Articles Posted in General Immigration Issues

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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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The visa bulletin is out at this link:  July 2020 Visa Bulletin   

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 (August 22, 2017) and India (May 8, 2017); EB-2 is current for all countries except China (November 8, 2015) and India (July 8, 2009); EB-3 is April 15, 2018 for all countries except China (June 22, 2016) and India (June 1, 2009); EB-3 Other Workers is April 15, 2018 for all countries except China (July 22, 2008) and India (June 1, 2009). EB-4 are current for all countries except El Salvador, Guatemala, and Honduras (February 1, 2017) and Mexico (June 15, 2018); Religious Worker visas are current for all countries except El Salvador, Guatemala, and Honduras (February 1, 2017) and Mexico (June 15, 2018); EB-5 non-regional centers are current for all countries except China (July 22, 2015) and Vietnam (May 15, 2017); EB-5 regional centers are current for all countries except China (July 22, 2015) and Vietnam (May 15, 2017).

Family based petitions are backlogged, however the F2A category is current in the Final Action Dates. USCIS says that applicants in the F2A category may file using the Final Action Dates Chart for July 2020.

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On March 20, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibility in rules related to Form I-9  Employment Eligibility Verification compliance due to COVID-19. The original guidance was set to expire on May 19. Due to the continued precautions related to COVID-19, DHS has extended this policy for an additional 30 days.

For more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9, please see the original guidance. The original guidance including eligibility requirements can be found here.

This provision only applies to employers and workplaces that are operating remotely.

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U.S Citizenship and Immigration Services (USCIS) announced on May 6, 2020, that it recently migrated to Microsoft 365 and that, as of April 24, it is unable to receive and answer emails sent to e-verify@dhs.gov and i-9central@dhs.gov.

Per USCIS’s notice, if you sent an email to these addresses on or after April 24 and have not received a response within 48 hours, please resend your message to the email addresses below:

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According to the Administrative Procedure Act, a court may review a final agency action to determine whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). On February 19, 2020, in the case of Barchart.com v. Koumans, U.S. District Court for the District of Columbia exercised this power by reviewing USCIS’s decision to deny the H-1B visa petition for a “Market Analysis Representative.”

USCIS determined that Plaintiff, Barchart.com, failed to show why the position was a specialty occupation requiring a bachelor’s degree. This determination follows the Plaintiff filing an H-1B petition with USCIS, to hire a prospective employee, who held a bachelor’s degree in finance. The employer submitted a letter in support of the petition, detailing the position and the employee’s qualifications, during the initial filing. Additionally, in a Request for Evidence (RFE) Response, the employer submitted a declaration from Ethan Robinson, Senior Program Manager of the company, which detailed the job duties, the job’s significance to the company, and why a finance degree is necessary.

Through the power of 5 U.S.C. § 706(2)(A) the District Court decided to vacate and remand the agency’s decision because USCIS lacked to consider the evidence submitted in the RFE Response, mainly the Robinson Declaration. In 463 U.S. 29, 43 the court states, “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” In denying the Petition, USCIS faulted Barchart.com for failing to show the position required a bachelor’s degree or higher. However, nowhere in reaching this decision did USCIS consider the Robinson Declaration. According to 613 F.3d at 194 “[A]n agency’s refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of [5 U.S.C.] § 706.” By failing to consider the Robinson Declaration, as evidence bearing on the issue, USCIS constituted arbitrary and capricious action resulting in the Court’s ruling to vacate and remand the H-1B denial.

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UPDATE: USCIS Releases New and Revised Forms associated with Inadmissibility on Public Charge Grounds Final Rule

February 19, 2020

U.S. Citizenship and Immigration Services (USCIS) has released new and revised forms which must be used for applications and petitions received on and after February 24, 2020. The change is associated with the February 24, 2020 implementation of the Inadmissibility on Public Charge Grounds Final Rule, which expands USCIS’ grounds to deny applications for permanent residence and petitions for nonimmigrant status based upon the beneficiary’s or applicant’s use of public benefit programs.

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Despite a federal judge’s order that his removal from the United States should be delayed, an Iranian student, Mohammad Shahab Dehghani Hossein Abadi, was deported on January 21, 2020. The Northwestern student attempted to return to the U.S. with a student visa when he was detained by Customs and Border Protection (CBP) at Logan Airport in Boston, MA.

American Civil Liberties Union of Massachusetts and other attorneys on Abadi’s behalf filed an emergency suite and U.S. District Judge Allison D. Burroughs issued an order delaying the student’s deportation for 48 hours. About an hour after the order was issues Abadhi was put on a plane bound for France.

Abadi’s legal team will file a motion that seeks to force the government to explain why it defied the judge’s instructions and deported Abadi.

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