By Angelo A. Paparelli and Stephen Yale-Loehr

As a new administration takes office on January 20, and the tantalizing prospect of enlightened immigration reforms looms on the horizon, an intriguing question has surfaced on Twitter:

“Is there a progressive version of Stephen Miller? Someone who has (1) put in the time to understand how the immigration system works in great detail, (2) relentlessly committed to changing the system, and (3) is actually politically effective?” Austin Kocher, PhD

As grizzled and tireless proponents of a just immigration system, we humbly nominate ourselves for (1) and (2), and for (3) propose the American Immigration Lawyers Association (AILA). To be sure, our audacity notwithstanding, others are more worthy. Many experts have suggested ways to restore America’s historic stature as a welcoming nation of immigrants. Continue Reading Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration

By: Dawn M. Lurie

Today, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year.  This announcement was expected in light of the increase in COVID-19 cases across the country. The Department of Homeland Security (DHS) agreed to extend the policy until December 31, 2020.

Continue Reading ICE Extends COVID I-9 Rules to December 31-Happy New Year!

By: Dawn M. Lurie

Acting Secretary of Homeland Security Chad F. Wolf extended the Temporary Protected Status (TPS) designation for South Sudan for 18 months, from November 3, 2020 through May 2, 2022. Current beneficiaries who want to maintain their status must re-register Nov. 2, 2020, through January 4, 2021.

The announcement also stated that U.S. Citizenship and Immigration Services (USCIS) automatically extended the validity of certain Employment Authorization Documents (EADs) issued under the TPS designation for South Sudan through May 1, 2021. The information was published in the Federal Register on November 2, 2020.

Continue Reading Last Minute TPS Extension for South Sudan

Buried within the Immigration and Customs Enforcement (ICE) website is seemingly recent guidance regarding how to update “virtual” Forms I-9 after companies return to “normal business operations.” While it’s unclear when the guidance was actually published, we have been predicting an update to the U.S. Citizenship and Immigration Services (USCIS) Form I-9 Examples Related to Temporary COVID-19 Policies released in late June and further updated on July 27. So the fact that this guidance is now appearing comes as no surprise.

By way of background, on March 20, 2020, the Department of Homeland Security (DHS) announced interim guidelines to temporarily ease I-9 compliance for employers operating remotely as a result of the COVID-19 pandemic. ICE has since issued several extensions to the “virtual” guidance, with the latest one currently set to expire on November 19. Under this guidance, employers are authorized to complete the Section 2 verification or Section 3 re-verification process remotely, relaxing the USCIS Form I-9 instructions mandating an in-person review of work eligibility and identification documents. ICE expects the worksite to be 100% remote to utilize the relaxed guidance. This exception, therefore, is not available when employees are physically present at an employer’s work location.

As we have discussed in prior blog postings, virtual I-9 completion is a “two-touch” process. Physical inspection must take place within three business days after normal operations resume. While “normal operations” have not yet been defined by the government, we expect that individual companies – not the government – will define the resumption of “normal operations.” Accordingly, we continue to recommend that businesses memorialize decisions, including “phase-ins” and other timelines, individual employee anomalies, and any related protocols adopted relating to the timing of returning to work.

Continue Reading Hidden ICE Guidance On Virtual I-9s

As many of us started to think about weekend plans, this afternoon, USCIS promised us an interesting Monday with its latest announcement. Effective Monday, October 19, 2020, the premium processing fee associated with the expedited 15 day review of eligible petitions filed with USCIS will increase from $1,440 to $2,500.  H-2B and R-1 petitions however will see a minimal increase from $1,440 to $1,500. This fee increase is in line with the Continuing Appropriations Act, 2021 and Other Extensions Act, which was signed into law on September 30, 2020.

Premium Processing submissions ( Form I-907)  postmarked on or after October 19, 2020, must include the new fee amount.  Premium Processing is often used to ensure  more reasonable adjudication timelines in a number of visa  categories including H-1B, L-1 and O-1 temporary visa categories, as well as some employment based green card sponsorships.  Standard case processing for these categories often range anywhere from three to eight months.

By: Angelo A. Paparelli

The U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) last week affirmed the truth of the Upton Sinclair maxim on just how hard it is get someone “to understand something, when his [or her] salary depends on . . . not understanding it.”

In this case, federal immigration bureaucrats have had three decades to comprehend the delicate legislative balance of business needs and labor protections that produced the H-1B visa category for workers in specialty occupations.  For most of the ensuing years they seemed to appreciate that balance.  Yet, now, with the fate of their Executive Branch leader and paymaster up for a plebiscite in three weeks, their comprehension has (unsurprisingly) failed.  As this blog post will explain, because the needs and best interests of employers and workers (citizen and noncitizen alike) are intertwined, changing the rules of play late in the game without fair notice in order to favor one team over others will only hurt everyone. Continue Reading Immigration Rush to Judgment – No Good Cause for New H-1B Rules in a Hurry

On September 15, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 60-day extension to the flexibilities in rules related to Form I-9 completion.  This extension relates to the relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation. Initially granted in March, ICE has issued several extensions, with the latest one now set to expire on November 19, 2020.  ICE previously granted 30-day extensions, but likely offered this longer time frame due to the ongoing COVID-19 pandemic. Continue Reading ICE Stays the Course and Extends I-9 Flexibility

 

Seyfarth Synopsis: In light of the recent Supreme Court decision, DHS continues the DACA program, but implements new guidance as it conducts a complete review of the program.   

On July 28, 2020, the Department of Homeland Security (“DHS”) issued a memo, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” in response to the recent Supreme Court Case, Department of Homeland Security v. Regents of the University of California (“Regents”) that allowed the Deferred Action for Childhood Arrivals (“DACA”) program to continue based on regulatory grounds, as we reported in our June 19, 2020 post.  The  Supreme Court found that the Trump administration’s 2017 rescission, reported here of DACA was done in “an arbitrary and capricious way” that violated the Administrative Procedure Act (“APA”). Continue Reading Dreamers Face DACA Reboot

On August 25, the United States Citizenship and Immigration Service (“USCIS”) Deputy Director for Policy, Joseph Edlow, confirmed the agency no longer intends to furlough 13,000 employees at the end of the month. The message, circulating on social media and now posted on the USCIS website notes that while the doors of the agency will remain open through the end of FY 2020, there will be “aggressive spending” reductions impacting services across the board. USCIS is largely funded by filing fees, which support the agency’s operations, but USCIS claims the fees are not sufficient and accordingly announced a fee increase to take effect later this year.

Deputy Director Edlow warns that there will be operational impacts as a result of foregoing the planned furlough, that may include increased processing times for pending case queries, longer case processing times, and increased adjudication times for adjusting status and naturalizing. The message also notes that there is no guarantee that future furloughs can be avoided, leading him to call on Congress to take long-term action. Continue Reading USCIS Furlough Averted, but Crisis Still Looms

On August 18, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 30-day extension to the flexibilities in rules related to Form I-9 compliance. This relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation was initially granted in March and will now expire on September 19, 2020.  Continue Reading The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility