On the 25th of August, the United States Citizenship and Immigration Services (USCIS) announced that it would cancel the scheduled furlough of about 13,400 of its employees. USCIS justifies this decision by citing “unprecedented spending cuts” as well as a “steady increase in daily incoming revenue and receipts.” The agency expects to maintain operations through the end of the 2020 fiscal year. In a recently published announcement, USCIS notes that aggressive spending reduction measures will impact all agency operations and agency contracts.

The USCIS deputy director for policy, Joseph Edlow, said in a statement that, “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.” The deputy director emphasized that congressional intervention is still crucial to sustain the agency through the 2021 fiscal year, particularly since USCIS averted the furloughs scheduled for August 30th. This furlough was delayed numerous times before the final cancellation.

These furloughs would have drastically halted the immigration system. Not only would they have caused a standstill to essential services, but they would also have adversely impact millions of legal immigrants and U.S. citizens. This would be a detriment to the already-stalled U.S. economy. As USCIS has received fewer immigration applications filed over the past few months, USCIS’s revenue has also decreased. This budgetary restraint has led to a pause in the printing of 50,000 green cards and 75,000 worker permits.

Previously, the slow-moving pace of Congress’ plans about the next COVID-19 relief bill discouraged USCIS, as this funding has yet to be obtained by the federal agency. Notably, USCIS originally requested $1.2 billion in funding from Congress.

Fortunately, this past weekend, the House of Representatives unanimously introduced the Emergency Stopgap USCIS Stabilization Act, which would have temporarily kept USCIS afloat, although this legislation has yet to be passed by the U.S. Senate. This provides some hope that USCIS has caught Congress’ attention, and that subsequent funding may be allocated to USCIS with future bills.

 

On the 21st of August, the House of Representatives introduced a new bill called the Emergency Stopgap USCIS Stabilization Act, which would allow the United States Citizenship and Immigration Services agency to halt the furloughs of over two-thirds of its employees and to expand its services for improved processing of applications.

USCIS is scheduled to furlough 13,355 of its 19,881 employees on August 30th, 2020, if no funding is provided by Congress to support the federal agency. The furloughs, announced in May 2020 when the agency was struggling to combat a funding shortfall, has already been delayed from the end of July. It is important to note that USCIS is now projected to have enough funds to keep its operations fully functional through the remainder of the fiscal year. Despite this, it is likely that the agency will run out of funds after November 2020, so USCIS is still planning to continue with the furloughs.

How the proposed bill works

In order to forestall the furloughs, the Emergency Stopgap USCIS Stabilization Act will increase USCIS’s “premium processing” revenues. Premium processing is a special service offered by the federal agency through Form I-907 to request faster processing of Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker. The additional fee for premium processing is currently $1,440, and would expedite the processing to 15 days on eligible petitions and applications.

In order to increase USCIS’s “premium processing” revenues, the premium fee will increase from $1,440 to $2,500 for petitions and applications eligible for premium processing. The sole exception is for H-2B and religious worker (R) petitions, in which case the fee increases to $1,500.

Additionally, the bill expands the availability of premium processing to more petitions and applications. The revenues collected are only allowed to be sued by USCIS to improve adjudication and naturalization services.

Finally, the bill provides benefits to all applicants, either premium and non-premium. The bill will ensure that premium processing funds improve adjudication times and reduce backlogs across all form types, including non-premium applicants. Furthermore, the bill will stabilize the rapidity of premium processing by ensuring that the premium service is only suspended when necessary.

According to Immigration and Citizenship Subcommittee Chairwoman Zoe Lofgren, this bill won’t serve as a complete solution to USCIS’s fiscal struggles, but it will provide USCIS with immediate access to supplemental revenue to eliminate the need for the August 30th furloughs.

Furloughs will dramatically disrupt the process of all U.S. immigration and naturalization services, which is why such a bill – if passed by the Senate – would significantly alleviate a burden on American business and families.

