Marty Walsh, a former union leader, to become the Secretary of Labor is not inspiring as he has been described as a “lifelong champion of the working people.” The lessons of the past, however, have shown that the best chances for immigration reform success are in the first days of an administration. So we urge the Biden administration to take its cue from history and act accordingly – not just on the huge ticket items of legalization for 11 million undocumented immigrants and a pathway to citizenship for the Dreamers, but also on the smaller items such as outlined above.

 

Article “BIDEN TO DO LIST – TWO VERY IMPORTANT ITEMS”

As published in the Immigration Daily on January 4, 2021

Before he is inaugurated, Joe Biden should appoint an immigration advisor who has his ear the same way that Stephen Miller has had Donald Trump’s ear during the past four years. The damage to the field of immigration and to humanity that such a close association has had – an appalling number of executive orders, regulations, interpretations, and guidances to the agencies charged with overseeing the border, points of entry, adjudications, immigration court procedures and decisions – can only be undone by a Stephen Miller clone with opposite views and energy who is close to the president. The influence that he has had with the president has been complete including a hand in over 400 immigration executive actions identified by the Migration Policy Institute by July 2020.

On day one of his presidency, Joe Biden should put a freeze on all federal regulations which have not already been implemented. An excellent article by the American Immigration Lawyers Association (AILA) on December 9, 2020, “Trump Policies That May Be Finalized before Inauguration Day 2021” listed a number of regulations that the current administration wishes to finalize before leaving office. Some of them at this point have already been implemented. A portion from the article follows:

The sacrificed lives and continued toll on legal and undocumented immigrants, US citizens and permanent resident parents, children, brothers and sisters, US companies, innovation and the economy demand such attention from Day 1.

Without an immediate freeze, implemented regulations are harder to retract, especially without control of the Senate. At least some of the above proposed regulations will still be floating around on Inauguration Day. The Congressional Review Act (CRA) could eliminate the implemented regulations by simple resolution, but require a majority of both houses of Congress. With Mitch McConnell in charge of the Senate, that will not happen. January 5, 2021, will determine control of the Senate dependent upon the results of the two senatorial contests in Georgia.

Without an advisor solely dedicated to immigration changes and working hand-in-hand with the president, four years will not undo the damage of the last four years. So far, we have seen two cabinet picks, Susan Rice and Alejandro N. Mayorkas, whose roles impact on immigration. As the Director of the White House Domestic Policy Council, Ms. Rice is to have an expanded role over the administration’s approach to immigration, healthcare, and racial equality. Mr. Mayorkas in his post of Secretary of Homeland Security is directly charged with governing that huge agency of which there are 16 separate agencies including FEMA, the TSA, US Coast Guard, US Secret Service, and Office of the Inspector General. Their portfolios are too large to get down to the brass tacks that the job requires to reverse the work of Trump/Miller. As described in thebulwark.com article, “Uninstalling Stephen Miller,” on December 17, 2020,

As a senior advisor to the president, Miller used his position to focus on immigration while avoiding the congressional scrutiny to which agency officials are subject. Miller frequently circumvented department heads, opting instead to call lower-level staff to implement his orders, reportedly telling them things like “This is the most important thing you will do at your agency.” Without looping in cabinet secretaries, Miller would hold weekly meetings with their subordinates, occasionally helping get promotions for those who shared his beliefs. Even senior officials reported that they frequently felt torn between Miller and the actual head of their agency. Miller and his allies would go “out of their way to vilify all immigrants,” demanding press releases whenever a refugee or immigrant committed a gruesome crime. This tendency of Miller’s was underscored by his correspondence with officials at the Department of Justice (DOJ) to manufacture statistics linking immigrants to violent crime and terrorism—efforts that were the likely impetus for a misleading 2019 DOJ report claiming that immigrants now comprise 64 percent of all federal arrests, having “more than tripled,” between 1998-2018.

The job does not require someone as Machiavellian as Miller. President Biden needs a “horse whisperer” like Miller who can access the president and help coordinate immigration policy with Rice and Mayorkas. An advisor who must pass ideas through the cabinet members to get to the president would not be nearly as effective. Hopefully there will be a successful search for such a person.

Article “S386/HR1044 – Passed By Senate – Goes to Conference with Part That Must be Fixed”

As published in the Immigration Daily on December 7, 2020

S386, the Senate counterpart to HR1044, which would among other items, change the immigration laws to lift the country restrictions on employment based visas and give most of them to India-born but also allow early filing of I-485 applications to adjust status with three year work and travel authorizations, was passed by Senate voice vote on December 2, 2020, but must go back to the House of Representatives because of amendments made prior to Senate passage.

Details on the bill and the changes through December 2019 were covered by our articles in the Immigration Daily, “Amended HR1044 in S386 Happening Now Amid a Flood of Concerns,” 9/23/19, and “Intersection of the Relief Act and Fairness for High Skilled Immigrants Act of 2019,” 1/2/20. Our opposition to the India domination of employment-based immigrant visas in future years at the expense of the rest of the world including China and new restrictions on H-1B and L-1 visas was tempered by the December 2019 amendment allowing early adjustment of status even when an immigrant visa number was not available. We said then that the changes made the favorability quotient of the legislation a closer question. The amended version of S386 expands the time in which adjustment of status can be filed from 270 days after approval of the immigrant visa petition to two years and places restrictions on duties, hours, and compensation along with requiring a confirmation of bona fide job offer or portability with any request for an employment authorization document.

