On August 3rd, 2020, President Trump issued an executive order entitled “Executive Order Aligning Federal Contracting and Hiring Practices with the Interests of American Workers.” This order follows a trend of curtailing employment-based immigration, as Trump cites the economic crisis catalyzed by the coronavirus pandemic as a primary justification for newly adopted immigration policies. The new executive order bars federal agencies from replacing U.S. citizens and green card holders with foreign workers, accompanied by new increased scrutiny of federal contractors who use temporary nonimmigrant visas to hire foreign labor for high-skilled jobs.

The order does not require any immediate actions from federal contractors, it foreshadows a potential future order that bolsters entry restrictions and increases Department of Labor and Department of Homeland and Security audits. Furthermore, while the August 3rd order does not introduce new restrictions on H-1B visas, such a change to federal employer policy will make H-1B visas more difficult to obtain.

On August 3rd, during a meeting with U.S. Tech companies, President Trump condemned the alleged abuses of U.S. workers by the Tennessee Valley Authority, whose CEO Jeffrey Lyash recently announced that the company would replace over 200 American workers with cheaper foreign workers hired from overseas. Trump denounced that Lyash, “sadly and cruelly betrayed American workers.” Trump criticized such employers who trade American jobs for temporary foreign labor, as this supposedly reduces opportunities for American workers.

Broadly, the execuive order instructs all federal agencies to review existing contracting and subcontracting practices and to determine if these practices have adverse impacts on American workers, whether due to offshored positions or the temporary use of foreign labor. The executive order requires that federal agencies propose corrective changes to protect American workers, citing the American economy and national security as main priorities. Within 120 days of the date of the order, August 3rd, 2020, the head of each agency must also submit a report to the Director of the Office of Management and Budget to highlight their findings concerning whether their specific circumstances negatively impact U.S. workers.

Finally, the order directs the Secretaries of Labor and Homeland Security to take action within 45 days of the order to protect American workers from potential adverse effects on American wages and workers caused by the use of H-1B visa holders at job sites (and third-party job sites), including measures to ensure that all employers of H-1B visa holders (as well as secondary employers) comply with the requirements of section 212(n) (1) of the Immigration and Nationality Act.

The deep impact of this order on foreign workers is that federal agencies like USCIS and the Labor Department are now given broad discretion to assess immigration applications. This will even further delay an immigration system already in the midst of a slowdown. If a federal agency like USCIS finds reason to believe that an applicant’s immigration case will adversely impact American workers, the applicant’s case will likely be audited or adjudicated, which further slows the painful process of obtaining a visa.

The cost of H-1B visas has already been set to increase by 75% this upcoming October from $460 to $555. Targeted by new policy, foreign employees are increasingly insecure in the United States.

In terms of impacts on immigration, the effects are drastic. It is possible that this new executive order will justify the shortening of visa durations. The entire certification process of recruitment, application, and approval certification will become more complex. While this order will not take effect for over another month, it instills anxiety and looming uncertainty into foreign workers. As they wait for clearer specifics concerning their employment, foreign workers on temporary work visas are placed in a limbo.

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.”

Immigration Lawyer Portland

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.

Last Tuesday, United States District Judge Timothy J. Kelly overturned the Third-Country Asylum Rule, one of the Trump Administration’s most severe asylum policies, ruling it illegal. Kelly, who was appointed to the court in 2017 by President Trump, claimed that the Third-Country Asylum Rule was “unlawfully promulgated” because it did not give a public notice or provide time for public comment, bypassing the Administrative Procedure Act (APA). Furthermore, the Administration failed to show how such a quick implementation was in the public interest.

The Third-Country Asylum Rule was issued in July 2019 so that aliens who sought asylum in the U.S. would have to apply for asylum in at least one country of transit on their way to the U.S. southwestern border. This policy has effectively barred many Central American migrants from obtaining asylum in the United States, forcing them to first seek asylum from Mexico.

In his 52-page opinion, Kelly argued that the Administration based this Third-Country Asylum Rule almost entirely on a single October 2018 newspaper article that insinuated that the proportion of asylum seekers with children increased after the Administration ended a policy of separating immigrant families at the U.S.-Mexico border. Kelly critiqued the Administration for not having complied with the APA’s notice-and-comment requirements after first issuing this rule, explaining that the broader a rule’s reach, the greater the necessity for public comment. He added that, “with these baseline principles in mind, the Court considers whether either the good cause or foreign affairs function exception applies here.

Note that while the decision will overturn the Third-Country Asylum Rule, this will likely not lead to an extreme increase in asylum claims because the Trump Administration has issued other policies that make immigration less accessible to aliens, including asylum seekers, that cite the COVID-19 pandemic and emergency health protections as justifications to restrict human movement that consequently prevent individuals from seeking protection. However, by striking down this rule, Judge Kelly reaffirms two fundamental principles, explains Claudia Cubas, the Litigation Director at CAIR Coalition, one of the plaintiffs in the lawsuit. Cubas added, “the protection of asylum seekers fleeing for a safety is intertwined with our national values and that the United States is a country where the rule of law cannot be tossed aside for political whims.”

