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.

Safe Third Country Agreement Ruled Unconstitutional by Canadian Court

On Wednesday July 23, 2020, a Federal Court of Canada ruled that the Safe Third Country Agreement (Agreement) that currently exists between Canada and the United States is unconstitutional based on the possible detention of asylum seekers upon their return to the U.S.  According to the Federal Court, detention of asylum seekers in the United States would violate the rights of asylum seekers under the Charter of Rights and Freedoms.

The Safe Third Country Agreement between Canada and the United States allows Canada to return migrants seeking asylum to the United States should they attempt to enter Canada at a land port of entry.  If a migrant seeking asylum in Canada enters the country from the United States by sea, air, or land between formal ports of entry, then the Agreement does not apply.  According to Judge Ann Marie McDonald’s opinion on the matter, those migrants returned to the United States in accordance with the Agreement potentially face detention.  In the Judge’s opinion, this potential detention is violative of the migrants’ rights under the Charter of Rights and Freedoms, which guarantees life, liberty, and security of person.

Despite this ruling, the Agreement is still in place for six (6) months to provide the Canadian parliament with time to respond.  Public Safety officials in Canada are currently reviewing the Federal Court’s decision to determine if they will comply with the spirit of the ruling or appeal it to the Federal Court of Appeal.

Barbados Begins Offering Incentive for Visitors in Form of 12-month Work Stay

In a speech from Prime Minister Mia Amor Mottley, the Bajan government has announced that it will introduce a “12-month Barbados Welcome Stamp” that would allow visitors to the island nation to stay for one (1) year to work remotely.  This is an effort to reinvigorate Barbados’ economy, which depends in part upon revenues from tourism.  Travel restrictions borne from the COVID-19 pandemic have interrupted the usual flow of tourists to the Caribbean, leaving hotels and beaches in the region all but empty.  By offering visitors the opportunity to remain on the island nation for twelve (12) months, the Bajan government hopes to entice travelers to return for an extended period.

Flights in and out of Barbados were set to resume on July 12, 2020.  However, the Centers for Disease Control and Prevention (CDC) continues to recommend against nonessential international travel.  With that in mind, Barbados has only experienced a total of ninety-eight (98) confirmed cases and seven (7) deaths according to Johns Hopkins University.  The CDC highly recommends being tested for COVID-19 at least seventy-two (72) hours prior to travelling to Barbados for any period of time.  At this point, it is unclear when the “12-month Barbados Welcome Stamp” will become available, but the attorneys of Peri & Stewart LLC are certainly considering taking the Bajan government up on such an offer.


Trump Administration Rescinds Policy Barring Many Foreign Students

On July 6, 2020, the Student Exchange Visitor Program announced the modification of an exemption affecting many nonimmigrant alien students planning to attend the Fall 2020 semester.  According to this exemption, F-1 and M-1 nonimmigrant students would not be allowed to take a course load made up completely of online courses and remain in the United States.  Such students would be required to either leave the country or take other measures to lawfully remain present.  In the case of F-1 nonimmigrant students, they would be allowed to attend schools that had adopted a hybrid model of both in-person and online coursework.  The exemption allowed those F-1 nonimmigrant students to attend a maximum of one (1) class or three (3) credit hours of online coursework.

This unexpected policy change was met with widespread condemnation, as well as a barrage of lawsuits from colleges, universities, and state governments.  Colleges and universities argued that the measure was unlawful and would adversely affect their institutions.  Many schools are dependent upon revenue gained from foreign students, who often pay full tuition costs rather than receiving financial aid or scholarships.  In the face of such negative feedback and mounting pressure from colleges and universities, the Trump administration has temporarily abandoned this plan.  However, President Trump continues to pressure schools to reopen their doors for the Fall 2020 semester despite the ongoing COVID-19 pandemic.  While appearing to have abandoned this modification, Department of Homeland Security officials have stated that they intend to issue a regulation in the coming weeks that will affect the ability of foreign students attending online courses to remain in the United States.