What's New in the World of Immigration?

12/30/2020 - Delayed Receipt Notices at USCIS Lockboxes

AILA continues to receive reports from members of delayed receipt notices for applications and petitions filed with the Lockbox, with some members continuing to report that they have not yet received a receipt notice for applications and petitions submitted in late October.

If more than six weeks has passed and you have not received a receipt notice, AILA suggests emailing the Lockbox Support Team at lockboxsupport@uscis.dhs.gov and Bcc AILA at reports@aila.org so that we can continue to monitor the issue. To minimize the volume of emails sent to the Lockbox Support Team, AILA suggests sending just one email and consolidating in that email a list of all the applications/petitions for which you have not yet received a receipt notice, including the application/petition type (e.g., I-485), the name of the petitioner and/or beneficiary, the date the application/petition was filed with the Lockbox, delivery/tracking information (if available), and any other relevant information.

12/23/2020 - USCIS Rescheduling Interviews due to Travel During COVID

AILA (American Immigration Lawyer's Association) has received numerous reports that upon entering USCIS field offices for interviews, applicants and attorneys are being asked screening questions including whether any party physically present at interview has traveled outside the U.S. in the last 14 days. If the answer is yes, USCIS is rescheduling the interview.

AILA has also received reports that USCIS is checking CBP records and automatically rescheduling interviews if the applicant has traveled outside the U.S. in the last 14 days.

Based on a survey AILA National conducted regarding USCIS field office protocols, we note the following additional COVID procedures being reported at field offices around the country:

- People cannot enter the building more than 15 minutes before scheduled interviews, and 30 minutes before oath ceremonies.

- Bring your own pens.

- Masks are required. Masks with exhaust valves, neck gaiters, or bandanas are not permitted.

- Some field offices or officers limit attendance to 3 people per interview room. If there are additional people in attendance, they may be asked to wait in the waiting room and may be interviewed separately, or they may be placed in another room connected by video. Note that even if the video appears off, the officers can still hear conversations.

- Some field offices are again conducting interviews at InfoPass/InfoMod windows in the waiting rooms, creating privacy concerns.

- USCIS continues to call applicants last minute to notify of rescheduling rather than calling the attorney of record.

09/01/2020 - I-765 APPROVAL CAN BE USED FOR I-9 VERIFICATION DURING CARD PRODUCTION DELAYS

USCIS has issued a statement explaining that the I-765 approval notice alone is enough to evidence employment authorization due to the delay in card production. The USCIS statement is as follows:

"Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020."

"THE I-797 NOTICE OF ACTION DESCRIBED ABOVE DOES NOT PROVE EVIDENCE OF IDENTITY OR SERVE AS A LIST A DOCUMENT ESTABLISHING BOTH IDENTITY AND EMPLOYMENT AUTHORIZATION OR A LIST B DOCUMENT ESTABLISHING IDENTITY FOR FORM I-9 PURPOSES."

"For Form I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. The Lists of Acceptable Documents is on Form I-9. Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C."

"By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C. We encourage employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement. However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C."

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.”