November 2020
Immigration Updates from BOILA
We know times are difficult and filled with uncertainty. Know that we remain dedicated to you and your cases. We are stronger together and divided. Let's remember to continue to support each other and fight for what's right and just!

Please feel free to contact us should you have any questions or concerned. We hope to see you all soon.

Please do visit the CDC website and your local government sites to stay abreast of changes with covid-19 virus.
To any of our clients who are, or know someone who might be, eligible for adjustment of status under the Liberian Refugee Immigration Fairness Act (LRIF), the deadline to submit your adjustment application is December 20, 2020.

In order to be eligible for lawful permanent residence under LRIF, you must meet the following requirements:

  • You properly complete and file Form I-485, Application to Register Permanent Residence or Adjust Status, by Dec. 20, 2020, and we receive your application by Dec. 20, 2020;
  • You are a national of Liberia;
  • You have been continuously physically present in the United States during the period beginning on Nov. 20, 2014, and ending on the date you properly file your Form I-485; and
  • You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.

You are not eligible for adjustment of status under LRIF if you have:
  • Been convicted of any aggravated felony;
  • Been convicted of two or more crimes involving moral turpitude (other than a purely political offense); or
  • Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

To qualify, you must also document continuous physical presence beginning on Nov. 20, 2014, through filing of Form I-485.
President-Elect Joe Biden's Immigration Plan
President-elect Joe Biden has made it clear his policies directly contradict the policies put in place by the Trump administration. His plans include:

  • Take urgent action to undo Trump’s damage and reclaim America’s values
  • Modernize America’s immigration system
  • Welcome immigrants in our communities
  • Reassert America’s commitment to asylum-seekers and refugees 
  • Tackle the root causes of irregular migration 
  • Implement effective border screening 

Biden has promised to re-instate the DACA program and to have Congress enact a bill to make its protections permanent.

He has vowed in his first 100 days in office to reverse the Migrant Protection Protocols Program that currently forces asylum seekers to await their hearings in Mexico - where many are fleeing from fear of persecution and other harm.

In his plan to modernize the U.S. visa system, Biden has indicated his plan includes increasing the number of visas available in some categories and providing foreign workers with additional safeguards to prevent exploitation in the workplace. His plan to give agricultural workers a fast-tracked path to obtaining a green card and citizenship based on prior agricultural work history in the United States will make it easier for U.S. employers to hire and retain both seasonal and permanent workers.

Biden also plans to reform family-based immigration by recognizing spouses and children of lawful permanent residents as immediate family members which would reduce the amount of time families were separated and would have to wait to be reunited.

We are all hopeful that the new Biden administration will prove to be one that uplifts, supports, and rebuilds our devastated immigration system.
COVID Restrictions and Holiday Travel

Nearly all countries and jurisdictions have implemented some combination of entry, quarantine, and sometimes exit requirements or advisories in response to the COVID-19 emergency. Travelers should research policies that apply to their destination. Also be aware, however, that the COVID-19 pandemic is a highly fluid situation and policies can change with little or no notice.

Foreign nationals hoping to travel to Canada or Mexico should be aware that current law permits only “essential” travel across the U.S.-Mexico and U.S.-Canada land borders (and ferry travel) through at least December 21 and likely beyond. “Non-essential” travel that is banned across land borders is travel for tourism or recreation. U.S. citizens, green card holders, and some others are exempt from the restrictions. These restrictions do not affect air travel. 

Many U.S. consulates abroad are still operating at reduced capacity due to local COVID-19 conditions. Visa appointments are limited in many areas. Some posts are scheduling appointments only in emergency or mission-critical circumstances. Many are applying a strict case-type priority system, which favors emergency cases, diplomats, and COVID-19-related travel over student and employment-based nonimmigrant visa appointments.

At this time, the United States has no federal quarantine requirements. The federal agency Centers for Disease Control and Prevention (CDC) has issued after-travel recommendations only, which can be found here.

Quarantine requirements in the United States are governed by the U.S. state through which you enter. Some states do not have after-travel requirements in place. For some states, entry from a CDC Level 2 or Level 3 COVID-19 country triggers heightened requirements. State policies can vary widely and change quickly; travelers should closely monitor their destination state requirements before travel and prior to reentry to the United States. The following are links to resources regarding travel for some major states:

If you have an adjustment of status application or nonimmigrant change of status application pending with USCIS, consult an attorney at Beach Oswald immigration prior to planning any travel

What's Happening With DACA?

