ABIL Immigration Insider • January 3, 2021

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In this issue:

1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions – President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021. He also extended a separate memo on visa sanctions for certain countries related to the coronavirus pandemic.

2. State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021 – The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.

3. Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years – The filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.

4. USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants – USCIS is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status.

5. Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance – President Trump signed the Consolidated Appropriations Act of 2021, which extends the expiring E-Verify, Conrad 30, and non-minister religious worker green card programs, among other things.

6. I-9 Flexibility Extended to January 31 – The flexibility applies only to employers and workplaces that are operating remotely.

7. Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January – H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.

8. In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology – A court order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.

9. DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns – DHS and DOJ issued a joint final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.

10. CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico – On December 22, 2020, CBP issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico. “Essential travel” is still exempted.

11. Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’ – The Ninth Circuit ruled that USCIS’s denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.

12. DOJ Finalizes Rule Hiking Fees for EOIR Applications, Appeals, and Motions – DOJ issued a final rule effective January 19, 2021, adopting proposed fee amounts without change.

13. DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules – DOJ issued two final rules on asylum and withholding of removal-related standards and procedures.

14. USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status – USCIS expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.

15. USCIS Issues Lockbox Updates re Recent Delays – The agency announced significant delays in issuing receipt notices and provided tips for decreasing processing time.

16. DOJ Finalizes EOIR Rule on BIA Appeals Processing – DOJ is making multiple changes to the processing of appeals to the BIA and clarifying “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.”

17. Cato Institute Proposes 30 Deregulatory Actions for Biden Administration – The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals focus on agency measures to improve the process for legal immigrants.

18. In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy – USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020.

19. DHS, DOJ Issue Final Rule Tightening Asylum Regulations – DHS and DOJ issued a final rule tightening the regulations governing asylum, withholding of removal, and protections under the Convention Against Torture. The final rule generally adopts a proposed rule issued in June 2020 with few substantive changes.

20. USCIS Issues DACA Guidance Under Court Order – Following litigation related to DACA that resulted in a U.S. district court order, USCIS released guidance effective December 7, 2020.

21. TPS ‘Document Validity’ Extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan – DHS is automatically extending the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through October 4, 2021.

22. No Change in Spring 2021 Guidance for International Students – Nonimmigrant students should continue to abide by SEVP guidance issued in March 2020, a SEVP spokesperson said.

23. ABIL Global: France – This article provides updates on what Brexit means for British nationals residing in France.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – January 2021

1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions

On December 31, 2020, President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021, and stating that the proclamation “may be continued as necessary.” The nonimmigrant suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, and summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

The President also extended a memorandum on visa sanctions, to “continue in force until terminated by the President.” The memo states that “countries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic caused by SARS-CoV-2 [the COVID-19 pandemic] create unacceptable public health risks for Americans.” The earlier memo on which it is based states that “visa sanctions” will be imposed on such countries.

Details:

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2. State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021

The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only those applicants whose nonimmigrant visas expired within 12 months were eligible for an interview waiver. The expiration period is temporarily extended to 24 months. The policy, which was set to expire December 31, 2021, is now effective through March 31, 2021.

Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.

Details:

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3. Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years

U.S. Citizenship and Immigration Services (USCIS) announced that the filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.

The provision provides an opportunity for certain Liberian nationals and family members to obtain lawful permanent resident status in the United States.

Details:

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4. USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on December 30, 2020, that it is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.

This extension applies only to those whose applications remained pending on December 31, 2020. Parole (and employment authorization) for such parolees will be extended without interruption through June 30, 2021, or the date on which USCIS makes a final decision on the parolee’s Form I-955 (Application for CNMI Long-Term Resident Status) and Form I-765 (Application for Employment Authorization), whichever is earlier.

Details:

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5. Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance

On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which extends several expiring immigration programs. The E-Verify, Conrad 30, and non-minister religious worker green card programs are reauthorized through September 30, 2021, and the EB-5 Regional Center Program is reauthorized through June 30, 2021. These programs had been set to expire on December 28, 2020. The legislation also provides that certain nonimmigrants who pay taxes and meet other requirements may be eligible for a COVID-19 pandemic recovery rebate.

