What's New in the World of Immigration?

07/09/2020 - How the Trump Administration is Turning Legal Immigrants into Undocumented Ones

By Catherine Rampell of the Washington Post

The Trump administration is turning legal immigrants into undocumented ones.

That is, the “show me your papers” administration has literally switched off printers needed to generate those “papers.”

Without telling Congress, the administration has scaled back the printing of documents it has already promised to immigrants — including green cards, the wallet-size I.D.’s legal permanent residents must carry everywhere to prove they are in the United States lawfully.

In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing these documents. Production was slated to be insourced, but “the agency’s financial situation,” USCIS said Thursday, prompted a hiring freeze that required it to ratchet down printing.

Of the two facilities where these credentials were printed, one, in Corbin, Ky., shut down production three weeks ago. The other facility, in Lee’s Summit, Mo., appears to be operating at reduced capacity.

Some 50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed, USCIS said in a statement. The agency said it had planned to escalate printing but that it “cannot speculate on future projections of processing times.” In the event of furloughs — which the agency has threatened if it does not get a $1.2 billion loan from Congress — “all agency operations will be affected.”

Some of the missing green cards are for immigrants newly approved for legal permanent residency. Others are for existing permanent residents who periodically must renew their identity cards, which expire every 10 years but sometimes must be replaced sooner (for example, if lost). These immigrants have completed every interview, required biometric assessment, cleared other hurdles — and often waited years for these critical credentials.

The Immigration and Nationality Act requires every adult legal permanent resident to carry their green card “at all times.” Failing to carry it is a misdemeanor, subject to jail time or fines. Immigrants must also show their green card to apply for jobs, travel or reenter the United States.

Understandably, panicked immigrants have been inundating USCIS with calls seeking to locate their documents.

“Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced,” said one agency employee. “A lot are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.”

This employee added: “It really does frustrate a lot of us to not let applicants know what’s really going on.”

Normally, within 48 hours of an applicant’s approval, USCIS’s online system indicates that a card has been printed. Immigration attorneys across the country have been puzzled recently because these status updates never appeared. Many thought the delays were tied to covid-19, which has caused other service disruptions.

One Philadelphia attorney, Anu Nair, said a USCIS officer let slip in early June that all contractors were about to be laid off and to expect long delays with paperwork.

Memphis-based attorney Elissa Taub inquired about her client’s missing green card and got a cryptic email: “The system has to be updated so that a card can be produced. You will receive the [card] in the mail once the system in updated [sic].”

USCIS, which is funded almost entirely by fees, is undergoing a budget crisis, largely caused by financial mismanagement by political leadership. The printing disruptions are no doubt a preview of chaos to come if the agency furloughs about 70 percent of its workforce, as it has said it will do in a few weeks absent a congressional bailout.

In recent conversations with congressional staffers about cutting contracts to save money, USCIS mentioned only one contract, for a different division, that was being reduced — and made no reference to this printing contract, according to a person who took part in those discussions. The company that had this contract, Logistics Systems Inc., did not respond to emails and calls this week requesting comment.

The administration has taken other steps in recent months that curb immigration. Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another. The centers that collect necessary biometric data remain shuttered.

These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.

Under normal circumstances, immigrants who need proof of legal residency but haven’t yet received their green card would have an alternative: get a special passport stamp from USCIS. But amid covid-related changes, applicants must provide evidence of a “critical need,” with little guidance about what that means.

“The bottom line is that applicants pay huge filing fees, and it appears that these fees have apparently been either squandered through mismanagement or diverted to enforcement-focused initiatives, to the great detriment of applicants as well as the overall efficiency of the immigration process,” says Anis Saleh, an immigration attorney in Coral Gables, Fla. “The administration has accomplished its goal of shutting down legal immigration without actually changing the law.”

07/07/2020 - International Students Banned From Online-Only Instruction

By Emma Whitford of Inside Higher Ed / July 7, 2020

The new Department of Homeland Security rule prohibits international students from returning to or remaining in the United States if their colleges adopt an online-only instruction model for the fall.

New guidance for the Student and Exchange Visitor Program issued by the U.S. Department of Homeland Security has stoked anger and confusion from students, faculty and immigration advocates.

The new temporary final rule, issued Monday afternoon, prohibits international students from returning to or remaining in the United States this fall if the colleges they attend adopt online-only instruction models amid the pandemic.

A growing number of colleges -- including Harvard University -- have announced that they will reopen their campuses in the fall but conduct classes online. Even with campuses open, international students will be prohibited from studying in the United States under the rule.

“It’s just mean-spirited,” said Allen Orr, president-elect of the American Immigration Lawyers Association. He noted the myriad logistical issues it poses for international students.

