Alejandro Mayorkas Nominated To Direct Department of Homeland Security
President-elect Joe Biden announced on November 23, 2020, his nomination of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). During the Obama administration, Mr. Mayorkas directed U.S. Citizenship and Immigration Services and then became deputy secretary of DHS. During his more than 30-year career, Mr. Mayorkas also served as a U.S. attorney in California. He is a partner at WilmerHale, leading its COVID-19 Coronavirus Task Force.
Mr. Mayorkas’ accomplishments in the Obama administration included developing and implementing the Deferred Action for Childhood Arrivals (DACA) program, which benefited more than 700,000 youth. President-elect Biden said that Mr. Mayorkas “will play a critical role in fixing our broken immigration system and understands that living up to our values and protecting our nation’s security aren’t mutually exclusive—and under his leadership, they’ll go hand-in-hand.”
Mr. Mayorkas, who was born in Havana and is the son of Jewish refugees who fled Cuba during the Castro revolution, would make history as the first Latino and first immigrant in that position, if confirmed by the Senate. His Romanian mother escaped the Holocaust and met his father, of Sephardic heritage, in Cuba.
On the day of the nomination announcement, Mr. Mayorkas tweeted, “When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”
- Biography, Alejandro Mayorkas, Biden-Harris Nominees and Appointees, https://buildbackbetter.gov/the-administration/nominees-and-appointees/alejandro-mayorkas/
- Mayorkas’ Twitter page, https://twitter.com/AliMayorkas/status/1330937834908250115
- “Alejandro Mayorkas, Biden’s Pick for DHS Head, Would Be 1st Latino in Post,” NPR, https://n.pr/2VqjRvD
- Biography, Alejandro Mayorkas, WilmerHale, https://www.wilmerhale.com/en/people/alejandro-mayorkas
- “Biden Picks Alejandro Mayorkas, a Son of Sephardic Jewish Cuban Refugees, to Lead the Department of Homeland Security,” eSefarad, https://esefarad.com/?p=100825
State Dept. Launches Visa Bond Pilot Program
On November 24, 2020, the Department of State (DOS) published a temporary final rule providing for a visa bond pilot program from December 24, 2020, through June 24, 2021.
The six-month pilot program aims to assess the operational feasibility of issuing visa bonds to inform future decisions regarding the use of such bonds to address temporary business visitor/tourist (B-1/B-2) overstays. Those potentially subject to the pilot program include B-1/B-2 visa applicants who are from countries with high visa overstay rates and have been approved by the Department of Homeland Security (DHS) for an inadmissibility waiver. DOS said the program is intended to serve as a “diplomatic tool” to encourage foreign governments to ensure that their nationals timely depart the United States after temporary visits.
During the six-month pilot program, consular officers may require nonimmigrant visa applicants falling within the program’s scope to post a bond of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount will be determined by the consular officer “based on the circumstances of the visa applicant.” The consular officer can also recommend a waiver of the visa bond if he or she believes a waiver would advance a humanitarian or national interest.
The pilot program will focus on nationals of 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. The program does not apply to those traveling under the Visa Waiver Program.
- DOS temporary final rule, https://www.federalregister.gov/documents/2020/11/24/2020-24223/visas-visa-bond-pilot-program
DHS Extends Form I-9 Requirement Flexibility
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended until December 31, 2020, flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing precautions related to the COVID-19 pandemic. The temporary guidance was set to expire November 19, 2020.
DHS noted that this provision only applies to employers and workplaces that are operating remotely. The original news release gives more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. DHS said that employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.
E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.
- DHS notice, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-0
- Original DHS news release, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
- DHS website, https://www.dhs.gov/
- ICE website, https://www.ice.gov/news/overview
USCIS Updates Guidance on Naturalization Applicants
On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.
The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”
- USCIS notice, https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-on-naturalization-applicants-who-did-not-properly-obtain-lawful
State Dept. Revises Guidance to Implement Court Order in NAM v. DHS
The Department of State (DOS) released a cable to the field with revised guidance implementing a court order issued on November 18, 2020, in National Association of Manufacturers v. Department of Homeland Security. The revised DOS guidance clarified the court’s October 1, 2020, order enjoining the government from enforcing a Trump administration ban on H, L, and J nonimmigrants under section 2 of Presidential Proclamation 10052. Applicants are now considered covered by the NAM court’s order as long as the petitioner or sponsoring entity is a member of one of the named plaintiff associations at the time of adjudication. The court further ordered that DOS “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.
DOS said that an applicant is now considered covered by the NAM court order “if the applicant’s petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview.”
DOS said posts should continue to treat “petition-based work visas (including H’s and L’s) as Tier 2 (second only to cases involving humanitarian emergencies, applicants contributing to COVID-19 eradication, diplomatic visas which do not require in person appointments, etc.)” To comply with the order, “J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program applicants should be considered Tier 2, as well.”
An appeal of the October 1, 2020, injunction is pending.
- DOS cable, https://drive.google.com/file/d/1i-ag8fTx4xmKC_DQdb2UGbXI7L-EFUui/view
- Presidential Proclamation 10052, https://bit.ly/3pQQ2Cf
DHS Issues Proposed Rule to Eliminate Work Authorization for Some With Final Orders of Removal
The Department of Homeland Security (DHS) proposes to eliminate employment authorization eligibility for those who have final orders of removal but are temporarily released from custody on an order of supervision, with one “narrow” exception. DHS proposes to continue to allow employment authorization for “aliens for whom DHS has determined that their removal is impracticable because all countries from whom travel documents have been requested have affirmatively declined to issue a travel document and who establish economic necessity.” DHS said it intends for this rule “to reduce the incentive for aliens to remain in the United States after receiving a final order of removal and to strengthen protections for U.S. workers.”
DHS also proposes to clarify that those who have been granted a deferral of removal based on the United States’ obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are similarly situated to those granted withholding of removal under the Immigration and Nationality Act and regulations implementing CAT, “in that they cannot be removed to the country in question while the order deferring their removal is in place.” As such, DHS proposes to treat those granted CAT deferral of removal as employment authorized based on the grant of deferral of removal.
- DHS notice of proposed rulemaking on eliminating work authorization for some with final orders of removal, https://bit.ly/3fq6DIb
- USCIS statement, https://www.uscis.gov/news/news-releases/dhs-proposes-to-limit-work-permits-for-aliens-with-final-orders-of-removal
- CAT, https://bit.ly/3fodJgc
DHS Issues Proposed Rule to Expand Biometrics Collection
The Department of Homeland Security (DHS) proposes to “permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure.” In addition, to enable U.S. Customs and Border Protection (CBP) to verify identity by using facial recognition technology, DHS proposes “to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure.”
U.S. citizens may voluntarily opt out of participating in CBP’s biometric verification program.
Comments are due by December 21, 2020.
- DHS notice of proposed rulemaking on biometrics collection, https://bit.ly/35Sq9tV
USCIS Publishes Guidance on E-Verify Tentative Nonconfirmations
U.S. Citizenship and Immigration Services (USCIS) recently published a question and answer on photo mismatches of Department of Homeland Security (DHS) Tentative Nonconfirmations (TNCs).
USCIS said that the photo E-Verify transmitted should be identical to the photo that appears on an employee’s DHS or Department of State-issued document. If the employer determines that the photos do not match, it results in a photo mismatch TNC. If the employee chooses to take action on this TNC, the employer must follow the instructions in the Further Action Notice to scan and upload an image of the employee’s document into E-Verify, USCIS said.
- USCIS FAQs (scroll down to “What is a photo mismatch DHS tentative nonconfirmation (TNC)?,” https://www.e-verify.gov/common-e-verify-questions
Visa Bulletin for December Includes Info on Diversity Visas, Scheduled Expiration of Two Employment Visa Categories
The Department of State’s Visa Bulletin for December 2020 includes information on the diversity visa immigrant category rank cut-offs that will apply in December and January. It also includes information on the scheduled expiration of two employment visa categories on December 11, 2020: the employment fourth preference Certain Religious Workers (SR) category and the employment fifth preference categories (I5 and R5).
For SR visas, if there is no legislative action extending this category, it will become “Unavailable” effective midnight December 10, 2020. For I5 and R5 visas, if there is legislative action extending these categories, the December dates would be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective midnight, December 11, 2020.