On July 31st, 2020, DHS announced a final rule regarding the U.S. Citizenship and Immigration Services (USCIS) fee schedule, which would dramatically increase USCIS filing fees for certain immigration and naturalization benefit requests. Overall, USCIS fees are being increased by a weighted average of 20 percent, according to USCIS.

The changes to filing fees include a first-ever $50.00 fee for asylum seekers and an 80% increase for naturalization services, which would raise the cost of online naturalization applications from $640 to $1,160. In addition, the changes announced include a $10 fee for the registration requirement for petitioners filing H-1B petitions on behalf of cap-subject aliens. I-765 Application for Employment Authorization fees will be increased by $140 (34% increase of the original $410 fee) and I-485 Application to Register Permanent Residence fees have been reduced by $10 to amount to $1,130.

A detailed fee schedule, noting old fees and new fees for each application type, can be found here (or on uscis.gov/forms) on the USCIS website. On its website, USCIS specified that all filings postmarked December 23rd, 2016 or later must include the new fees or they will be rejected.

Effective on October 2nd, 2020, this new rule will support payroll, technology, and operations of USCIS. According to the agency, current fees would leave USCIS underfunded by around $1 billion per year. Immigration fees have risen to an extraordinary level in recent decades in the United States. For instance, in the 1990s, naturalization application fees were under $100.

The addition of a new asylum fee is important, as the U.S. joins Iran, Fiji, and Australia as countries that impose fees on asylum-seekers. Many immigration attorneys and activists have decried the added financial burden, as the right to seek asylum in the U.S. should not be conditioned on the ability to pay a fee, no matter what amount.

Human Rights First, a nonpartisan 501(c)(3) international human rights organization, denounced the rule soon after it was issued. The organization’s Deputy Legal Director, Anwen Hughes, stated: “Asylum seekers typically arrive in the United States with very limited resources that quickly dwindle. For some who are detained upon arrival, the total amount of money they have available to them by the time they are filing for asylum can be less than this application fee.”

While these fee changes have been added, the proposed $275 renewal fee for DACA recipients has been removed so that DACA fees for employment authorization and biometric services will remain at 2017-levels.  

USCIS deputy director for policy, Joseph Edlow, has stated that “USCIS is required to examine incoming and outgoing expenditures and make adjustments based on that analysis.” He added, “These overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans.” In a Facebook post, USCIS announced that these fees are reviewed every other year by law.

Note that USCIS, experiencing the economic consequences of the coronavirus pandemic, risks facing a revenue shortfall for the calendar year, despite having a budget surplus for the fiscal year. This will likely contribute to over 13,000 furloughs if USCIS does not receive a $1.2 billion emergency fund from Congress. USCIS is a peculiar federal agency because, rather than coming from the government, it receives its funds mainly from fee collection. Because of the COVID-19 pandemic and Trump’s recent immigration restriction-oriented policies, the agency has received fewer applications, contributing to its revenue shortfall.

According to the American Immigration Lawyers Association, such furloughs will halt U.S. immigration, which will hurt families, businesses, educational institutions, medical facilities, and churches. Additionally, if USCIS is close to being shut down, immigrants in the process of naturalization will be unable to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face significant delays to their cases, and businesses will be unable to hire and retain non-citizen employees. The Migration Policy Institute concluded that for every month that the USCIS furlough lasts, 75,000 applications will not be processed. Fortunately, USCIS has agreed to move the previously-set date for these furloughs from August 3rd to August 30th.

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Last evening, the 2nd Circuit Court of Appeals limited an order that blocked the application of Trump’s Public Charge Grounds Final Rule during the duration of the COVID-19 pandemic. The federal appellate court concluded that the Department of Homeland and Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) may implement the public charge policy in every state but New York, Connecticut, and Vermont. These three states had previously sued the Trump administration over the public charge rule.