“You are discontinuing whatever you may have already been in. You might have already had a lease,” he said. “Even if these colleges have school online, some places may be in different hours and different time zones.”

Should colleges’ instruction models change midsemester, returning to the United States could be difficult, Orr said.

“If colleges are able to reopen -- let’s say there’s a vaccine or whatever happens -- those foreign students would be disadvantaged in their ability to come back,” he said. “There are not that many flights back to the United States; there are not that many flights within the United States.”

On the other hand, if colleges conducting in-person instruction this fall move back online midsemester, international students will be required to leave the country or “take alternative steps to maintain their nonimmigrant status such as transfer to a school with in-person instruction,” the rule states.

This is a shift away from the exceptions put in place during the spring and summer terms, which allowed international students residing in the U.S. to take a fully online course load as colleges transitioned to online instruction in response to the coronavirus pandemic. More than 90 percent of international students chose to remain stateside in the spring, according to a survey by the Institute for International Education. Should the pandemic worsen, the new rule would not allow such flexibility for those students.

Sarah Spreitzer, director of government relations at the American Council on Education, said she expects many institutions to try to work around the guidance, and for more colleges to consider hybrid online and in-person instruction models as a result.

The rule makes an exception for students enrolled at colleges using a hybrid model this fall. Those students will be able to remain in or return to the U.S. as long as “the program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.”

“The guidance talks about your specific program,” Spreitzer said. “Schools may have already been going down the path where some programs would be completely online, but this other program over here would have an in-person component. So then they’re going to have to ensure that every program has an in-person component.”

Several higher education organizations, including ACE and the Presidents’ Immigration Alliance, released statements Monday strongly condemning the rule and urging the Trump administration to rework its position.

“Today’s decision by ICE is just the latest reflection of this administration’s xenophobic and misguided response to the Covid-19 pandemic. This decision forces international students to make a cruel decision between either leaving the country abruptly or scrambling to find a new program or institution,” wrote Kyle Southern, policy and advocacy director of higher education and workforce at Young Invincibles. “In the midst of a global pandemic, the administration is pressuring colleges and universities -- particularly those enrolling large numbers of international students -- to bring students back onto campuses while infection rates reach new records.”

Immigration lawyer Greg Siskind on Twitter said the rule was essentially a new travel ban for F-1 students, and noted the move could jeopardize public health.

“If you are worried about COVID and not reopening too soon, you should be VERY worried about this,” Siskind tweeted. “Schools WILL be opening this fall that otherwise would have kept classes online because of ICE's decision. That puts the health of everyone in danger.”

Orr expects colleges to push back hard on the rule.

“There’s absolutely no reason for this underlying rule. What is the issue? They are paying tuition, they are enrolled in the school program, they’re doing the exact same thing their counterpart students are doing.”

06/30/2020 - Summary of June 22 Presidential Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak

AILA and the American Immigration Council provide a summary of Presidential Proclamation 10052 suspending entry of certain nonimmigrants that took effect on June 24, 2020, at 12:01 am (ET) until at least December 31, 2020, as well as the amendment made to the proclamation on June 30, 2020.

AUTHORITY:

Immigration and Nationality Act sections 212(f) and 215(a) and 3 U.S.C. section 301

EFFECTIVE DATE:

The Proclamation takes effect on June 24, 2020 at 12:01 AM ET. It will remain in effect through December 31, 2020 and may be continued or modified as necessary.

BACKGROUND:

On June 20, 2020, President Trump issued Presidential Proclamation 10052, which suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

• H-1B visa and any foreign national accompanying or following to join them;

• H-2B visa and any foreign national accompanying or following to join them;

• J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and

• L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they:

• Are outside the United States on the effective date of the Proclamation;

• Do not have a nonimmigrant visa in one of the categories that is now suspended on which they are seeking entry1, that is valid on the effective date of the Proclamation; and

• Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

EXEMPTIONS:

The Proclamation will not apply to the following individuals:

• lawful permanent residents;

• spouse or child of a U.S. citizen;

• any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;

• any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;

• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

• are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;

• are necessary to facilitate the immediate and continued economic recovery of the United States; or

• are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

DISCRETION:

The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

ASYLUM SEEKERS

Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

FRAUD:

Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

ADDITIONAL REVIEW:

Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 PREVENTION:

The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

06/19/2020 - DACA Upheld! What does this mean?

Impact of the Supreme Court Decision Blocking DACA Rescission

AILA Doc. No. 18011035 | Dated June 19, 2020

On June 18, 2020, the U.S. Supreme Court ruled that DHS’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act. This practice alert explains the immediate impact of that decision and thoughts about the next steps as we look ahead to the 2020 election.

