COVID-19 Immigration Update
Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship. We appreciate the transparency and concerted efforts of our European partners and allies to combat this pandemic and welcome the EU's reciprocal action to allow key categories of essential travel to allow key categories of essential travel to continue.
Department of Homeland Security: USCIS, ICE, and CBP
International Rescue Committee report, over 20 percent of ICE detainees have tested positive for the COVID-19 virus, and despite the unsanitary conditions in detention, ICE continues to detain tens of thousands of individuals and also has carried out over 450 deportation flights in 2020. DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic for an additional 30 days. The accommodations now expire on 9/19/20.
steadily increased the past few months, as there were 38,347 apprehensions in July as opposed 16,162 in April. The apprehensions were primarily single adults, as opposed to family units and single children, who made up about 10 percent of the apprehensions in July. The total of apprehensions is still a significant decrease from 2019, where there were nearly double the amount of apprehensions and the majority of those crossing were family units and unaccompanied alien children.
Naturalization, Adjustment, & Other USCIS Fees to Increase Significantly on October 2On October 2, 2020, new fees for filing USCIS applications and petitions go into effect, as well as the elimination of certain fee exemptions and changes to fee-waiver requirements. The final rule increases USCIS fees by a weighted average of 20 percent. By dramatically increasing filing fees for a broad range of benefit requests, reducing fee exemptions and restricting fee waivers, DHS has modified established agency practice of maintaining more reasonable filing fees for certain applications and petitions so that cost was not a barrier to obtaining an immigration benefit. In applying a "beneficiary pays" principle to those who are the beneficiaries of most immigration benefits, the agency has dramatically increased the cost of obtaining and maintaining legal status. Some key changes: DACA: Removes the proposed fee ($275) for Form I-821D, Consideration of Deferred Action for Childhood Arrivals, filed for renewal of Deferred Action for Childhood Arrivals (DACA). Maintains the DACA fees as in effect before September 5, 2017, at $410 for employment authorization and $85 for biometric service. Fee Waivers: As of October 2, limits fee waivers to immigration benefit requests for which USCIS is required by law to consider the request or where the USCIS Director exercises favorable discretion as provided in the regulation (e.g., Special Immigrant Juveniles, self-petitioning VAWA applicants, and certain Afghan and Iraqis); changes the income requirements for a fee waiver from 150 percent of the Federal Poverty Guidelines to 125 percent. Adjustment of Status: Removes the reduced Form I-485 filing fee for children under the age of 14 filing with their parent. A standard Form I-485 fee of $1,130 will apply to all applicants. Requires separate fees for Forms I-765 ($550) and Forms I-131 ($590) filed in connection with applications for adjustment of status, more than doubling the total cost of filing an adjustment of status application package to $2,270. Electronic Filing: Provides that the fee for forms currently available for online filing with USCIS and filed online will be $10 lower than the fee for the same paper forms. Asylum: Establishes a $50 filing fee for Form I-589. Provides a $50 reduction in the fee for Form I-485 filed in the future for principal applicants who pay the $50 fee for Form I-589 and are subsequently granted asylum. Biometrics: Creates a $30 biometrics fee for TPS initial applicants and re-registrants and asylum applicants and long-term CNMI residents filing a Form I-765. Removes the $85 biometrics fee for most other applications. Employment-Based Immigration: Creates separate fees and forms for each visa classification filed on Form I-129, with fees increasing as much as 75 percent for an L-1 petition. USCIS is limiting the number of named beneficiaries to 25 that may be included on a single petition for H-2A, H-2B, H-3, O-2, P, Q, E, and TN workers. Fees for employers with significant numbers of H/L employees ("50-50 rule") will now also apply to H-1B and L-1 extension petitions, in addition to initial petitions. It will not apply to amended petitions that are not seeking an associated extension request. Naturalization: The filing fee for a Form N-400 will increase 83 percent from to $640 to $1,170. The final rule eliminates the reduced Form N-400 fee option for certain applicants. Intercountry Adoptions: Clarifies that an additional Form I-600 or Form I-800 fee is not required when filing an additional petition for birth sibling, and changes the validity period for Form I-600A approval to 15 months. Secure Documentation: USCIS will send secure identification documents, such as permanent resident cards (green cards) and employment authorization documents (EADs), only to the applicant or self-petitioner unless they expressly consent to having the document sent to a designated agent, their attorney, or accredited representative; the designated agent, attorney, or accredited representative will be required to provide identification and sign for receipt of the document. Premium Processing: As part of the same final rule that will increase USCIS filing fees, the time to make decisions for applications filed with premium processing will increase from 15 calendar days to 15 business days.
