IMMIGRATION ALERT COVID-19 PANDEMIC

IMMIGRATION ALERT

The world is confronting the potentially deadly COVID-19 pandemic. Preliminary reports from the Center for Disease Control (CDC) indicate that the virus is primarily spread between people who are in close contact.  The virus can also be spread before people show symptoms. The virus can remain alive on surfaces–such as court tables–for days. The pandemic has caused the President to issue a national declaration of emergency.

To slow the spread of the virus the CDC advises individuals to increase their physical distance from other people to about 6 feet. Id. Consequently, social gatherings, business conferences, sporting events, and religious ceremonies have been canceled or postponed across the nation.

As the coronavirus situation continues to evolve, LAW OFFICES OF NORKA M. SCHELL, LLC is focused on ensuring the health and safety of our employees and their families.  At the same time, we remain committed to delivering the same level of service our clients expect and deserve.  We also aim to support our community with cutting-edge thought leadership throughout the coronavirus pandemic.

We maintain a business continuity plan designed to minimize significant business interruptions and facilitate uninterrupted service.  Precautionary actions include ongoing briefing on health recommendations and safety measures; banning non-essential travel; amplified cleaning and sanitization; and enabling remote work options to encourage self-quarantine and social distancing.

We are actively following the latest reports and recommendations from the Centers for Disease Control (CDC), and the World Health Organization (WHO) to help us develop our policies.

Contact us directly for any further questions you may have.

 

 

 

Coronavirus (COVID-19)

Below is the guidance we have received for visitation of detainees.

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Effective March 13, 2020, U.S. Immigration and Customs Enforcement (ICE) will temporarily suspend social visitation at all its detention facilities until further notice in order to mitigate the for potential transmission of the novel coronavirus (COVID-19). 

Unless and until it is determined to pose a risk to the safety and security of the facility, legal visitation should be permitted to continue.

  • Non-contact legal visitation should be offered first to limit exposure to detainees.

o        If the legal visitation requires contact, ICE will permit the visit but              reinforce the recommendation for non-contact visitation.

  • Should in-person legal visitation be suspended, ICE will ensure detainee communication with legal representatives continues unimpeded via Skype or teleconference as available.  ICE will also take steps to facilitate such communication, in the absence of visitation, through extended access to telephones and other reasonable means.

Notwithstanding the above, Members of Congress, Congressional Member Delegations (CODELs), and Congressional Staff Delegations (STAFFDELs) will not be prevented from accessing facilities for the purpose of conducting oversight.  However, in order to safeguard visitors, detainees, and ICE and facility staff, visitors may be subject to special screening procedures.  For example, if the public is limited access to the facility due to potential COVID-19 exposure by a detainee or detainees, raising concern about the potential spread of the virus to visitors, notification should be made to the CODEL or STAFFDEL to inform its decision whether to conduct a visit.

In appropriate circumstances, ICE may impose additional requirements, such as requiring the visitors to wear protective equipment.  If there is an articulable concern that a visitor or visitors may transmit COVID-19 to detainees, ICE may ask them to leave or require them to wear equipment which will prevent the spread of the virus and/or require them to go through similar testing as employees of the detention facility.  All visitors should be advised of standard hygiene practices to help prevent the spread of disease, i.e., washing hands and avoiding close contact, and should be made aware of available washrooms within the facility.

Although ICE has no confirmed cases of COVID-19 within its detained population, ICE has decided to revise its visitation practices during this time.

 

 

H-1B Registration

“H-1B Registration with INSZoom” Feature Release

U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year (FY) 2021 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 20. During this period, prospective petitioners and representatives will be able to fill out prospective petitioner and beneficiary information and submit their registrations.

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to: 1) register each beneficiary electronically for the selection process and 2) pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. If USCIS receives enough registrations by March 20, it will randomly select registrations and send selection notifications via users’ USCIS online accounts.

Immigration in 2020

The past year has arguably been the Trump administration’s most successful one in its quest to restrict asylum at the U.S.-Mexico border, overhaul the nation’s legal immigration system, crack down on undocumented immigrants, alter America’s status as a safe haven for refugees and challenge decades of bipartisan consensus that robust immigration is key to America’s economic and social prosperity.

The 2020 promises to be a big year for employment-related immigration developments.

Here are the top five to watch.

USCIS Fees

Applying for a visa will get a lot more expensive. That’s if the final version of U.S. Citizenship and Immigration Services’ new fee schedule looks anything like its proposal—and it likely will. And that fee increase will be especially acute for employers of temporary foreign workers.

The USCIS also is proposing to increase the fee for named workers on H-2A agricultural guest worker visas and H-2B nonagricultural, seasonal guest worker visas while limiting the number of named workers who can be listed on each petition. That means employers seeking large numbers of guest workers will be on the hook for potentially hundreds of thousands of dollars each season.

The proposed rule is a sweeping attack on the United States immigration and naturalization system designed to limit immigration, asylum, and naturalization, with a disproportionate impact on communities of color and non-wealthy immigrants. The proposal includes a plan to transfer over $100 million of USCIS funds to Immigration and Customs Enforcement (ICE), the agency responsible for enforcement.

