In the latest move designed to lessen the amount of legal immigration in the U.S., the Trump Administration has announced that international students who are currently enrolled in US colleges and universities must depart the U.S. and abandon their studies if the school they are attending continues with on-line instruction only for the fall semester. As many schools have yet to announce their fall plans, this latest announcement leaves 1000’s of students in a tenuous and uncertain situation. The attacks against this short-sighted policy have come quickly and from multiple sources but, as with other immigration policies, the White House is tone deaf. Here is a nice summary on the impact to international students.
The USCIS has announced an extension of its accommodations for responding to RFE’s, NOID, etc during this time of COVID-19. As a practical matter, most deadlines have been extended by 60 days. The USCIS has been extremely generous in steps it has taken to serve its customers during this pandemic and they should be saluted for their efforts.
Pursuant to a settlement agreement reached in Federal Court, the USCIS has released an official Policy Memorandum which eliminates the Neufeld memo from 2010 and the contracts and itineraries memo from 2018. This is a major victory for IT and healthcare staffing cos. The new memo reminds employers that they must continue to prove the existence of an employer-employee relationship but, that is now defined per the language of the statue instead of a made up policy designed to target a specific industry. As a practical matter, this new policy should result in full approvals and will alter the number of RFE’s and the issues raised. This new policy will also change the type of evidence that is needed to file a new case.
As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.
The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.
Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.
The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.
As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.
If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.
This week, the U.S. Supreme Court struck down an order from the Trump Administration seeking to end the DACA program. There is speculation that the WH will attempt to simply slap a coat of paint on its flawed order and re-publish but, for now, the DACA program remains intact. The current DACA program remains a temporary fix and needs Congressional action to craft a long-term solution. The plight of Dreamers spans multiple Presidencies and regardless of who has been in the WH or in Congress, a solution has not been found. Although there is widespread support for the Dreamers themselves, there is not widespread support for providing benefits and amnesty for their parents and potentially other family members, hence the decades long impasse. For employers that have DACA employees, we would strongly urge you to explore options for sponsoring them for permanent residency.
The Department of State (DOS) has released the July Visa Bulletin and there was significant forward movement in multiple categories which is unusual this late in the fiscal year. The “All Other” EB3 moved forward another 6 mos. as did EB3 for the Philippines, Mexico, and Vietnam. India EB1 jumped forward 10 months. The difference between India EB2 and EB3 is only 5 weeks. The USCIS has indicated that they will use the Final Action Date chart for I-485 filings in July.
As described earlier this week, the White House has announced its intention to issue a Proclamation that would restrict legal immigration specifically, certain types of work visas. They also indicated their intention to issue regulations that would, effectively end the H-1b program and severely restrict the ability of international students to come into the U.S. and study and then enter the U.S. talent pool. The U.S. Chamber of Commerce on behalf of its members, made up of both large and small U.S. employers, believe that the actions suggested by the WH would significantly and negatively impact U.S. businesses particularly those who employ STEM workers. They further believe that these proposed actions would increase the amount of work being sent off-shore, to the detriment of the U.S. economy. The Chamber sent a letter to the WH urging them to re-consider. We appreciate the advocacy being done by the Chamber. A summary of the current plan of the WH is outlined in a New York Times piece that ran today. Read it here.
The USCIS recently enjoyed a rare victory in Federal Court prevailing in Distro Systems vs. USCIS in a case involving the definition of a specialty occupation. Distro had filed an H-1b for for the position of Associate-Technology Practice and had classified the position under the DOL’s SOC Code “Computer Occupations-All Other”. During the appeal, the employer claimed that the occupation chosen was the Computer Systems Engineers/Architects sub category however, the Court noted that the majority of their arguments involved a different DOL SOC code specifically, that of a Software Developer. Based upon the decision, it appears that the denial was based upon the number of discrepancies in the record relative to the job description and the SOC category chosen by the Petitioner, along with the proof supplied by the petitioner which was limited. The judge also referenced that the salary offered to the employee was only $46,342 and based upon my experience, that seems horribly low for an H-1b caliber position. Given the facts in this case and the clear issues that this case had, we do not believe this decision has any meaningful effect beyond this petition.
The White House is expected to issue a proclamation within the next 2 weeks that will prohibit visa issuance and entry to the US for H-1b, L, and J visa holders for 120 days. There are expected to be some exceptions for certain types of workers. It is possible that L-1a holders and certain healthcare workers may be exempted but those are not confirmed yet.
We would encourage you to caution your employees from engaging in any international travel at this time as they may be stuck abroad. If you have workers that are abroad now waiting for visa appointments, visa issuance, or for travel to be permitted, the timing of their entry is expected to be delayed. In addition, we would encourage you to contact your governmental affairs dept or your Congressional or Administration contacts and urge them not to take these measures against legal immigration. We would also remind you that nothing is final until the proclamation has been issued and changes in what we have described above are possible.
In addition to the proclamation, the Administration has announced that they intend to issue a series of new regulations on a variety of topics including: wage levels, filing fees, joint employment, OPT STEM, OPT EAD cards, H-4 EAD, specialty occupation definition, and other measures designed specifically to counter Federal Court decisions that have been declaring many of their policies unlawful and unconstitutional. We expect the Administration to follow the Administrative Procedures Act and publish these changes so that there is an opportunity for notice and comment but that is not assured at this time. We will update you as further developments occur.
“If you are neutral in situations of injustice, you have chosen the side of the oppressor.” – Desmond Tutu
In keeping with a belief in the truth found in the phrase above and in light of the events of the past weeks which have been painful reminders that black people in the United States continue to suffer under the oppression of racism and injustice, we are issuing a statement declaring that we stand for justice and good.
At the U.S. Supreme Court building in Washington D.C. the concept of justice is depicted in a number of places with the most prominent being the statue of Lady Justice holding a smaller Lady Justice blindfolded and holding scales designed to depict that justice is fair and impartial. The ideal of justice being impartial has oft been proven to be illusory relative to the treatment of persons of color. As the poet Langston Hughes wrote,
That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.”
My favorite of the depictions of justice is not the prominent statue by the steps but, rather the frieze located on the west wall inside the courtroom which depicts the battle of good vs. evil. In this depiction, Lady Justice is not blindfolded but, rather, she has her hand on her sword and is prepared to fight the forces of evil for good. She is surrounded by depictions of divine inspiration and wisdom.
We have a shared responsibility to be on the side of good not evil; to speak out against acts of racism and oppression; to act to bring about meaningful change; and, to be a positive force in creating places of work, communities, cities, and a nation that stands for what is good and just.