Changes To The Business Immigration Landscape
Prevailing Wage Rules Enjoined
In November, USCIS and the Labor Department tried to change prevailing wage rules applied to the PERM and H-1B, H-1B1, and E-3 visa programs. But on December 1, the U.S. District Court for the Northern District of California set aside the agencies' interim final rule because it did not follow the proper rulemaking steps under the Administrative Procedure Act (APA). As a result, beginning on December 4, the DOL updated its wage source data to reflect the prevailing wage data for each occupation and area of intended employment that was in effect prior to October 8. For prevailing wage determinations (PWDs) issued using the wage source in effect from October 8 to December 4, 2020, petitioners can submit the PWDs for review on or before January 4, 2021. Because there is a chance that the prevailing wages could be increased again, petitioners may want to file an LCA immediately for H-1Bs expiring in 2021, even if this means that the beneficiaries will lose some time on their H-1B petitions. Similarly, for H-1B petitions expiring in 2022, petitioners can file the LCA now and lock in the wage. The LCA will be valid for three years from the date of filing. An important reminder to petitioners is that the LCA must be issued before filing of the H-1B petition. Therefore, if a petitioner filed an H-1B petition with an LCA using the higher wages, the petitioner will need to file an entirely new petition in order to benefit from the reversion of the prior wages. We are monitoring the developments regarding the prevailing wage situation and will provide updates on this matter as they become available.
USCIS Proposes Replacing H-1B Lottery with Salary-Based Selection
While two proposed rules have been overturned, there remains one proposed rule moving through the rulemaking process that would have the effect of usurping the authority of Congress and converting H-1B program into an "advanced level only" visa. On November 2, DHS proposed to amend its regulations governing the process by which USCIS selects H-1B registrations for filing of H-1B cap-subject petitions. The proposed rule would modify the H-1B cap selection process by replacing the random selection process with a wage-level-based selection process. The government's rationale is that this would better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive. The government also takes the view that this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies. This proposed rule would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced-degree exemption, but would not change the order of selection between the two.Class Action Can Help First-Time Hs, Ls, and Js Overcome Presidential Proclamation
A class action filed by the National Association of Manufacturers (NAM) may provide relief for H, L, and J applicants who would not otherwise be able to apply for a visa at a consulate abroad. The suit was filed in response to Presidential Proclamation 10052 (6/22/20, amended 6/29/20), which suspended entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program), and L, along with their spouses and children. NAM, joined by several prominent business organizations, filed suit in federal court opposing the proclamation and was successful; the court enjoined enforcement. Thus, if a petitioner of a J-1, H-1B, H-2B, or L-1 is a member of any of the following organizations that joined the NAM lawsuit, the beneficiary will not be subject to the proclamation's entry restrictions:- the National Association of Manufacturers,
- the U.S. Chamber of Commerce,
- the National Retail Federation,
- TechNet, and
- Intrax, Inc.
USCIS Lockbox Centers Experiencing Significant Delays for Processing Receipt Notices
USCIS recently acknowledged that its lockbox facilities are experiencing significant delays for processing receipt notices. This is a result of increased filings in recent weeks coupled with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic. The uptick in filings is likely due to several factors, including: (1) the influx of cases that were filed before the USCIS fee rule was anticipated to go into effect on October 2, 2020 (currently enjoined); (2) the influx in Form I-485 adjustment of status applications being filed on or before the October 13, 2020, deadline relating to Form I-944; and (3) the high volume of Form I-485 adjustment of status and downgrade I-140 petitions being filed because of the October Visa Bulletin priority dates. This explains why foreign nationals are waiting 30-45 days to receive their receipt notices. If, after six weeks a receipt notice has not been issued, USCIS advises to email the Lockbox Support Team at lockboxsupport@uscis.dhs.gov. Significant Challenges for Biden Administration on Immigration Policy
In a recent article in the Washington Post, readers were asked for the one word that sums up 2020. "Exhausting" was one of the top three words. Exhausting (and relentless, too) is an apt description of the four-year long frontal attack on immigration law, policy, and procedures imposed by the Trump Administration. There have been some 400 changes that foreign nationals and their advocates have had to navigate, from changes that smack at the fundamental core of what it means to be America to the mundane. Here are just a few:- restrictions on asylum
- historical low refugee-admittance rates
- an unprecedented remain-in-Mexico policy for asylum seekers
- restrictive bans on predominantly Muslim countries
- an attempt to end deferred action for childhood arrivals (DACA)
- refusal to continue Temporary Status Protections (TPS)
- implementation of public charge policies that seek to deter legal immigration to the United States
- child-parent separations at the U.S.-Mexican border
- use of national emergency funds to build a border war
- attacks on temporary skilled worker visa programs
- attempts to change foreign students' and others' duration of status
- draconian and cruel internal enforcement priorities
- imposition of an interview requirement on employment-based immigrants.
