December 2020

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USCIS Ordered to Reinstate DACA Program

On December 4, 2020, the U.S. District Court for the Eastern District of New York ordered USCIS to accept first-time requests for deferred action under the DACA program. Immediately following that decision, USCIS announced that in response to that court order, it would reinstate DACA based on the terms of the DACA policy in effect prior to September 5, 2017. USCIS will now accept first-time requests, DACA renewal requests and applications for advance parole and will extend one-year grants of deferred action and EADs under DACA to two years. This is a huge development and a win for Dreamers!

Click the following links for more information:

USCIS Update: Deferred Action for Childhood Arrivals

Federal Courts Block Prevailing Wage Increases

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Department of Homeland Security interim final rule (IFR) entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program,” as well as the Department of Labor (DOL) IFR entitled "Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States." (Chamber of Commerce, et al., v. DHS, et al., 12/1/2020).

Additionally, on December 14, 2020, the U.S. District Court for the District of Columbia ordered the DOL to reissue prevailing wage determinations that were issued under the rule. (Perdue University, et al., v. Scalia, et al., 12/14/2020).

These IFRs resulted in much higher prevailing wage determinations, such that employers were no longer willing or able to pay the substantially higher wages, either forcing them to abandon sponsorship of their employee or take on a more substantial financial burden in hiring their employee. These rule changes went into effect on the date it was announced, October 1, 2020. The outcomes of the two federal cases mentioned above are based on the agencies’ failure to follow the proper rule-changing regulations.

Click the following links for more information:

Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

Strengthening the H-1B Nonimmigrant Visa Classification Program

Asylum changes that will take effect on January 11, 2021

On December 10, 2020 the Trump Administration issued a final rule which further implements tougher immigration rules to Asylum seekers. As AILA President, Jennifer Minear, said,

“This rule eviscerates a needed lifeline to those fleeing danger and reiterates a common false narrative promoted by the Trump administration: that border security can only be attained through the gutting of the asylum system. Border security and a humane approach to those seeking safety can and must work in tandem. We are counting on the Biden-Harris administration to revitalize the United States’ allegiance to the protection of those in danger.”

As published by the Office of Public Affairs of the Department of Justice, the Final Rule makes the following changes to the Departments’ regulations:

  • Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the INA;
  • Permit immigration judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief;
  • Clarify when an application is “frivolous”;
  • Clarify standards for the adjudication of asylum and withholding claims including amendments to the definitions of the terms “particular social group,” “political opinion,” “persecution,” and “firm resettlement”;
  • Outline factors, including an exemption for children under 18 for the factor regarding unlawful entry or attempted unlawful entry, for adjudicators to consider when making discretionary determinations;
  • Clarify the standard for determining the acquiescence of a public official or other person acting in an official capacity under the CAT regulations;
  • Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard;
  • Apply bars to asylum and withholding when making credible fear determinations; and
  • Clarify the requirement to protect certain information contained in asylum applications, applications for withholding of removal under the INA, applications for protection under the regulations implementing the CAT, and applications for refugee admissions.

Click the following links for more information:

News: The Departments of Justice and Homeland Security Publish Final Rule on Procedures for Asylum and Withholding of Removal


USCIS Extends Flexibility to Responding to Agency Requests

USCIS has again extended the Covid-19 response flexibility period to respond to Agency Requests issued through January 31, 2021.

USCIS will consider late responses to certain requests or notices issued between March 1, 2020 and January 31, 2021 (previously March 1, 2020 to January 1, 2021) as long as the response is received within 60 calendar days after the due date set forth in the request/notice. This extension applies to Requests for Evidence; Continuation to Request Evidence; Notice of Intent to Deny; Notice of Intent to Revoke; Notice of Intent to Rescind; Notice of Intent to Terminate; and Motions to Reopen an N-400 pursuant to 8 CFR 335.5. USCIS will also consider Notices of Appeal or Motion (Form I-290B) and Requests for a Hearing on a Decision in Naturalization Proceedings (Form N-336).

Click the following link for more information:

USCIS Response to COVID-19

Extension to I-9 Compliance Flexibility

On December 23, 2020, U.S. Immigration and Customs Enforcement (ICE) announced its extension of flexibilities regarding I-9 compliance rules, which were granted earlier this year. In March 2020, DHS announced that it would exercise prosecutorial discretion to defer physical presence requirements associated with Form I-9, Employment Eligibility Verification, due to precautions implemented by employers and employees in connection with Covid-19. Employers with employees taking physical proximity precautions (working from home etc.) due to Covid-19 will not be required to review the employee's identity and employment authorization documents in the employee's presence. Employers are required to inspect the documents remotely and must provide written documentation of their "remote onboarding and telework policy for each employee." All employees onboarded using remote verification must report to the employer within three business days for in-person verification of identity and employment eligibility documentation once normal operations resume. This policy will be extended through January 31, 2021. For more information regarding the policy implemented in March 2020.

Click the following link for more information:

Article: ICE announces extension to I-9 compliance flexibility

H.R. 1044/ S. 386 - Fairness for High-Skilled Immigrants Act

The Fairness for High Skilled Immigrants Act will affect the waiting times for visa availability of employment based categories if passed by both legislative bodies and signed by the President.

Overall, the bills seek to increase the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and to eliminate the 7% cap for employment-based immigrant visas. They would also remove an offset that reduced the number of visas for individuals from China. Furthermore, based on the Congressional Research Service (CRS) analysis and their projections of backlog growth (as well as DOS data) the following is the expected wait time on Oct 1 2022 if one of these bill passes,

  • EB1 – 3 to 5 years in Oct 2022
  • EB2 – 16 to 18 years in Oct 2022
  • EB3 – 4 to 6 years in Oct 2022
  • EB4 – 3 years
  • EB5 – 8 years based on backlog published by DOS (could extend to 10 years by 2022)

The bills would also establish transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

Click the following link for more information:

Article: S.386/H.R.1044 legislation depends on how much pressure is exerted

Bill: H.R. 1044 As passed in the U.S. House of Representative. Subsequent Senate Amendments are available as well

January 2021 Visa Bulletin

The January 2021 Visa Bulletin is out! EB-3 for “rest of the world” (except China and India) remains current. India and China experienced some movement as follows,

  • EB-1 India moves ahead to 01SEPT19
  • EB-2 India moves ahead a week to 08OCT09
  • EB-3 India also moves ahead a week to 22MAR10
  • EB-1 China moves ahead a few months to 01SEPT19
  • EB-2 China moves ahead a week to 01JUN16
  • EB-3 China moves ahead to 15DEC17

Click here to see January's visa bulletin

Garvish Immigration

Law Group


Click the titles to access the information

USCIS Expands Interviews for Refugees and Asylees Petitioning for Family Members

Extending Validity of TPS for Certain Country Designations

USCIS Ending Two Categorical Parole Programs

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