Department of Homeland Security Proposed Rule on Use and Collection of Biometrics to include US Citizens
Department of Homeland Security (DHS) proposed a rule on the use and collection of biometrics in the enforcement and administration of immigration laws. Under the new rule DHS would be authorized to collect biometrics from any individual in connection with an immigration benefit including U.S. citizens, U.S. Permanent Residents, and foreign nationals who have already been screened previously. DHS would also be able to use DNA testing, new biometrics technologies including voice, iris, and facial recognition in addition to its existing biometric practices, which include collecting fingerprints and signatures of immigrants.
While biometric technology was previously used for background checks only, the new rule suggests collection should be required for identity enrollment, verification, and management and the production of secure identity documents. The language of the rule leaves room for more purposes, broadly stating, “other functions related to administering and enforcing the immigration and naturalization laws.”
According to DHS’ estimate, the rule change would increase the population of people submitting biometric information from 3.90 million to 6.07 million. The collection rate across all types of forms would increase from 46% to over 70%.
Comments on the rule are due on 10/13/20, with comments on associated proposed form revisions due 11/10/20. Drafts of the proposed form revisions can be viewed in the docket folder for the proposed rule on the regulations.gov site. (85 FR 56338, 9/11/20)
Recent Court Decisions on the Department of Homeland Security and Department of State Public Charge Rules
On September 11, 2020, the Second Circuit Court of Appeals stayed a district court's nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944 in all jurisdictions. On September 22, 2020, USCIS issued guidance on how it will be implementing the DHS Public Charge Rule given the Second Circuit stay.
Specifically, USCIS has announced that it will apply the Public Charge rule to all petitions and applications postmarked on or after February 24, 2020. USCIS has indicated that it will not re-adjudicate any applications or petitions already approved that were filed without required forms, information or evidence. However, for cases that are pending or are filed before October 13, 2020, USCIS may issue Requests for Evidence (RFEs) for the necessary forms or evidence. Cases filed after October 13, 2020, without the forms, information, or evidence required by the Public Charge rule will be rejected.
Planned Oct. 2 USCIS Fee Increases Enjoined by Federal District Court
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 were set to take effect on October 2, 2020. Since then, two lawsuits were filed challenging the fee hikes and related actions.
On September 29, 2020, the U.S. District Court for the Northern District of California granted a motion for a preliminary injunction filed by eight nonprofit organizations challenging the rule.
The decision provides:
1. Pursuant to 5 U.S.C. section 705 the Court STAYS implementation and the effective date of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.
2. Pursuant to Federal Rule of Civil Procedure 65, Defendants Wolf, in his official capacity under the title of Acting Secretary of DHS; Cuccinelli, in his official capacity under the title of Senior Official Performing the Duties of the Deputy Secretary of DHS; DHS; and USCIS, and all persons acting under their direction, ARE ENJOINED from implementing or enforcing the Final Rule or any portion thereof.
3. This preliminary injunction and stay shall take effect immediately and shall remain in effect pending trial in this action or further of this Court.
Until further notice, petitioners and applicants will not be subject to the higher fees or forms. It is expected that USCIS will issue an update concerning the impact of the order on the new editions of the forms that were to become mandatory on October 2, in conjunction with the fee rule.
Iandoli Desai & Cronin PC will continue to monitor the situation and provide updates when available.
USCIS Guidance on DACA
USCIS issued a memorandum providing guidance on how it will implement DHS Acting Secretary’s July 28, 2020, memo on DACA. Among other things, USCIS will reject all initial DACA requests from individuals who have never previously received DACA and return all fees; accept requests from those who had been granted DACA at any time in the past; and will also accept requests for advance parole that are properly submitted.
For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year. USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.
New I-765 Edition
USCIS announced and implemented a new edition of the Form I-765 issued by USCIS (8/25/20 edition), which took effect on August 25, 2020.
As a reminder USCIS will not accept Applications for Employment Authorization applications postmarked after August 25, 2020 if not filed with the 8/25/20 edition of Form I-765 and I-765WS and correct fees.
Second Round in H-1B lottery
USCIS started selecting additional H-1B lottery registrations this August from the registrations that were not selected in March 2020.
Those who applied for the H-1B lottery in the spring are advised to log in to their USCIS online accounts now to check status for new H-1B selections. Reportedly, the new notices say “August 2020 Selection of Reserve Registration” with a filing period of August 17, 2020, to November 16, 2020
I-9 Allowance for Form I-797, Notice of Action
As part of a proposed settlement in Subramanya v. USCIS, claiming the agency has a printing backlog of approximately 75,000 Employment Authorization Documents, USCIS announced that it will allow employees to present Form I-797, Notice of Action, with a notice date of December 1, 2019, through August 20, 2020, showing approval of their I-765 application as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization even though the Notice states it is not evidence of employment authorization. This allowance is valid until December 1, 2020.
Work from Home and LCA Posting Reminders
A reminder from the October 2017 Department of Labor (DOL) meeting with American Immigration Lawyers Association (AILA):
Question: "Many H-1B workers are now working remotely from their homes, instead of the employer's office. If the employer has an LCA for its office but then will allow the H-1B worker to work remotely from home in a geographic area of employment that is not covered by the LCA, is the employer required to file a new LCA prior to the H-1B worker being allowed to work from home (assuming that the short-term placement option does not apply)? Is an employer required to complete the LCA notifications for an H-1B worker who will be working from home? If so, how/where should these notifications be posted at the H-1B employee's home?"
DOL Response: We do not expect employees to post at their houses. If the worker will be working at HQ and at home, the employer should post at HQ. Unless one of the short-term placement exceptions apply, the employer will need to file a new LCA for the employee's home location if the employee will be working at a home location that is not within normal commuting distance of the location on the existing LCA covering the employee.
As with any material change to you or your foreign national employee’s working conditions (title, worksite, salary, etc.), please notify the IDC attorney on your case prior to any changes to assess the situation and determine if an amendment or other action is required first to ensure continued lawful status and work authorization.
ICE Issues FAQ Update for SEVP Stakeholders
In an everchanging environment adapting to COVID-19, Immigration and Customs Enforcement (ICE) updated its FAQs, adding a new section, “Clarifying Questions for Fall 2020 Based on March 9 Spring Guidance Broadcast,” another section called “Archived Questions” containing FAQs specific to the spring or summer semester (the answers to these questions are considered rescinded), and editing existing questions and answers to reflect the fall 2020 semester.
Please visit ICE’s website for the latest FAQ for SEVP Stakeholders about COVID-19.
SEVP to Mail Notices to OPT Students Without Employer Information, auto-terminations looming
The Student and Exchange Visitor Program (SEVP) is conducting a review of SEVIS records for optional practical training (OPT) participants and is mailing notices directly to students who have not reported employer information and have exceeded 90 days of unemployment.
The notice informs students of their lack of employer/employment information and provides an opportunity for them to update their records either through their designated school officials (DSOs) or directly through the SEVP Portal. If the student’s SEVIS record is not updated, SEVP will set the record to “terminated” to reflect the lack of employer information and the potential that the student may have violated their status either by failing to timely report OPT employment or by exceeding the permissible period of unemployment while on OPT.