Without going into detail on the other changes, a major concern is Section 9 which is a “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.” This may literally have the potential of affecting hundreds of millions of Chinese nationals and seriously hamstring the incoming Administration’s attempts to conduct relations with the People’s Republic of China. Who does it affect? Who knows? The paragraph underneath the heading appears to target applications for adjustment of status, but the heading of the section “Admission or Adjustment of Status” could be used to bar Chinese nationals applying for immigrant visas or even student visas. Now is the time to eliminate this controversial section which, if the legislation is passed and signed into law, may have to be litigated in court, modified by another law, or clarified by DHS regulations or memoranda. In China, many students have joined the Communist Youth League, which is a common occurrence – much more common than joining the Boy Scouts or Girl Scouts in America. Are they all to be inadmissible and not adjustable in the future? How to interpret the word “Affiliated”? Is the affiliation to be considered the present only or to include the past?

Before the pandemic, students from China comprised over one third of the foreign students studying in the United States. That is because a degree from the US has been seen in the past to be more valuable than degrees from other countries when the students return to China. Any question of inadmissibility could further prevent or discourage Chinese students from entering this country, thus depriving colleges and universities of much-needed revenue and cultural diversity along with the chance of favorably influencing China’s future leaders to American ideals.

Elimination of the section would be most appropriate as membership in the Communist Party is already covered under INA §212(a)(3)(D) that “Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.” Chinese nationals that are or were affiliated with the military forces and would be of concern to the US are likely Communist Party members and would be covered by the INA section anyway. (It should also be noted that many who served in the People’s Liberation Army were not indoctrinated or party members and joined for other purposes like one of our clients who was an artist only and not a party member).

If not elimination, the caption of the section should be changed to be consistent with the underlying text – from “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party,” to “Prohibition on Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.”

At the very least, a more favorable change should be made to Section 9 in the conference between Senate and House negotiators. Although time is tight and the 116th Congress about to expire, this section should not be ignored in the rush to pass the bill. Same or similar legislation in the 117th Congress should find favor with the Biden administration, especially as one of the bill’s lead sponsors is the incoming Vice President, Kamala Harris, whose mother was Indian.

Article: “The U.S. Government Should Consider Excusing Some Violations of Voluntary Departure Orders During The Pandemic ” by Arthur Lee, Esq.

As published in the Immigration Daily on October 27, 2020

Many deportable aliens utilize voluntary departure as a form of relief that allows them to leave the U.S. on their own in order to avoid the stigma of an order of removal on their record and certain bars to readmission, and eliminate risk of detention prior to departing the U.S.. During ordinary times, it is reasonably easy for a noncitizen who agreed to voluntary departure to leave the country within the time allowed to depart. As such, the penalties for not departing on time are understandably unforgiving. However, the U.S. government should consider leniency toward those who were granted voluntary departure during the time of coronavirus and not able to leave on time despite their best efforts.

Voluntary departure was codified in 1940 to help the U.S. government reduce costs on litigation by giving certain aliens an option to leave with less consequences on their future applications for immigration. Immigration Judges were given authority to schedule the alien’s departure date. When IIRIRA passed in 1996, IJs were divested of discretion in setting departure dates, and could only give a maximum of 120 days to an alien to depart under voluntary departure. This change was made with the goal of speeding up removal proceedings.

If an alien fails to depart by his/her voluntary departure deadline, he/she faces a plethora of harsh penalties including a final order of removal, civil fines of up to $5,000 and ineligibility for, among other things, adjustment of status, further voluntary departure, and cancellation of removal for 10 years. These severe penalties were enacted to deter aliens from violating their voluntary departure orders, and conceived in the context of relatively normal times where it would be easy to find a way out of the United States, and a failure to leave except for severe medical reasons was often viewed as a person flouting court orders and not making a legitimate effort to depart. In 2019, the last “normal” year, for instance, there was an average of 188,901 flights per day around the world. The world was inter-connected, and if one’s goal was just to leave the United States, that was easy to do. This would have certainly been doable in a 120 day period barring exceptional circumstances. By contrast, in 2020, many countries have closed or severely limited their borders to mitigate the spread of the virus. The number of daily flights cratered to approximately 64,523 on March 29 of this year with many cancellations due to travel bans and lack of passenger demand. Last minute cancellations on flights have become very common, and countries have enacted travel bans—some changing with high frequency so passengers could not know for sure whether they would be able to take their desired route until the day they board their flight. During the global peak of the pandemic, many countries did not even allow nationals of other countries to transit through their airports to reach a certain destination. As such, those with connections were often not allowed to board their flights as they would not be able to land at their connecting stops. Also, many countries, such as China, had and continue to have policies discouraging their nationals from moving back home during the pandemic. All of these factors have created an environment in 2020 in which departing the United States is far more difficult than any other time since the introduction of voluntary departure.