Status of I-944 in Limbo: Courts Decide Fate, USCIS Reviewing Continued ImplementationAs of this writing on August 17, USCIS has not provided guidance on whether the Declaration of Self-Sufficiency, Form I-944, is required in adjustment of status cases outside of Vermont, Connecticut, and New York. The form is clearly not required in those three states. Although the form was enjoined nationwide by a district court order on July 29, on August 12 a court of appeals limited the injunction to the three states. Since issuing guidance in response to the July 29 lower court order, USCIS has not provided updated guidance on the impact of the modified injunction on its Public Charge Injunction page, which continues to discuss only the July 29 decision. Moreover, USCIS has not added the Form I-944 back to its Forms page. According to a CBS News article, a USCIS spokesperson said on August 13 that the agency is reviewing the order to"determine the administrative viability of reimplementing" the policy "where applicable." This creates significant uncertainty for foreign nationals as to whether Form I-944 is required to be filed at this time for applicants residing in states other than Vermont, Connecticut, or New York. In some instances, clients and their counsel are choosing not to file the Form I-944. Instead, it is advisable to include a screen shot of the USCIS Public Charge Injunction page, as well as the Forms page, dated on the filing date, indicating that it was not available for filing at the time of submission and an explanation of why the Form I-944 is not being submitted. Others are choosing to submit Form I-944 out of an abundance of caution. The decision to include or not include the form should be made with immigration counsel until further guidance is released from USCIS.
USCIS Refuses to Accept New DACA Applications in Defiance of Federal CourtsAs noted in our last newsletter, the Supreme Court temporarily blocked the Trump Administration's attempt to rescind deferred action for childhood arrivals (DACA). In issuing the decision for the majority, Chief Justice Roberts noted that the DHS may rescind DACA and emphasized that the Court is not deciding whether DACA or its rescission are "sound policies." The Court's decision was rooted in the agency's failure to follow the Administrative Procedure Act (APA), which requires agencies to provide adequate reasoning for their actions. While many immigration advocates believed the decision would at least temporarily restore the program in its entirety, USCIS issued a statement the day after the decision indicating that the agency believed the decision had no basis in law and only delayed the termination of the program. Most unfortunately, in the months since the decision, USCIS has actively defied parts of the Court's decision by not fully restoring the DACA program. Even though a federal district court ordered USCIS to accept new DACA applications, the agency pushed back, indicating it would reject initial applications for DACA. USCIS will continue to accept renewal applications for individuals who previously filed and received DACA benefits. USCIS will accept and process applications for advance parole only under exceptional circumstances and will limit the renewed deferred action grant to one year. Even though the Supreme Court's decision was a remarkable victory for DACA recipients, DHS continues to have authority to end the program in compliance with the APA, and the Administration's lack of compliance with the decision have limited its potential benefits. Ultimately, lasting relief for DACA recipients would need to come at the congressional level; however, DACA recipients still could benefit from consulting with an immigration attorney to screen for and explore other avenues for permanent residence in the United States.
Executive Order, barring H-1B workers from replacing American workers on a federal contracts. The EO creates an extra step for federal contractors and agencies intending to hire foreign workers on H-1Bs by requiring them to prove that the position could not be filled by a qualified U.S. worker. Specifically, the EO will require federal employers to complete an internal audit to determine compliance with the requirement that only U.S. nationals are employed for competitive positions. The Department of Labor is also finalizing guidance to prevent employers from moving H-1B workers to job sites where U.S. workers may be displaced. While the new EO is not a significant change from current policy, it reflects yet another attack on the H-1B program by the Administration.
found that, under the Federal Vacancies Reform Act of 1998, current Acting DHS Secretary, Chad Wolf, as well as Kenneth Cuccinelli, the current "Senior Official Performing the Duties of" DHS Deputy Secretary, were named to their positions by reference to an invalid order of succession. Any orders issued during their tenure arguably should be voided, but it remains to be seen what the current Administration to do. Attempt to Decertify Immigration Judge Union Fails: Last year the Department of Justice petitioned the Federal Labor Relations Authority (FLRA) in an attempt to strip immigration judges of their right to unionize. In late July, the FLRA rejected and dismissed that petition, noting that immigration judges are not management officials and are thus permitted to unionize. New EAD Form Required August 25: A new edition of the Form I-765, Application for Applications for Employment Authorization (EADs), to take effect August 25, has been issued by USCIS. USCIS will not accept EAD applications postmarked on or after August 25 if not filed with the 8/25/20 edition of Form I-765 and I-765WS (worksheet). (Note that, as of August 19, the USCIS has not yet posted the new edition on the I-765 Web page.) Trusted Traveler Programs Enrollment Centers Remain Closed: CBP announced that it is postponing the reopening of Trusted Traveler Programs Enrollment Centers until at least September 8. Applicants who scheduled interviews at enrollment centers before September 7 must reschedule their appointments.