Our Portland Immigration Lawyers in Portland, Oregon are providing you constant updates on how recent immigration changes may affect your immigration law case at USCIS located here in Portland, Oregon.

On Monday the 22nd of June 2020, President Trump issued a new proclamation (known as Proclamation 10014, or the Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) to temporarily suspend the entry of certain foreign workers into the United States. This proclamation halts the issuance of new work visas to aliens, excluding hundreds of thousands of foreigners from obtaining employment in the United States. Additionally, this proclamation extends the already-existing ban on green cards issued outside the U.S. until the end of the year. The previous 60-day ban on green cards issued abroad, imposed in April by the Trump Administration, was expected to expire this Monday.

This executive order is another step in the Trump Administration’s continuous effort to impede immigrants’ entry into the country, masquerading under the premise of freeing up jobs for American citizens, although many businesses and economists have spoken against such measures. The Trump Administration reported that up to 525,000 jobs would be freed for citizens because of this new visa ban.

H-1B visas, used by many tech companies to hire foreign workers with specialized knowledge and training, will be impacted by this executive order. Additionally, H-2B visas for nonagricultural seasonal workers, J-1 visas for cultural exchanges, and L-1 visas for managers/ employees of multinational corporations will also be restricted. Many technology companies will be heavily impacted by such a freeze on work visas.

Certain exemptions for food processing workers (which make up 15% of the H-2 visas) will be made. Moreover, many health care workers related to the coronavirus pandemic will also continue to receive green cards.

This new proclamation will prohibit American companies with global operations, or international companies with U.S. branches, to transfer foreign employees to the U.S. for extended periods of time. Additionally, such an order blocks the entry of spouses of foreigners who are hired by American companies in the United States.

While freezes on visas issued abroad will take effect immediately, other changes such as restrictions on asylum-seekers’ work permits will undergo a formal rule-making process during the following months. Interestingly, the Administration has proposed to reconfigure a new method of awarding H-1B visas, which are capped at 85,000 a year, so that they are awarded by highest salary, rather than by lottery. Already, companies such as Amazon, Google, and Twitter have spoken out against the Administration’s new restrictions.

Recently, the Trump Administrations suspended the approval of green card requests to immigrants abroad seeking residency in the United States. Last week, this administration temporarily halted the process of requests from green card applicants already living in the country. The agency argues that this hold on processing green card applications is due to the suspension of in-person services caused by precautions taken during the coronavirus pandemic. Its current priority, USCIS claims, is to resume naturalization ceremonies.   

A senior USCIS officer told CQ Roll Call that some field adjudicators stopped processing green card applications from noncitizens residing in the U.S. back in April. While there may still be a larger hold on I-845 adjustment of status cases, there remain certain exemptions that have been released through internal communication within the USCIS network. Such exemptions that allow for cases to continue include

1) Case already distributed to adjudicator (for instance, if your interview was rescheduled due to COVID)

2) Continuations

3) Case related to a medical provider 

4) National Benefits Center work on adjustments 

5) Older, pending cases 

6) Liberian Refugee Immigration Fairness (LRIF) I-485s

7) Identified national security concerns  

8) Fraud Detection and National Security Directorate cases 

9) ELIS beta cases 
10) Age outs

11) DV cases 

12) Mandamus and other litigation cases

13) Detailed immigrants 

14) Military families

The USCIS also will allow immigration officers to submit applications that concern an “emergent or sensitive matter” outside these exemptions to their supervisors for consideration. 

While most federal agencies receive funding from Congress, USCIS receives most of its funding from immigration application fees. Since March, when USCIS temporarily suspended in-person services due to the COVID-19 pandemic, echoed by an overall decrease of human movement because of restricted international travel, USCIS has received an extremely low volume of immigration petitions and fees.   

As USCIS has experienced falling petition rates over the last two years, increased funding has been dedicated to vetting and enforcement by the Trump Administration. This shift reflects the administration’s immigration goals, which definitely have an unsustainable impact on USCIS’ finances. As the processing of green cards is being halted, we can predict that such restricted immigration will further constrain USCIS’ financial sustainability. While USCIS had a $790 million cash carryover at the end of fiscal 2017, it now faces a $1.5 billion deficit. 

End-of-Year Immigration Examinations Fee Account Carryover Balances, FY 2008-20

Source: Migration Policy Institute

Recently, USCIS urged Congress to provide $1.2 billion to address its severe budget shortfall. It is very likely that without this emergency infusion, USCIS will have to furlough up to 15,000 of its 18,700 employees. Such a measure will likely further slow down visa and green card processing in the near future. The agency claims that it will be able to pay back this requested $1.2 billion by imposing a 10 percent surcharge to USCIS application fees. This is important to note, because such a surcharge may act as a deterrent to future immigrants. 

Last November, USCIS proposed fee increases; for instance, this includes an 83 percent increase in naturalization application fees from $640 to $1,170. As immigration continues to be restricted through expanding proclamations, such proposed fee increases are likely to occur in order for USCIS to continue running. Retroactively, this would likely decrease the types of foreign nationals who are capable of affording this steep increase.