July 2020 was a very active month and we posted updates on Google and LinkedIn on these and other issues:
▪ SEVP guidance was modified affecting F-1 students and Harvard/MIT sued DHS and prevailed;
▪ Trump’s H-1B Visa Ban was challenged in court by a group of Plaintiffs who were seeking Injunctive relief against the H-1B Visa ban;
▪ News of EAD and Green Card production delays came to light;
▪ Public charge regulations were struck down given the current COVID-19 pandemic; and
▪ USCIS came to Congress seeking $1.2 billion in funds to save them from Financial crunch and from furloughing its employees.
GLF periodically posts short updates on our Google and LinkedIn pages. We also periodically send out GLF Newsletters when the subject matter is extensive and relevant for a detailed analysis. Presented below is a consolidated summary of updates posted on Google and LinkedIn for July 2020. Below is the link to our Google posts.
CAN F-1 STUDENTS CONTINUE WITH THEIR ONLINE ONLY COURSE MODEL?
SEVP issued guidance for Fall 2020 Semester stating that F-1 students may not remain in the United States legally if they are taking a full-time online course load. They were asked to leave the country or transfer themselves to a college with an in-person or hybrid model – mixture of in-person and online classes. ICE has even warned those students taking up online only model would face “immigration consequences” including “initiation of removal proceedings.”
In a suit filed by Harvard University and the Massachusetts Institute of Technology (MIT), California’s public colleges and a coalition of 17 states sought for temporary restraining order and permanent Injunction against the new foreign student policy. They also alleged in the suit that the ICE’s decision was forcing Universities to reopen in-person classes thereby increasing the risk of exposure to the Corona virus and muddling with present online course model. Harvard and MIT prevailed and Trump Administration had to rescind the foreign student policy that would have forced F-1 students attending Universities that were entirely online to either leave the country or transfer to another University with an in-person or hybrid model.
For new F-1 students coming from abroad, visas will not be issued by US Consulates and Embassies, if the School is entirely online. SEVP guidance issued in March 2020 will continue to apply for all active F and M students who enrolled themselves after March 9, 2020 and will not be allowed to enter the US and take up 100 percent online classes for Fall 2020 term. Also Designated School Officials (DSOs) will not issue Form I-20 for students who are in a new or initial status and are currently outside the US and plan to take up 100 percent online classes.
CURRENT STATUS OF DELAYED EAD AND GREEN CARDS
USCIS has confirmed that it has a backlog of 75,000 EAD Cards and 50,000 Green Cards for printing and it appears to be a deliberate slow down. They stated that current backlog in printing EAD Cards and Green Cards are because their contract with an outside vendor has ended. USCIS intended to replace its Contractors with Federal employees but due to the current financial crunch, the hiring process is frozen. If it’s not an intentional delay, USCIS should come up with an interim card solution, or at least, provide new and longer “grace periods” based upon a timely filing of EAD applications affecting immigrants to work legally in the US.
Generally, EAD Cards should be issued within 48 hours of the approval of the application. Where the card is not issued within the normal processing time the applicant can raise a Service Request by calling 1-800-375-5283. In recent times when the applicant raises a SR, USCIS is not providing a clear response.
If EAD Card and Green Card production continues to get delayed, applicants can contact USCIS Ombudsman’s office at: https://www.dhs.gov/topic/cisombudsman/forms/700.The Ombudsman’s office has been following up with USCIS by sending weekly spreadsheets and requesting updates. Alternatively, LPRs are advised to request an I-551 stamp on their passport as temporary evidence of their status, by reaching out to USCIS contact center at 1-800-375-5283 and asking for appointments at the local field office.Many applicants may have to resort to filing the writ of mandamus with the Courts compelling USCIS to issue their pending EAD and Green Cards.
TRUMP’S H-1B VISA BAN CHALLENGED IN COURT – GOOD NEWS CONSULATES ARE STARTING TO ISSUE H-4 VISAS
A group of 174 Indian nationals, including 7 minor children, have filed a lawsuit challenging President Donald Trump’s Proclamation (dated June 22, 2020) banning entry of foreign nationals on H-1B, L, and J visas until at least December 31, 2020. The lawsuit (titled Panda v. Wolf) which was filed on July 15, 2020 is a Complaint for Injunctive Relief and it asks the Court to compel the State Department to issues decisions on Plaintiff’s pending H-1B and H-4 visa requests at Consulates; enjoin DHS from refusing entry to US of H-1B and H-4 visa holders; and also declare unlawful Proclamation’s restrictions on issuing new H-1B or H-4 visas. The lawsuit argues that the Proclamation justified visa restrictions without economic data (notably H-4 minor children do not work in this country).Note: US Consulates have started issuing H-4 visas.
INJUNCTION ISSUED TO STAY PUBLIC CHARGE REGULATIONS
The U.S. District Court for the Southern District of New York issued a Preliminary Injunction and Interim Stay of the DHS Final Rule dealing with Inadmissibility on Public Charge Grounds. The Court reasoned that given the current COVID-19 pandemic and national emergency, the Public Charge Rule could cause harm to those seeking health benefits. Public charge policy was intended to discourage immigrants from utilizing government benefits and penalizing them for receipt of financial and medical assistance. Court’s Order specifically excludes medical treatment and services from any future Public charge determination thereby allowing people to seek the medical help they need during this Pandemic. Department of State similarly gave consular officers broad discretion to deny visas if they had received any type of public assistance including non-cash benefits. This Nationwide Injunction, which is a much-needed relief, applies to both DOS and DHS public charge regulations.
USCIS ASKS FOR $1.2 BILLION FROM CONGRESS TO AVOID FURLOUGHS
USCIS requested lawmakers before the House Judiciary Subcommittee on Citizenship and Immigration for $1.2 billion to avoid furloughing 70% of its workforce. USCIS said that furloughs would add 75,000 cases per month to the current 5.7 million cases that are backlogged. Without additional funding, USCIS will start furloughing its employees with effect from August 30. Without furloughs, USCIS expects to run out of funds and be unable to make payroll beginning October 1, 2020. USCIS argued that the funding shortfalls have resulted from the fallout of COVID-19 pandemic, but lawmakers contended that Trump administration’s limitations on legal immigration have contributed to USCIS being in this financial situation. Members of both parties agreed that funds should be provided, but Democrats stressed that the funds be conditioned on the basis of reforms. Lawmakers and stakeholders suggested a full audit before receiving funds, in addition to creating new reporting and accountability requirements, new revenue streams, prohibitions on transferring employees to enforcement agency duties and more discretion for employees to hasten the adjudication process.
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At GLF will continue to follow further developments in this and other matters and we will provide updates through our Newsletter as and when they become available. GLF receives numerous emails and phone calls every day asking for comment on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important updates that are relevant. The best way to receive accurate information is through GLF Newsletters.
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