The Department of State’s Visa Bulletin for January 2021, which was released before Congress voted on this legislation, stated that with respect to the employment fourth preference Certain Religious Workers (SR) category, an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a March 1, 2018 final action date, and for Mexico, which would be subject to a December 1, 2018 final action date.”

With respect to the employment fifth preference (I5 and R5) categories, the bulletin states that an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except China-mainland born, which would be subject to an August 15, 2015 final action date, and for Vietnam, which would be subject to a September 15, 2017 final action date.”

Details:

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6. I-9 Flexibility Extended to January 31

U.S. Immigration and Customs Enforcement announced an additional 30-day extension to January 31, 2021, of flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to the COVID-19 pandemic. The flexibility applies only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation for the I-9 process.

Details:

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7. Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit H-2B Applications for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2021, or later will open on January 1, 2021. H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.

OFLC said it will randomly order all H-2B applications requesting a work start date of April 1 that are filed during the initial three calendar days (January 1-3) using randomization procedures published on March 4, 2019.

Details:

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8. In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology

On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL enjoining the Department of Labor (DOL) from implementing a final rule on adverse effect wage rate (AEWR) methodology for the temporary employment of H-2A nonimmigrants in non-range occupations. The court’s order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.

Effective immediately, and until further notice, H-2A job orders filed with the State Workforce Agency serving the area of intended employment on or after December 21, 2020, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations, must use the AEWRs in effect on December 20, 2020.

Details:

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9. DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns

The Departments of Homeland Security and Justice issued a final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.

The final rule responds to comments and reflects (and, in some instances, modifies) intervening changes made to the regulations since the proposed rule was published in July 2020.

Details:

  • Final rule,

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10. CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico

On December 22, 2020, U.S. Customs and Border Protection (CBP) issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico.

From December 22, 2020, through January 21, 2020, travel from Canada and Mexico into the United States via land ports of entry and ferry service is limited to “essential travel,” as defined in the notices. Essential travel includes, but is not limited to, returning U.S. citizens and lawful permanent residents; individuals traveling for medical purposes, to attend educational institutions, to work in the United States, for emergency response and public health purposes, to engage in lawful cross-border trade, and others. Those subject to the restrictions include those traveling for tourism, including sightseeing, recreation, gambling, or attending cultural events.

The notices do not apply to air, freight rail, or sea travel but do apply to passenger rail, passenger ferry travel, and pleasure boat travel.

Details:

  • CBP Mexico notice,
  • CBP Canada notice,

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11. Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’

In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.

The court was unpersuaded by USCIS’ reasoning, noting among other things that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer, and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’s reasoning “beyond saving.”

Details:

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12. DOJ Finalizes Rule Hiking Fees for EOIR Applications, Appeals, and Motions

The Department of Justice issued a final rule effective January 19, 2021, adopting fee amounts proposed in February 2020 without change. The rule increases the fees for Executive Office for Immigration Review (EOIR) applications, appeals, and motions subject to an EOIR-determined fee. The rule does not affect fees established by the Department of Homeland Security (DHS) for DHS forms for applications filed or submitted in EOIR proceedings. It does not affect the ability of applicants to submit fee waiver requests and does not add new fees. The final rule responds to comments received in response to the notice of proposed rulemaking.Some practitioners noted that it could be difficult for the incoming Biden administration to quickly come up with a remedy for the higher fees given competing urgent priorities.

Details:

  • Final rule,

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13. DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules

The Department of Justice issued two final rules on asylum and withholding of removal-related standards and procedures.

  • Final rule on asylum eligibility and procedural modifications. This final rule, effective January 19, 2021, responds to comments received on an interim final rule issued in July 2019 and “makes minor changes to regulations implemented or affected by the [interim final rule] for clarity and correction of typographical errors.”

Among other things, the rule adds a new mandatory bar to eligibility for asylum for those who enter or attempt to enter the United States “across the southern land border after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States.” Some exceptions apply. The rule also adds new limits on asylum eligibility for people who are subject to expedited removal.

  • Final rule on procedures for asylum and withholding of removal. This final rule, effective January 15, 2021, responds to comments received in response to a notice of proposed rulemaking issued in September 2020. The final rule adopts the proposed rule “with few changes.” The rule outlines requirements for filing a complete application for relief and the consequences of filing an incomplete application, establishes a 15-day filing deadline for applicants in “asylum-and-withholding-only proceedings” (calculated from the date of the first hearing before an immigration judge (IJ), with “good cause” extensions possible) and clarifies evidentiary standards in deciding such applications. It also adopts changes related to the 180-day asylum adjudication clock.