Since March 2020, booking a flight out of the U.S. and getting on it successfully has become a challenge layered with not only unpredictability but exorbitant costs. Take, for example, a national of China given 120 days to depart the U.S. in mid-February. In February, China and many other regions of Asia were the coronavirus hot spots. That national, very reasonably, could have decided to wait until the virus came diminished in China before departing the U.S.—as such, he/she would have pushed the booking window to sometime in April-June 2020. Then, once this national saw that the COVID situation in the U.S. became worse than that of China in March-April, then he/she decided to book a flight to China. To his/her dismay, the flight to China was canceled by the airline last minute as the flight operator decided to eliminate some flights due to lack of demand and budget cuts. Or perhaps the Chinese government compelled the airline to cancel that flight as it wanted to reduce flights from outside of the country to prevent the spread of the virus. Regardless, now it is May 2020 and he/she is stuck without a flight. He/she then books a flight to China leaving at the beginning of June, transiting through Taiwan (direct flights to China were already scarce at this time). However, the day before his flight, he/she is informed by the airline that he/she would not be able to get on the flight to transit in Taiwan because Taiwan is not accepting transit passengers. It is late May, and the Chinese national is stuck without a flight. At this point, his/her options are very limited. Chinese nationals are generally not allowed entry to many countries without visas (this is the case for the nationals of many countries). He/she must now fly to a country which will allow a Chinese national without a visa, and is allowing transit or entry during the coronavirus. At this point, all direct flights to China are booked out. All routes through connecting third countries must be researched as to whether they would allow a Chinese national to transit—and flights through countries that would allow transit are all booked out. At this point, the only options for this Chinese national are to fly to a country that would allow Chinese nationals without a visa, and would not bar him/her due to coronavirus restrictions. The option is to pay an exorbitant price to fly to a third country, one in which the Chinese national is a stranger, and in which he/she would not be able to get around. The options are therefore to either jeopardize safety in flying to unfamiliar territories or missing the voluntary departure date.

Voluntary departure was never intended to be such a challenge to a noncitizen to make the date or be barred from most forms of immigration relief for 10 years. Rather, it was seen as a plea deal option to expedite the country’s removal operations and provide a reasonable solution for a noncitizen to depart on his or her own to avoid many of the consequences of a deportation. In 2020 during the pandemic, departure from the country is a significant challenge on its own marred with unpredictability, cancellations at no notice, ever-changing travel rules of all countries, and exorbitant cost. As such, failure to meet the 120 day voluntary departure deadline during the COVID-19 pandemic should be forgivable, and certainly should not carry such harsh penalties as the inability to gain most immigration benefits and relief for the next 10 years, so long as the noncitizen is able to show that he or she undertook a good faith effort to leave on time.

The authority to alleviate the consequences of a violation of voluntary departure under the circumstances lies with Congress which wrote the law, the President through a possible executive order (since we have seen many statutes “trumped” by executive order in the past few years), or by DHS itself in extending an individual’s time to depart the US through devices such as satisfactory departure or deferred departure and divorcing the VD penalty until the end date of the other program’s extension. By whichever method, the present situation, although admittedly not affecting millions of people, should not stand.

 

Article: “Interim Final Regulations (IFRs) on Wage Hikes by DOL and on H-1Bs by DHS and Some of the Flaws of Their Logic”

As published in the Immigration Daily on October 19, 2020

In the last desperate days of the Trump presidency, it becomes increasingly clear that this administration sees the handwriting on the wall and is speeding up its actions to indelibly stamp the nation with Supreme Court confirmation hearings and regulations thrusting the nation further backwards on immigration, race relations, the environment, women’s rights, gay rights, foreign relations, and America’s role on the world stage. It hopes that, with the assistance of the Supreme Court, it will keep the Trump agenda largely intact even if Democrats sweep both houses of Congress and the presidency.

To reward Senate Republicans for their complicity during four years of a misguided and corrupt presidency would not be in the best interests of the country, and voters should vote a straight Democratic ticket across the nation.

The recent use of interim final regulations (IFRs) in the field of immigration instead of the regular process of beginning with a proposed regulation, going through a period of comment, review by the Office of Management and Budget (OMB) and final regulation with another small period of time before implementation, illustrates that this administration intends to continue piling on regulations until the day that Joe Biden takes office on January 20, 2021. The Bidens might have to call on the DC police and National Guard to evict the Trumps.

The Department of Labor (DOL) IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” was published in the Federal Register on October 8, 2020, with an immediate implementation date. Its simple proposition is that wages on the OES system go up blindingly – that in calculating wages, DOL looked at all the wages in a certain occupation in the area of employment and recalculated OES level wages to a higher percentile of where all the wages fall. Level I went from what the 17th percentile is earning to what the 45th percentile is earning; Level II from the 34th percentile to the 62nd percentile; Level III from the 50th percentile to the 78th percentile; and Level IV from the 67th percentile to the 95th percentile. The orchestration of various premises to bring this about was fairly devious and moved in five said and unsaid steps: 1.) Mythologization of H-1B specialty occupation jobs almost to the point of being rare birds requiring more than a regular bachelor’s degree –a specialized bachelor’s degree. 2.) That without higher qualifications than a regular (as opposed to specialty) bachelor’s degree, an alien cannot obtain the visa. 3.) That the current wage system is not accurate since it takes into account wages paid to workers who almost certainly would not qualify to work in a specialty occupation. 4.) That an alien qualifying for an H-1B visa should be paid at the same level as a US worker with the same qualifications, and since most H-1B entry level individuals have a Master’s degree, they should be paid at the same rate as US workers with similar degree and experience. 5.) Entry-level H-1Bs should be paid the same rate as similarly qualified US workers regardless of the actual job that they are performing. This ignores a number of factors such as 1.) The H-1B registration process is skewed to accepting more US Masters and higher degreed individuals than those with bachelor’s degrees. The Trump administration expressed pleasure at changing the formula of H-1B selection, so it seems fairly incongruous to somehow try to imply that aliens and their employers are gaming the system in having Masters level individuals fill entry-level positions or that their possessing a Masters degree suggests that the position is anything other than entry-level. 2.) USCIS ignores its own regulatory list of H-1B amenable fields when it sides even further with DOL that many occupations in these fields can be adequately filled without a directly related specialized bachelor’s degree or its equivalent. 3.) To say that an H-1B candidate with a Master’s degree in an entry position should be paid as much as a US worker with a Master’s degree in a much more complex position defies logic. Extending that proposition to its logical conclusion, an alien just graduated with a PhD in chemical engineering with past experience in the home country who manages to grab a job as a junior chemical engineer would be paid at the same rate as a non-alien senior chemical engineer with a similar PhD. Such thinking is violative in spirit of §212(n)(1)(A) of the INA that employers pay H-1B workers the greater of the actual wage level paid by the employer to all other individuals with similar employment in question or the prevailing wage level for the occupational classification in the area of employment. The statute envisions a connection between the payment for “similar employment” and the occupational classification prevailing wage – not the DOL ignoring the specific job that is offered.

