As we approach on the beginning of a New Year, timely immigration updates may impact broader themes during the COVID-19 pandemic. These updates include the H-1B program and employment-based immigration categories, in addition to new guidance issued for naturalization applicants. Our CCIU December Edition: Part II covers these changes, notices and immigration news highlights to stay in-the-know before 2021.
Temporary Protected Status (TPS) Slated to Continue
The Department of Homeland Security (DHS) announced a Federal Register notice extending Temporary Protected Status (TPS) and the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.
The notice automatically extends through October 4, 2021, the validity of Employment Authorization Documents (EADs); Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation) for beneficiaries under the TPS designations for these six countries. The notice also sets forth procedures necessary for nationals of these six countries (or aliens having no nationality who last habitually resided in these countries) to apply for EADs if they wish.
This notice ensures continued compliance with the orders issued by the federal district courts in the Ramos v. Nielsen, Bhattarai v. Nielsen, and Saget v. Trump lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.
U.S. District Court Vacates H-1B Interim Final Rules
On December 1, 2020, a U.S. district court vacated two interim final rules promulgated by the Departments of Labor (DOL) and Homeland Security (DHS) that made important changes to the H-1B program, including to prevailing wage calculations and the definition of “specialty occupation,” among other things. The order prevents the interim final rules from taking effect and prevents the agencies from implementing the rules. The DHS rule was scheduled to take effect December 7, 2020; the DOL rule took effect in October.
The court said the question was whether the agencies demonstrated that the impact of the COVID-19 pandemic on domestic unemployment justified dispensing with the “due deliberation” that normally accompanies rulemaking to make significant changes to the H-1B program. The court concluded that the agencies had not done so.
DOL’s Office of Foreign Labor Certification (OFLC) issued a related announcement on December 3, 2020, stating that the agency is “taking necessary steps to comply” with the order, including making required changes to the Foreign Labor Application Gateway (FLAG) system, such as replacing wage data. Beginning “around” 8:30 a.m. ET on December 9, 2020, “employers and their authorized attorneys or agents will be able to submit new LCAs [labor condition applications], Form ETA-9035/9035E, using the OES [Occupational Employment Statistics] survey data that was in effect on October 7, 2020,” the Office of Foreign Labor Certification said. Employers desiring review of a prevailing wage determination issued using the interim final rule’s calculations can request review from the National Prevailing Wage Center before January 4, 2021.
Senate-Passed Bill Would Remove Per-Country Limits on All Employment-Based Immigrant Visa Categories; Includes Controversial Provisions
On December 2, 2020, the U.S. Senate passed its version of H.R. 1044, the “Fairness for High-Skilled Immigrants Act of 2020.” The Senate version of the bill now returns to the U.S. House of Representatives. If the Senate version passes in the House and is signed into law by the President, it would remove the per-country limits on all employment-based immigrant visa categories, among other things. Since Congress is scheduled to end its session shortly, chances for passage in the House are unclear.
The bill includes several controversial provisions, such as an annual limit on the number of immigrants who could adjust from H-1B status to that of permanent resident and a bar on those affiliated with the military forces of the People’s Republic of China, the Chinese Communist Party, or the Chinese military.
State Dept. Imposes New Restrictions on Chinese Communist Party Members
As part of a continued chilling of relations between the United States and China under the Trump administration, on December 4, 2020, the Department of State announced several new restrictions on Chinese Communist Party members, including:
- New rules limiting the validity of B1/B2 visas to one month and single-entry for Chinese Communist Party members and their families. B1/B2 visas for Chinese nationals are normally valid for 10 years and allow multiple entries.
- Termination of five exchange programs, including the Policymakers Educational China Trip Program, the U.S.-China Friendship Program, the U.S.-China Leadership Exchange Program, the U.S.-China Transpacific Exchange Program, and the Hong Kong Educational and Cultural Program.
A Department of State spokesperson told the New York Times that no current visas would be revoked as a result of the policy changes.
Justice Dept. Sues Facebook for Discriminating Against U.S. Workers
The Department of Justice announced on December 3, 2020, that it filed a lawsuit against Facebook for discriminating against U.S. workers. The lawsuit alleges that Facebook refused to recruit, consider, or hire qualified and available U.S. workers for more than 2,600 positions. Instead, the lawsuit alleges, Facebook reserved those positions for “temporary visa holders it sponsored for permanent work authorization (or ‘green cards’) in connection with the permanent labor certification process (PERM).”
