DIVERSITY VISA LOTTERY WINNERS ARE SHIELDED FROM BAN
On September 4, 2020, a D.C. federal judge on Friday temporarily barred the Trump administration from applying its visa ban to foreign citizens who won green cards in the Diversity Visa lottery, finding that the U.S. Department of State's refusal to process their visas is likely illegal.
U.S. District Judge Amit P. Mehta said the federal government had "unreasonably delayed processing" of green cards won by a group of lottery winners and their relatives, who had found themselves unable to secure visas to move to the U.S. under President Donald Trump's travel restrictions.
The order came down in five consolidated lawsuits targeting Trump's April and June proclamations barring certain foreign citizens seeking green cards and work visas from abroad from entering the U.S. The plaintiffs — a group of over 1,000 American citizens with overseas relatives, U.S.-based employers, diversity lottery winners and foreign nationals with approved petitions for temporary worker visas — had argued that Trump had overstepped his authority when he blocked them from entering the U.S.
Judge Mehta was unconvinced that the proclamations were unconstitutional.
His decision deferred to the U.S. Supreme Court's 2018 ruling in Trump v. Hawaii , where the justices upheld Trump's previous travel ban against foreigners from a handful of countries. By upholding the ban — which immigration advocates decried as a "Muslim ban" — the high court held that the president may block foreigners from entering the U.S. if he finds that their entry is "detrimental to the interests of the United States."
"Diversity visa lottery winners are people who have come to this nation, like millions before, to seek a better life for themselves and their families, and to pursue the American Dream. They do not deserve to be caricatured as common criminals, or to be used as a political wedge issue," Judge Mehta wrote. "But for the same reasons that the court in Trump v. Hawaii rejected a similar challenge based on purported religious animus, the court does so here, too."
When Trump set the April travel restrictions, he said they were in response to high unemployment within the U.S., and he "amplified" that reasoning in the June ban, Judge Mehta said.
The plaintiffs pushed back against Trump's rationale and provided evidence that new immigrants wouldn't displace American workers, according to court filings. But "however persuasive" those arguments were in a policy forum, the courts are "decidedly constrained," the judge said.
"If the president were to act on 'plainly false pretenses,' as plaintiffs fear, Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed," he said.
However, Judge Mehta was swayed by claims that the State Department unlawfully halted progress on the foreign citizens' applications based on Trump's orders. Though the orders will prevent the applicants from entering the U.S. through the end of the year, they don't prevent the State Department from issuing visas. Therefore, the individuals argued that the State Department had enacted its own "no visa policy" outside the normal rulemaking processes, according to the order.
The government argued there was no secret policy suspending the applications, but Judge Mehta saw otherwise.
"Defendants, through a cluster of guidance documents, cables and directives, have ordered consular offices and embassies to cease processing and issuing visas for otherwise qualified applicants," he wrote. "That is paradigmatic final agency action."
Further, the State Department had provided "no justification" for why it had suspended visa processing, the judge said. In the case of the lottery winners, the State Department had also failed to explain why it had stopped work on their visas. If the lottery winners don't receive their visas by Sept. 30, immigration law dictates that they lose the visas entirely.
The State Department can't "effectively extinguish" this year's lottery program "by simply sitting on its hands letting all pending diversity visa applications time out," the judge said.
Though Judge Mehta ordered relief for the diversity lottery winners, he declined to do so for the other visa seekers, including those requesting work visas and green cards through family members.
The other visa seekers were "likely" to win on their claims against the State Department, but the court couldn't order relief for them, the judge said.
"The family-visa plaintiffs identify vast harms stemming from being separated from their family members," the judge said. "The court has no doubt that this separation has been devastating ... but this harm would continue to flow from the proclamations' ban on entry, even if the court were to grant relief."
The judge ordered the government to update the court on Sept. 25 on how many diversity visas have yet to be issued. The court will reconsider during that briefing whether to order the State Department to reserve any unprocessed diversity visas for the next year, the order said.