BACKGROUND

On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-acting Secretary Elaine Duke. Following the rescission, multiple lawsuits were filed challenging the termination, and several courts issued injunctive orders directing the government to partially maintain the DACA program. For more information on these legal challenges and a thorough discussion of DACA application processing under the court orders, see our previous practice, Filing DACA Applications in the Wake of Federal Court Rulings and our litigation tracking page, Documents Related to DHS v. Regents of the University of California. On June 28, 2019, the Supreme Court consolidated and granted certiorari in several of these cases. It heard oral argument on November 12, 2019.

On June 18, 2020 the Supreme Court blocked the government’s attempt to terminate DACA and remanded the case for further consideration. The 5 to 4 majority opinion issued by Chief Justice John G. Roberts, Jr., ruled, as a threshold matter, that the Court had jurisdiction to review DHS’s final decision to rescind DACA under the APA. Turning to the merits, the majority ruled that DHS’s rescission violated the APA as an arbitrary and capricious final agency action because the agency failed to consider “important aspects of the problem before the agency.” Specifically, the Court concluded that DHS failed to consider whether to continue only the deferred action part of the DACA program and that “omission alone renders [the decision] arbitrary and capricious.” In addition, the Court found that DHS failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.

Importantly, Justice Roberts noted that the parties agreed that DHS may rescind DACA and emphasized that the court is not deciding whether DACA or its rescission are “sound policies.” Ultimately, the Court rested its decision on well-settled principles rooted in government accountability as codified in the APA: the agency failed to provide a reasoned explanation for its action. Accordingly, the Court remanded the cases for DHS to “consider the problem anew.”

IMPACT OF THE SUPREME COURT DECISION ON DACA FILINGS

Under the SCOTUS decision, USCIS must continue to process the following types of DACA requests (as outlined USCIS guidance in place prior to the Supreme Court ruling):

- People Who Currently Have DACA: Current DACA recipients can file a renewal DACA request.

- People Whose DACA Expired One Year Ago or Less: Recipients whose previous DACA expired one year ago or less may still file a renewal DACA request.

- People Whose DACA Expired More Than One Year Ago: Recipients whose previous DACA expired more than one year ago cannot file a renewal DACA request but may file an initial DACA request.

- People Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal but may file an initial DACA request. In order to comply with the Court’s order, USCIS will have to publish guidance on processing the following applications that were suspended under prior court orders:

- 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.

Practitioners and their clients may want to consider several factors when deciding whether to submit a new, initial DACA application before guidance is issued, including: 1) the possibility that the administration may issue a new memorandum rescinding DACA before the applicant receives a decision; 2) that – in the absence of guidance – USCIS officers will reject new, initial applications or accept them and deny them; and 3) that USCIS is experiencing significant delays in processing as well as a budget shortfall that may further delay adjudications. Given uncertainty surrounding DHS plans, and also given the state of travel during the COVID-19 pandemic, AILA does not recommend practitioners encourage their clients with DACA to apply for advance parole until DHS weighs in on the issue.

WHAT'S NEXT?

While the Supreme Court’s decision is an incredible victory, DHS still has authority over the DACA program as well as the fate of the DACA recipients. For now, DHS must continue the program and continue processing DACA applications, but it remains to be seen how it will comply with the Court’s order. The Court’s opinion leaves open the possibility that DHS could attempt to issue a new memorandum rescinding DACA that rectifies the inadequacies in its prior memorandum. Such guidance could come very quickly or could be put on hold until a future point in time, such as after the presidential election in November.

The ultimate responsibility for granting lasting relief for Dreamers, rests not in the hands of the executive branch but that of Congress. The overwhelming majority of Americans (eight out of ten) across the political spectrum want Dreamers to remain in the United States. With such resounding support, AILA urges Congress to delay no longer and pass bipartisan legislation granting Dreamers permanent legal status.

04/23/2020 - Summary of New Executive Order Suspending Green Cards

The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant ("green card holder") who:

● Is outside the United States on the effective date of the proclamation;

● Does not have a valid immigrant visa on the effective date; and

● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

The following categories are EXEMPT from the proclamation:

1. Lawful permanent residents (LPR)

2. Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, (as determined by the Secretaries of State and Department ofHomeland Security (DHS), or their respective designees)

3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program

4. Spouses of U.S. citizens

5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa

6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

7. Members of the U.S. Armed Forces and their spouses and children

8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

Nonimmigrant visa holders are not included in the proclamation. However, the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

Asylum seekers are not included in the ban. The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Prioritized Removal. Individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Expiration. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

Severability Clause. If any provision of the proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.