Facebook told National Public Radio that it is “cooperating with [DOJ] in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation.”
State Dept. Revises Guidance to Implement Court Order in NAM v. DHS
The Department of State (DOS) released a cable to the field with revised guidance implementing a court order issued on November 18, 2020, in National Association of Manufacturers v. Department of Homeland Security. The revised DOS guidance clarified the court’s October 1, 2020, order enjoining the government from enforcing a Trump administration ban on H, L, and J nonimmigrants under section 2 of Presidential Proclamation 10052. Applicants are now considered covered by the NAM court’s order as long as the petitioner or sponsoring entity is a member of one of the named plaintiff associations at the time of adjudication. The court further ordered that DOS “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.
DOS said that an applicant is now considered covered by the NAM court order “if the applicant’s petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview.”
DOS said posts should continue to treat “petition-based work visas (including H’s and L’s) as Tier 2 (second only to cases involving humanitarian emergencies, applicants contributing to COVID-19 eradication, diplomatic visas which do not require in person appointments, etc.)” To comply with the order, “J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program applicants should be considered Tier 2, as well.”
An appeal of the October 1, 2020, injunction is pending.
Alejandro Mayorkas Nominated to Direct Department of Homeland Security
President-elect Joe Biden announced on November 23, 2020, his nomination of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). During the Obama administration, Mr. Mayorkas directed U.S. Citizenship and Immigration Services and then became deputy secretary of DHS. During his more than 30-year career, Mr. Mayorkas also served as a U.S. attorney in California. He is a partner at WilmerHale, leading its COVID-19 Coronavirus Task Force.
Mr. Mayorkas’ accomplishments in the Obama administration included developing and implementing the Deferred Action for Childhood Arrivals (DACA) program, which benefited more than 700,000 youth. President-elect Biden said that Mr. Mayorkas “will play a critical role in fixing our broken immigration system and understands that living up to our values and protecting our nation’s security aren’t mutually exclusive—and under his leadership, they’ll go hand-in-hand.”
Mr. Mayorkas, who was born in Havana and is the son of Jewish refugees who fled Cuba during the Castro revolution, would make history as the first Latino and first immigrant in that position, if confirmed by the Senate. His Romanian mother escaped the Holocaust and met his father, of Sephardic heritage, in Cuba.
On the day of the nomination announcement, Mr. Mayorkas tweeted, “When I was very young, the United States provided my family and me a place of refuge. Now, I have been nominated to be the DHS Secretary and oversee the protection of all Americans and those who flee persecution in search of a better life for themselves and their loved ones.”
State Dept. Launches Visa Bond Pilot Program
On November 24, 2020, the Department of State (DOS) published a temporary final rule providing for a visa bond pilot program from December 24, 2020, through June 24, 2021.
The six-month pilot program aims to assess the operational feasibility of issuing visa bonds to inform future decisions regarding the use of such bonds to address temporary business visitor/tourist (B-1/B-2) overstays. Those potentially subject to the pilot program include B-1/B-2 visa applicants who are from countries with high visa overstay rates and have been approved by the Department of Homeland Security (DHS) for an inadmissibility waiver. DOS said the program is intended to serve as a “diplomatic tool” to encourage foreign governments to ensure that their nationals timely depart the United States after temporary visits.
During the six-month pilot program, consular officers may require nonimmigrant visa applicants falling within the program’s scope to post a bond of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount will be determined by the consular officer “based on the circumstances of the visa applicant.” The consular officer can also recommend a waiver of the visa bond if he or she believes a waiver would advance a humanitarian or national interest.
The pilot program will focus on nationals of Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo (Kinshasa), Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen. The program does not apply to those traveling under the Visa Waiver Program.
USCIS Updates Guidance on Naturalization Applicants
On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.
The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”
DHS Issues Proposed Rule to Expand Biometrics Collection
The Department of Homeland Security (DHS) proposes to “permit collection of biometrics from aliens departing from airports, land ports, seaports, or any other authorized point of departure.” In addition, to enable U.S. Customs and Border Protection (CBP) to verify identity by using facial recognition technology, DHS proposes “to amend the regulations to provide that all aliens may be required to be photographed upon entry and/or departure.”
U.S. citizens may voluntarily opt out of participating in CBP’s biometric verification program.
Comments are due by December 21, 2020.
USCIS Publishes Guidance on E-Verify Tentative Nonconfirmations
U.S. Citizenship and Immigration Services (USCIS) recently published a question and answer on photo mismatches of Department of Homeland Security (DHS) Tentative Nonconfirmations (TNCs).
