U.S. Government Accountability Office (GAO) says Appointments to Acting DHS Leadership Roles Were Invalid
On August 14, 2020, the U.S. Government Accountability Office (GAO) reported the Department of Homeland Security (DHS) did not follow the proper succession rules in making Chad Wolf the Acting Secretary of DHS and in making Kenneth Cuccinelli the senior official performing the duties of Deputy Secretary, and they were thus ineligible for their positions. The GAO report came at the request of the heads of two House committees.
Following this report on August 17, Chad Mizelle, Senior Official Performing the Duties of the General Counsel at DHS, sent a letter to the GAO arguing that Chad Wolf and Kenneth Cuccinelli are lawfully performing their current roles at DHS and asking GAO to immediately rescind its report claiming otherwise.
The GAO has since responded on August 21, denying DHS’ request that they rescind their decision on the legality of service of both Chad Wolf and Kenneth Cuccinelli. As such, these invalid appointments are now being used to challenge USCIS policies in current lawsuits.
USCIS fee increases expected in October met with lawsuits
On August 3, 2020, U.S. Citizenship and Immigration Services (USCIS) published a Final Rule that significantly alters the USCIS fee schedule by adjusting fees, adding new fees, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms. These new fees are set to take effect on October 2, 2020.
Since then, two lawsuits were filed challenging the fee hikes and related actions. On August 20, the American Immigration Lawyers Association (AILA) and eight other organizations sued USCIS over the agency’s fee rule, which raises application fees for many essential immigration benefits by 30 to 200 percent, and eliminates most fee waivers for qualifying low income immigrants
On August 21, additional advocacy groups including Public Citizen, on behalf of immigrant advocacy groups Ayuda, Northwest Immigrant Rights Project, and CASA de Maryland, filed a lawsuit in the U.S. District Court for the District of Columbia alleging that USCIS’s new fee rule will unlawfully force immigrants seeking naturalization, asylum, employment authorization, and humanitarian protections to pay high fees. The plaintiffs request that the court set aside the new fee rule on the ground that Acting DHS Secretary Chad Wolf, who approved it, is ineligible to serve in that position (see next news update below). Plaintiffs also contend that the rule is based on incomplete and unsupported justifications, violates several provisions of the INA, and failed to comply with the rulemaking requirements of the Administrative Procedure Act (APA). The lawsuit amends an existing lawsuit challenging DHS’s October 2019 revisions to the standards applicable to individuals seeking fee waivers. (Northwest Immigrant Rights Project, et al. v. USCIS, et al., 8/21/20)
Iandoli Desai & Cronin PC will continue to monitor the situation and provide updates when available.
USCIS furloughs cancelled, delays still expected
USCIS announced on August 25, 2020 that the agency will avert a furlough of nearly 70% of its workforce, which was initially scheduled for August 3, then postponed to August 31. The first delay announcement on July 24 came after Senate Appropriations Committee Vice Chairman Patrick Leahy (D-Vt.) pressed USCIS to reverse course on its intended furlough after he made public the fact that new revenue estimates showed the agency due to end the fiscal year in a surplus, and not the previously projected $571 million deficit.
USCIS now expects to be able to maintain operations through the end of fiscal year 2020, September 30, 2020, noting however that aggressive spending reduction measures will impact all agency operations. USCIS reports that the additional cost savings come through the descoping of federal contracts that assist USCIS adjudicators in processing and preparing case files as well as a myriad of other support activities. Anticipated operational impacts include increased wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing.
USCIS Will NOT Accept New DACA Applications
Despite the Supreme Court’s decision blocking the rescission of the Deferred Action for Childhood Arrivals (DACA) program, the administration plans to continue its existing policy of not accepting new DACA applicants. On July 28, 2020, DHS Acting Secretary Chad Wolf issued a memo, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,’” noting that in response to the Supreme Court’s decision, he is rescinding the 2017 and 2018 memoranda that rescinded DACA. Pending the Acting Secretary’s full reconsideration of the DACA policy, per the memo, DHS will:
reject all pending and future initial requests for DACA;
reject all pending and future applications for advance parole absent exceptional circumstances;
and shorten the period of renewed deferred action granted pursuant to the DACA policy after the issuance of the memorandum to one year.
Iandoli Desai & Cronin P.C. will continue to monitor the situation and provide updates.
DOL’s OFLC Verifies Regulations that Control PERM Notice of Filing Requirement
During the July 23, 2020, Department of Labor’s (DOL) Open Forum during AILA’s virtual annual conference, the DOL’s Office of Foreign Labor Certification (OFLC) confirmed that the PERM Notice of Filing (NOF) requirement found at 20 CFR 656.10(d)(1)(ii) is flexible and employers can satisfy this regulatory requirement by posting notice for 10 consecutive business days at the worksite.
