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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman reported that USCIS has reduced its capacity to print lawful permanent resident cards (green cards) and employment authorization documents (EADs) because of a hiring freeze at the cash-strapped agency.
Key Points:
Background: Last month, USCIS reduced its production of green cards and EADs after ending its contract with a company that printed the documents for the government. The agency said it planned to take production in-house by hiring more federal employees. USCIS has reported a $1.2 billion budget deficit since May, has frozen hiring and is scheduled to furlough 70% of its employees on Aug. 3.
BAL Analysis: EAD and green card applicants should anticipate lengthy delays in receiving their documents. BAL is closely monitoring the USCIS budget issues and their impact on processing and will report developments as information becomes available.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The U.S. government has ordered the closure of the Chinese Consulate General in Houston.
Background: In a widely reported statement, the State Department said it was closing the consulate “in order to protect American intellectual property and American’s (sic) private information.” A spokesman for China’s Foreign Ministry called the U.S.’s move “outrageous” and “unjustified” and said China would take “legitimate and necessary” counter measures if the decision is not reversed. An article in China’s Global Times, which is close to the ruling Communist Party, suggested that China could order the closure of the U.S. Consulate in Hong Kong in response to the State Department’s latest decision. Other media outlets have suggested the government may close the U.S. consulate in Wuhan.
BAL Analysis: Applicants should prepare for delays in the processing of visas and documents, and await additional details for which consulates will assume jurisdiction over applications that had been previously submitted in Houston.
U.S. Citizenship and Immigration Services has announced that in August 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 August 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 August.
Final Action Dates for Employment-Based Preference Cases:
Additional information: August will mark the fifth time this fiscal year that USCIS will use Final Action Dates for employment-based adjustment-of-status applications. The Final Action Dates chart is less progressive than the Dates for Filing chart in a number of categories. Family-based applicants must use the applicable Dates for Filing chart, except for F2A category applicants, who may use Final Action Dates.
Priority-date cutoffs will advance significantly in most employment-based categories, according to the State Department’s August Visa Bulletin.
Key movements:
EB-1
EB-2
EB-3
The State Department also released its Dates for Filing chart for August. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once officials confirm whether the chart can be used.
BAL Analysis: The advancement in numbers for Chinese and Indian applicants primarily reflects slowdowns in processing adjustment-of-status applications. The State Department has said that the slowdown could have resulted in even greater advancements, but that the advancements must also reflect USCIS processing limitations.
The government’s reduced processing capacity makes it unreasonable to expect that an even more accelerated advancement in the Final Action Dates would increase actual number usage this fiscal year. Additionally, such abrupt movements would likely result in corrective action in the form of retrogression, which should be avoided. As a result, while numbers may continue to advance, there may not be a dramatic advancement even if processing continues to slow.
Immigration and Customs Enforcement (ICE) announced today that it is extending flexible measures regarding Form I-9 employment eligibility verification. The measures were set to expire yesterday.
Key points:
The Department of Homeland Security has confirmed via Twitter that it will extend restrictions on nonessential travel at land ports of entry with Canada and Mexico until Aug. 20. The agency has not yet released a formal announcement.
Additional information: The nonessential travel bans were imposed March 20, initially for 30 days, and have since been extended in 30-day increments.
Flexible Form I-9 temporary measures for employers who are operating remotely are set to expire this Sunday, July 19, unless extended.
Today, the State Department issued two announcements regarding limited exceptions to President Donald Trump’s proclamations suspending the entry of certain immigrants and nonimmigrants.
Additional information: The announcement provides that the State Department will continue to issue H, L and J visas to otherwise qualified family derivative applicants who are already excepted from the work-visa travel ban or where the main applicant is currently in the U.S. Additionally, the agency confirmed that winners of the FY2020 Diversity Visa lottery who have not been issued an immigrant visa as of April 23 are subject to the immigrant visa ban unless they fall under an exception.
A group of green card applicants and immigration advocacy organizations filed a lawsuit in federal court Monday challenging the U.S. Citizenship and Immigration Services (USCIS) implementation of the public charge rule.
Background: The public charge rule significantly broadens the grounds of inadmissibility for green card applicants on the basis that they may become dependent on government benefits. The rule has been in effect since Feb. 24. Several courts blocked its initial implementation in October 2019, but the Supreme Court lifted those injunctions allowing USCIS to implement the rule while lawsuits proceed in court.
BAL Analysis: This new lawsuit challenges the way USCIS has implemented the rule, alleging that the agency improperly set a presumption of inadmissibility, raised the burden of proof from “preponderance of the evidence” to “clearly and beyond a doubt,” and makes the lack of health insurance a negative factor even if an applicant has the opportunity to obtain insurance, such as through an upcoming open enrollment period. BAL is monitoring litigation over the public charge rule and will continue to provide updates as the cases progress.
More than 100 leading U.S. companies are urging President Donald Trump to leave the Deferred Action for Childhood Arrivals program (DACA) in place.
Last month, the Supreme Court ruled that the Trump administration’s 2017 attempt to end DACA was unlawful, but left the door open for the Department of Homeland Security (DHS) to alter or eliminate the program by following different administrative procedures. In a letter to Trump, the Coalition for the American Dream, a group of 140 employers and trade associations, said getting rid of DACA would further weaken the American economy.
“This is no time to disrupt the economic recovery of our companies and communities, nor time to jeopardize the health and safety of these vulnerable individuals,” the letter says. “We ask that you leave DACA in place and refrain from taking any additional administrative actions that would negatively impact the DACA program.”
The coalition is advocating for a bipartisan permanent legislative solution for DACA recipients, often called Dreamers. DACA provides protection from deportation for some 800,000 individuals who were brought to the U.S. illegally as children. DACA only protects recipients from deportation and allows them to legally work in the U.S. It does not provide legal status for them.
“DACA recipients have been critical members of our workforce, industries, and communities for years now, and they have abided by the laws and regulations of our country in order to maintain their DACA status,” the letter says. “Their work and commitment to our companies, their families and communities are critical to our nation’s strength, especially since there are tens of thousands of DACA recipients working as front line doctors and nurses and in other critical industries fighting COVID19.”
The letter also cites strong support for DACA from most Americans. A recent Pew Research poll shows about three-quarters of U.S. adults say they favor granting permanent legal status to DACA recipients.
BAL Analysis: The future of DACA remains unknown, and the Trump administration has made conflicting remarks about the program in the days after the Supreme Court ruled against the administration’s initial attempt to end it. DHS also has not made any announcements regarding initial applications for DACA. BAL is closely monitoring the administration’s response to the ruling and will provide updates and analysis as more information becomes available. For more information, please visit BAL’s DACA Resource Center.