Following the Supreme Court's decision in June and another issued by the Federal District Court in Maryland on July 17, 2020, the DACA program was briefly restored to its pre-September 2017 state. This was short lived, as Acting Homeland Security Secretary Chad Wolf issued a memorandum that both rescinded former Acting Secretary Duke’s 2017 memorandum and made significant changes to the DACA program’s operation in July 2020. The changes to the DACA program that were announced in the Wolf Memorandum include the following:

  • The rejection of all initial requests for DACA and associated applications for Employment Authorization Documents;

  • The rejection of new and pending requests for advanced parole absent exceptional circumstances; and

  • The reduction in the period of deferred action granted under the program to one-year increments of time, as opposed to the two-year grants of deferred action that had been awarded prior to the Wolf memo’s issuance
Lastly, the Wolf memorandum indicates that DHS is considering another rescission of the program.

On August 21, 2020, USCIS Deputy Director for Policy Joseph Edlow issued a memorandum implementing Acting Secretary Wolf’s directive.

Only time will tell what the fate of the DACA program and the program’s beneficiaries will be, but DACA recipients have become ingrained in our communities and the nation’s economy. For the federal government to impose new policies that would jeopardize the future of these individuals after all this time would run contrary to fundamental American principles and the best interests of our country. Let us hope that, no matter how the election turns out, our elected leaders can finally reach common ground to provide Dreamers with the certainty that they’ll be able to continue building their lives in the only country they know as home.

USCIS Proposes Replacing H-1B Lottery with Wage-Based Selection By March 2021

The Department of Homeland Security announced a Proposed Rule that would change the way H1-B petitioners will be selected. The new system will be based on wage levels and is intended to replace the current random lottery selection through a computerized process. The new process proposes giving priority to the highest wage earner in the said occupation in that region thereby, eliminating the entry-level foreign workers.

How Does It Work?
  • The DHS will rely upon the Occupational Employment Statistics (OES) calculation for wages in each geographic region which is then divided into 4 wage-levels;
  • Employers recruiting foreign workers are expected to give wages above the OES levels for these H1-B visa holders;
  • Per the new proposed process, only those H1-B beneficiaries who are offered the highest wages (within their occupation categories) by their petitioning employers will be given priority.
  • If the wage level is not calculated per the OES wage levels, then USCIS will automatically categorize that petition under wage level I;
  • Given that these wage levels are calculated based on geographic regions, and the beneficiary will work in different locations, USCIS will adjudicate the petition based on the lowest offered wage level;
  • If there is no available OES prevailing wage information for the job profile, USCIS will automatically consider the petition based on the OES wage level that corresponds to the requirements of that position;
  • This new process will be applicable to H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions;
  • It will be applicable to both the H-1B regular cap and the H-1B advanced degree exemption. 

Where Does The Proposal Stand Today?
This DHS proposal to replace the H1-B selection process comes on the heels of the latest H1-B wage increase ruling by US Department of Labor implemented on October 8, 2020. In this, the Occupational Employment Statistics (OES) prevailing wages for the H1-B program were significantly increased effective immediately. 

The intent of the new process is to ensure employers only seek the best, most specialized talent from abroad and pay higher wages to them. This would ensure they are offered “corresponding wage levels in order to better protect the economic interests of U.S. workers, while still allowing U.S. employers to meet their personnel needs and remain globally competitive.”

Next Steps…
  • DHS intends to fast track this new proposal in time for next year’s lottery in March 2021;
  • DHS will publish this new proposal in the Federal Register shortly.
  • The public will have 30 days to comment on the rule and 60 days to comment on related forms.
  • The feedback and responses will be reviewed, some changes will be accommodated and a final rule will be published. 
  • The oncoming Presidential elections may or may not have an impact on these timelines but it is anticipated that many H1-B dependent employers like major players in the tech and medical industry are expected to oppose this ruling and file a suit against it.

Denying Work Permits for People Released from ICE

The Trump administration announced on November 17 that it plans to start denying work permits to people who have been ordered deported, but who have been released from immigration custody because they cannot—or should not—be deported.

Rather than keep a person with a deportation order locked in immigration detention indefinitely, (ICE) can release the person on an Order of Supervision (OS). An OS allows ICE to monitor individuals with deportation orders without holding them in jail.

