Class Action Filed Against DHS for L-2 and H-4 Processing Delays
On March 22, 2021, the American Immigration Lawyers Association (AILA) and Wasden Banias, LLP, filed a class action lawsuit against the Department of Homeland Security (DHS), challenging processing delays on extensions of status and employment authorization documents (EADs) for H-4 and L-2 nonimmigrant spouses.
AILA President Jennifer Minear said, “DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.’
- AILA press release, https://www.aila.org/advo-media/press-releases/2021/lawsuit-l2-h4-processing-delays
USCIS Extends Flexibilities for Responding to Agency Requests
U.S. Citizenship and Immigration Services (USCIS) has extended flexibilities in response to the ongoing COVID-19 pandemic. USCIS will consider a response to certain requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, the agency will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before taking any action. This flexibility applies to the documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and June 30, 2021, inclusive.
Affected documents include requests for evidence; continuations to request evidence (N-14); notices of intent to deny, revoke, rescind, or terminate regional centers; and motions to reopen an N-400 pursuant to 8 CFR 335.5.
- USCIS notice, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-4
SEVP Reports 2020 Drop in International Student Enrollment
U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) reported a drop of 72 percent in new international student enrollment in U.S. schools in 2020 as compared to calendar year 2019. Decreases were attributed to the COVID-19 pandemic and Trump-era immigration policies. The annual report, which presents data from the Student and Exchange Visitor Information System, also noted that international students chose business administration as a major most often in 2020, followed by second-language learning and computer science.
Also, according to the report:
- The total number of SEVIS records for active F-1 and M-1 students was 1,251,569 in calendar year 2020, a decrease of 17.86 percent from calendar year 2019.
- There were 122,699 pre- and post-completion optional practical training (OPT) students with an employment authorization document who reported working for an employer in calendar year 2020, compared to 138,898 in calendar year 2019—a nearly 12 percent decrease.
- Chinese student enrollment declined in 2020 compared with 2019 (down by 91,936). Indian student enrollment also decreased (down by 41,761 in 2020 versus 2019).
- SEVIS by the Numbers, Mar. 22, 2021, https://www.ice.gov/doclib/sevis/pdf/sevisBTN2020.pdf
- SEVIS report announcement, https://studyinthestates.dhs.gov/2021/03/read-the-2020-sevis-by-the-numbers-report
EOIR Releases New Interactive Policy Manual
The Executive Office for Immigration Review (EOIR) announced the release of its first interactive policy manual. EOIR said the manual is the “culmination of a multi-year project that represents the agency’s first comprehensive review of its policies. This effort involved cross-component collaboration and the dedication of many employees to identify redundancies, clarify ambiguities, eliminate surplusage, and update policies to reflect current law and practice.”
EOIR said the manual includes the Immigration Court and Board of Immigration Appeals Practice Manuals, the Office of the Chief Administrative Hearing Officer Practice Manual, and all current agency policy memoranda.
- EOIR press release, https://www.justice.gov/eoir/pr/eoir-announces-release-comprehensive-policy-manual
- EOIR Policy Manual, https://www.justice.gov/eoir/eoir-policy-manual
House Passes ‘Dreamer’ and Farmworker Bills; Senate Passage Uncertain
On March 18, 2021, two immigration-related bills passed in the House of Representatives with bipartisan support. The bills are briefly summarized below:
The American Dream and Promise Act (H.R. 6) passed the House 228-197, with 9 Republicans joining Democrats in voting in favor. The legislation includes provisions to create a pathway to legalization for an estimated 2.5 million “Dreamers” who came to the United States as children, granting conditional permanent residence for 10 years, granting full permanent resident status subject to certain requirements, and canceling removal proceedings for eligible people.
The bill imposes various qualifying requirements for conditional permanent residence, such as the person being continuously physically present in the United States since January 1, 2021, passing a background check, and being enrolled in or having completed certain educational programs. The conditions placed on permanent resident status would be removed if the person applies and meets certain requirements, such as completing certain programs at an educational institution, serving in the military, or being employed. Removal also would be canceled and a path to permanent residence would be provided for certain beneficiaries of temporary protected status or deferred enforced departure.