Since July 29th, U.S. District Court for the Southern District of New York issued an injunction of the Trump administration’s public charge rule, meaning that USCIS and DHS had temporarily reverted to the 1999 Interim Field guidance established before Trump’s Public Charge Grounds Final Rule. The N.Y. district court reasoned that Trump’s rule had deterred immigrants from seeking testing and treatment for COVID-19, as they feared such acts would negatively impact their immigration cases.

The federal appellate court’s most recent decision, briefly detailed in a one-paragraph order written by U.S. Circuit Judge Peter Hall, will revive Trump’s “wealth test” for immigrants, a victory for the Trump administration as this is one of the most extensive restrictions on legal immigration. Under this test, DHS may negatively consider immigrants’ past usage of public benefits programs, such as food stamps and housing subsidies, as well as health and education level, to determine whether they will rely on government assistance. Such a reliance would adversely impact green card applications.

In the short order, the 2nd Circuit Court of Appeals – a higher level court than the U.S. district court that issued the primary injunction – explained that the public charge injunction is no longer nationwide and only applies to residents of New York, Connecticut, and Vermont.

Since the nationwide injunction was announced, USCIS instructed applicants to hold off from filing Form I-944 Declaration of Self-Sufficiency for those filing on or after July 29th, 2020. USCIS has yet to publish further instructions for applicants who have already filed without the Form I-944, and USCIS has yet to update its website with the new ruling. However, because USCIS still has these instructions from July 29th on its website despite having adopted a new ruling, it may be useful to save a copy of this, along with the date, if an applicant has already filed without Form I-944.

On July 29, 2020, the U.S. District Court for the Southern District of New York issued a nationwide temporary suspension of the application of the February 24th 2020 Public Charge Grounds Final Rule. The injunction of this rule will apply to any period during which there is a declared national health emergency due to the COVID-19 pandemic. As long as the July 29th decision is in effect, USCIS will only apply the 1999 Public Charge Guidance established before the Public Charge Grounds Final Rule.

On March 26th, 1999, “public charge” was defined by Immigration and Naturalization Services as a ground of inadmissibility for which an alien may be denied immigration. A “public charge” refers to an individual “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense.” In August 2019, DHS announced a new rule that would alter this definition of “public charge,” so that it made individuals receiving the following benefits are inadmissible for permanent residence: Supplement Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), Medicaid (with some exceptions), and certain public housing assistance. This secured self-sufficiency of permanent resident applicants, so that these individuals would not rely on American public resources. The change to the definition of “public charge” was adopted on February 24th, 2020, so that both applicants applying for permanent residents in the U.S. as well as those seeking immigration from abroad would be impacted. Until February 24th, 2020, the use of most public benefits did not have negative consequences to an immigrant’s legal status.

As long as the July 29, 2020 injunction is in place, USCIS will uphold the existing 1999 public charge guidance, rather than the Trump administration’s expanded rule. This injunction will certainly soften the process for permanent resident applicants, and will be applied throughout the COVID-19 national health emergency.

On July 29th, the U.S. District Court for the Southern District of New York concluded that the plaintiffs provided sufficient evidence to show that the February 2020 Public Charge Final Rule deterred immigrants from seeking testing and treatment for COVID-19, fearing that this would make them consequently inadmissible to the United States. This, of course, complicates efforts at stopping the coronavirus and even further aggravates the spread of the pandemic. An injunction, the plaintiffs argued, would be in the general American public’s interest.

 

This injunction applies to adjustment of status applications and to non-immigration change or extension of status. For any petition filed after July 29, 2020, the applicant or the petitioner does not need to include the Form I-944, Declaration of Self-Sufficiency. If an applicant or petitioner has already submitted this form, USCIS will not consider the information on this form regarding receipt of public benefits. Additionally, the applicant and petitioner do not need to include information on the receipt of public benefits in Part 5 on Form I-539 Application to Extend/Change Nonimmigrant status, Part 3 on Form I-539A, or Part 6 on Form I-129 Petition for a Nonimmigrant Worker.