In a change from the proposed rule, which required the applicant to submit a fee receipt together with the application by the deadline set by the IJ, the final rule allows applicants to meet the filing deadline when they “cannot meet all requirements due to no fault of their own.” As an example, the final rule says an applicant can submit alternative proof of payment if the fee receipt has not yet been received, but in such instance, the fee receipt will be due by the deadline the IJ sets. If the IJ does not set a separate deadline for the fee receipt, the applicant must submit it within 45 days of the date of filing the associated application.

Details:

  • Final rule on asylum eligibility and procedural modifications,
  • Final rule on procedures for asylum and withholding of removal,

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14. USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status

U.S. Citizenship and Immigration Services (USCIS) expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.

The updated criteria “are well within the parameters of USCIS’ regulatory authority to determine, on a case-by-case basis, whether an interview is necessary to determine the admissibility of an alien applying for lawful permanent resident status under INA § 209,” the agency said, noting that the updates do not change the eligibility requirements to adjust status.  Although the updated criteria “may result in more applicants requested to appear for an interview, the changes are necessary to help ensure program integrity and support USCIS’ efforts to detect and prevent fraud and risks of harm to the United States,” the agency said.

Details:

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15. USCIS Issues Lockbox Updates re Recent Delays

U.S. Citizenship and Immigration Services (USCIS) announced that its lockbox facilities “have received a significant increase in filings in recent weeks.” The increase, along with COVID-19 pandemic-related restrictions, is causing “significant delays for processing receipt notices,” the agency said.

The notice states that USCIS will send a receipt notice to the mailing address provided on a properly filed form “normally within 30 days.” The agency provided several tips for decreasing the time it takes USCIS to process and send a receipt notice, including filing online, creating a USCIS online account and using the case status online tool to check status, and completing a Form G-1145, Notification of Application/Petition Acceptance, and clipping it to the front of the form to request a text message and/or email when USCIS accepts the form. The notice also includes additional tips for submitting evidence with application packages.

Details:

  • USCIS Lockbox Updates,

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16. DOJ Finalizes EOIR Rule on BIA Appeals Processing

The Department of Justice (DOJ) published a final rule, effective January 15, 2021, making multiple changes to processing appeals to the Board of Immigration Appeals (BIA) and to clarify “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.” The final rule responds to comments made on a proposed rule issued in August 2020 and adopts the proposed rule “with minor changes.”

Among other things, the final rule reduces the maximum allowable time for an extension of the briefing schedule for “good cause shown” from 90 days to 14 days. The rule limits the parties to one possible extension, consistent with BIA policy “not to grant second briefing extension requests.” The rule also “adopts simultaneous briefing schedules instead of consecutive briefing schedules for all cases.” In response to comments, DOJ also made adjustments to the biometrics timeline to allow for circumstances such as delays by the Department of Homeland Security or lack of sufficient notice.

Details:

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17. Cato Institute Proposes 30 Deregulatory Actions for Biden Administration

The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals “focus entirely on agency measures to improve the process for legal immigrants.”

The report notes that President Trump has reduced immigrant visa approvals by more than 80 percent during his term. The agenda compiled by Cato would “permit more legal migration and legal employment within the confines of the restrictive laws that Congress has passed.” Contributors include several members of the Alliance of Business Immigration Lawyers and other immigration law experts. Their proposals are organized into four sections: reforms affecting green card applicants on the path to permanent residence, reforms affecting nonimmigrants (visitors, students, and temporary workers), reforms affecting refugees, and big-picture reforms affecting more than one category.

Details:

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18. In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy

As a result of litigation in Vangala v. USCIS challenging USCIS’s blank-space rejection policy, where the agency rejected applications because of blank spaces, USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020. According to counsel, the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have had applications rejected.

Those who received a rejection notice dated after December 24, 2020, can contact plaintiffs’ counsel at [email protected].

Details:

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19. DHS, DOJ Issue Final Rule Tightening Asylum Regulations

On December 11, 2020, the Departments of Homeland Security (DHS) and Justice (DOJ) issued a final rule tightening the regulations governing asylum, withholding of removal, and protections under the Convention Against Torture. Despite more than 87,000 mostly negative comments, the final rule generally adopts a proposed rule issued on June 15, 2020, with few substantive changes.