The Department of Homeland Security (DHS) IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” was published in the Federal Register on the same day, but with an implementation date of December 7, 2020. As with the DOL rule, this regulation was rushed through the screening process and review waived by the OMB to ensure that it would appear before the election. The IFR redefines specialty occupation in a way in which very few individuals will be able to qualify by changing the degree requirement for the specialty position from being one that is “normal”, “common”, or “usual” to the occupation to one that is in a “directly related specific specialty” or its equivalent. According to the Occupational Outlook Handbook (OOH), the seeming “bible” of USCIS, however, very few professional occupations can be done by just holders of one specific degree. USCIS lists a number of fields amenable to H-1B occupations at 8 C.F.R. § 214.2(h)( 4)(ii) as:

Specialty occupation means an occupation which [(1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Yet for examples, the OOH holds forth that biomedical engineers can qualify to become biomedical engineers through a related engineering field & electrical or electronics engineers through a related engineering field (engineering); chemistry or materials scientists through a bachelor’s degree in chemistry or a related field (physical sciences); market research analysts through a bachelor’s degree in market research or a related field (social sciences); medical or health services manager through a bachelor’s degree in health administration, health management, nursing, public health administration or business administration (medicine & health); high school teacher through a bachelor’s degree with many states requiring them to have majored in a subject area (education); fashion designer through a bachelor’s degree in a related field such as fashion design or fashion merchandising (arts).

The IFR quotes INA §214(i)(1)’s second requirement of specialty occupation being attainment of a bachelor’s or higher degree in the specific specialty or its equivalent and then describes very restricted circumstances under which any equivalency would be found such as electrical engineering and electronics engineering study for the position of an electrical engineer. However, this is a mean-spirited interpretation of “equivalent” in today’s world of education in which cross subject majors are taught all the time. Use of the words “normal”, “usual”, and “common” more accurately describe the equivalent education that should be looked at to qualify for a specialty occupation.

The rate of denial for new H-1Bs is currently 29% through the second quarter of FY 2020 and only anticipated to increase tremendously under the IFR.

It is expected that multiple lawsuits will be filed against the two IFRs, and there is a report that multiple technology companies have already filed suit on October 16, 2020, against the Department of Labor in a New Jersey federal court. Both rules are expected be challenged as not having gone through adequate review, especially the effect upon impacted parties, and one of the arguments certain to be used against the DHS rule is its improper chain of succession invalidating any actions by the current DHS Secretary, Chad Wolf.

The DHS rule is not retroactive and will only be applied to petitions filed on or after the effective date of the regulation, including amended petitions or petition extensions. It is not to be applied to pending petitions nor to previously approved petitions either through reopening or a notice of intent to revoke.

Of some comfort is the thought that a Joe Biden presidency will be more reasonable to the immigration needs of US businesses, but it is a long time to January 20, 2021, and to however long it will take him and his administration to get around to H-1B questions. Without the Senate, the Democrats will have a difficult time trying to reverse four years of Trump actions in immigration and other areas. Joe Biden will have a lot on his plate immigration-wise as a July 2020 Migration Policy Institute report catalogued 400+ executive actions taken in 3 ½ years by the Trump administration in the field of immigration.

Article: In Provisional I-212 Appeal Win, AAO in Non-Precedent Decision, In Re: 9072079 (AAO 9/24/20),Clarifies What Constitutes After-Acquired Equity, Correct Standard of Adjudication, and Rightful Consideration of Evidence.

Please see attached AAO decision Dated September 24, 2020

We at the law firm are pleased to release a copy of our recent win at the Administrative Appeals Office (AAO) in a non-precedent provisional I-212 decision which decided in favor of our client on three points:

  1. After-acquired equity – The equity of our applicant’s wife being a permanent resident was downgraded in the District Director’s decision as an after-acquired equity and entitled to less weight as his wife had entered the United States with permanent residence following the applicant’s deportation order. We pointed out that the decision conflated the wife’s date of entry with the date of marriage in mistakenly reducing the weight of equities of extreme hardships faced by the spouse and the AAO agreed stating that the record reflected that the applicant had married his spouse 25 years prior to his deportation order and that their four children were born prior to the deportation order.
  2. Standard of adjudication – The District Director found it unlikely that the applicant could establish extreme hardship to his spouse to qualify for a provisional waiver. The AAO pointed out that extreme hardship to a qualifying relative is not a requirement for permission to reapply for admission, and that positive factors may include the applicant’s respect for law and order, family responsibilities, and hardship to the applicant and other US citizen or lawful permanent resident relatives. The AAO further thought that the Director’s considering the unlikelihood that extreme hardship to the spouse could be established in a later I-601A application in his decision was not within the province of the Director as “[a] provisional waiver application is a separate application for relief, and pursuant to the regulation at 8 CFR §212.7(e)(4)(iv), an individual inadmissible under section 212(a)(9)(A) of the Act for having been removed must obtain permission to reapply for admission before applying for a provisional waiver.” The AAO added a footnote that the applicant could seek the I-212 permission “[i]rrespective of whether a waiver under section 212(a)(9)(B)(v) for unlawful presence will be needed after the applicant departs and regardless of whether he obtains a provisional waiver.”
  3. Correct consideration of evidence – Besides the Director’s error on the weight to be given to the equity of the permanent resident wife, the AAO took issue with his not fully considering evidence of significant positive equities in the record such as the applicant’s living in the United States for 30 years, having no apparent criminal history, payment of taxes, assisting community and family members, and the applicant’s statement that if forced to leave the United States, he could never have his entire family together again, that he loved his family and would do anything for them, provided care for his wife, used his construction skills to assist friends and neighbors, and helped his son in his restaurant. Also that the submitted evidence included the spouse’s medical report and psychological evaluation showing that she suffered from a host of medical and psychological problems and the spouse’s statement that the applicant did everything he could to keep her healthy and comfortable, and that she would suffer emotionally if she returned to China because she would miss her family members in the US and feared returning to the country where she was forcibly sterilized. The AAO also noted that the Director’s decision did not consider submitted evidence regarding the applicant’s claimed hardships to his US citizen and lawful permanent resident children and grandchildren as well as to himself which included affidavits of the applicant’s US citizen son and grandson.

Although a non-precedent decision, the AAO decision is instructive in addressing points of law at the intersection of a provisional I-212 application for permission to reapply for admission and a later contemplated I-601A application for provisional unlawful presence waiver.

Article: “WITH JUSTICE GINSBURG GONE, DREAMERS DESPERATELY NEED A POLITICAL SOLUTION”

As published in the Immigration Daily on September 23, 2020

With the passing of Justice Ruth Ginsburg this past week, immigrants have lost one of the great champions of immigrant rights. A liberal justice, she consistently voted for the rights of immigrants and in the increasingly more conservative Supreme Court, formed a bloc with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the Court’s major 5-4 decisions on immigration. A couple of the major ones in which she participated on the losing side were United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) in which the Court tied 4-4 to sustain the Texas court decision barring  President Obama’s DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) program which would have given legal protections and work authorization to the parents of citizens and permanent residents; and DHS et al. v, New York, et al., 140 S. Ct. 599 (2020) in which the court by 5-4 vote allowed the new public charge rule to be implemented in February 2020 by staying the preliminary injunction of a New York federal court. Recently, however, she took part in the 5-4 winning vote in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) in which the Court rebuffed the Trump Administration’s attempt to end the DACA (Deferred Action for Childhood Arrivals) program. Although that decision was decided on procedural grounds that the Court indicated might be overcome by another suit after the government complied with proper procedure, there was no assurance that such could actually be done in a 5-4 court in which Chief Justice John Roberts exercised the swing vote. Justice Roberts, a conservative with centrist bend, had earlier frustrated the Administration by providing the swing vote in National Federation of Independent Business v. Sebelius, 567 US 519 (2012), a decision upholding the Affordable Care Act, and Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which denied Mr. Trump the right to add a citizenship question to the U.S. Census.

However, with the appointment of another conservative justice, the tide will move further to the right, and consistent 6-3 or 5-4 losing votes can be expected in most cases dividing the nation, including those on immigration. Justice Roberts will lose his position in these highly contested cases as the deciding vote. President Trump has already vowed to nominate a replacement within this week and Senate Majority Leader Mitch McConnell (R-Kentucky), has stated that he will bring the nomination to the floor of the Senate – both defying Justice Ginsburg’s dying wish that her replacement be made by the next President.

The effect on the 700,000+ Dreamers in the DACA program will be momentous, and the reelection of Donald Trump will ensure that they will either be used as the ultimate bargaining chip for a Trump administration to ram through its entire program of immigration restructuring or failing that, all be subject to removal proceedings with both legal protections and work permits revoked or no longer extended. Already since the Supreme Court’s decision, the Administration has moved to reject all new applications for DACA benefits and restrict renewals to one year instead of the present two years.

The unpalatable nature of a Trump immigration scheme is already being seen in his taking advantage of the pandemic to issue proclamations, executive orders and regulations barring nationals of disfavored countries even as the US leads the world by far in infections, and restricting qualified and approved workers from other lands from entering even though studies have shown that they would benefit the country and add more jobs. It is known that Mr. Trump’s chief takeaway from his DACA defeat is his belief that the Court’s decision gives him the authority to create such a program for merit-based immigration. On July 10, 2020, he said, “We are working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA program, has given me the power to do that.” Previously his son-in-law, Jared Kushner, drafted a merit-based immigration plan that did not move forward, but an idea of its contents was in Mr. Trump’s May 16, 2019, speech in which he said that it would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. In Mr. Trump’s America, huddled masses and refugees need not apply, only the rich and highly skilled. This country could take a lesson from Germany and its Chancellor Angela Merkel that took in over a million refugees in 2015 in a program now seen as highly successful in building a stronger Germany from what was then an aging population.

