Klasko Immigration Law Partners: Trump Administration Issues New Proclamation Extending Immigrant Visa Ban; Prohibiting “Entry” of H, L, and Certain J Nonimmigrants Until the End of 2020; and Directing Rulemaking to Limit or Eliminate Certain Nonimmigrant Visa Programs
On June 23, Klasko Immigration Law Partners published this client alert on the White House’s new Proclamation concerning immigration. President Trump issued a Proclamation that temporarily bars entry from abroad by employees on H, L, and J temporary visas until the end of this year. The Proclamation also extends the duration of Presidential Proclamation 10014, which bars the entry of most new immigrants from abroad, until the end of this year. The Proclamation directs the Departments of Labor and Homeland Security to commence rulemaking to eliminate certain work permit programs and make access to EB-2 and EB-3 immigrant visas more difficult.
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USCIS Issues New H-1B Policy Memo and Rescinds Two Earlier Memos Following Litigation
Following up on an agreement resulting from recent litigation, U.S. Citizenship & Immigration Services (USCIS) has issued a new memorandum and rescinded two policy memoranda regarding the adjudication of certain petitions for H-1B nonimmigrant classification:
- Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Jan. 8, 2010), which provided guidance on the requirement that a petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period; and
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Feb. 22, 2018), which provided guidance relating to H-1B petitions filed for workers who would be employed at one or more third-party worksites, and was intended to be read together with the 2010 memorandum and as a complement to that policy.
Among other things, the new memo states that evidence of specific day-to-day assignments is not required to establish that a position is in a specialty occupation (the so-called “itinerary” requirement). The memo states that USCIS will abstain from applying the itinerary requirement “in the limited instance of applicable H-1B applications until the Department of Homeland Security or USCIS issues new adjudicative and/or regulatory guidance on this requirement.” However, the memo notes, “officers should continue to apply the itinerary requirement at 8 CFR 214.2(h)(2)(i)(F) for H-1B petitions filed by agents.”
The memo also notes that USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. However, the decision must be accompanied by a brief explanation as to why the validity period has been limited, the memo states. This includes, but is not limited to, instances in which the certified labor condition application has a validity period of shorter duration than that specified on the H-1B petition.
In addition, the memo states that guidance concerning “benching” remains unchanged:
Except in certain limited circumstances, “benching” is prohibited by law to prevent foreign workers from unfair treatment by their employers and to ensure that the job opportunities and wages of U.S. workers are being protected. The failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.”
Some note that this appears to run counter to the court’s reasoning in IT Serve v. Cissna and INA section 212(n)(2)(C)(vii)(1). Among other things, Congress permitted employers to place holders of H-1B visas in “non-productive status” as long as the employer continued to pay the approved full-time wage. These observers say that an employer’s inability to work but still pay this individual the required wage should not result in jeopardy for the foreign national’s status.
Under the recent litigation, USCIS entered into an agreement with ITServe Alliance, Inc., an information technology trade group, to overturn more than 200 H-1B denials. The move came after a federal court ruled in March that USCIS policies narrowly defining employer-employee relationships, as well as other regulatory requirements for H-1B classification, were implemented outside of proper notice-and-comment rulemaking.
- New USCIS memo (June 17, 2020), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf
- Settlement agreement, https://bit.ly/30Efdhh
- ITServe Alliance, Inc., v. Cissna, https://nfap.com/wp-content/uploads/2020/03/ITServe-Order-DDC.pdf
- USCIS February 2018 memo to be rescinded, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” https://bit.ly/3cY3fl1
- Klasko Client Alert, https://bit.ly/3hjsOAm
- National Law Review, “Recent USCIS Settlement Offers Substantial Relief to H-1B Employers,” https://www.natlawreview.com/article/recent-uscis-settlement-offers-substantial-relief-to-h-1b-employers
Supreme Court Rules DHS Violated APA, DACA Stands (At Least for Now)
On June 18, 2020, the Supreme Court ruled that Elaine C. Duke, then-Acting Secretary of the Department of Homeland Security (DHS), violated the Administrative Procedure Act (APA) in 2017 when she rescinded the Deferred Action for Childhood Arrivals (DACA) program, in place since 2012, at the direction of the Attorney General. DACA granted certain people who entered the United States as children the ability to apply for a two-year “forbearance of removal” and to be eligible for work authorization and various benefits. There are approximately 700,000 DACA recipients.