While there are currently countless different work-from-home and office-closure scenarios, OFLC confirmed that employers could even satisfy the NOF requirement for PERM by posting the NOF on the exterior door of its building, office, or front entry even if the work place is 100% closed and employees are 100% remote, so long as the business is operational (i.e., conducting business). AILA’s DOL Liaison Committee further inquired whether OFLC anticipates in the future issuing audits to question the level of operability of the business or level of occupancy of the building, and OFLC indicated that it does not customarily make this inquiry and does not anticipate doing so in the future. Finally, OFLC will not be issuing a FAQ on this issue as it feels the regulations are flexible and provide for compliant posting even during the COVID-19 pandemic.
Executive Order Impacts Hong Kong
On July 14, 2020, President Trump issued an Executive Order on Hong Kong Normalization. In brief, the text of the Executive Order includes a number of immigration-related provisions which seek to suspend or terminate various provisions of U.S. immigration law deriving from the Hong Kong Policy Act enacted by Congress in 1992. The Hong Kong Policy Act sought to provide stability to Hong Kong by allowing the United States to continue to treat Hong Kong separately from Mainland China for purposes of bilateral relations, commerce, transportation, cultural and educational exchanges, visa allocations and certain other matters after the 1997 handover of sovereignty to China.
The new EO seeks to take away benefits currently enjoyed by citizens of the Hong Kong S.A.R., such as shorter wait times for immigrant visas, the ability to apply for Fulbright scholarships, and exemption from complex “export control” regulations applicable to the PRC. With regard to shorter wait times / country of chargeabilty changes, speakers at a recent virtual conference hosted by the American Immigration Lawyers’ Association (“AILA”) confirmed the Visa Office is still reviewing this matter, but noted Section 103 of IMMACT90 granted separate chargeability treatment to Hong Kong born individuals and that the proclamation does not alter this.
I-9: DHS Extends Requirement Flexibility – With Limitations – But Response Time to (NOI) Not Extended
In March 2020 the Department of Homeland Security, Immigration and Customs Enforcement (ICE) announced that they would temporarily defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) for employers who have transitioned to a telework-only arrangement for their workforce for a period of 60 days. DHS extended this flexibility policy in May 2020 for an additional 30 days, in June for an additional 30 days and has announced an additional 30-day extension on July 18, 2020. The expiration for the compliance flexibility is August 19, 2020.
ICE also announced in the same press release that after July 19 no additional extensions will be granted to employers who were served notices of inspection (NOIs) by ICE during the month of March 2020.
Automatic National Interest Exceptions for Students from the Schengen Area, United Kingdom, and Ireland
According to the Department of State (DOS), students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
Update on Fall 2020 Guidance
On July 24, 2020 U.S. Immigration and Customs Enforcement (ICE) released updated guidance on F and M students and schools certified by Student and Exchange Visitor Program (SEVP) that they should abide by guidance issued in March 2020.
The guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020 and are otherwise complying with the terms of their nonimmigrant status, whether from inside the U.S. or abroad. SEVP will not issue a temporary final rule impacting nonimmigrant students for the fall school term.
o Summary of March 2020 Guidance for Continuing Students
As stated in the March 2020 guidance, Active F and M students will be permitted to temporarily count online classes towards a full course of study in excess of the regulatory limits stated in 8 C.F.R. § 214.2(f)(6)(i)(G) and 8 C.F.R. § 214.2(m)(9)(v). The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country this fall. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning.
o Summary of March 2020 Guidance for Initial Students
In accordance with March 2020 guidance, F and M students in new or initial status after March 9, 2020, will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online. Also consistent with the SEVP Broadcast Message dated March 9, 2020, designated school officials should not issue a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” for a student in new or initial status who is outside of the United States and plans to take classes at an SEVP-certified educational institution that is operating 100 percent online.
Additional Information Stakeholders can refer to SEVP’s current policy guidance and frequently asked questions at ICE.gov/Coronavirus, under the Nonimmigrant Students and SEVP-certified Schools header:
o COVID-19: Scenarios for SEVP-certified Schools for Emergency Procedures (March 13, 2020).
o Frequently Asked Questions from SEVP Stakeholders about COVID-19.
SEVP recently updated its frequently asked questions with information to clarify the application of the March 2020 guidance to the fall 2020 semester and will continue to update these resources with the latest information and guidance for stakeholders. The program will continue to provide updates to the academic community through our communication channels, including Broadcast Messages, SEVP field representatives, Study in the States blog posts and social media. Stakeholders should continue to refer to the Centers for Disease Control and Prevention (CDC), Department of State and U.S. Customs and Border Protection for the latest COVID-19 information, specific port-of-entry screening processes, as well as any travel restrictions.
National Interest Exceptions for Certain Travelers from Europe
Department of State (DOS) announced in July that certain business travelers, investors, treaty traders, academics, and students from the Schengen Area, the United Kingdom, and Ireland may qualify for National Interest Exceptions under Presidential Proclamations 9993 (Schengen Area) and 9996 (United Kingdom and Ireland). As such, qualified business and student travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even as PPs 9993 and 9996 remain in effect following the procedures below.
Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
Business travelers, investors, academics, J-1 students, and treaty traders who have a valid visa or ESTA authorization that was issued prior to PP 9993 or 9996’s effective date or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
The Department of State also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.
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.