- December 2020 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-december-2020.html
USCIS Updates Guidance on Discretionary Factors for Adjustment of Status Applications
U.S. Citizenship and Immigration Services (USCIS) is updating existing policy guidance regarding agency discretion in adjudications of adjustment of status applications.
The update provides “a non-exhaustive list of positive and negative factors that may be relevant to whether an adjustment of status applicant warrants a favorable exercise of discretion.” It also lists the privileges, rights, and responsibilities of lawful permanent residents (LPRs) as a reference for officers to consider when determining whether the grant of LPR status is in the best interest of the United States.
USCIS said this update “will assist officers in making more consistent discretionary decisions by providing a foundation to identify and analyze negative and positive factors in adjustment of status applications.”
- USCIS notice, https://www.uscis.gov/news/alerts/uscis-updates-policy-guidance-regarding-discretionary-factors-for-adjustment-of-status-applications
- USCIS policy alert, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20201117-AOSDiscretion.pdf
- USCIS policy manual update, https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4
Federal Judge Rules New Policy Limiting DACA Is Invalid Because ‘Acting Secretary’ Wolf Was Appointed Unlawfully
On November 14, 2020, a federal judge ruled that a new policy limiting Deferred Action for Childhood Arrivals (DACA) applications and renewals is invalid because Chad Wolf was not legally serving as Acting Secretary of Homeland Security when he signed it on July 28, 2020.
The Wolf memorandum outlining the new policy, issued after the Supreme Court blocked the Trump administration’s attempt to end DACA, rescinded earlier DACA-related memoranda and directed Department of Homeland Security personnel “to reject all pending and future initial requests for DACA, to reject all pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals consistent with the parameters established in this memorandum.”
The U.S. government could appeal the ruling. Meanwhile, according to reports, the Trump administration is attempting to get Wolf confirmed as Secretary of Homeland Security before President-elect Biden is inaugurated on January 20, 2021. The U.S. Government Accountability Office and others also found Wolf’s appointment to be invalid as it failed to keep with the required order of succession.
- Court order, https://www.justsecurity.org/wp-content/uploads/2020/11/Garaufis.DACA_.decision.pdf
- “Federal Judge Says New DACA Rules Are Invalid,” CNN, https://www.cnn.com/2020/11/14/politics/federal-judge-daca-rules-chad-wolf/index.html
- Wolf memorandum, https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf
- GAO report on the invalidity of Wolf’s appointment, https://www.gao.gov/assets/710/708830.pdf
- GAO reaffirmation of decision on Wolf’s appointment, https://www.gao.gov/assets/710/708944.pdf
- “Trump Administration to Review DACA and Reject New Applications,” CNN, https://www.cnn.com/2020/07/28/politics/daca-trump-administration/index.html
- “Trump Administration Renews Push to Confirm Wolf Amid Concerns Over Legitimacy and Agency Purge,” https://www.cnn.com/2020/11/13/politics/donald-trump-chad-wolf-dhs/index.html
State Dept. Continues Phased Resumption of Routine Visa Services
The Department of State (DOS) announced a continuing phased resumption of routine immigrant and nonimmigrant visa services on a post-by-post basis, subject to local conditions, after closings that began in March 2020 due to the COVID-19 pandemic. The agency made the following points:
- U.S. embassies and consulates have continued to provide emergency and “mission-critical” visa services since March and will continue to do so. The agency said it cannot provide specific dates for when each mission will resume visa services or return to pre-pandemic processing levels. Each U.S. embassy or consulate’s website provides more detailed information about operating status and current services.
- Posts that process immigrant visa applications will prioritize immediate relative family members of U.S. citizens and certain Special Immigrant Visa applications, among others. Posts processing nonimmigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission-critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and certain temporary workers.
- Machine-readable visa fee validity has been extended to December 31, 2021, to allow applicants who were unable to schedule a visa appointment an opportunity to schedule or attend a visa appointment with the fees they already paid.
- DOS notice, https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html
Litigation Challenges Trump Proclamation Banning Many Immigrants
In Anunciato v. Trump, more than 245 family, employment, and diversity-based immigrant visa applicants and their U.S. sponsors sued President Donald Trump, Secretary of State Mike Pompeo, and the Department of State in federal court in San Francisco, California on November 9, 2020. The plaintiffs seek immediate relief from a Presidential Proclamation that expires on December 30 and is expected to be extended. They want the administration “to follow the law and process the visas for which they have qualified.” Plaintiffs argue that the proclamation unlawfully bars them from immigrating to the United States, has caused extraordinary hardship, and is arbitrary and capricious.