On its website, USCIS has announced that it will issue guidance regarding the use of affected forms.

USCIS has been delaying the printing of green cards and employment authorization documents that the organization has already promised to individuals. This accompanies a wave of green card and work permit delays related to the U.S.’s response in immigration policy during the COVID-19 pandemic.

It is important to note that USCIS is currently still open, processing applications and accepting new ones. Typically, if USCIS approves a new application, the organization will issue an approval notice and will mail a green card or employment authorization document to the applicant. Historically, USCIS has outsourced the printing of these documents to a third-party company. In June, however, USCIS’s contract with the third-party company expired. Rather than renewing this contract, USCIS decided to handle the printing of these documents internally. Due to USCIS’s current budget crisis, however, the organization has not hired workers to handle this insourced printing, which contributes to the current delay in these documents’ issuance, printing, and delivery.

At the moment, there are 50,000 green cards and 75,000 employment authorization documents that have been promised to immigrants and that have yet to be printed, USCIS disclosed in a statement. Many of these missing green cards are for immigrants who are newly approved for legal permanent residency, although others are for existing permanent residents who are attempting to renew their identity cards. These are essential for lawful permanent residents to have, as these documents demonstrate proof of status in the U.S., which is needed when applying for a job. Without such documents, individuals in the U.S. can face fines or prison sentences.

Overall, green card and work permit issuances are dependent upon the capabilities of the U.S. Citizenship and Immigration Services. Since the COVID-19 pandemic, USCIS has seen a major decrease in immigration application filings. Now, USCIS finds itself in a budget crisis because of the steep decline in applications. USCIS seeks a $1.2 billion bailout from the U.S. Congress, proposing a 10% visa fee surcharge in efforts to repay the loan. If Congress cannot provide these funds before the 3rd of August, USCIS will have to furlough over 13,000 staff members. As a consequence, this will only further delay H-1B processing, green card renewals, and work permits.

These delays come after President Trump’s June 22nd Executive Order, which temporarily suspended the entry of many foreign workers into the United States, pausing the overall issuance of H-1B visas (used by tech companies), H-2B visas (for seasonal employees), J-1 visas (for cultural exchanges), and L-1 visas (for corporate executives). While this excludes hundreds of thousands of individuals from obtaining employment and from uniting with their family members in the United States, the executive order does not impact the status of individuals already in the United States and who have already been promised these green cards or work permits.

The June proclamation heavily restricts immigration, justified by the rationale of strengthening the American economy through American job retention. However, multinational corporations continue to face shortages of skilled professionals in the U.S., according to Yasmin Mirreh in a Bloomberg News article.

The consequential delays that accompany this executive order are frustrating. In many countries, consulates have been closed or are operating during limited hours. Furthermore, once these offices do reopen, priority will likely be given to appointments that were canceled due to the coronavirus pandemic. This puts new applicants waiting for many more months (and possibly years, depending upon the circumstances). In a report last week, the USCIS announced that about 583,420 H-1B visa holders working in the U.S. are stuck in decades-long green card waiting lines due to per country caps.

As immigration policy continues to intersect with the COVID-19 pandemic, USCIS’s budget shortfall, and President Trump’s new executive orders, we are left wondering how – and when – individuals who have been promised green cards or work permits will obtain these documents.

On the 21st of July 2020, President Donald Trump signed a presidential memorandum that would exclude undocumented immigrants from being counted in congressional districts. This comes with the purpose of redrawing congressional districts, as unauthorized immigrants living in the United States will be excluded from census population counts. The White House justified these changes by claiming that by law, the president can determine who is counted in the census.

Today, states draw congressional districts and determine the areas that each elected official represents. This is based on aspects like a state’s total population and its population of unauthorized immigrants. After the 2020 census comes in, current maps will be redrawn across the nation – thus far 62% of the country has responded to the census. This reconfiguration will impact who will win elections, which communities will be represented in Congress, and what laws will ultimately be approved. Trump’s goal appears to be to reduce the counts of unauthorized immigrants in Democrat-ruled cities in order to undermine their political voice relative to Republic-ruled spaces. This will also certainly have an impact on Republican-led states like Texas, where there is a significant immigrant population.