For Dreamers and all immigration proponents – indeed all who support civil rights, voting rights, the environment, women’s rights, LGBTQ rights, honor, civility, truth, corruption-free government, a rational foreign policy, decision making other than from gut instincts, and all the other parts of the American system that Mr. Trump has damaged and will in his next four years destroy for a generation– the only solution appears to be a political one in getting out the vote and voting.

 

Article: WHAT IS THE REPUBLICAN PARTY NOW, AND DONALD TRUMP – FRIEND TO IMMIGRANTS?

As published in the Immigration Daily on September 1, 2020

The Republican Party is the party of Trump. He shanghaied the party from the traditional Republicans in 2016, and Republican representatives and senators since then have been his devotees and enablers. Does Trumpism go away if he is defeated in the November elections? That is very doubtful as many of the Republican members of Congress owe fealty to the Trump ideals that brought or are continuing their tenures in office.

President Trump has misrepresented the truth while in office well over 20,000 times, and the Republican National Convention (RNC) was more of the same as it wallowed in mistruths, darkness, fantastical speculations and promises while shading or breaking various laws. Donald Trump as a friend of the immigrants was on display in a White House naturalization ceremony mixing the no-no of official business with political advertising as he oversaw the naturalization ceremony of five applicants including two from the “shithole” countries of Africa, and another from India (he is still hoping to peel away the votes of Indian-Americans through his friendship with Prime Minister Modi although Joe Biden’s running mate, Kamala Harris, is half Indian,and even as he has threatened the future immigration of Indian nationals by cracking down on H-1B’s, moving to end the popular H-4 employment program for spouses of H-1B holders, and is reportedly contemplating having long-time H-1B holders with approved I-140 petitions undergo the PERM labor certification process again).

The peel away strategy is simple – confuse and sway enough voters in swing states (Arizona, Florida, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin) – so that the president and his party can win the state if only by 50 votes and possibly the presidency again even if Mr. Trump loses the popular vote by 10 million. As the Republican Party and its voices like to say, “We do not live in a democracy. The United States is a republic.” Other ethnic groups being appealed to are Jews who Mr. Trump has said “owe” him because of his strong support for Israel; Asians for whom equality in education is a large issue with Democrats supporting the position that factors other than being the best and brightest as determined by standardized tests should determine admission to the best schools; in the Asian community, especially Taiwanese-Americans because of Trump’s recent elevation of the island as a counterweight to China even though he had earlier compared Taiwan as a speck to China; Russian-Americans for whom Mr. Trump’s unswerving devotion to Mr. Putin is gratifying; and Cuban-Americans whose litmus test is animosity against the island’s rulers.

For Blacks, peeling away means surreptitiously running and/or supporting Kanye West in his strange presidential bid, pardoning two black ex-prisoners, Jon Ponder on day two of the RNC and Alice Johnson the day after she spoke on his behalf at the RNC on day four, and even now planning to have the Pentagon award the Medal of Honor posthumously to Alwyn Cashe, a Black soldier who died saving his comrades in Iraq.

Presenting the coronavirus for the most part in the past tense was a staggering piece of fictional theater as if we were already past the disease when we still have over 40,000 new infections per day – that and saying that we were in a V curve, even a super V curve and would have a safe and effective vaccine by the end of the year. Mr. Trump’s and his party’s disdain for science was prominently displayed in his re-nomination celebration at the White House where over 1500 mostly maskless supporters crowded together (no social distance) on the South Lawn without being screened or even asked if they had symptoms even though more than 182,000 Americans have died of the virus and  almost 6 million infected since February 2020 including members of his own Secret Service detail who are forced by duty to travel with him to typical Trump mask- discouraged campaign events..

Just a look at the past few weeks of immigration news belies the fact that Mr. Trump is a friend of immigrants:

  • A new asylum EAD rule, “Asylum Application, Interview, and Employment Authorization for Applicants,” FR 38532, Vol. 85, No.124, 6/26/20, just came into effect on Tuesday, August 25, that asylum-seekers must now wait 365 days before filing for an EAD. Also that they are disqualified from applying for EADs if they crossed the border without authorization. A new I-765 form with questions directed towards the latter was implemented by USCIS on that date.
  • Another asylum EAD rule that took effect on August 21, “Removal of 30-Day Processing Provision for Asylum Application Related Form I-765 Employment Authorization Applications,” FR37502, Volume 85, No.120, 6/22/20, eliminates the regulation mandating USCIS to adjudicate initial applications for employment authorization for asylum applicants within 30 days. Although USCIS did not in our estimation take that seriously for the most part, it was helpful.
  • Law 360 is reporting that there is a Department of Labor threat from a part of Trump’s 6/22/20 proclamation (that DOL in consultation with DHS shall consider promulgating regulations or take other appropriate action to ensure that aliens’ presence in the US who have been admitted or otherwise provided a benefit or are seeking admission or benefit pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage US workers) that DOL may soon be doing many workplace LCA compliance investigations of companies using the H-1B program.
  • USCIS is being sued on its new fee hike regulation by nonprofit organizations Public Citizen, Ayuda, Northwest Immigrant Rights Project and CASA in Northwest Immigrant Rights Project et alv. USCIS et al, Case No. 19 CV 03283-RDM (DDC 8/21/20) since their clientele include survivors of crimes applying for their children or spouse who would have to pay $1485 (more than six times the current fee) and asylum-seekers more than $600 to file for asylum and EAD. Their bases are that the Acting DHS Secretary, Chad Wolf, is ineligible to serve in that position because of violation of the succession act and his actions as DHS chief have been illegal, that the rule is based on incomplete and unsupported justifications, violates several provisions of the INA and fails to comply with rulemaking requirements. In response, Mr. Trump is now trying to take care of one of these issues by formally nominating Mr. Wolf as DHS Secretary.
  • There is a new Department of Justice proposal to codify the rule in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), denying immigration judges the ability to administratively close cases, speed up appeals of immigration court cases and to otherwise limit the immigration judge’s authority to manage their caseload – the proposal, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure”, FR 52491, Vol. 85, No. 166, 8/26/20, would impose strict time limits on the length of immigration court appeals, while also shortening briefing deadlines and limiting the Board’s members’ ability to review new evidence on appeal or to reopen immigration cases on their own. The part relating to codifying Castro-Tum states: “§1003.10 Immigration judges.… (b)… Nothing in this paragraph nor in any regulation contained in 8 CFR part 1240 shall be construed as authorizing an immigration judge to administratively close or suspend adjudication of a case unless a regulation promulgated by the Department of Justice or a previous judicially approved settlement expressly authorizes such an action….”
  • DHS is extending its regulations against nonessential travel to and from Canada and Mexico through 9/21/20.
  • How is DHS doing with Covid-19? In ICE facilities in Mesa Verde and Adelanto, California, terribly. The Mesa Verde facility was ordered on 8/6/20 to conduct weekly rapid result coronavirus tests after the court record showed that ICE and the GEO Group Inc. that ran the facility avoided widespread testing fearing the positive test results would require them to enact extra virus safeguards. Adelanto was even worse as, despite a federal court order in April that the center should follow pandemic response guidelines laid out by the CDC, ICE was making its own rules – that from 3/1/20 – 7/15/20, ICE transferred 102 individuals into Adelanto from facilities with confirmed Covid cases at the time of transfer or within two weeks of the transfer; that despite receiving 1900 Covid-19 tests in May which was enough to test the entire population of the detention center and the staff, ICE stopped its comprehensive testing program; that 4-8 people are forced to sleep in cells as small as 8 x 10’ and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower’s button.
  • How are they doing in the immigration courts with Covid-19? Not good. There are reports that many immigration judges do not want to wear their masks and what do you say to the judge who asks the attorneys if they are comfortable with them taking their masks off? The Boston immigration court was cited. Reports from Chicago were mixed on mask wearing. One attorney said that the majority of judges took their masks off during hearings for detained immigrants this past spring at the San Francisco immigration court. Some attorneys said that they prefer to keep their masks off during the hearing noting that they were seated more than 6 feet from the judge and underscoring the importance of face-to-face interactions, but they remained concerned about airborne virus transmission since the hearings are often held in small windowless rooms with less than ideal airflow. Other attorneys complained that the immigration courts did not appear to be wiping down surfaces between hearings and that the crowded hallways and small courtrooms were not conducive to public health. Other attorneys complained of too little notice as the courts do a phased reopening and of cases being bumped at the last minute.

The truth is unfortunately malleable to many Americans as proved so often by Mr. Trump in the past and he and his party most blatantly in the RNC. Republicans who honor the memories of Ronald Reagan, and both George H. and George W. Bush may very well have to form an independent party as it becomes increasingly clear that the Trump “base” controls the party and will continue to dominate it regardless of the election results.

 

Article: Fort USA Arises In The Gloaming

As published in the Immigration Daily on August 14, 2020

American forts were built in great numbers in the 1700s-1800s and contributed greatly to the westward expansion of the country. Regardless of how you look at the history of the nation and the number of wrongs committed in building America, one cannot argue that forts built along the way served to push expansion by placing troops within reasonable distance when called upon.

Now the American fort is rising in the twilight of these four years, but rather than for expansion, for the hermetical sealing of this country. In every way, the Trump administration has moved to wall off the nation from the rest of the world and to return to the cultural America of the 1950s, an era replete with discrimination, Jim Crow laws, and white supremacy.

To turn back the clock, the administration has done everything in its power to forcibly expel and discourage immigrants from staying; to encourage US citizen children to leave with their parents; to bar the admission of qualified immigrants and nonimmigrants; discourage citizenship applications; and push to revoke the citizenship status of numerous individuals. It has taken advantage of the pandemic to issue a series of exclusionary presidential proclamations in the name of public health concerns, while at the same time taking no steps to take control of the coronavirus spread and assigning that responsibility to the nation’s governors while sniping at them from the sidelines. Mr. Trump has also gotten the CDC to act as his henchman in further issuing rules restricting the entry of foreigners. The political games of this administration and the pandemic have played out according to Mr. Trump’s likes and dislikes such as derogatorily assigning the blame for US infection to China while ignoring the fact that the vast majority of US coronavirus cases originated from European travelers; not including a heavily infected Russia in the list of countries whose travelers are barred from the US; and arbitrarily allowing students from the Schengen area of Europe to come to the US despite their specific ban under presidential proclamation.

A whiter and “cleaner” America is the goal and the stopping and expulsion of immigrants has been an important part of the strategy. Fort America is about half complete with most of the border wall to be built, and other measures have been implemented to win the party of Trump and Trump another four years to complete the job through measures such as voter suppression, cost-cutting the Postal Service to handicap it from fulfilling its duty to handle mail-in ballots, discouraging undocumented immigrants from participating in the census thus affecting reapportionment of House seats, and even surreptitiously running Kanye West for president to siphon black votes from Joe Biden in key states.

