Immigration News

Federal District Court Sets Aside New Rules Affecting H-1B Visas

A federal district court in California has set aside two new immigration regulations that were promulgated on a fast track by the Departments of Labor (DOL) and Homeland Security (DHS) in early October. Ruling on summary judgment, the court found that the agencies did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act. This ruling immediately invalidates the rules; however, the government is expected to appeal the decision in an expedited manner. The case is U.S. Chamber of Commerce et al. v. DHS (20-cv-07331).
The court’s decision comes in response to a lawsuit filed by the U.S. Chamber of Commerce, the National Association of Manufacturers and other trade groups and universities challenging the government’s October 8, 2020 release of DOL and DHS companion rules targeting employment-based immigration, and particularly the H-1B program. The rules were issued as interim final regulations, meaning they could take effect before public comments are considered. The agencies justified expedited review and implementation of the rules on the grounds that a fast track was necessary to support U.S. workers amid the economic impact of the COVID-19 pandemic. The DOL rule took effect immediately on October 8 and the DHS rule was slated to take effect 60 days after publication, on December 7.
The DOL rule restructured the prevailing wage system for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program, resulting in significantly higher government prevailing wage minimums for foreign professional workers. The companion DHS rule, which was set to take effect on December 7, introduced stricter eligibility criteria for H-1B specialty occupations, placed new restrictions on the placement of H-1B workers at third-party worksites, and reinstated evidentiary policies that had been rescinded earlier this year, among other changes.
The court’s ruling is immediately effective, though a speedy government appeal could affect implementation of the decision.  It is also unknown what approach DOL may take to the prevailing wage determinations that have been issued since October 8 under the new rule.
Regardless of the outcome of an appeal, agencies could take administrative steps to reissue the regulations in the remaining weeks of the Trump Administration.

Public Charge Remains in Place After Seventh Circuit Stays Lower Court Decision

The Seventh Circuit Court of Appeals has put the Department of Homeland Security (DHS) public charge rule back in effect by placing an administrative stay on a November 2 lower court ruling blocking the rule. The case is Cook County et al. v Wolf et al.
On November 2, a federal district court in Illinois vacated the public charge regulation nationwide on the basis that the rule violates the Administrative Procedures Act (APA). DHS appealed the decision quickly and requested the lower court decision be halted while the appeal moves forward. The appeals court granted this request and therefore, U.S. Citizenship and Immigration Services (USCIS) may implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.

What does this mean?

Currently adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.

Is the issue still being litigated?

The public charge rule is being challenged in several separate ongoing lawsuits. There could continue to be a back and forth on USCIS authority to implement the rule. Further, if the outcome of these lawsuits results in disagreement among Circuit Courts of Appeal on the rule’s legality, the cases may reach the U.S. Supreme Court for a final decision.

Separately, the State Department remains barred from enforcing its public charge regulation, which is applicable to foreign nationals applying for visas from outside of the United States.

PREMIUM PROCESSING FEE HAS INCREASED

Today USCIS announced that it will increase premium processing fees beginning on Monday, October 19, 2020, as included in the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020. 

Fees will increase from $1,440 to $2,500 for benefit requests that are already eligible for premium processing services through the Form I-907, Request for Premium Processing, except for H-2B and R-1 petitions. Those petitions will see an increase from $1,440 to $1,500.

Any Form I-907 that is postmarked on or after October 19, 2020, must include the new fee amount. Any filings that are postmarked on or after October 19, 2020, that include the incorrect premium processing fee, will see the Form I-907 rejected and the fee returned. Filings sent by courier services such as UPS, Fed Ex, and DHL, the postmark date will be the date included on the courier receipt.

NEW REGULATIONS AFFECTING H-1B VISAS AND PREVAILING WAGES

A new Department of Labor regulation, which took effect October 8, significantly lifts prevailing wages for the H-1B, E-3, H-1B1 and PERM programs.

A second regulation issued by the Department of Homeland Security will tighten the criteria for the H-1B program by revising key H-1B definitions like “specialty occupation,” limiting third-party placement H-1B validity to one year increments, and reimplementing contract and itinerary requirements that had been rescinded earlier this year, among other changes. This rule is to take effect December 7, 2020.

BREAKING NEWS: H, J, & L VISAS ARE AVAILABLE FOR CONSULAR PROCESSING

On October 1, 2020, a Federal Court in California granted a preliminary injunction barring the Department of Homeland Security and the Department of State (US Embassies and Consulates abroad) to refuse processing of all H, J & L visas.

This means that any foreign worker, whose employer was part of the lawsuit, who is currently outside of the US, and seeks a H-2, H-1B, H-4, J-1, J-2, L-1A and L-1B visa can now schedule a nonimmigrant visa appointment at a US Embassy and Consulate, without having to apply for a National Interest Exemption, and obtain a visa (provided the person satisfies all the requirements established by the Immigration and Nationality Act).

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.

 

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.

 

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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.