The final rule provides that individuals found to have a credible fear will have their claims adjudicated by an immigration judge within the Executive Office for Immigration Review (EOIR) in “streamlined proceedings” and specifies the standard of review that applies. The final rule also amends the regulations related to the standards for adjudication of applications for asylum and statutory withholding, and revises the definition of “frivolous” as applied to filing an asylum application, among other things.

The final rule provides several adverse factors that will “ordinarily” result in asylum denials as a matter of discretion. Among those discretionary factors are missed deadlines for paying taxes, spending more than 14 days in any one country that permitted applications for similar protections, unlawfully entering or attempting to enter the United States “unless such entry or attempted entry was made in immediate flight from persecution or torture in a contiguous country”; and transiting through more than one country before arriving in the United States.

According to some commenters, the rule will severely restrict the ability of people fleeing persecution to apply for asylum in the United States and will make it very difficult for a variety of groups, such as those facing persecution on the basis of gender or sexual orientation, to obtain asylum. Also, the rule allows immigration judges to deny asylum applications without a hearing if they lack certain evidence, which could harm applicants without a lawyer.

Details:

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20. USCIS Issues DACA Guidance Under Court Order

Following litigation related to Deferred Action for Childhood Arrivals (DACA) that resulted in a U.S. district court order issued December 4, 2020, U.S. Citizenship and Immigration Services (USCIS) released guidance effective December 7, 2020. USCIS is:

  • Accepting first-time requests for consideration of deferred action under DACA, DACA renewal requests, and applications for advance parole documents based on the terms of the DACA policy in effect before September 5, 2017, and in accordance with the court’s order; and
  • Extending one-year grants of deferred action and one-year work authorization documents under DACA to two years.

USCIS said it will take “appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”

USCIS’ statement says that the Department of Homeland Security (DHS) “will comply with the order while it remains in effect, but DHS may seek relief from the order.”

Details:

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21. TPS ‘Document Validity’ Extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan

The Department of Homeland Security (DHS) is automatically extending the validity of temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal for nine months from the current expiration date of January 4, 2021, through October 4, 2021.

The notice provides information about the effects of several court actions on the timeframes for retention of TPS by beneficiaries from these countries in the United States.

Details:

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22. No Change in Spring 2021 Guidance for International Students

According to reports, a spokesperson for the Student and Exchange Visitor Program (SEVP) announced that spring 2021 guidance related to the COVID-19 pandemic for international students in programs in “hybrid” or online modes will remain the same as before. “Nonimmigrant students should continue to abide by SEVP guidance originally issued in March 2020. The guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID-19,” said Carissa Cutrell, SEVP Public Affairs Officer.

The announcement followed a multi-association letter led by the American Council on Education (ACE) and signed by NAFSA: Association of International Educators and other higher education associations asking U.S. Immigration and Customs Enforcement and SEVP for COVID-19 guidance for the spring term “as soon as possible,” and to provide for “maximum flexibility.” The letter said that currently, institutions and students are following the March guidance for F and M nonimmigrant students that was updated on August 7, 2020. The guidance allows international students on F and M visas to remain in the United States if their programs need to use an online-only instruction platform during the pandemic, the letter noted. “Unfortunately, the guidance does not allow new international students to travel to the United States to begin a program if that program is online only due to COVID-19, or allow institutions to issue a Form I-20 ‘Certificate of Eligibility for Nonimmigrant Student Status’ for those new students,” the letter said.

The letter cited a recent survey, by the Institute of International Education and nine partner higher education associations, that found a 43 percent drop in international student enrollment in U.S. institutions this semester. The survey also found that 99 percent of institutions are either holding classes online or implementing a hybrid model.

Details:

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23. ABIL Global: France

This article provides updates on what Brexit means for British nationals residing in France.

On December 31, 2020, at midnight, the Brexit transition period ended. The United Kingdom is no longer part of the European Union (EU).

British nationals already residing in France can submit “Withdrawal Agreement” residence permit applications. The request can be made on the internet. All British nationals already residing in France before December 31, 2020, are eligible to apply for a residence permit, in accordance with the provisions of the Brexit agreement signed between the UK and the EU. By June 30, 2021, all British nationals wishing to benefit from the provisions of the Brexit agreement to retain their rights to stay and work in France must have a French residence permit.