USCIS said that the photo E-Verify transmitted should be identical to the photo that appears on an employee’s DHS or Department of State-issued document. If the employer determines that the photos do not match, it results in a photo mismatch TNC. If the employee chooses to take action on this TNC, the employer must follow the instructions in the Further Action Notice to scan and upload an image of the employee’s document into E-Verify, USCIS said.
Visa Bulletin for December Includes Info on Diversity Visas, Scheduled Expiration of Two Employment Visa Categories
The Department of State’s Visa Bulletin for December 2020 includes information on the diversity visa immigrant category rank cut-offs that will apply in December and January. It also includes information on the scheduled expiration of two employment visa categories on December 11, 2020: the employment fourth preference Certain Religious Workers (SR) category and the employment fifth preference categories (I5 and R5).
For SR visas, if there is no legislative action extending this category, it will become “Unavailable” effective midnight December 10, 2020. For I5 and R5 visas, if there is legislative action extending these categories, the December dates would be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective midnight, December 11, 2020.
USCIS Updates Guidance on Discretionary Factors for Adjustment of Status Applications
U.S. Citizenship and Immigration Services (USCIS) is updating existing policy guidance regarding agency discretion in adjudications of adjustment of status applications.
The update provides “a non-exhaustive list of positive and negative factors that may be relevant to whether an adjustment of status applicant warrants a favorable exercise of discretion.” It also lists the privileges, rights, and responsibilities of lawful permanent residents (LPRs) as a reference for officers to consider when determining whether the grant of LPR status is in the best interest of the United States.
USCIS said this update “will assist officers in making more consistent discretionary decisions by providing a foundation to identify and analyze negative and positive factors in adjustment of status applications.”
State Dept. Continues Phased Resumption of Routine Visa Services
The Department of State (DOS) announced a continuing phased resumption of routine immigrant and nonimmigrant visa services on a post-by-post basis, subject to local conditions, after closings that began in March 2020 due to the COVID-19 pandemic. The agency made the following points:
- U.S. embassies and consulates have continued to provide emergency and “mission-critical” visa services since March and will continue to do so. The agency said it cannot provide specific dates for when each mission will resume visa services or return to pre-pandemic processing levels. Each U.S. embassy or consulate’s website provides more detailed information about operating status and current services.
- Posts that process immigrant visa applications will prioritize immediate relative family members of U.S. citizens and certain Special Immigrant Visa applications, among others. Posts processing nonimmigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission-critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and certain temporary workers.
- Machine-readable visa fee validity has been extended to December 31, 2021, to allow applicants who were unable to schedule a visa appointment an opportunity to schedule or attend a visa appointment with the fees they already paid.
Litigation Challenges Trump Proclamation Banning Many Immigrants
In Anunciato v. Trump, more than 245 family, employment, and diversity-based immigrant visa applicants and their U.S. sponsors sued President Donald Trump, Secretary of State Mike Pompeo, and the Department of State in federal court in San Francisco, California on November 9, 2020. The plaintiffs seek immediate relief from a Presidential Proclamation that expires on December 30 and is expected to be extended. They want the administration “to follow the law and process the visas for which they have qualified.” Plaintiffs argue that the proclamation unlawfully bars them from immigrating to the United States, has caused extraordinary hardship, and is arbitrary and capricious.
USCIS Revises Civics Portion of Naturalization Test
U.S. Citizenship and Immigration Services (USCIS) implemented a revised version of the civics portion of the naturalization test, following a pilot of the test with community-based organizations and volunteers conducted over the summer. Applicants who applied for naturalization before December 1, 2020, took the previous version; those who apply on or after that date take the revised version. The English portion of the naturalization test has not changed.
USCIS said it revised the civics test as part of a decennial update “to ensure that it remains an instrument that comprehensively assesses applicants’ knowledge of American history, government and civic values.” The agency said the revised test includes “more questions that test the applicant’s understanding of U.S. history and civics” and includes a variety of topics” that provide the applicant with more opportunities to learn about the United States as part of the test preparation process.”
The revised test does not change the passing score, which remains at 60 percent. To pass, most candidates must correctly answer 12 questions out of 20. USCIS said it will maintain current guidelines for statutorily established special considerations for applicants who are 65 years old or older and have at least 20 years of lawful permanent resident status. To pass, such applicants will be asked 10 questions and must answer at least six questions correctly.