Right now, people released on an OS can apply for permission to work,
but DHS wants to change that. DHS has proposed a rule that would prohibit work permits for individuals released from detention on an OS unless they fall into an extremely narrow exception. The new restrictions would not apply to individuals with final deportation orders granted protection in the United States.

If the rule goes into effect, work permits will be available only to people who show that they cannot be removed because all the countries DHS has contacted have affirmatively declined to issue the necessary travel documents for the individual.

This gives deportation officers power to deny people work authorization simply by requesting travel documents from as many countries as possible, even where the person has no connection to that country.

Applicants for work authorization do not typically have to demonstrate economic necessity.And even those who are eligible for employment authorization will not be able to renew their work permits unless they are employed by a business that uses E-Verify.

If this new rule goes into effect, stateless people and those released for humanitarian reasons, will be forced to live life on the margins, without legal permission to work.

Public Charge Rule Vacated by Federal Court

A federal court in Illinois vacated the public charge rule nationwide in a decision today that orders the Department of Homeland Security to stop enforcing the rule immediately.

Key points:
  • The court ruled that the public charge rule exceeds the agency’s statutory authority and is arbitrary and capricious, and that the appropriate remedy is to vacate the rule nationwide.
  • The court rejected DHS’ arguments that the order be put on hold pending appeal and that it should be limited to Illinois.
  • The court allowed the lawsuit to continue on the issue of whether the rule violates the Equal Protection Clause.

The public charge rule took effect Feb. 24, 2020, but has been put on hold several times because of multiple lawsuits.

DHS has not yet issued guidance in response to the court decision, but is expected to respond soon. This decision was a summary judgment and therefore will remain in effect unless stayed or reversed by a higher court.
Increased Difficulty on Naturalization Exams
Lawful permanent residents seeking to become U.S. citizens will now be required to take a more difficult and longer citizenship test. U.S. Citizenship and Immigration Services (USCIS) announced the change on November 13.

The new test increases the total number of questions from 100 to 128. Applicants will be verbally asked 20 questions and must answer at least 12 correctly. The test formally required only 6 out of 10 correct answers.

A longer and more challenging test will likely prevent some immigrants from becoming citizens.
The new test will apply to any person who files a citizenship application after December 1, 2020.

The test will contain questions that are explicitly more difficult.
While applicants previously may have been asked to identify one of the branches of government, they may now be asked to identify all three branches of government. Applicants who may have been asked to identify three of the original 13 states may now be asked to identify five of the original 13 states.
USCIS says one of the goals of the new test is to ensure applicants learn more about civics and history and aren’t simply learning names and dates.

Other questions have taken on a subtle political stance. For example, two new questions asking “Why did the United States enter the Korean War?” and “Why did the United States enter the Vietnam War?” each have only one suggested answer: “To stop the spread of communism.”

The Trump administration has tried to change this through executive orders. One executive order attempted to exclude undocumented immigrants from the official 2020 Census count.

USCIS Updates
USCIS Adopts AAO Decision on TPS and Authorized Travel

USCIS announced a Policy Memorandum  adopting the Administrative Appeals Office decision on Matter of Z‑R‑Z‑C.

The decision holds that Temporary Protected Status (TPS) beneficiaries who travel abroad using a Department of Homeland Security (DHS)-issued travel document under Immigration and Nationality Act (INA) section 244(f)(3) generally will retain the same immigration status on their return that they had at the time of departure. Exceptions apply to aliens inadmissible under certain criminal or national security grounds or with immigrant or nonimmigrant visas they present for admission to the United States.

This travel does not satisfy the “inspected and admitted or paroled” eligibility requirement for obtaining adjustment of status to lawful permanent residence. This is consistent with the agency’s previous clarification that a TPS beneficiary’s authorized travel does not execute a final order of removal.

Recognizing TPS beneficiaries’ potential reliance on USCIS’ past practice and treatment of their temporary travel abroad, USCIS will limit how it applies Matter of Z-R-Z-C to minimize adverse impacts to this group. This decision does not affect TPS beneficiaries who adjusted status to lawful permanent residence under past practice and/or prior guidance or who have pending applications for adjustment of status.

In addition, USCIS will only apply Matter of Z-R-Z-C prospectively to TPS beneficiaries who departed and returned to the United States under section 244(f)(3) of the INA after Aug. 20, 2020, the date of the AAO’s adopted decision.