The Court noted in its decision that the Department of Homeland Security may rescind DACA and that the dispute instead was primarily about the procedure the agency followed in doing so. The government had argued that its decision was unreviewable, but the Court disagreed. For several reasons, the Court found the rescission of DACA to be “arbitrary and capricious,” noting that “[w]e do not decide whether DACA or its rescission are sound policies,” but only “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” The appropriate recourse, the Court found, was “to remand to DHS so that it may consider the problem anew.”
USCIS subsequently issued a statement calling DACA recipients “illegal aliens” and asserting that the Court’s decision “has no basis in law and merely delays the President’s lawful ability to end the illegal [DACA] amnesty program.”
According to some observers, it is unlikely that the DACA program can be discontinued this year. Any such effort, and ensuing legal challenges, could take months or years. In the meantime, it is possible that a lower court could open the program once again to new applicants, and a presidential election looms. Stay tuned.
- Supreme Court’s decision, https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
- USCIS statement, https://www.uscis.gov/news/news-releases/uscis-statement-supreme-courts-daca-decision
- For more on this topic, see the ABIL Member/Firm News section.
ICE Announces Extension of I-9 Physical Presence Requirement Flexibility for 30 Days
U.S. Immigration and Customs Enforcement (ICE) announced another extension of physical presence flexibility related to Employment Eligibility Verification (Form I-9) compliance that was granted earlier this year. Due to continued precautions related to the COVID-19 pandemic, the policy for employers operating 100 percent remotely in light of COVID-19 is extended for an additional 30 days, to July 19, 2020.
On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the I-9 process. On May 19, DHS extended this policy for an additional 30 days.
- ICE release announcing extension, https://www.ice.gov/news/releases/ice-announces-another-30-day-extension-flexibility-rules-related-form-i-9-compliance
USCIS Eliminates 30-Day Timeframe for Processing Asylee Initial EADs
U.S. Citizenship and Immigration Services (USCIS) plans to eliminate the 30-day timeframe for processing asylum applicants’ employment authorization documents (EADs), effective August 21, 2020.
USCIS said the 30-day timeframe was imposed by regulation more than 20 years ago, and that USCIS needs sufficient time to receive, screen, and process applications; address national security and fraud concerns; verify identity; and “further deter those who may attempt to defraud the legal immigration system.”
The final rule also removes the requirement that asylum applicants submit their work authorization renewal requests to USCIS 90 days before their current employment authorization expires. Under the final rule, asylum applicants will be able to file a renewal work authorization application up to 180 days before the expiration date.
- USCIS final rule, https://www.govinfo.gov/content/pkg/FR-2020-06-22/pdf/2020-13391.pdf
State Dept. Faces Backlog in ‘Phase One’ Reopening of U.S. Passport Operations
The Department of State (DOS) reportedly faces a backlog of approximately 1.7 million applications as it begins opening passport agencies and centers under Phase One of its reopening plan in response to the COVID-19 pandemic. A spokesperson said that was a “slight increase” over the usual monthly amount, and that capacity to handle the backlog is growing.
Passport centers that have reopened recently include Arkansas; Atlanta, Georgia; Boston, Massachusetts; Buffalo, New York; Chicago, Illinois; Colorado; Connecticut; Dallas, Texas; Detroit, Michigan; El Paso, Texas; Honolulu, Hawaii; Houston, Texas; Los Angeles, California; Miami, Florida; Minneapolis, Minnesota; National Passport Center (Portsmouth, New Hampshire); New Orleans, Louisiana; New York; Philadelphia, Pennsylvania; San Diego, California; San Francisco, California; San Juan, Puerto Rico; Seattle, Washington; Vermont; Washington; Western Passport Center; and Special Issuance Agency (Washington, DC).
- DOS announcement on reopening of passport operations, which includes details on COVID-19-related restrictions, https://travel.state.gov/content/travel/en/passports/get-fast/passport-agencies.html
- State Dept. Reopens 11 Passport Services Sites, Confronts Million-Case Backlog, https://federalnewsnetwork.com/workforce/2020/06/state-dept-reopens-11-passport-services-sites-confronts-million-case-backlog/
DOS Issues Final Rule Changing Special Immigrant ‘Exceptional’ Criteria
The Department of State (DOS) has published a final rule, effective December 16, 2020, that codifies in regulation the eligibility criteria for special immigrant status and the application process. The final rule states that special immigrants are those who have been employed by, and “performed faithful service for,” the U.S. government abroad for at least 15 years, along with their accompanying spouses and children. DOS emphasized that the rule affects only the granting of special immigrant status to long-term employees of the U.S. government abroad under INA section 101(a)(27)(D) and does not affect the granting of special immigrant status under any of the authorities for that status, including any of the other provisions in INA section 101(a)(27) or those specific to nationals of Iraq and Afghanistan.
The rule codifies the circumstances that will be considered “exceptional” for purposes of assessing special immigrant status qualification. DOS said the rule excludes certain criteria (e.g., high visibility in a sensitive position; valuable services and assistance to the U.S. community at post apart from performance of official duties; and others) that were included in the Foreign Affairs Manual and were “the Department’s policies that preceded this rule.” The regulation adds two new criteria.
USCIS Extends Transitional Parole in Northern Marianas
U.S. Citizenship and Immigration Services (USCIS) will automatically extend transitional parole, and employment authorization if applicable, in the Commonwealth of the Northern Mariana Islands (CNMI) for current parolees whose parole status will expire on June 29, 2020. The parole and work authorization, if applicable, will be extended through August 17, 2020.
USCIS said the purpose of this temporary extension is “to encourage all eligible parolees to apply for CNMI long-term resident status within the application period.”
- USCIS announcement, https://www.uscis.gov/news/alerts/uscis-extends-transitional-parole-certain-aliens-present-commonwealth-northern-mariana-islands
IN THE NEWS
William A. Stock
Bill was quoted in a number of articles published by Forbes in June regarding recent changes in the immigration landscape. In this June 3rd piece, Bill notes that the Trump administration’s likely future actions to limit immigration could include directing the Department of Homeland Security to issue an interim final rule eliminating or significantly restricting OPT or STEM OPT. In this June 10th article, Bill comments on how he believes the administration may be overplaying its hand in the use of Section 212(f). On June 23rd, he was quoted in this piece about the new H-1B visa restriction and how it will affect companies. Lastly, on June 25th, Bill was quoted in Forbes about Trump’s attempt to force long-time H-1B visa holders out of the United States.
William A. Stock | Jordan J. Gonzalez
JD Supra published Bill and Jordan’s client alert about the Trump administration issuing a new proclamation extending the immigration travel ban.
RECENT SPEAKING ENGAGEMENTS
Ronald Klasko | William A. Stock | Michele G. Madera | Elise A. Fialkowski
On June 24th, Ron, Bill, Elise, and Michele hosted a Klasko webinar titled Update From Washington: Employer’s Preview of Immigration Restrictions From The Administration.
ICYMI: RECENT BLOG POSTS AND ALERTS
Following Litigation, USCIS Rescinds Restrictive H-1B Policy Memo
Under the resulting May 20th agreement, USCIS will rescind the February 2018 policy memo and reopen H-1B denials that were the subject of the ITServe Alliance lawsuit. Allie K. Dempsey addresses the agreement in this article.
Client Alert: Trump Administration Issues New Proclamation Extending Immigrant Visa Ban; Prohibiting “Entry” of H, L, and Certain J Nonimmigrants Until the End of 2020; and Directing Rulemaking to Limit or Eliminate Certain Nonimmigrant Visa Programs
In this client alert, William A. Stock and Jordan J. Gonzalez discusses the new proclamation extending the immigrant visa ban.
EB-5 Remains a Viable Option for Immigration Despite Trump Visa Ban
In this blog, Daniel B. Lundy addresses how the EB-5 visa remains one of the few categories of immigrant visa presently available for individuals following two Presidential Proclamations drastically limiting the availability of visas for immigration to the United States.
EB-5 vs. E-2 Investor Visas: A Comparison
In this blog, read about the key differences between EB-5 and E-2 investor visas.
Direct vs. Regional Center EB-5 Investments
In this blog, read about the key differences between Direct and Regional Center EB-5 investments.
While separated during the COVID-19 pandemic, the Klasko family is still finding ways to socially connect while social distancing. This month, a Klasko Kookbook was created. Staffers were encouraged to submit recipes that they enjoy! From family recipes to recipes you have fond memories of, or just something you think is tasty! To view the Klasko Kookbook click here!
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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.