ICE Update on Federal Guidance for Foreign Students for Fall 2020 Semester
On July 24, 2020, ICE issued an update on the Federal guidance for the Fall 2020 semester students, which states that the F and M students and schools certified by SEVP 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 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.
In accordance with March 2020 guidance, nonimmigrant students in new or initial status after March 9 will not be able to enter the U.S. 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. Additionally, designated school officials should not issue a Form I-20 to a nonimmigrant student in new or initial status who is outside of the U.S. and plans to take classes at an SEVP-certified educational institution fully online.
USCIS publishes Clarifications for the guidance on further deployment of capital for EB-5 Investors’ visas
USCIS issued clarifying policy guidance regarding deployment of investment capital, including further deployment after the job creation is satisfied.
The Immigration and Nationality Act (INA) makes visas available to qualified aliens who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers. An alien investor must sustain his or her investment “at risk” throughout the 2- year period of conditional permanent residence to be eligible for removal of conditions on his or her permanent resident status.
These clarifications apply to all Form I-526 and I-829 petitions pending on or after July 24, 2020.
• Clarifies requirements for deployment of capital generally, including providing new language regarding the deployment of capital through any financial instrument that meets applicable requirements1 as well as explaining how the purchase of financial instruments on the secondary market will generally not satisfy such requirements.
• Clarifies that capital may be further deployed into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the ongoing conduct of lawful business. This clarification is meant to address potential confusion among stakeholders regarding prior language about the “scope” of the new commercial enterprise while remaining consistent with applicable eligibility requirements.
• Provides that further deployment must be through the same new commercial enterprise.
• Provides that further deployment must be within the geographic area of the same regional center, including any amendments to the regional center’s geographic area approved before the further deployment.
• Explains that, based on an internal review and analysis of typical EB-5 capital deployment structures, USCIS generally considers 12 months as a reasonable amount of time to further deploy capital, but will consider evidence showing that a longer period was reasonable.
New DACA Memorandum
The Department of Homeland Security (DHS) issued a new memorandum regarding DACA applications and renewals. In summary the memo states that all future DACA and EAD renewals
will be limited to 1 year increments and DACA recipients cannot travel abroad unless they can show exceptional circumstances.
The memo became effective July 28, 2020, and it prescribes DHS to:
• Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
• Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
• Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
• Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.
• Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
• Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
• Exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
NEW EMPLOYMENT AUTHORIZATION RULES FOR ASYLUM APPLICANTS
The new rule prevents aliens who, absent good cause, illegally entered the United States from obtaining employment authorization based on a pending asylum application. Additionally, the rule defines new bars and denials for employment authorization, such as for certain criminal behavior; extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the employment authorization validity period to a maximum of two years; and automatically terminates employment authorization when an applicant’s asylum denial is administratively final.
See the full text of the rule at: https://www.uscis.gov/news/news-releases/uscis-rule-strengthens-employme...
USCIS RESUMES PREMIUM PROCESSING
U.S. Citizenship and Immigration Services today announced that it will resume premium processing for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, in phases over the next month.
Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service for all eligible Form I-140 petitions.
Effective June 8, USCIS will accept premium processing requests for:
H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).
All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.
Effective June 15, USCIS plans on resuming premium processing for:
H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because:
The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or
The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).
Effective June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions, including:
All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s.
All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.
All dates are subject to change as USCIS continues to take on more premium processing requests and USCIS will announce any changes to these dates accordingly.
USCIS Extends Closure to June 4
On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS is readying offices to re-open in compliance with local and state orders, on or after June 4. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public while the offices are temporarily closed. During this time, individuals may still submit applications and petitions to USCIS. Online filing remains the most convenient and interactive way to submit forms, check the status of your case, and receive notices.
Field Office and ASC Appointments, Naturalization Ceremonies, InfoPass
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the temporary office closure. Individuals will receive a new appointment letter in the mail. Those who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again.
Asylum Office Interviews
USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview.
