From the new public charge rule to the Supreme Court's recent DACA ruling, the first half of 2020 saw notable changes to immigration policy
The first half of 2020 saw a great deal of immigration policy updates and news that impact employment-based immigration. From a final decision on the public charge rule for nonimmigrant visas and green cards to an expanded travel ban and two presidential proclamations, employers had a lot to keep up with.
Rounding up of the most important immigration news and policy updates so far this year
Public Charge Rule
On February 24, The Department of Homeland Security began enforcing its recently upheld Inadmissibility on Public Charge Grounds Final Rule. The Public Charge rule permits U.S. Citizenship and Immigration Services (USCIS) to deny applications to extend or change an individual's non-immigrant status for those found likely to receive public benefits during the petition period. In addition, USCIS can deny a person's adjustment of status to a permanent resident if the person is likely to receive public assistance at any time in the future.
Public benefits subject to the rule include Social Security Income, Medicaid, Section 8 Housing Assistance and food stamps. The Public Charge rule impacts USCIS cases for employers based in all 50 states, as well as Department of State consular cases.
Expanded Travel Ban
The Trump administration in February announced plans to expand its travel ban to include six additional countries. The new order suspends immigrant visas for citizens of Nigeria, Myanmar, Eritrea and Kyrgyzstan. Meanwhile, citizens from Sudan and Tanzania are now barred from the U.S. diversity visa program. Tourist, business and other non-immigrant travel visas will remain unaffected, however. The administration cited security concerns as the rationale behind the expanded ban, pointing to insufficient information sharing from the countries' governments about criminal and terrorism data, a lack of electronic passport systems and issues with Interpol reporting methods.
Notable Court Decisions
In February, a federal judge issued a permanent, nationwide injunction that blocks a 2018 action from the Trump administration that would have made it harder for foreign nationals to remain in the U.S. after their legal status ran out. The memo would have changed the method in which accrual of unlawful presence for students and exchange visitors was calculated. The judge ruled that the policy conflicts with immigration law, and in addition, should have been subject to public "notice and comment" before it was implemented.
In March, a series of three court cases ruled that USCIS unlawfully denied H-1B visas for foreign workers by adopting a new, narrow interpretation of what qualifies as an H-1B "specialty occupation."
Later in June, USCIS published a memo that formally rescinded two policies regarding the adjudication of certain petitions for H-1B visas. The memo came following a May settlement with ITService Alliance after a district court ruled that key USCIS policies were unlawful, specifically those that restricted the understanding of the employer-employee relationship.
COVID-19: Implications for Immigration and Mobility
USCIS has taken a series of steps to lessen the spread of the virus. This includes the suspension of in-person services at its field offices, asylum offices and Application Support Centers, as well as the temporary suspension of premium processing for I-129 and I-140 petitions. USCIS also announced that they will accept all benefit forms and documents with reproduced original signatures in lieu of wet ink signatures.
In addition to the State Department issuing a level 4 travel advisory, the U.S. and Canada mutually agreed to close their border to non-essential travel. The U.S. is also restricting non-essential travel from Mexico into the U.S. Embassies and consulates cancelled all routine immigrant and nonimmigrant visa appointments as of March 20th, 2020. The State Department has also restricted entry into the U.S. by non-citizens who have spent the prior 14 days in the 26 European Schengen area countries, Ireland, The United Kingdom, Iran and China.
In alignment with actions already taken by U.S. consulates and embassies, President Trump on April 23 signed a presidential proclamation temporarily suspending immigrant visa (green card) processing for certain applicants outside of the U.S. for 60 days. At the time, the proclamation did not impact nonimmigrant work visas. However, on June 22, Trump signed another proclamation, which extended the suspension of green card processing through the end of the year. The June proclamation went further by also suspending the issuance of new H-1B, J-1, L-1 and H-2B visas to nonimmigrants outside the U.S.
Supreme Court Ruling on Deferred Action for Childhood Arrivals (DACA) Program
Last month, the U.S. Supreme Court ruled 5-4 that the Trump administration may not move forward with immediately rescinding DACA. The program, established by Barack Obama in 2012, provides legal protection and work authorization to the children of undocumented immigrants who were brought to the U.S. under the age of 16 and by 2007.
Chief Justice John Roberts said in his majority opinion that the administration did not provide an adequate reason for ending the program, calling the attempt "arbitrary and capricious."
It is important to note that SCOTUS did not determine whether DACA—or its rescission—are sound policies. This potentially gives the Trump administration another opportunity to end the program should he win the election in November.
Originally published July 8, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.