The Farm Workforce Modernization Act (H.R. 1603) passed the House 247-174, with 30 Republicans joining all but one Democrat in voting in favor. The legislation includes provisions to streamline the H-2A agricultural worker visa process, establish a pathway for eligible farmworkers to obtain permanent residence (green cards), and create temporary status as “Certified Agricultural Workers.” Roughly a million farmworkers could be affected by the legislation.
Both bills now head to the Senate, where their fates are uncertain.
- American Dream and Promise Act of 2021 (H.R. 6), https://www.congress.gov/bill/117th-congress/house-bill/6
- Farm Workforce Modernization Act of 2021 (H.R. 1603), https://www.congress.gov/bill/117th-congress/house-bill/1603
- “House Tackles Biden’s Immigration Plans Amid Migrant Influx,” New York Times, Mar. 15, 2021, https://www.nytimes.com/2021/03/15/us/politics/biden-immigration-plan-bill.html (subscription)
- “House Passes Pair of Immigration Bills Amid Influx of Migrants Crossing U.S.-Mexico Border,” CNN Politics, Mar. 18, 2021, https://www.cnn.com/2021/03/18/politics/house-immigration-vote-bills/index.html
- “Immigration Bills Passed in the House Face Uncertain Fate in the Senate,” CBS News, Mar. 19, 2021, https://www.cbsnews.com/news/immigration-bills-daca-senate-obstacles/
- “House Votes to Give Millions of Dreamers and Farmworkers a Path to Citizenship,” New York Times, Mar. 18, 2021, https://www.nytimes.com/2021/03/18/us/politics/biden-immigration.html (subscription)
- “House Passes Immigration Bill, Creating Pathway to Citizenship for ‘Dreamers’,” USA Today, Mar. 18, 2021, https://www.usatoday.com/story/news/politics/2021/03/18/house-passes-immigration-bill-creating-citizenship-pathway-dreamers/4729821001/
- “Immigration Bill Creating Green Card Process for Farmworkers Passes House, Legislation Now Goes to Senate,” USA Today, Mar. 18, 2021, https://www.usatoday.com/story/news/politics/2021/03/18/house-passes-bill-gives-legal-status-undocumented-farmworkers/4729871001/
DHS Withdraws Affidavit of Support Proposed Rule
On March 19, 2021, the Department of Homeland Security (DHS) announced the withdrawal of a proposed rule, “Affidavit of Support on Behalf of Immigrants,” published on October 2, 2020. The agency said that by withdrawing the rule, “DHS aims to reduce barriers and alleviate burdens on American families who wish to sponsor individuals immigrating to the U.S. within the legal immigration system.” The withdrawal notice will be published in the Federal Register on March 22, 2021.
The proposed rule would have revised DHS regulations governing affidavit of support requirements. The withdrawal follows an executive order President Biden issued on February 2, 2021, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which revoked a related 2019 presidential memorandum.
- DHS announcement, Mar. 19, 2021, https://www.uscis.gov/news/alerts/dhs-withdraws-affidavit-of-support-proposed-rule
- Unpublished version of DHS withdrawal notice, to be published on March 22, 2021, https://public-inspection.federalregister.gov/2021-05427.pdf
- Executive Order 14012, https://www.federalregister.gov/documents/2021/02/05/2021-02563/restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts
- Proposed Rule (Oct. 2, 2020), https://www.federalregister.gov/documents/2020/10/02/2020-21504/affidavit-of-support-on-behalf-of-immigrants
EB-5 Reauthorization Bill Introduced in Senate
On March 18, 2021, Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) introduced the “EB-5 Reform and Integrity Act of 2021,” a bill that would reauthorize the EB-5 Regional Center Program, set to expire at the end of June, through 2026. The bill also includes measures to address fraud and national security concerns.
According to statements from Sens. Grassley and Leahy, the bipartisan bill would establish new disclosure requirements for EB-5 regional centers “to protect investors and certify regional center compliance with program rules.” It also would require the Department of Homeland Security to perform regular audits of and site visits to regional centers.
- Grassley statement, https://www.grassley.senate.gov/news/news-releases/grassley-leahy-introduce-new-eb-5-investor-visa-integrity-reforms
- Leahy statement, https://www.leahy.senate.gov/press/leahy-grassley-introduce-eb-5-investor-visa-integrity-reform-bill
- Bill text, https://www.leahy.senate.gov/imo/media/doc/EB-5%20Reform%20and%20Integrity%20Act%202021.pdf
- Bill summary, https://www.grassley.senate.gov/imo/media/doc/EB-5%20Reform%20and%20Integrity%20Act%202021%20-%20Summary.pdf
- IIUSA press release, https://iiusa.org/blog/press-release-introduction-of-eb-5-reform-and-reauthorization-bill-applauded-by-iiusa-and-cscj/
Labor Dept. Proposes Further Delay of Effective Date of Prevailing Wage Rule
On March 12, 2021, the Department of Labor’s Employment and Training Administration (ETA) published a final rule delaying until May 14, 2021, the effective date of a rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” which was published January 14, 2021. ETA proposes to further delay the effective date of the rule by 18 months, until November 14, 2022, along with corresponding proposed delays to the rule’s transition dates.
The proposed delay notice, which includes a request for comments, will be published in the Federal Register on March 22, 2021.
- Advance copy of proposed delay notice, https://public-inspection.federalregister.gov/2021-05847.pdf
USCIS Stops Applying Public Charge Final Rule to All Pending Applications and Petitions
U.S. Citizenship and Immigration Services (USCIS) stopped applying the public charge final rule to all pending applications and petitions on March 9, 2021. The agency removed content related to the vacated rule from the affected USCIS forms and posted updated versions of affected forms.
Starting April 19, 2021, USCIS will accept only the 03/10/21 edition of these forms: I-864, I-864A, I-864EZ, I-864W; I-539, I-539A; I-129CW, I-129CWR; I-129; I-485, I-485A, I-485J; and I-912.
- USCIS alert, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge
- USCIS final rule, Mar. 15, 2021, https://www.govinfo.gov/content/pkg/FR-2021-03-15/pdf/2021-05357.pdf
- Litigation summary, https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation
- USCIS forms, https://www.uscis.gov/forms/all-forms
CBP Extends Temporary Travel Restrictions Between U.S. and Canada/Mexico
U.S. Customs and Border Protection announced that temporary travel restrictions between the United States and Canada, and between the United States and Mexico, at land ports of entry along the border (including passenger ferry services and pleasure boat travel) will remain in effect through April 21, 2021. Travel will be limited to that deemed “essential,” due to continued transmission of the virus associated with the COVID-19 pandemic.
- Federal Register notice re U.S.-Canada travel restrictions, https://www.govinfo.gov/content/pkg/FR-2021-03-19/pdf/2021-05878.pdf
- Federal Register notice re U.S.-Mexico travel restrictions, https://www.govinfo.gov/content/pkg/FR-2021-03-19/pdf/2021-05877.pdf
2021 Spring Webinar Series
With a new presidential administration, you probably have many questions and concerns. Join us on April 8th, April 13th, and April 15th for a series of webinars to stay connected and keep you updated with the latest immigration changes.
IN THE NEWS
H. Ronald Klasko
EB5 Investors magazine interviewed Ron about EB-5 trends, how the pandemic has impacted the industry, potential program reforms, and more.
William A. Stock | F. Oliver Yang
Bill and Oliver’s podcast Episode 21: What Happens When a US Green Card Holder Gets Stuck Abroad was picked up by Mondaq.
H. Ronald Klasko | Daniel B. Lundy | Jessica A. DeNisi
Ron, Dan, and Jessica’s podcast Episode 22: Strategies For Resolving EB-5 Problems Series – Part 1: Project Problems was featured on Mondaq.
RECENT SPEAKING ENGAGEMENTS
William A. Stock
On March 2nd, Bill spoke at the 2021 AILA Midwinter Virtual Conference on a panel entitled Economic Fallout from the Pandemic.
William A. Stock
Bill presented about post-graduation options to Penn State University international students on March 5th and March 8th.
Maria M. Mihaylova
On March 23rd, Maria Mihaylova presented to international students at Rutgers University.
H. Ronald Klasko
On March 23rd, Ron was a panelist for a webinar hosted by LCR Capital Partners and EB5 Investors magazine entitled Understanding How Current US Legislation Can Impact the EB-5 Regional Center Program.
Daniel B. Lundy
On March 31st, Daniel Lundy presented in this webinar hosted by NES Financial | JTC and discussed the EB-5 program’s near-term realities, and real-world strategies for success.
UPCOMING SPEAKING ENGAGEMENTS
William A. Stock | Michele G. Madera | Andrew J. Zeltner
On April 8th, Bill, Michele, and Drew will discuss the latest updates on U.S. travel restrictions and adjudication trends in this Klasko Virtual Event entitled Getting Ready for the Post Pandemic: Travel and Adjudication Trends for 2021.
Michele G. Madera
On April 8th, Michele will be speaking in this Ellevate Network virtual event. She will discuss the planning process for the transition back to the office, managing employees throughout this process, and considerations to ensure safety.
H. Ronald Klasko | William A. Stock
On April 13th, Ron and Bill will cover breaking developments and updates from the federal government in this Klasko Virtual Event entitled Breaking Developments: Legislation, Litigation, Regulations, and New Policies.
Elise A. Fialkowski | Anu Nair | Allie Dempsey
On April 15th, Elise, Anu, and Allie will discuss various green card strategies for employment-based immigrants in this session of the Spring Webinar Series entitled Green Card Strategies.
H. Ronald Klasko
Ron will be a discussion leader at the AILA PHL Conference on April 30th. He will lead a panel entitled Litigation Updates & Federal Court Litigation Insights.
Michele G. Madera
Michele will be speaking at the AILA PHL Conference virtual event on April 30th. She will be on a panel entitled PERM Refresher and Updates.
ICYMI: RECENT BLOG POSTS AND ALERTS
Statues of Liberty: An Immigration Podcast
In Episode 21: What Happens When a US Green Card Holder Gets Stuck Abroad, Bill Stock and Oliver Yang discuss the options to re-enter the US to maintain permanent resident status and what factors to consider. Listen here.
Statues of Liberty: An Immigration Podcast
In this first of three-part series, Ron Klasko, Daniel Lundy, and Jessica DeNisi cover issues specifically related to investment projects. Listen here to Episode 22: Strategies for Resolving EB-5 Problems Series – Part 1: Project Problems.
April 2021 Visa Bulletin
In this blog, read a summary of USCIS’s update on which chart to use for employment and family-based categories.
Client Alert: Biden Rescinds Public Charge Rule
In this client alert, Anu Nair addresses how the Biden Administration rescinded the public charge rule in a reversal of Trump-era restrictive immigration policy.
COVID One Year Later: US Green Card Holders Still Abroad
In this blog, Oliver Yang answers hot questions on if green card holder stuck abroad can re-enter the United States after more than one year.
State Department Moves to Restrict Business Travel
In this blog, Grace Waweru covered Department of State’s proposed rule that would eliminate the BILOH policy from its regulations and guidance.
For the month of March, Klasko celebrated Women’s History Month by honoring the women at Klasko Immigration Law Partners. These women were highlighted throughout the month on our Instagram page. To view these posts, please visit our Instagram and follow us at @klaskoimmigrationlaw.
Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Administrative Supervisor Carmen Del Valle with honorable mention to Will Parker. Their nominator wrote:
Carmen and Will have both been an invaluable resource to all of us for on-site operational issues. Both have been on-site for almost the entire pandemic unselfishly helping us all by performing daily routines, emergency tasks when needed, receiving special deliveries, and turning on machines when they need rebooting, getting desks and offices set up for new hires, and helping to keep the office in order for on-site teams and when we finally get back to a normal. Those are in addition to their normal daily routines.
Congratulations to Carmen and Will!
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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.