USCIS ANNOUNCES DELAYS FOR THE ISSUANCE OF H-1B RECEIPT NOTICES
On April 13, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that petitioners should expect a delay in data entry and receipt notice generation for fiscal year (FY) 2021 H-1B cap-subject petitions until at least May 1, 2020, due to the impacts of the coronavirus (COVID-19).
Beginning with the first day of filing, April 1, 2020, USCIS will not immediately enter data for FY 2021 cap-subject petitions due to the COVID-19 pandemic and required health and safety protocols. Data entry and notice generation will be delayed until at least May 1, 2020.
Once USCIS begins data entry, it will complete intake processing in the order in which it received petitions at the service centers. Petitions will be stamped received on the date they arrive at the service center. Petitions, if otherwise properly filed, will retain the receipt date that corresponds with the date the petition is received at the service center.
Due to delayed data entry and notice generation, there will be a general delay in processing FY 2021 cap-subject petitions. USCIS is mindful of petitions with sensitive expiration and start dates, such as cap-gap petitions, and it will strive to process these petitions as efficiently as possible.
The specified filing window on the registration selection notices will not be changed. A petitioner who has a valid selected registration notice must file their H-1B cap-subject petition for the beneficiary named in the selected registration notice during the filing window indicated in their selection notice, or USCIS will reject or deny the petition.
USCIS asked petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice.
Additionally, USCIS may transfer some Form I-129 H-1B cap-subject petitions for adjudication between the Vermont Service Center, California Service Center, Nebraska Service Center and Texas Service Center to balance the workload and enhance efficiencies. However, petitioners should still file their FY 2021 H-1B cap-subject petitions at the service center named in their selection notice. If USCIS transfers your case, you will receive notification in the mail. After receiving the notification, you should send all future correspondence to the center processing your petition.
H-1B VISAS FOR FISCAL YEAR 2021
On March 27, USCIS announced that it had received enough electronic registrations during the initial period to reach the FY-2021 H-1B numerical allocations (i.e. H-1B cap).
Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):
Submitted: A registration status may continue to show “Submitted” after the initial selection process has been completed. “Submitted” registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected, or Denied.
Selected: Selected to file an FY 2021 H-1B cap-subject petition.
Denied: A duplicate registration was submitted by the same registrant for the same beneficiary, or a payment method was declined and not reconciled. If denied as a duplicate registration, all registrations you submitted for this beneficiary for the fiscal year are invalid.
Only petitioners with selected registrations may file, from April 1, 2020 and the following 90 days, H-1B cap-subject petitions for FY 2021 begin, and only for the beneficiary in the applicable selected registration notice. Online filing is not available for H-1B petitions, so petitioners seeking to file H-1B petitions must do so by paper. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2021 H-1B cap-subject petition.
Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the registration process does not relieve the petitioner from submitting evidence or otherwise establishing eligibility, as registration only pertains to eligibility to file the H-1B cap-subject petition.
PUBLIC CHARGE RULE IMPLEMENTATION
On January 27, 2020, in a 5-4 decision, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which a statewide injunction against the rule remains in effect.
USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of the original October 15, 2019), when deciding whether the foreign national is likely at any time to become a public charge under the Final Rule.
The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:
• In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.
• Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.
• DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs. It is important to note however, that only benefits received by the applicant are considered.
• The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.
Many immigrants don’t have to worry about “public charge”, for example:
• Lawful Permanent Residents (green card holders) applying for US citizenship
• Lawful Permanent Residents (green card holders) applying to renew their expired cards
• Refugees and asylees, including people applying for asylum
• People applying for or re-registering for Temporary Protected Status (TPS)
• Violence Against Women Act (VAWA) self-petitioners
• Victims of crime or trafficking who hold a U or T visa
• People with Special Immigrant Juvenile Status, including people applying for this status
Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits (listed below) for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.
The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following: (Benefits other than these are not defined as public benefits for purposes of these rules.)
1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
o (i) Supplemental Security Income (SSI);
o (ii) Temporary Assistance for Needy Families (TANF); or
o (iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
2. Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
5. Medicaid under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
(iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
6. Public Housing under section 9 of the U.S. Housing Act of 1937.
USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.