Attorneys representing the plaintiffs include Jeff Joseph, Aaron Hall and Jennifer Howard of Joseph & Hall, PC; Charles Kuck, Danielle Claffey, and Phillip Kuck of Kuck Baxter Immigration LLC; and Greg Siskind of Siskind Susser PC. Charles Kuck said that the plaintiffs “cannot wait two more months to enter the United States on their diversity visas, reunite with their loved ones on family visas, and start their employment with employers who have already shown that there are no qualified workers for their jobs on their employment visas.”
- Press release, https://bit.ly/2IxpHbb
- Siskind Susser PC statement, https://www.visalaw.com/iv-ban-litigation/
- Case FAQ, https://www.dropbox.com/s/mdwoj3nnf1gwj5d/IV%20Ban%20case%20FAQ.pdf?dl=0
Facebook page for case, https://www.facebook.com/Trump-IV-Ban-Litigation-Group-Hosted-by-Joseph-Siskind-Kuck-100488721836503
We’ve been cooking up something new and exciting! Keep a lookout for a special announcement coming soon. Stay tuned to our social media channels for the announcement later this week. Follow us on LinkedIn, Twitter, and Facebook.
IN THE NEWS
Daniel B. Lundy
Dan’s article Litigation Success Story – Mirror Lake Village, LLC v. Wolf: After Years of Fighting “At Risk” Finally Means At Risk was published in the IIUSA Journal.
RECENT SPEAKING ENGAGEMENTS
Andrew J. Zeltner
Drew discussed the tax and immigration considerations for U.S. immigrants in a CPA Academy webinar event on November 2nd.
Andrew J. Zeltner | Jordan J. Gonzalez
Drew and Jordan virtually presented to Princeton University on Visa Options for Postdocs and graduate Students on November 3rd.
Andrew J. Zeltner | Jordan J. Gonzalez
On November 11th, Drew and Jordan spoke in a Drexel University virtual event discussing H-1B and Department of Labor Developments.
Jessica A. DeNisi
On November 17th, Jessica presented at the 2020 IIUSA Virtual Industry Forum on a panel discussing Real Estate Workouts: Unique Challenges Facing EB-5 in the Wake of COVID-19.
H. Ronald Klasko
On November 18th, Ron spoke at an NJICLE Advanced Immigration Conference virtual event on litigation updates.
Elise A. Fialkowski
Elise spoke to Widener University on November 19th about U.S. immigration basics, debunking myths, and how the current administration has restricted legal immigration
UPCOMING SPEAKING ENGAGEMENTS
Elise A. Fialkowski
Elise will be speaking at the 2020 AILA/GMS Virtual Annual Global Immigration Forum on a panel entitled Lone Voyager: The Effect of the Pandemic-Redesigned Workplace on Global Immigration Practice on December 2nd.
H. Ronald Klasko
On December 9th, Ron will be speaking at the 2020 Wealth, Tax Planning & Immigration Virtual Expo on panel entitled What are the USCIS standards, how to challenge the ruling and what happens to the EB-5 investors investments?
H. Ronald Klasko
On December 9th, Ron will be presenting in an Investment Migration Council webinar event on a panel discussing The New US Presidential Administration and Immigration – What Happens Now?
Klasko Immigration Law Partners, LLP was ranked nationally and regionally in 2021 “Best Law Firms” by U.S. News and World Report. Click here for the full press release.
ICYMI: RECENT BLOG POSTS AND ALERTS
Client Alert: Court Halts Prevailing Wage Increase and H-1B Program Changes
In this client alert, Maria M. Mihaylova gives the latest update on the United States District Court for the Northern District of California issuing a decision that suspends the Department of Labor’s prevailing wage increase.
This will be the last newsletter… of the year!
Hopefully, the new year will bring more good news and less uncertainty. Despite this year looking different from the rest, the firm still found ways to connect with all the firm employees. Since we couldn’t celebrate Firmsgiving together this year, employees were sent a gift box from Di Bruno Bros filled with an assortment of goodies to enjoy for Thanksgiving in their homes!
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.