Applicants must upload documentation, including passport identity pages; proof establishing the date the applicant moved to France, such as a property certificate issued by a notary, a home insurance contract, a home insurance certificate or an employment contract; and documents relating to the specific situation of each applicant. For example, an employee must provide a copy of their most recent pay slip, while a student must provide proof of enrollment in a school or university. After completing these steps, the applicant will receive an application confirmation by email, with a reference number confirming the filing.

Once the file has been processed, an email will be sent to the candidate to make an appointment at the prefecture to finalize the file (fingerprinting, photo, and proof of payment of fees).

It is not yet clear how the applicant will receive the residence permit when it becomes available, whether by post to his or her home in France or by going to the Prefecture a second time.

Permit Types

Presence of less than five years

British nationals who resided in France for less than five years as of December 31, 2020, can also apply for a residence permit, depending on their status (e.g., student, employee, temporary worker, posted worker, self-employed professional, unemployed person, family member, long-term visitor). They will be issued a residence permit in accordance with the agreement bearing the specific category, such as “Withdrawal agreement—employee.”

Applicants are advised to prepare certain documents, such as:

  • Passport or identity card
  • Proof of address in France
  • Identity photographs
  • Proof of resources: employment contract, pay slips, bank statements
  • Proof of professional activity: work certificate signed by the employer confirming the date of the start of employment in France
  • Proof of the purpose of the stay in France over the past five years (e.g., employment contract)

British nationals who have resided in France for less than five years as of December 31, 2020, can also apply for a resident card when they can prove that they have lived in France for five years. For example, a British national residing in France as of December 31, 2017, can apply for a resident card as of December 31, 2022.

Presence of five years or more

British nationals who have resided for five years or more in France as of December 31, 2020, are eligible to obtain a resident card valid for 10 years.

Applicants are advised to prepare certain documents, such as:

  • Passport or identity card
  • Proof of address in France
  • Three identity photographs
  • Proof of presence in France over the past five years: one document per half-year (e.g., rent receipts, energy bills)
  • Proof of resources: employment contract, pay slips, bank statements

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New Publications and Items of Interest

Immigration Policy Tracking Project. The IPTP is designed to support reform and advocacy by cataloging every known Trump policy, including the many lesser-known but significant changes not generally reported. The website includes rules, directives, form changes, memos, Attorney General certifications, executive orders, presidential proclamations, pending rule changes, and other actions. The website contains more than 1,000 entries and is regularly updated to reflect new policies. Each IPTP entry includes the underlying policy documents and any relevant predecessor policies or documents. The entries are searchable and can be sorted in a variety of ways, such as chronologically, by subject matter, by agency, by type of action, or by status of policy change. The website is at https://immpolicytracking.org/?next=/home/. Registration is available at https://immpolicytracking.org/?next=/home/#/tab-request-access. IPTP welcomes suggestions for enhancing IPTP’s accuracy and completeness via the “Feedback” link connected to each entry, or general suggestions or documents can be submitted to [email protected].

Catalog of changes under the Trump administration. The Migration Policy Institute offers a comprehensive catalog, by topic, of more than 400 executive actions on immigration over the past four years, including dates and underlying source materials. https://www.migrationpolicy.org/research/us-immigration-system-changes-trump-presidency

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

  • CBP:

Department of Labor:

  • Office of Foreign Labor Certification:

State Department: https://www.state.gov/coronavirus/

Justice Department

Agency Twitter Accounts

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month.  Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released a new podcast episode in its series Statutes of Liberty. A panel discusses the complicated logistics of international holiday travel during the COVID-19 pandemic.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) were quoted by the Times of India in “U.S. Extends Ban on H-1B, L-1 Till March.” Mr. Mehta said the visa ban extension contradicts its rationale to protect U.S. jobs after President Trump’s recent claim that the unemployment rate is below 6.7%. “It is Trump’s last gasp to hurt immigration that benefits the U.S. as the skilled workers impacted promote economic recovery. Although the ban was enjoined by the court in NAM (National Association of Manufacturers) v Trump, that ruling was limited to the plaintiff organizations that brought the suit. Therefore, the extension will still be effective on others.” Mr. Yale-Loehr said that “[b]arring temporary foreign workers from entering the country was a mistake in June. It remains a mistake today.” https://timesofindia.indiatimes.com/business/international-business/us-extends-ban-on-h-1b-l-1-till-march/articleshow/80068643.cms Mr. Mehta authored a new blog posting. “Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020” is at http://blog.cyrusmehta.com/2020/12/top-ten-most-viewed-posts-on-the-insightful-immigration-blog-in-2020.html.

