Visa Lawyer Blog

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In this blog post we would like to report on a new executive order recently signed by President Donald Trump on August 3, 2020, entitled “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers,” which carries implications for temporary foreign workers, especially those whose job depends on or was created by a federal government contract.

What is the order all about?

The executive order was passed to create increased opportunities for American workers to compete in the job market, especially during the difficult economic crisis created by COVID-19.  The order directs the heads of federal agencies to review federal contracts to assess any “negative impact” that the hiring of temporary foreign workers has had on American workers. The order states, “when employers trade American jobs for temporary foreign labor, for example, it reduces opportunities for U.S. workers in a manner inconsistent with the role guest-worker programs are meant to play in the Nation’s economy.”

Specifically, the executive order calls upon departments and agencies to review federal contracts and hiring practices of temporary foreign workers in fiscal year 2018 and 2019 to assess “whether contractors (including subcontractors) used temporary foreign labor for contracts performed in the United States and if so…whether opportunities for U.S. workers were affected by such hiring…”

Most importantly, section three of the executive order requires the Secretaries of Labor and Homeland Security to take action within 45 days (by September 17) to protect the jobs of American workers and insulate them from any negative effects on wages and working conditions caused by the employment of H-1B visa workers specifically. The order grants DHS and DOL broad discretion to introduce new measures that could negatively affect H-1B employers. While these measures are yet to be seen, we believe this may signal the proposal of additional regulations to prevent the displacement of U.S. workers in the future.

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We have great news for our readers regarding a recent court’s decision to temporarily halt the “public charge” rule during the Coronavirus pandemic. On Wednesday, July 29, a federal judge in the state of New York issued a ruling that blocks the government’s enforcement of the “public charge” rule on non-citizens seeking permanent residency in the United States, and nonimmigrant visa applicants alike, for as long as the coronavirus pandemic remains a public health emergency. The ruling was made in response to a federal lawsuit filed by several states against the government entitled, U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al.

What does this mean for visa and adjustment of status applicants?

Federal Judge George Daniels has approved a nationwide injunction, immediately stopping the government from “enforcing, applying, implementing, or treating,” as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.

This means that effective June 29th both consular officers and USCIS immigration officials cannot enforce any part of the “public charge” rule for as long as the injunction remains and place, and a national public health emergency exists.

Why did the judge make this ruling?

The judge agreed with the states of New York, Connecticut, and Vermont that the “public charge” rule would cause irreparable harm on non-citizens seeking entry to the United States because the rule discourages such individuals from obtaining the necessary treatment and care needed during the Coronavirus pandemic. The judge considered the “substantial harm” the public would suffer if the government continued to enforce the “public charge” rule and found that the temporarily injunction was necessary to allow non-citizens to obtain much needed public benefits for preservation of the public’s health and safety.

In defense of his opinion, the judge stated, “no person should hesitate to seek medical care, nor should they endure punishment or penalty if they seek temporary financial aid as a result of the pandemic’s impact.”

The judge further stated in his ruling that the continued application of the “public charge” rule during the global pandemic, “would only contribute to the spread of COVID-19 in our communities.”

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During the past year, the United States Citizenship and Immigration Services (USCIS) has been facing a financial crisis caused by the coronavirus pandemic.

As early as May of this year, a USCIS spokesperson informed the United States government that it needed a cash bailout of $1.2 billion by summertime in order to meet its operational costs. The agency found that fewer and fewer applicants were filing applications and petitions with USCIS which created a massive revenue shortfall for the agency.

To keep itself afloat, the agency said it would be preparing to increase filing fees for certain types of applications and petitions.

Today, the Department of Homeland Security officially announced a final rule that will be posted in the Federal Register on August 3rd that will increase filing fees for certain types of immigration benefits.

The final rule will become effective 60 days from August 3rd – the date of publication which falls on October 2, 2020.

That means that applications postmarked on or after October 2, 2020 with incorrect fees will be rejected by USCIS.

MOST IMPACTED APPLICATIONS AND PETITIONS

The following types of immigration requests are the most impacted with significant price increases:

  • I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant

Current Fee: $230

Final Fee: $1,485 (Increase of 546%)

  • I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

Current Fee: $285

Final Fee: $1,810 (Increase of 535%)

  • I-193 Application for Waiver of Passport and/or Visa

Current Fee: $585

Final Fee: $2,790 (Increase of 377%)

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In complete defiance of a recent federal court order, mandating acceptance of initial requests for the Deferred Action for Childhood Arrivals (DACA) program, the Department of Homeland Security today issued a memorandum that states that effective immediately, the agency will reject all pending and future initial requests for DACA including all associated employment authorization applications, and reject all pending and future I-131 advance parole requests for beneficiaries of DACA. The agency has stated that it will refund all associated fees, without prejudice should DHS decide to accept initial requests for DACA in the future.

The memorandum orders, “DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA, to reject all pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals [to one year] consistent with the parameters established in this memorandum.”

Most shocking of all is that the memorandum limits the period of deferred action pursuant to the DACA program and associated employment authorization to just one year for DACA renewals filed after July 28th, when previously deferred action and employment authorization was issued for two years.

These actions are appalling and reflect judicial defiance that has never before been seen. These actions will surely set off a string of new lawsuits in the coming weeks. We must all stay tuned for new developments during this uncertain time for DACA.

Actions to be Taken by DHS as of July 28, 2020

The memorandum provides a list of actions DHS plans to take effective immediately which further detail the actions that will be taken by DHS as of today:

  • 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.

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In this blog post we share with our readers several new developments in immigration relating to COVID-19.

At a Glance: What’s in This Blog?

  • DOS Announces One-Month Extension for Immigrant Visa Medical Examinations
  • Phased Resumption of Routine Visa Services
  • DOS Releases SEVP Online Course Guidance for F and M Students for Fall 2020
  • When will the Presidential Proclamation Suspending Entry for the Schengen Countries be Lifted?
  • Are there any National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland?
  • Are there any National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market?

DOS Announces One-Month Extension for Immigrant Visa Medical Examinations

We are pleased to report that on July 24, 2020, the Department of State issued an important announcement confirming that the Centers for Disease Control and Prevention (CDC) have approved a one-month extension for medical examinations conducted between January 1, 2020 and June 30, 2020. As many of you know, medical examinations for immigrant visa applicants are valid for a maximum of six months.

The Department of State has advised applicants (1) who were unable to travel on an issued visa, or (2) who obtained a medical examination but did not receive a visa, to contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued or is adjudicating your visa application to determine whether you may be issued or reissued a visa for one additional month. Applicants who are unable to travel within one additional month, should consider waiting until they are able to travel to obtain a new, full validity medical examination and visa.

Phased Resumption of Routine Visa Services

In March 2020 the Department of State suspended routine visa services worldwide in response to the Coronavirus pandemic. On July 14, 2020 the Department of State released information on its webpage notifying the public that resumption of routine visa services will occur on a post-by post basis, in coordination with the Department’s Diplomacy Strong framework to safely return personnel to Department facilities. With that being said, the Department of State cannot provide a specific date for when each Consular post will return to processing at pre-Covid workload levels. Applicants are advised to monitor each individual U.S. Embassy or Consulate’s website for information regarding operating status, and updates on which services they are currently offering.

As always, U.S. Embassies and Consulates will continue to provide emergency and critical visa services.

The DOS has also stated that MRV fees are valid and may be used to schedule a visa appointment in the country where it was purchased within one year of the date of payment.

  • For more information about this announcement and FAQs please click here.
  • For a list of Embassies and Consular webpages click here.

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In response to a high number of questions regarding the recent Maryland court decision ordering the government to reinstate Deferred Action for Childhood Arrivals (DACA) for first time applicants, we have prepared this helpful guide.

First, let’s briefly discuss the Maryland decision. As our readers will know on July 17th a federal judge in Maryland presiding over the case, Casa de Maryland v. U.S. Department of Homeland Security, ordered the government to restore the DACA program to its pre-September 2017 status. This means that first-time applicants are now able to apply for DACA benefits.

What does the Maryland decision mean for DACA holders?

For now, USCIS must continue the DACA program as it was before it was rescinded on September 5, 2017, when applications for DACA were being accepted by first-time applicants.

In order to comply with the Supreme Court’s decision, as well as the Maryland district court’s order, USCIS must also accept the following applications that were suspended under prior court orders and should publish guidance immediately on its processing of these applications:

  • People Who Have Not Previously Been Granted DACA: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. As a result, USCIS should immediately publish guidance on processing new, initial DACA applications.
  • Advance Parole Requests: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. Because advance parole based on DACA was a part of the 2012 DACA program, USCIS should immediately publish guidance on processing advance parole applications filed by DACA recipients.