Additionally, this memorandum will discourage immigrants from responding to the census if they have yet to do so. For months, community organizations and immigrant advocacy groups in the U.S. have pushed immigrants to participate in the census, regardless of status. Because census counts often determine federal funding, immigrant-majority communities will consequently be most negatively hurt, as they will lose funding for schools, infrastructure, and other community projects if they do not complete the census.

Note that the Constitution says congressional representation is allocated based on “the whole Number of free persons,” and not the number of American citizens.

As Nicole Narea writes in Vox News, Trump has politicized the U.S. Census in previous years. In June 2019, Trump fought to put a question regarding citizenship status on the 2020 census, although he lost his bid at the Supreme Court.

This marks the Administration’s latest effort to advance Trump’s immigration agenda, altering the ways in which U.S. populations are counted and supported. Blocking unauthorized immigrants from census counts will minimize these groups’ political weight. This executive order comes during a wave of other orders issued by the president that have restricted immigration.

Many actors plan on challenging the memorandum, including the American Civil Liberties Union. Dale Ho, director of the ACLU’s Voting Rights Project, announced in a statement, “[Trump’s] latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”

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On July 17th, a federal judge ruled that the Trump administration must accept new applications for DACA, a program started by former President Obama to protect undocumented immigrants who came to the U.S. as children. A month ago, the Trump administration attempted to completely end the DACA program, but this order was blocked by the U.S. Supreme Court on the basis that the administration did not provide sufficient justification for ending the DACA program.

The DACA program applies to undocumented immigrants who were younger than 16 years old when they came to the country and who were 30 years old or younger as of June 2012. Under the program, immigrants would receive a renewable, two-year work permit. USCIS has been renewing the DACA status for about 650,000 immigrants, but rejecting all new applicants since Trump took office.

In his 4-page order, U.S. District Court Judge Paul Grimm announced that the DACA program will return to its “pre-September 5, 2017 status,” which refers to the pre-Trump era when any eligible immigrant had the opportunity to apply to the program.

Judge Paul Grimm wrote, “Defendants [including the Department of Homeland Security] and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA.”

It is uncertain whether many will apply for the DACA program, as this requires releasing identifying information to officials who are serving an administration that has been increasingly hostile towards immigrants. Immigration and Customs Enforcement (ICE) of the Department of Homeland and Security (DHS) is currently reviewing the ruling. Amidst uncertainty, president and CEO of the National Immigration Forum, Ali Noorani, noted: “Ignoring this decision puts the administration directly at odds with the rule of law, and leaves DREAMers steeped in even more uncertainty about their futures.”

From the Supreme Court down, the courts have supported the decision for the DACA program to remain and to open for new applicants. The decision to restore DACA to a pre-Trump era will allow around 300,000 young and eligible immigrants to apply.

On the 10th of July 2020, President Trump announced that he would work to transform U.S. immigration policy, noting that an executive order will be released in the next four weeks to create a merit-based immigration system. This transformation will shift U.S. immigration policy to a structure in which an alien applicant’s skills are the central factor analyzed when determining whether he or she may immigrate to the United States. Skills include things like education level, financial ability, and fluency in English, but no specific list of criteria have been released thus far by the White House. The proposed system will replace family-based immigration, which the U.S. has had for decades to unite alien individuals with their spouses and other family members on U.S. soil.

In recent interviews, President Trump described a sort of point scheme that would be utilized in this new merit-based system, in which an immigrant applicant accumulates points based on their specific circumstances (for instance, an alien will earn points if he or she has a job offer in the U.S.). This point-based evaluation method will determine if an alien may immigrate and when an alien may immigrate. The White House released a statement noting that establishing this system would further protect U.S. workers. This points-based immigration system already exists in Canada and Australia.