Mr. Mehta co-authored a blog post with Kaitlyn Box that was heavily cited in an article in India West, on the Ninth Circuit Court of Appeals ruling that recognized the occupation of computer programmer as a specialty occupation. “In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the [Occupational Outlook Handbook] may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions,” he said

Mr. Mehta; Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm); Greg Siskind, of Siskind Susser, PC; William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US); and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) contributed recommendations to “Deregulating Legal Immigration: A Blueprint for Agency Action,” published by the Cato Institute. The article presents 30 deregulatory proposals by 15 authors for consideration by the Biden administration. The proposals focus on agency measures to improve the process for legal immigrants. The Cato article is at https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action. A related op-ed, “Leading Legal Experts Urge Aggressive Immigration Actions,” published by The Hill, is at https://thehill.com/blogs/congress-blog/politics/530948-leading-legal-experts-urge-aggressive-immigration-actions.

Mr. Mehta’s views on the court victory in favor of computer programmers under the H-1B visa are reflected in “Big Win! U.S. Appeals Court Rules in Favour of Grant of H-1B Visas to Computer Programmers,” Times of India,

Mr. Mehta’s weekly articles, along with the articles of other lawyers in his firm, were noted in this ILW editorial, https://discuss.ilw.com/articles/recent-issues/396807-dec-1-cyrus-mehta-articles

Mr. Mehta and Kaitlyn Box co-authored several new blog postings: “Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,” ; and “Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19,” https://bit.ly/3aoIXDH Mr. Mehta was interviewed by Nikhila Natarajan of Indo Asian News Services on wide-ranging issues regarding immigration under the Trump administration, especially during the transition, and what the future bodes for immigration under the Biden-Harris administration. https://www.youtube.com/watch?v=fRzHjtyW2r4&feature=youtu.be (video) Mr. Mehta’s views on the Department of Justice complaint accusing Facebook of citizenship discrimination are reflected in a Bloomberg Law article at https://news.bloomberglaw.com/daily-labor-report/dojs-facebook-allegations-risk-chilling-green-card-sponsorship?context=search&index=0. “This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals,” he said. “If an employer scrupulously follows the Labor Department’s complex rules governing the labor certification process, the employer could still be penalized by another branch of the federal government, based on this complaint. You can’t just have them as guest workers and then throw them out after a few years.”Mr. Mehta spoke on a panel, “Ethical Issues in Pro Bono Representation 2020,” under the aegis of the Practising Law Institute on December 10, 2020. The program highlighted ethical issues arising in pro bono representation across different legal disciplines. Mr. Mehta spoke about ethical issues arising in immigration pro bono practice with an emphasis on additional challenges that have arisen for immigration practitioners during the COVID-19 pandemic. https://www.pli.edu/programs/ethical-issues-in-pro-bono-representation

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in “Inmigrantes de bajos recursos, los principales afectados por la política migratoria de Trump en el 2020,” about the effects of President Trump’s immigration policy in 2020 on low-income immigrants. Mr. Yale-Loehr noted that the Trump administration revised procedural rules “to allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This particularly harms applicants without a lawyer. This rule is an asylum hater’s dream. It guts the U.S. refugee system and ultimately very few people will be able to get [asylum].” https://www.univision.com/noticias/inmigracion/la-politica-migratoria-de-trump-en-2020 (Spanish)

Mr. Yale-Loehr was quoted by Law360 in “Top Immigration Cases of 2020: Year in Review.” He said the flurry of immigration-related litigation in 2020 was “unprecedented. I’ve seen more immigration litigation in 2020 than I have in any other year in my 35 years of experience in immigration law.” Mr. Yale-Loehr commented on DHS v. Thuraissigiam, a Supreme Court case that focused on prior expedited removal policy: “That was a very scary decision. It lays the groundwork for restricting immigrants’ rights to sue in federal court in a variety of ways. We’ll have to see whether the case has legs, or whether it’s sort of relegated to its own specific facts.” https://www.law360.com/articles/1333361/top-immigration-cases-of-2020-year-in-review (registration required)Mr. Yale-Loehr was quoted by Congressional Quarterly News in “DOJ Finalizes Substantial Fee Hikes for Migrants Fighting Deportation.” He said it could be difficult for the incoming Biden administration to quickly come up with a remedy for the higher fees. “Given the fact that the Biden administration has so many competing priorities—like the pandemic, the economy, and other bigger immigration issues—it could take quite a while before the Biden administration could get around to proposing a rule to undo these changes,” he said. (Subscription required.)Mr. Yale-Loehr was quoted by Univision in “Este viernes el gobierno publica regla final que endurece requisitos para pedir asilo en EEUU,” on a new final rule that toughens requirements to request asylum in the United States. The final rule “will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” he said. Among other things, Mr. Yale-Loehr cited the imposition of “various prohibitions, including failure to pay taxes.” He also mentioned a new definition of the term “persecution” that will impose a higher standard than the previous definition. He noted that the rule redefines membership in a “particular social group,” a change that “will generally exclude people who are fleeing persecution because they oppose gangs in their country. It will also restrict the possibility of applying for asylum based on gender. Even women fleeing sexual slavery at the hands of ISIS may not qualify for asylum,” he warned. Another modification in the final rule concerns the procedure to allow immigration judges to reject asylum applications without a hearing if they lack certain evidence, he said. “This will be particularly damaging to applicants without an attorney representing them.” Mr. Yale-Loehr characterized the rule as “the asylum hater’s dream. It will gut the system and, indeed, very few people will be able to obtain protection in our country.” He noted that the rule is scheduled to take effect in 30 days, just before the inauguration. “The courts could eventually overthrow it, arguing that it violates U.S. and international law,” he noted. https://www.univision.com/noticias/inmigracion/gobierno-publica-este-viernes-regla-final-de-asilo (Spanish)Mr. Yale-Loehr was quoted by the Washington Post in “A Maryland Immigrant Hoped to Delay His Deportation Until Biden Took Office. It Didn’t Work.” The article reports on a case in which a man who had been in the United States for 20 years and has three small U.S.-born children was followed in his car by an unmarked vehicle, pulled over, and deported. He said that unilateral actions by ICE grew increasingly common under the Trump administration, but vary by regional office. Mr. Yale-Loehr said that although such moves are legal, they go against the spirit of laws passed in sanctuary jurisdictions such as Prince George’s County, Maryland (where the incident occurred), which explicitly barred county agencies from engaging in immigration enforcement. https://www.washingtonpost.com/local/public-safety/maryland-immigrant-deported/2020/12/07/0678c202-30d1-11eb-96c2-aac3f162215d_story.html Mr. Yale-Loehr was quoted in the San Francisco Chronicle in “New Asylum Rule Bars Gays, Lesbians Facing Persecution, Immigrants Threatened With Violence.” Mr. Yale-Loehr said the rule is “an asylum-hater’s dream” that “will gut the U.S. asylum system. Effectively, very few people will be able to win asylum.” https://www.sfchronicle.com/nation/article/New-asylum-rule-bars-gays-lesbians-facing-15795663.php Mr. Yale-Loehr was quoted by the Dallas Morning News in “Will DACA Survive the Litigation Roller Coaster?” He said that an upcoming decision by a federal judge who was appointed by former President George W. Bush could be grim for DACA recipients. “Given Judge Hanen’s past decisions on this issue, I think he is likely to rule that the DACA program is illegal.” Appeals, or the issuance of new executive measures, could result in lengthy litigation before there’s a final decision, he said. https://www.dallasnews.com/news/immigration/2020/12/11/will-daca-survive-the-litigation-rollercoaster/ Mr. Yale-Loehr was quoted by Univision in “Cómo la regla final de asilo del gobierno de Trump deja sin opciones a los migrantes.” He said that a new final rule on asylum “will radically restrict the ability of people fleeing persecution to obtain asylum in the United States.” The final rule also revised the procedural rules “to allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This will particularly harm applicants without a lawyer,” he noted. https://www.univision.com/noticias/inmigracion/estas-son-las-claves-de-la-regla-final-de-asilo-de-trump
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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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