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This afternoon, a federal judge in Maryland quietly handed down a victory for new DACA applicants. The judge in the case, Casa de Maryland v. U.S. Department of Homeland Security, has ordered the government to restore the Deferred Action for Childhood Arrivals (DACA) program to its pre-September 2017 status, meaning that first-time applicants can now apply for Deferred Action and an employment authorization document from the United States Citizenship and Immigration Services.

What was this lawsuit about?

The Casa de Maryland v. U.S. Department of Homeland Security lawsuit was brought on October 5, 2017, in the U.S. District Court for the District of Maryland, to challenge the Trump administration’s revocation of the Deferred Action for Childhood Arrivals (DACA) program. The plaintiffs were a group of nonprofit organizations and DACA recipients who sought to enjoin (stop) the federal government from terminating the DACA program. The plaintiffs argued that the Trump administration’s 2017 rescission of the program was motivated by discriminatory animus toward individuals from Mexico and Central America. They also argued that revoking DACA violated Fifth Amendment due process and equal protection, and the Administrative Procedure Act.

In response to the lawsuit, the government filed a motion to dismiss the lawsuit. On March 5, 2018, the judge ordered the government to stop using or sharing information provided by DACA applicants for enforcement or deportation purposes, but declared that the Trump administration’s rescission of the DACA program was valid and constitutional.

On April 27, 2018, the plaintiff’s appealed the case to the Fourth Circuit Court of Appeals. The appeals court reversed the district court’s decision finding that the rescission of DACA was invalid and unconstitutional. The court decided that the government’s rescission of DACA was arbitrary and capricious and remanded the case back to the lower courts.

Today, on remand in accordance with the U.S. Supreme Court’s June 18, 2020 decision holding that rescission of DACA was arbitrary and capricious in violation of the APA, the judge’s decision “restores DACA to its pre-September 5, 2017, status…”

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nesa-by-makers-IgUR1iX0mqM-unsplash-scaledWe are very happy to announce that yesterday July 14, 2020, the Trump administration backed down and agreed to cancel a new set of federal guidelines that would have required international students to attend classes in-person during the upcoming Fall 2020 semester.

As you may be aware, on Monday July 6th U.S. Immigration and Customs Enforcement (ICE) issued a news release with new modifications that would have applied to international students in the United States, and those awaiting their visas abroad. The announcement prohibited international students from taking courses entirely online during the upcoming semester. It stated that students enrolled in schools with only online instruction would not be issued visas, and CBP would not permit these students to enter the United States. In addition, students already in the United States, who had enrolled in an online program, were given two options, transfer to another school with a hybrid or in person curriculum or depart the United States.

Shortly after these measures were announced, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on behalf of all international students affected by the new guidelines. The universities requested an emergency hearing to block the government from enforcing these measures. That hearing was scheduled to take place yesterday morning, but in a surprising turn of events, just before the hearing was getting started, the judge announced that the government had agreed to rescind its policy and would no longer require students to attend in-person classes in order to remain in the country.

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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We have news that may be some relief to international students across the United States.

Today, Wednesday, July 8, 2020, Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit in District Court in Boston against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), challenging new guidelines that prohibit international students from taking online classes during the upcoming fall semester.

The lawsuit seeks a temporary restraining order, preliminary, and permanent injunctive relief to bar the Department of Homeland Security and Immigration and Customs Enforcement, from enforcing recent federal guidelines just announced on Monday, that prohibit international students from attending U.S. colleges and universities offering only online instruction during the upcoming Fall 2020 semester.

As our loyal followers know, early this week, Immigration and Customs Enforcement issued a news release introducing a new set of guidelines for international students who will take courses in the U.S. during the upcoming fall semester.

Among the new guidelines, we learned that F-1 and M-1 students will be prohibited from taking courses entirely online during the fall semester. The announcement stated that the Department of State would not issue visas to students enrolled in schools and/or programs operating entirely online, and Customs and Border Protection would not allow such students to enter the United States.

International students in the United States enrolled in schools and/or programs operating entirely online were only given two options (1) depart the United States or (2) take other measures such as transferring to a school with in-person instruction to remain in lawful status.

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