Articles Posted in General Immigration Issues

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Those who filed an application or petition with a USCIS lockbox facility may experience a four to six week delay in receiving receipt notices. These delays are due to a number of factors, including COVID-19 restrictions, an increase in filings, and high postal service volume. Receipt dates are unaffected by these delays, as they are determined pursuant to 8 C.F.R. 103.2(a)(7). Delays may vary across form types and lockbox locations. Those filing Form I-485, Application to Register Permanent Residence or Adjust Status, and F-1 students filing Form I-765, Application from Employment Authorization, may experience significant delays.

Contact our office at immigrationinfo@cornerlaw.com if you have any questions about receipt delays, filing an application through the USCIS lockbox, or about checking the status of your application.

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Due to the COVID-19 pandemic, USCIS has delayed scheduling and rescheduling application support center (ASC) appointments to collect biometrics. USCIS temporarily suspended in-person services at ASCs in response to the spread of COVID-19 for several months beginning in March 2020 to ensure the safety of employees and applicants. As a result, USCIS canceled approximately 280,000 appointments.  Appointments have resumed but at present about 1.3 million applications are waiting for their biometrics appointment.

The centers have reopened in phases, currently operating at 65% capacity since late October. USCIS advises applicants to continue to wait for a biometrics appointment notice or a Form I-797, Notice of Action, from USCIS indicating their previously collected biometrics may be reused.

Individuals are free to check their application’s status by visiting the USCIS case status website, linked here.

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On December 23, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of its policy allowing flexibility in requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance, issued on March 20th, 2020, was set to expire on December 31, 2020. Because of ongoing precautions related to COVID-19, DHS has extended this policy an additional 30 days until January 31, 2021.

Employers operating remotely due to COVID-19 are not required to review an employee’s employment eligibility documents in the employee’s physical presence. Employers must review the Section 2 documents remotely, through email, fax, etc., and retain physical copies within three business days. Employers should write “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information. Employers must provide written documentation of remote onboarding and a copy of their telework policy. Once normal operations resume, employees on boarded remotely must report to their employers within three business days. Employers should physically inspect the employment eligibility documents and write “documents physically examined” with the date in Section 2 Additional Information.

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On December 4th, a U.S. District Court for the Eastern District of New York ordered the Department of Homeland Security (DHS) to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program, effective immediately.

The court found that DHS Acting Secretary Wolf’s, July 28th memorandum, must be set aside. This memo authorized DHS to reject all pending and future initial requests for DACA; reject all pending and future applications for advance parole absent exceptional circumstances; and shorten the period of renewed deferred action granted pursuant to the DACA policy after the issuance of the memorandum to one year.

The court also ordered DHS to post a public notice stating that new, initial DACA applications will be accepted. According to the court order, work permits are valid for two years and DACA recipients are eligible to apply for Advanced Parole.

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On November 2nd, 2020, USCIS published a proposed rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” that would alter how H-1B registrations are selected for the annual H-1B statutory cap. The proposed rule replaces the current random selection process for H-1B petitions with a new wage-based selection process which would prioritize the selection of H-1B registrations based on employers who pay the highest wages.

USCIS notes, “If finalized as proposed, this new selection process would incentivize employers to offer higher wages or petition for positions requiring higher skills and higher-skilled workers instead of using the program to fill relatively lower-paid vacancies.”

Please note, this effort would only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It would be implemented for both the H-1B regular cap and the H-1B advanced degree exemption but would not change the order of selection between the two as established by the H-1B registration requirement final rule.

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On November 18th, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) extended its flexibilities in rules for Form I-9, Employment Eligibility Verification.

The temporary guidance, issued earlier this year, was set to expire on November 19th, but it is now extended until December 31st, 2020.

Employers operating remotely due to COVID-19 are not required to review an employee’s employment eligibility documents in the employee’s physical presence. Employers must review the Section 2 documents remotely, through email, fax, etc., and retain physical copies within three business days. Employers should write “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information. Employers must provide written documentation of remote onboarding and a copy of their telework policy. Once normal operations resume, employees on boarded remotely must report to their employers within three business days. Employers should physically inspect the employment eligibility documents and write “documents physically examined” with the date in Section 2 Additional Information.

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On Thursday, September 10th, a panel of federal judges ruled that President Donald Trump’s order to subtract the number of unauthorized immigrants from the census data in each state violates federal law. In July, President Trump ordered the U.S Department of Commerce to collect data about whether census respondents were legally living in the country, and then subtract the number of unauthorized immigrants from the census numbers.

Thirty-six states, the District of Columbia, fifteen cities and counties, a coalition of non-government organizations, and the United States Conference of mayors immediately fought the order, identifying it as an unconstitutional move that will strip citizens nationwide of appropriate federal funding and political representation.

The judicial panel made up of U.S. Circuit Judges Richard C. Wesley, Peter W. Hall, and U.S. District Judge Jesse M. Furman, unanimously sided with the plaintiffs noting that the memo violated the law by seeking to change the apportionment base. The panel explained the order disrupts Congress’s delegation of constitutional responsibility to count the whole number of persons in each state and the apportion members of the House of Representatives among the states according to their respective numbers.

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U.S. Immigration and Customs Enforcement (ICE) issued a broadcast message noting, their Student and Exchange Visitor Program (SEVP) is conducting a review of SEVIS records for nonimmigrant students participating in Optional Practical Training (OPT) who have not provided employment information. SEVP is mailing notices directly to the students who have not reported employer information and have exceeded 90 days of unemployment.

SEVP’s “Notice of Failure to Report Employment While on Optional Practical Training” informs students of a lack of employment information in their Student and Exchange Visitor Information System (SEVIS) records. The notice provides students an opportunity to update their records within 15 days from the notice date, either through their designated school official (DSO) or directly through the SEVP Portal.

ICE informs students, if their SEVIS records are not updated, SEVP will set their records to “terminated,” which can result in students being considered out of status for exceeding regulated periods of unemployment while in OPT.

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USCIS has failed to print approximately 50,000 green cards and 75,000 EADs for some family-based, employment-based, and asylum-based immigrant applications that have already been approved. Printing of the physical cards has been significantly delayed because the agency is operating with reduced printing capacity.

USCIS shut down its Kentucky printing center and scaled back printing at its only other facility, in Missouri. USCIS failed to renew its printing contract and did not disclose the decision to Congress. Reporting suggests that the agency planned to insource document printing but could not maintain normal capacity due to a hiring freeze.

More information on the green card and EAD delay can be found here. Further reporting on the underlying financial issues impacting USCIS’s printing capacity is available here.

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You can view the visa bulletin here:  https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-august-2020.html

Contact our office if you have any questions about preference categories or dates for filing and final action. Our email is provided at the end of this post.

Employment based preferences must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is current for all countries except China (February 8, 2018) and India (February 8, 2018); EB-2 is current for all countries except China (January 15, 2016) and India (July 8, 2009); EB-3 is April 1, 2019 for all countries except China (February 15, 2017) and India (October 1, 2009); EB-3 Other Workers is April 1, 2019 for all countries except China (August 1, 2008) and India (October  1, 2009). EB-4 are current for all countries except El Salvador, Guatemala, and Honduras (April 1, 2017) and Mexico (June 15, 2018); Religious Worker visas are current for all countries except El Salvador, Guatemala, and Honduras (April 1, 2017) and Mexico (June 15, 2018); EB-5 non-regional centers are current for all countries except China (August 8, 2015) and Vietnam (July 22, 2017); EB-5 regional centers are current for all countries except China (August 8, 2015) and Vietnam (July 22, 2017).

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