H-1B Changes

Electronic preregistration for the H-1B lottery becomes official March 1, 2020. Authorized by a January 2019 regulation, the new process will allow employers to enter the lottery for the 85,000 visas that become available Oct. 1, 2020, without having to prepare a full petition and supporting documentation.

Preregistration has the potential to streamline the H-1B application process, but also could cause problems for smaller employers trying to compete for the visas.

Also expect to see a new proposed rule from the USCIS that would redefine an H-1B “specialty occupation” to restrict eligibility to the “best and brightest” applicants. The proposal likely will reflect how the agency already is treating H-1B petitions, but codifying the practice would make it more difficult for businesses to challenge visa denials in court.

DACA Decision

The U.S. Supreme Court likely will rule in June on whether the Trump administration legally ended the Deferred Action for Childhood Arrivals program, which provides deportation protections and work permits to young, undocumented immigrants who came to the U.S. as children.

The justices’ reaction to oral arguments Nov. 12 appears to indicate that the court will back the administration’s curtailment of the seven-year program.

One report by pro-immigration groups estimated that ending DACA will result in an average of 30,000 DACA recipients losing their jobs every month. Another report concluded that removing DACA workers from the economy would cause a $460.3 billion drop in the national gross domestic product over the next decade.

The question remains whether Congress would be willing to pass legislation providing legal status to DACA recipients so close to the election. The House passed such a bill in June, but the Senate hasn’t made any move to take it up.

Optional Practical Training

Optional practical training, which allows foreign graduates of U.S. colleges and universities to work in the U.S., could see big changes next year.

A federal judge in Washington has indicated a willingness to entertain a lawsuit by a group of U.S.-born tech workers who say OPT is illegal and harms their job prospects. The potential for the case to upend OPT recently prompted a wave of amicus briefs.

“Without OPT and STEM OPT, employers would suddenly find fewer STEM-educated persons to take positions in the United States for jobs that cannot be filled with native employees alone,” according to one brief filed by 52 businesses and 11 industry associations.

Immigration and Customs Enforcement, which manages OPT, also has revived its plan to overhaul the regulations governing the program. That change, combined with another proposal to limit how long international students can remain in the U.S., could upend how the program operates in the future—if the courts allow it to continue.

H-4 Work Permits

A longtime Trump administration promise to rescind a program providing work permits to certain H-4 spouses of H-1B workers likely will come to fruition in 2020.

A Homeland Security Department proposal has been under review at the White House Office of Management and Budget since February 2018. The agency now anticipates a spring 2020 release for public comment, which would mean a summer or early fall implementation of the final regulation.

A lawsuit against the program brought by U.S.-born tech workers also recently gained traction when a federal appeals court in Washington said the workers showed that it’s causing them to face increased job competition. Now back with the federal district court, the case could result in a finding next year that the program is illegal.

That would put more than 120,000 H-4 spouses, mostly women from India, out of work.

By Laura D. Francis Bloomberg Law.

By Camilo Moyntoya-Galvez Dec. 31, 2019/ 6:59 AM/ CBS News

DUI Convictions Affect Good Moral Character (GMC) Requirements

Release Date: 
U.S. Citizenship and Immigration Services today announced new policy guidance implementing two decisions from the attorney general regarding how two or more DUI convictions affect good moral character (GMC) requirements and how post-sentencing changes to criminal sentences affect convictions and sentences for immigration purposes.

On Oct. 25, the attorney general decided in Matter of Castillo-Perez  that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination. When applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses. The term DUI includes all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Also on Oct. 25, the attorney general decided in Matter of Thomas and Thompson that the definition of “term of imprisonment or a sentence” generally refers to an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

“In response to two decisions from the attorney general, USCIS has updated policy guidance on establishing good moral character for immigration purposes,” said USCIS Deputy Director Mark Koumans. “As the attorney general directed, this guidance enhances public safety by ensuring that USCIS adjudicators consider driving under the influence convictions with the appropriate standard of scrutiny.”

Under U.S. immigration law, there are consequences for criminal convictions and sentences that could render applicants inadmissible, deportable, or ineligible for an immigration benefit. Also, certain immigration benefits require an applicant to demonstrate that an alien has GMC to be eligible for the benefit. For example, naturalization applicants must demonstrate GMC.

H-1B Visa Registration

USCIS Implements $10 Fee for H-1B Visa Registration
Release Date: 
The H-1B visa is one of the most critical U.S. work visas as it allows certain professionals performing in a specialty occupation to obtain a 3-year work visa that can be renewed up to six years. The U.S. Citizenship and Immigration Service (USCIS) approves 85,000 cap-subject H-1B visa petitions annually, with 20,000 reserved for U.S. master’s degree positions and 65,000 for bachelor degree positions.
U.S. Citizenship and Immigration Services today announced a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers, once it implements the electronic registration system. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

“This effort will help implement a more efficient and effective H-1B cap selection process,” said USCIS Acting Director Ken Cuccinelli. “The electronic registration system is part of an agency-wide initiative to modernize our immigration system while deterring fraud, improving vetting procedures and strengthening program integrity.”