- End the most egregious proclamations, namely dealing with Muslims, asylees, and work visa prohibitions;
- Reverse course on family separations at the border, DACA, enforcement and removals of TPS; and
- Prioritize who should be the subject of enforcement actions, such as hardened criminals and violent offenders.
Federal Judge Orders DHS to Restore DACA and Accept Initial DACA Applications
On December 4, U.S. District Court Judge Nicholas Garaufis of the Eastern District of New York ordered the DHS to begin accepting new applications for Deferred Action for Childhood Arrivals (DACA). The court had previously held that Chad Wolf was not lawfully serving as DHS Acting Secretary when he issued a July 28, 2020 memorandum that refused to fully restore DACA after a ruling in the U.S. Supreme Court. USCIS has indicated that DHS "will comply with the order while it remains in effect, but DHS may seek relief from the order." Accordingly, effective December 7, USCIS began accepting first time requests for deferred action under DACA, accept applications for advance parole based on terms of DACA policy prior to September 5, 2017; extend one-year grants of deferred action under DACA to two years; and extend one-year grants of employment authorization documents under DACA to two years. USCIS also indicated that it "will take appropriate steps to provide evidence of the one-year extensions" for DACA recipients who were issued documentation on or after July 28, 2020, with only a one-year validity under the defunct policy. The court's decision and USCIS's compliance will likely benefit hundreds of thousands of undocumented individuals who arrived in the United States as children. While there is currently an estimate of 650,000 DACA recipients, there are roughly over 1.3 million DACA-eligible individuals in the United States, many of whom were ineligible to apply because of the 2017 DACA rescission and prohibitions against initial applications. Likewise, as the program requires applicants be at least 15 years old to apply, there are tens of thousands of individuals who have yet to become eligible to apply. As noted in previous newsletters, DACA only offers a temporary protection from deportation and provides for employment authorization. The program, created by President Obama in 2012, does not offer a direct pathway to permanent residence or citizenship in the United States. DACA-eligible individuals considering filing initial applications should consult with an immigration attorney to evaluate the risks and benefits of applying. Likewise, all DACA-eligible individuals should strategize with their attorney to preserve and pursue legal options available to them to obtain permanent residence. Court Victory in Class Action Challenging FOIA Delays
The U.S. District Court for the Northern District of California, on December 17, granted summary judgment in favor of two nationwide classes suing the DHS, USCIS, and ICE for failing to timely produce the class members' immigration files (A-Files). The court found that the agencies' practice of failing to produce the immigration case files within the deadlines set by Congress under the Freedom of Information Act (FOIA) is a systemic problem and requires a comprehensive, permanent remedy. The court ordered the agencies involved (USCIS and ICE) to clear their backlogs by responding to the more than 40,000 cases outstanding within 60 days; to comply with the statutory timeline for responding to case file requests moving forward; and to submit quarterly reports to the court and class counsel to verify compliance with the statutory timelines.