Certainly, such a system will consequently favor privileged alien individuals who have wealthy backgrounds and high levels of education over marginalized individuals attempting to flee poverty. The ethics of this can be debated.

During his interview with Telemundo, Trump announced that a provision concerning DACA will also be included in the upcoming executive order, although the president’s statement was unclear. During the interview, Trump said that the executive order would include a “road to citizenship” for DACA individuals. Immediately after the president’s interview, however, a White House spokesman issued a statement that the order would not be related to DACA. The Trump administration has tried to rescind DACA numerous times, which many business leaders recently warned would negatively affect the economy and disrupt the battle against the coronavirus pandemic.

Over the past few weeks, the Trump administration has issued many executive orders that impact international students on F-1 visas, asylum seekers, and almost all green card applicants. Transforming the current U.S. family-based immigration system to a merit-based one plays into this narrative of restriction.

On July 6th, 2020, the Student and Exchange Visitor Program (SEVP) announced modifications to temporary exceptions for nonimmigrant students taking online classes due to the COVID-19 pandemic for the fall term of 2020. The SEVP, which sets all student visa regulations for student visas, is run by Immigrations and Customs Enforcement (ICE).

This spring and summer 2020, the SEVP allowed foreign students to take their courses online while remaining in the United States. Now, the U.S. The Department of State will not issue visas to students enrolled in schools or programs that are fully online for the fall semester. Additionally, the Customs and Border Protection will not allow such students to enter the country if they are abroad. International students on F-1 and M-1 visas residing in the U.S. whose schools are planning on using online platforms for classes this fall 2020 must leave the country or take other measures, such as transferring to another institution with in-person options. If international students do not do so, they risk violating their visa status and may be removed from the country.

In its announcement on the ICE website, SEVP noted that foreign students who do not transfer to in-person programs and who remain in the U.S. while enrolled in online courses would face “immigration consequences including, but not limited to, the initiation of removal proceedings.”

Students taking in-person classes with F-1 nonimmigrant visas may remain in the country, but continue to be bound by existing federal regulations. Eligible F students may only take one class or three credit hours online.

Nonimmigrant F-1 students attending schools with a hybrid model (a mixture of online and in-person classes) can take more than one class or three credit hours. Such students must have valid certification from their universities that their programs are not entirely online. Such institutions must certify to SEVP with Form I-20 “Certificate of Eligibility for Nonimmigrant Student Status” to prove that their program is not entirely online, that the student is not taking an entirely online course load during the fall semester of 2020, and that the student is taking the minimum number of online courses required for their degree program.

Finally, students in English language courses and nonimmigrant M-1 visa students with vocational degrees may not take online courses.

If an international student begins his or her fall semester with in-person classes but is later required to switch to online classes (which could happen if the university’s policy changes due to changes in the COVID-19 pandemic), he or she must update their information in the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change. Likewise, if the student changes his or her course selections so that all courses are taken online, this change must be noted in the SEVIS as well.

Note that the Department of Homeland Security (DHS) will publish procedures and responsibilities in the Federal Register as a Temporary Final Rule.

This change will result in the U.S. losing many thousands of students because of this regulation, which will negatively impact international perception of the United States. Today, the U.S. has over a million international students studying at universities and vocational institutions. Many educational institutions have already announced that they will adopt a fully-online program for the upcoming fall 2020 semester to support containment of the pandemic.

This new change comes during an unpredictable time during which the Trump Administration has already expanded restrictions on immigration, citing the pandemic as a valid justification. Like previous visa bans, this new restriction will lead to USCIS suffering financially, as fewer visa application fees will be deposited into the institution’s hands.

It is very likely that talented international students who are forced to leave will feel resentful towards the U.S., lessening the chance of them returning as a student, as a visitor, or as an employee in the future. This will hurt American industry innovation and productivity, since foreign workers have always added a profound richness to this country.