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.

USCIS Reaches H-2B Cap for First Half of FY 2020

Release Date: 
U.S. Citizenship and Immigration Services has reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2020.

Nov. 15 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2020. USCIS will reject new cap-subject H-2B petitions received after Nov. 15 that request an employment start date before April 1, 2020.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct.1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

For more information, H-2B petitioners can visit the Cap Count for H-2B Nonimmigrants page.

 

Proposed Two New Rules for Immigrants and Asylum Seekers

On November 14, 2019, the Trump Administration published two proposed rules that will detrimentally impact individuals who are seeking to legally live and work in the United States. One would adjust USCIS’s fees by a weighted average increase of 21 percent, add new fees, and make other changes.

  1.  DHS proposed rule which would make multiple changes to the regulations governing asylum applications and eligibility for employment. See Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Proposed Rules.

2. DHS proposed rule which would make changes to the USCIS fee schedule. DHS proposes to adjust fees by a weighted average increase of 21 percent,             add new fees, and make other changes, including form changes and the introduction of several new forms. See Federal Register / Vol. 84, No. 220 /               Thursday, November 14, 2019 / Proposed Rules.

Comments on these proposed rules are due December 16, 2019.

THE VISAS OF LOVE

What does love mean for couples who are in long-distance relationships halfway around the globe?

For couples in long-distance relationships, love usually means one of them moves to the United States to take the relationship to the next level. This move is made possible through the K visa, which allows a U.S. citizen (USC) to petition for his or her fiancé(e) or spouse, the fiancé(e)’s the unmarried minor child (K-2), and the spouse’s unmarried minor child (K-4) to enter the United States.

The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The foreign-citizen will then apply for adjustment of status to a permanent resident (LPR) with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). Because a fiancé(e) visa permits the holder to immigrate to the U.S. and marry a U.S. citizen shortly after arrival in the United States, the fiancé(e) must meet some of the requirements of an immigrant visa. Eligible children of K-1 visa applicants receive K-2 visas.

However, processing a K visa petition requires mental acuity and endless patience. There are many documents to complete and varing waiting periods for the completion and approval of the steps toward obtaining the visa. Throughout the whole process, both the petitioner and beneficiary must demonstrate that they have a bona fide romantic relationship.

The International Marriage Broker Regulation Act (IMBRA) amended and supplemented Immigration and Nationality Act (INA) requires that petitioner of a K-1 or K-3 visa disclose, as part of this petition, information of any criminal convictions for specific crimes. The USCIS guidance provides that if the petitioner has been convicted of any of the specific crimes listed on the INA, or if the USCIS learns of the petitioner’s convictions, he or she is required to submit certified copies of all court and police records showing the charges and dispositions of every conviction. If the petition is approved, the U.S. Department of State will disclose this information to the beneficiary during the consular interview.

U.S. SUPREME COURT WILL HEAR ASYLUM SEEKERS’ RIGHTS IN EXPEDITED REMOVAL CASES

What occurs when a person subject to expedited removal has fled their country of origin due to fear of persecution?

A noncitizen seeking asylum to flee persecution in their country of origin are not subject to expedited removal. If a noncitizen states to a CBP officer that they fear returning to their country or origin, or that they intend to apply for asylum, the officer must refer the noncitizen to an asylum officer, who will then conduct an interview of the noncitizen to determine whether he or she has a “credible fear” of persecution or torture if returned to his or her country of origin. If the noncitizen satisfies the credible fear standard, the applicant will be taken out of the expedited removal process and will then be placed in removal proceedings before an immigration judge, who ultimately will determine whether the migrant has a valid asylum claim. If the immigration judge determines that the noncitizen does have a credible fear of persecution, the detainee may apply for asylum.

The Supreme Court said Friday, October 18, 2019, it will review a lower court decision that hinders the Trump administration’s desire to more quickly deport undocumented immigrants after their requests for asylum have been denied.

The case centers on Vijayakumar Thuraissigiam, a native citizen of Sri Lanka who’s a member of an ethnic minority group. He was arrested 25 yards north of the US-Mexico border and placed in expedited removal proceedings. That fast-track deportation procedure allows immigration authorities to remove an individual without a hearing before an immigration judge.

Thuraissigiam applied for asylum, citing fear of persecution in Sri Lanka, and an asylum officer determined he had not established a credible fear of persecution. A supervising officer and an immigration judge affirmed the decision. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding.

 Thuraissigiam went to federal district court, arguing that the expedited removal violated his constitutional rights. A district court said the law did not authorize the court to hear his claims. The 9th US Circuit Court of Appeals agreed, but said the law violates the Suspension Clause, which, the court held, requires Thuraissigiam, even as a noncitizen, to have a “meaningful opportunity” to demonstrate that he is being held against the law.

 The Trump administration argued in briefs that the law — which sharply limits judicial review to final orders of removal — was passed so that the asylum system would not be abused. The law offers some exceptions, but they were not met by Thuraissigiam.