New Regulations Affecting Asylum Seekers and Immigration Court
On December 11, DOJ and DHS announced a new final rule governing the procedures of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) — set to go in effect on January 11, 2021, nine days before President-elect Biden's inauguration. The immigration bar quickly announced its opposition to the rule, stating it would "spell the death of the asylum system," and urged the Biden Administration to prioritize its undoing. Among other things, the final rule will elevate the legal standard needed to pass screening interviews needed to apply for asylum, will allow immigration judges to pretermit applications without giving applicants a full evidentiary hearing, will effectively narrow the legal requirements to qualify for asylum so that many persecuted individuals will no longer qualify, and will severely limit individuals who have been tortured by private actors from receiving benefits under CAT. The regulations also expand discretionary reasons for denials. A separate anti-asylum regulation that will go in effect on January 15, 2021, will require that all asylum applicants file their I-589 applications within 15 days after their first court hearing. In addition to the regulations impacting asylum, the DOJ issued regulations to increase filing fees for applications for relief in immigration court, including the filing fee for appeals, which went from $110 to $975. Those regulations also seek to expedite the processing of appeals at the Board of Immigration Appeals and limit the independence of immigration judges by prohibiting them from administratively closing proceedings without consent from DHS, as well as limiting the reasons they can reopen removal orders. The new regulations are the coda of the Trump Administration's abhorrent four-year effort to dismantle protections for those fleeing persecution, many of which were described in our last newsletter. These regulations are being issued as denial rates for asylum applications reached record highs of 71.6%. They also come after attempted regulations to create additional criminal bars to asylum were temporarily blocked by a federal judge as part of an injunction. The legality of the new regulations, which appear to conflict the Immigration and Nationality Act, legal precedent in federal appellate courts, and U.S. obligations under international refugee law, will likely be challenged.
Court Partially Blocks Trump's Proclamation on Immigrant Visa Issuance During COVID-19
On December 11, a federal district court ordered that the State Department stop enforcing Section 1 of Presidential Proclamation 10014, which prohibits the issuance of immigrant visas to selected immigrants. President Trump indicated that the Proclamation was intended to protect the U.S. labor market during the COVID-19 pandemic; however, it appears more likely that the Proclamation was issued as part of the Administration's legal strategy to severely limit all forms of immigration to the United States. The ruling only affects the named plaintiffs of the case, who are encouraged to contact the National Visa Center for scheduling an immigrant visa interview. If their interviews have already been conducted, the plaintiffs should directly contact the U.S. embassy or consulate conducting the interview. The Proclamation was initially issued on April 22, 2020, has been extended once already, and is set to expire on December 31, 2020; however, it seems likely the Trump Administration will attempt continue the Proclamation indefinitely. The Proclamation negatively affects certain groups outside of the United States seeking to immigrate through consular processing. While most immediate relatives are exempt from the Proclamation, parents petitioned by their U.S. citizen children over the age of 21 are not. Most family-based preference petitions, including spouses and children petitioned by lawful permanent residents, are subject to the Proclamation, with the exception of members of the U.S. Armed Forces and their spouses and children. Physicians, nurses, healthcare professions, treaty traders and investors, and the EB-5 visa category are also exempt; however, most employment-based visas, including temporary skilled and unskilled workers, exchange visitors, and intracompany transferee managers and executives, were not. While promising to benefit the national economy, the Proclamation has likely had the opposite effect. The prohibition of highly skilled workers, seasonal workers, researchers, scholars, company executives, and their family members has a crippling effect on U.S. businesses. Their contributions allow companies to innovate, grow, and succeed, especially during challenging times. Likewise, immigrants themselves count for 10 percent of all created jobs in the United States; therefore, the limitation of visas also has a direct detrimental impact on U.S. workers seeking employment.
