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A U.S. District Court issued a preliminary injunction Friday, ordering the State Department to “undertake good-faith efforts” to issue Diversity Visas to winners of the FY2020 DV lottery by Sept. 30. The court denied a request to enjoin the government from enforcing the immigrant visa ban and nonimmigrant employment-visa ban while the litigation proceeds.
Key points:
Background: The State Department suspended routine visa operations in March because of the COVID-19 pandemic. On April 22, President Trump issued a two-month entry ban (Proclamation 10014) on most immigrants who did not already have a valid immigrant visa. On June 22, he extended the ban until Dec. 31 as part of Proclamation 11052, which placed new restrictions on multiple nonimmigrant work visa categories.
The annual Diversity Visa lottery selects 55,000 individuals from countries with historically low immigration to the U.S. to apply for permanent residence (green cards). Under regulations, Diversity Visas must be issued by the end of the applicable fiscal year or eligibility expires permanently. The DV-2020 registration period took place from Oct. 3, 2018 to Nov. 6, 2018, and results were available May 7, 2019. The court ordered the State Department to provide a status update on Sept. 25 of its progress in complying with its order, including how many Diversity Visas it has issued.
BAL Analysis: Because the court did not enjoin the visa ban, it remains in place at this time. Individuals who receive a diversity visa before the end of the fiscal year will still be barred from entering the U.S. due to the ban, but will be eligible to enter while the visa is eligible (it has a six month eligibility) and may enter if the ban expires while the visa is valid. BAL is closely following the multiple lawsuits challenging the immigration restrictions, and will report additional information as it becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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The Department of Homeland Security (DHS) has sent a rule that would amend eligibility requirements for the H-1B nonimmigrant classification to the Office of Management and Budget (OMB) for review. The text of the rule is not yet available.
BAL Analysis: The government previously stated that it would publish the regulation as a Notice of Proposed Rulemaking and provide the public an opportunity to comment on the policy changes before they become effective. The government is now expected to argue that compliance with the comment period obligations would be “impracticable, unnecessary, or contrary to the public interest.” The government may also argue that good cause exists to make the regulation effective upon publication and without the standard 30-day delayed effective date. The rule is expected to be challenged in court, though it is too early to predict the likelihood of success. BAL is closely monitoring the progress of the rule and will report additional information on its potential impact when the text is published.
Despite a major win in the Supreme Court, which ruled on June 18 that the Trump administration improperly terminated the Deferred Action for Childhood Arrivals (DACA) program, Dreamers remain in limbo, their fate closely tied to the election that is two months away.
There are an estimated 800,000 Dreamers, and about 90% are working for U.S. employers. More than 100 leading U.S. companies have publicly urged the president to keep DACA in place, warning that ending the program would jeopardize the economic recovery from COVID-19. With nearly 30,000 Dreamers working in medical professions, terminating DACA would also, as they argued before the Court, harm the healthcare response and medical research related to COVID-19.
The Department of Homeland Security responded to its Supreme Court defeat by first issuing a memorandum on July 28 that stated it would continue to accept only renewal DACA applications from those who are already DACA beneficiaries, not initial applications from first-time applicants—the same arrangement that has been in place by court order since 2018 when the legal challenges began. Then last week, the government released further guidance confirming that it would continue to process renewal applications only, and will limit renewals to one-year employment authorization documents instead of the usual two-year duration.
The DHS response not only flies in the face of the Supreme Court ruling, it puts Dreamers in an even more uncertain situation, since up until the ruling, DHS was under court injunctions to keep the status quo in place, which meant issuing renewals for the normal two-year period. DHS appears to buying time while the government decides its next move. It remains to be seen how courts will view the July 28 memo, which is now the subject of multiple lawsuits.
Meanwhile, some Dreamers report that they are being turned away from jobs because of the uncertainty of DACA’s future. In this unsettled environment, employers need to make sure that they are not violating the anti-discrimination provisions of the Immigration and Nationality Act or employment law provisions by treating DACA recipients differently than others with valid work authorization.
Shortly after the Supreme Court ruling, President Trump said his administration would begin the process of terminating DACA again. DHS could take action to terminate DACA at any time. This is because the legal issue has never been whether the administration had the authority to terminate DACA—all courts have agreed that it does—only whether it followed proper procedures and provided a reasoned analysis to support its actions. If Trump gets a second term, there’s little doubt his administration would attempt to terminate DACA again—only this time, like the Muslim bans that took more than one version to correct their legal flaws, DACA’s termination would likely be upheld.
Guillermo Ortiz is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The U.S. State Department announced last week that it will temporarily expand the pool of visa applicants who are eligible to have their interview waived.
Background: The State Department implemented the change in effort to limit the number of in-person visits and limit the spread of the COVID-19 virus.
BAL Analysis: While the expansion of the interview waiver will benefit some applicants, the impact will be limited both because consular officers retain discretion to require an interview and because of limited visa services due to the COVID-19 pandemic. BAL continues to monitor the administration’s response to the pandemic and will provide updates as information becomes available.
The American Immigration Lawyers Association and several nonprofit organizations have filed a lawsuit to block a regulation that will significantly increase U.S. Citizenship and Immigration Services (USCIS) filing fees across the board.
Background: In addition to increasing asylum and naturalization application fees, the regulation significantly increases filing fees for employment-based applications, imposes different fees for each type of temporary work-visa application, expands applicability of the 9-11 response and biometric entry-exit fee, and lengthens the premium processing time frame from about two weeks (15 calendar days) to about three weeks (15 business days). View a summary of changes here.
The regulation also separates the current Form I-129 Petition for Nonimmigrant Worker into new forms for different visa categories. USCIS stated that it will post new and revised forms 30 days before the rule takes effect.
BAL Analysis: BAL is following the lawsuit and will report on significant developments, including the court’s decision on the request for an injunction.
U.S. Citizenship and Immigration Services (USCIS) announced today that it is canceling a planned furlough of 13,000 employees scheduled for Aug. 30.
Background: Since May, the agency has sought a $1.2 billion loan from Congress, claiming that the COVID-19 crisis has impacted its fee-based revenue. The agency originally planned to furlough the employees, who represent about 70% of its workforce, on Aug. 3, but delayed the furloughs until the end of August after new projections showed a budget surplus for the fiscal year. Lawmakers on both sides of the aisle had urged the agency not to move forward with the furloughs. The House passed an emergency bill on Saturday, but its path forward in the Senate remains unclear.
BAL Analysis: The cancelation of the furloughs will reduce the disruption to USCIS processing, though applicants should still anticipate delays in services. BAL is following the USCIS budgetary issues, including any actions by Congress, and will report new information as it becomes available.
President Donald Trump announced today in a tweet that he will nominate Chad Wolf as Secretary of Homeland Security.
Background: On Aug. 14, the Government Accountability Office concluded in a report that Acting Secretary Wolf and Ken Cuccinelli, who serves as Senior Official Performing the Duties of Deputy Secretary, were improper. DHS issued a response opposing the report, and last week the GAO denied the agency’s request to change its decision.
BAL Analysis: Wolf’s confirmation will now need to be approved by the Senate. It remains unclear whether DHS policies during Wolf’s tenure as Acting DHS Secretary are at risk of being overturned by courts. BAL is following the various lawsuits and will report developments as they progress through the courts.
U.S. Citizenship and Immigration Services (USCIS) has issued guidance with details on how it will implement the Deferred Action for Childhood Arrivals (DACA) program.
Background: On June 18, the Supreme Court ruled that the Trump administration’s termination of the DACA program was unlawful. In response, the Department of Homeland Security issued a memorandum on July 28.
BAL Analysis: The guidance provides details regarding the agency’s implementation of the July 28 DHS memorandum, which put in place new rules while DHS considers the future of the DACA program. Meanwhile, current lawsuits challenge the July 28 memorandum’s compliance with the Supreme Court’s decision on DACA and Acting Secretary Chad Wolf’s authority to issue the memorandum. BAL will continue to monitor the litigation and the administration’s actions on DACA, and will provide more information as it becomes available.
U.S. Citizenship and Immigration Services has announced that in September it will only accept employment-based adjustment-of-status applications based on the State Department’s Final Action Dates chart.
The Dates for Filing chart published in the September Visa Bulletin will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in September.
Final Action Dates for Employment-Based Preference Cases:
Additional information: September will mark the sixth time this fiscal year that USCIS will use Final Action Dates for employment-based adjustment-of-status applications. Family-based applicants must use the applicable Dates for Filing chart, except for F2A category applicants, who may use Final Action Dates.
On Saturday, the House of Representatives passed the “Emergency Stopgap USCIS Stabilization Act” (HR 8089) by unanimous consent, ahead of planned furloughs by U.S. Citizenship and Immigration Services (USCIS). The bill’s path forward through the Senate is not yet clear. The agency has been seeking $1.2 billion in emergency funding from Congress since May, claiming that COVID-19 has reduced the agency’s revenues.
BAL Analysis: The path forward for the bill remains unclear. The Senate is not currently in session and the White House has not weighed in on the legislation. It is too early to predict whether this will affect the agency’s plans to begin the furloughs. BAL is closely monitoring this issue and will provide updates as more information becomes available.