It seems apparent that another four years of this administration will finish off whatever is left of immigration as we know it today. For the sake of a whiter America, this administration has ignored all evidence that immigrants have contributed much more in benefits than they have taken in public benefits; that they have revitalized blighted cities and towns; that they have stopped America from becoming an “aged” country that cannot support its Social Security system; that they commit far less crimes than the rest of the American populace; and that they have culturally benefited the country through their foods, traditions, and ideas. In the pandemic, many of them have saved American lives and sacrificed themselves as essential workers including doctors, nurses, EMT technicians, other hospital workers, researchers, farmworkers, meatpackers, grocery store workers, food delivery workers, etc.

The hermetical sealing of this country is also encasing America in a rusted suit of armor from which it cannot move and can only look on as the administration has ceded its dominance as the moral and physical leader of the planet. Whereas Russia has moved unimpeded in conflict zones and become the feared powerbroker in the Middle East, the US has done nothing but betray trusted allies in the region. Its stance on China has been that of a paper dragon doing little to stop China’s march to dominance over much of Asia and parts of Africa. Despite beefing up military spending and at one time surrounding himself with a phalanx of retired generals in important positions, Mr. Trump has hobbled the actions of the Armed Forces, making the US the weak man in the military community.

In the gloaming, the Republican Party’s visionary America’s Fort sits, with its non-colored inhabitants perpetually patrolling the ramparts against the outside world. One wonders what four more years will bring.

Article: State Department Allowing Schengen Area, UK And Ireland F-1 And M-1 Students To Enter Despite Ban Under Presidential Proclamations 9993 And 9996; And Other Miscues Interpreting 6/22/20 Proclamation.

As published in the Immigration Daily on July 21, 2020

In a startling turnabout on July 16, 2020, the Department of State (DOS) invited F-1 and M-1 students from the Schengen Area of Europe, the UK and Ireland to enter the US under their visas despite bans under Presidential Proclamations 9993 and 9996 specifically barring persons from these countries from entering the US if they were in them within 14 days of entry. [1].  The Department stated that “Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas, do not need to seek a national interest exception to travel.” While good news to many, it hardly makes sense unless the proclamations themselves are lifted. A partial lifting sub rosa without reasoning further damages the image of the United States as a country of laws. The proclamations were put in place because of the numbers of infected citizens of those countries and the danger that they posed to the US in spreading the pandemic if they arrived. Is it perhaps that the danger of Covid-19 is no longer relevant as the US recently reached 70,000 infections in one day? Is it that the daily totals of some of the countries being exempted are no longer alarming taking into account the spread in this country? Last week’s statistics on some of the countries now being exempted show France at 2552 infections daily, Spain 1400, UK 687, Germany 529, Poland 339, and Italy 249.

It certainly appears to be political – otherwise, why is there not a similar privilege being given to China that last week recorded 17 infections daily? And why not impose a presidential proclamation against Russia with its daily infection rate of 6109? If  Mr. Trump could impose against Brazil, why not Russia?

Your writer is unfortunately not a great fan of social media, but muddled his way around as the State Department is giving answers to questions in FAQs on Twitter concerning the 6/22/20 nonimmigrant H-1B, H-2B, L-1 and certain J visa bars on entry. In looking over the various answers, one would hope that the Department takes more care in giving answers as some of them were wrong or misleading.

On at least five occasions concerning the fate of overseas derivatives spouses and children whose principals were in the US and in the above visa categories, the standard response was “Per Section 3 of the Presidential Proclamation, suspension of entry applies to ‘Any alien who does not have a nonimmigrant visa that is valid on the effective date (June 24) of this proclamation.’ See the link for exceptions.” Also that “We will not be issuing H-1B, H-2B, L, or certain J visas, and their derivatives through December 31, 2020, unless an exception applies.” Yet in another July 16, 2020, official statement by the Department, it said that” The Department of State will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States.” [2].

The official answer appears to finally recognize that the Section 3 exception of the proclamation (proclamation not applying to those in the US on its July 24, 2020, effective date) stretches to cover family members who are now eligible for visa issuance. It also seemingly answers the question that those principals who were in the US on the effective date of the proclamation should be able to leave the country and be visaed in those categories barring their inclusion in other bans – that they should not have to wait until after December 31, 2020, for visa issuance. On this, the Department should issue further guidance to the consular posts.

On the tangential point of five questions asked as to when DV-2020 winners could interview for visas, the stock response was “Presidential proclamation 10014 suspended the issuance of several categories of immigrant visas, including DVs. This proclamation was recently extended until December 31, 2020. While the proclamation is in place, the issuance of DVs is not permitted.” To that, there was an excellent response by the asker that “The proclamation only suspends entry. It does not mention suspending the interview and visa issuance process. For #DV 2020 winners this process needs to happen before September 30. We are suspended from entering till after the proclamation ends, but at least we still get our chance.”

Finally in answering a question from an individual applying for adjustment of status and having advance parole and asking whether they were allowed to travel to the US with their B1 B2 visas while their DV 2020 was under advance parole, the Department’s answer that “Foreign nationals with valid visas are generally authorized to travel to a US port of entry” was clearly wrong as applicants for adjustment of status can only travel outside the US under advance parole and reenter under advance parole – otherwise the adjustment of status application is deniable.

While one cannot be but pleased with the official responses of the Department of State, the Department is urged very strongly to give more attention to its unofficial Twitter responses that are taken very seriously by members of the public.

 

[1] National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland, Department of State, July 16, 2020.

[2] Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Non-Immigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, Department of State, July 16, 2020.