Lawyer's Acknowledgment of His Legal Mistakes Does Not Persuade BIA to Reopen Case
In yet another blow to the rights of foreign nationals, the Board of Immigration Appeals (BIA) recently denied a motion to reopen a case where the attorney representing the foreign national admitted to committing legal error and acknowledged that he was ineffective in removal proceedings. The BIA held "acceptance of responsibility of error" was insufficient for following the legal requirements of a motion to reopen based on ineffectiveness. The case also established precedent that foreign nationals must show "a reasonable probability that, but for counsel's error, [they] would have prevailed in [their] claim." This precedent-setting decision narrows the legal options of many foreign nationals harmed by their attorney's legal mistakes in immigration court. This case involved an unusual set of facts where the attorney was making the allegations of ineffectiveness against himself but obviously did not file a bar complaint against himself, nor had anyone else. While filing a bar complaint is usually the norm in motions to reopen deportation proceedings based on ineffectiveness, established case law did not require it. Even the BIA previously held that filing a bar complaint against the infringing counsel is not always needed. (The BIA previously reasoned, however, that filing the complaint serves an important purpose in many cases and "protects against possible collusion between counsel and alien client.") While admittedly a poor strategy for the attorney to file the motion based on allegations of his own ineffectiveness, and certainly a conflict of interest, the attorneys' motion did substantially comply with the procedural requirements. By establishing a precedent that acceptance of responsibility of error by the infringing attorney is insufficient compliance with the requirements for a motion to reopen, the court, in effect, discourages attorneys to come forward to admit their mistakes in order to serve the best interests of their clients Under the new precedent, the fear of a bar complaint will make many attorneys less willing to admit their mistakes when they receive allegations of error. Likewise, attorneys representing foreign nationals seeking to reopen their cases may be discouraged to provide legal assistance, fearing that the only way to comply with the filing requirements would be to file bar complaints against their peers, even when they acknowledge their mistakes. A narrower decision that prohibits attorneys from filing motions to reopen based on their own ineffectiveness would have been more forward thinking. In fact, an acknowledgement of legal error where the conduct was not egregious should be sufficient reason for not filing a bar complaint against attorney. Moreover, courts can prevent collusion by reading the allegations themselves and deciding if the matter should be referred to the immigration court's own attorney discipline program. Admitting legal error is significant for any attorney. Even when a bar complaint is not filed, attorneys are not absolved from other negative consequences of acknowledging their mistake (such as exposure to civil malpractice lawsuits and harm to reputation). Therefore, the reasoning behind the BIA's decision is flawed and harms the foreign national.Updates on Naturalization Requirements
USCIS has made some changes regarding the eligibility requirements for U.S. citizenship. Among other requirements, applicants for U.S. citizenship must pass a government and civics test. In November 2020, USCIS updated policy guidance on the naturalization civics test, increasing the general bank of questions to 128, the number of exam questions to 20, the number of correct answers needed to pass to 12, and providing for officers to ask all 20 test items even if applicants achieve a passing score. There has been another recent update to the policy guidance regarding eligibility for naturalization. In addition to meeting other requirements, a naturalization applicant has the burden of establishing that he or she was lawfully admitted to the United States for permanent residence in accordance with all applicable provisions under the immigration laws at the time of filing the naturalization application. For example, an applicant is ineligible if he or she obtained lawful permanent resident (LPR) status in error, by fraud, or if the admission was otherwise not in compliance with the law. The new policy guidance affirms that an applicant is ineligible for naturalization in cases where they did not obtain LPR status lawfully including cases where the U.S. government was unaware of disqualifying facts and granted adjustment of status to that of an LPR or admitted the applicant as an LPR.Condition of Visa Issuance
DOS Pilot Program Requires Certain B-1 & B-2 Applicants to Post Bond
A DOS temporary final rule creating a six-month pilot program under which certain applicants may be required to post a bond as a condition of visa issuance. The Visa Bond Pilot Program went into effect on December 9. Under the program, consular officers will require visa bonds be posted by visa applicants who meet the following three criteria: (1) apply for a B-1 and/or B-2 nonimmigrant visa; (2) are nationals of one of the countries* that had an overstay rate of 10 percent or higher in FY2019, for B-1/B-2 visa applicants; and (3) are granted a DHS waiver of inadmissibility under INA §212(d)(3)(A) prior to visa issuance. Consular officers are directed to set the visa bond amount at $5,000, $10,000, or $15,000, based on a consular officer's assessment of the amount sufficient to ensure the foreign national will not overstay his or her authorized period of stay, while not exceeding what the person can pay. Visas issued under the program will be valid for a single entry to the U.S. within three months of the date of visa issuance. While the pilot program only affects a small number of potential B-2 visa applicants, the idea of a bond as a condition of visa issuance is troubling.* Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen.