Federal District Court Issues Stay of Final Rule Set to Adjust Immigration and Naturalization Fees in the Coming Days

On July 31, 2020, the Department of Homeland Security (DHS) announced a final rule to adjust the fees associated with certain immigration and naturalization benefits.  The fees were being adjusted to ensure that the U.S. Citizenship and Immigration Services (USCIS) would be able to recoup the costs of the services it provides.  USCIS is primarily funded by fees collected as part of the process of petitioning for certain immigration and naturalization benefits.   According to DHS, without an adjustment of fees, USCIS would be underfunded by approximately $1 billion per year.  This final rule was set to become effective as of October 2, 2020.

However, on September 29, 2020, U.S. District Judge Jeffrey S. White of the Northern District of California granted a motion for a preliminary injunction and stay of effective date of the final rule.  The Immigrant Legal Resource Center, and other nonprofit organizations that provide a variety of services to low income immigration benefit applicants, filed the motion to enjoin the implementation of the final rule and stay its effective date.  Following a hearing that took place on September 25, Judge White determined that the plaintiffs had met their burden.  Neither the plaintiffs nor defendants in that case had addressed what should be the geographic scope of the injunctive relief sought.  Judge White concluded that the plaintiffs did not operate in a way which lends itself easily to specific geographic boundaries.  As a result, the court concluded that the relief should be universal, warranting uniform and nationwide relief.

USCIS Has Extended Flexibility for Responding to Particular Agency Requests

On September 11, 2020, the United States Citizenship and Immigration Services (USCIS) announced that it has further extended the flexibilities originally announced March 30, 2020.  To assist applicants, petitioners, and requestors in the face of the COVID-19 pandemic, USCIS has extended the deadline for the following documents, issued between March 1, 2020, and January 1, 2021, by an additional sixty (60) calendar days beyond the response date stated on the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and,
  • Motions to Reopen an N-400 pursuant to 8 C.F.R. 335.5, Receipt of Derogatory Information After Grant.

Additionally, USCIS has stated that they will consider Form N-336, Request for a hearing on a Decision in Naturalization Proceedings, and Form I-290B, Notice of Appeal or Motion, up to sixty (60) calendar days from the date of the decision before any action is taken.

Sustained Pressure from Lawmakers Succeeds in Halting USCIS’s Plans to Furlough 70% of its Workforce.

On Tuesday, August 25, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced that it had halted its plans to furlough approximately thirteen thousand four hundred (13,400) of its employees, amounting to seventy percent (70%) of its workforce.  The decision to halt these furloughs came on the heels of pressure from lawmakers who argued that the layoffs were not only financially unnecessary, but would also have a devastating human toll.  USCIS is the federal agency responsible for processing petitions for immigrant and nonimmigrant visas, as well as other immigration benefits.  A furlough of the size expected would have severely decreased USCIS’s ability to process those petitions.

The House of Representatives on Saturday, August 22, 2020, unanimously passed a measure with the aim of increasing USCIS’s revenue.  This measure then prompted President Donald J. Trump’s administration to cancel its plans to furlough the significant number of USCIS employees.

In a press release, USCIS has stated that it plans to implement aggressive cost saving initiatives and expects to maintain its operations through the end of the fiscal year.  The press release goes on to state that these planned cost saving initiatives will result in some delay in the processing of petitions, but have not provided an estimate of the number of affected petitions or the length of the delay.  USCIS continued to state that the avoidance of the furlough has come at an operational cost that will increase backlogs and will likely not put a stop to future furloughs.  According to the Deputy Director of Policy at USCIS, Joseph Edlow, a return to normalcy, as far as operating procedures are concerned, would require the intervention of Congress.

As Early as October 2020 Approximately 60,000 Additional Employment Visas May Become Available

According to the Immigration and Nationality Act of 1990 (INA), approximately one hundred forty thousand (140,000) visas are allotted to the employment-based preference categories on an annual basis.  The INA also allows for unused visas originally allocated to one category to be reallocated to other categories, in a particular order, in the following fiscal year.

During a webinar hosted by Invest In The USA (IIUSA) in June of this year, Charles Oppenheim, Chief of the Visa Control and Reporting Division of the United States Department of State, stated that there were currently a significant number of unused visas that had originally been allocated to the family-based preference categories for fiscal year 2020.  Oppenheim estimated that this was likely based on the shutdown of consulates abroad following the increasing intensity of the COVID-19 pandemic around the world.  While he qualified his statement by acknowledging that it was based on the number of visas as it stood in June of 2020, Oppenheim estimated that the number of visas allotted to the employment-based preference categories could be as high as two hundred thousand (200,000) in fiscal year 2021.

The EB-5 immigrant visa category, by statute, may only receive up to 7.1% of all employment-based immigrant visas issued annually.  If Oppenheim’s estimate proves correct, this could mean a total of fourteen thousand (14,000) visas allotted to this category which has traditionally suffered from a lack of visa availability.  The EB-1, EB-2, and EB-3 immigrant visa categories each may receive up to 28.6% of all employment-based immigrant visa issued annually, or more than one hundred seventy thousand (170,000) divided amongst the three categories in the next fiscal year.

ICE Continues Guidance Originally Issued in March 2020 for Fall 2020 Semester

One July 24, 2020, the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) announced that schools certified by the Student and Exchange Visitor Program (SEVP) and nonimmigrant students should abide by the guidance issued by SEVP in March 2020.  The March 2020 guidance applies to those F and M nonimmigrant students who were actively enrolled in SEVP-certified U.S. schools on March 9, 2020 and were in compliance with the terms of their nonimmigrant status.

According to the March 2020 guidance, nonimmigrant students in new or initial status after March 9, 2020 will not be permitted to enter the United States for the purpose of enrolling in a U.S. school for the Fall semester to pursue a course of study that is made up of 100% online courses.  Designated school officials have also been advised not to issue Form I-20 to nonimmigrant students in new or initial status who are outside of the United States and plan to take classes fully online.  The March 2020 guidance does not provide any information regarding the possibility of new students pursuing a hybrid course of study, one that is made up of a combination of online and in-person courses.  The guidance also suggests that U.S. schools which will be conducting 100% of their courses online for the Fall semester offer nonimmigrant students deferment.