Important Announcements

October 2020

Recently Posted Announcements

District Court Grants ILRC Preliminary Injunction Halting Implementation of USCIS Fee Rule

While we do not know how long the Injunction will hold. The district court stayed the implementation and the effective date of the August 2020 Final Rule changing the fee schedule in its entirety pending final adjudication of this matter. (ILRC et al., v. Wolf, et al., 9/29/20).

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USCIS Implements DHS Guidance on DACA

On August 24, USCIS U.S. Citizenship and Immigration Services today provided guidance on how it will implement Acting Secretary of Homeland Security Chad Wolf’s July 28 memorandum (PDF) regarding the Deferred Action for Childhood Arrivals (DACA) policy.

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DOS Expands Interview Waiver Eligibility

Secretary Pompeo, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.

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USCIS Guidance Implementing DHS Acting Secretary’s July 28, 2020, Memorandum on DACA

USCIS issued an update providing implementing guidance on DHS July 28, 2020, Memo on DACA following the USCIS Statement on the US Supreme Court’s DACA Decision. Among other things, USCIS will reject all initial DACA requests from individuals who have never previously received DACA and return all fees; accept requests from those who had been granted DACA at any time in the past; and will also accept requests for advance parole that are properly submitted.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year. USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.

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FW Form I-9 Verification During EAD Production Delays Employees Can Use Form I-797

As part of a proposed consent decree currently pending approval by the judge in Subramanya v. USCIS, USCIS will allow Form I-797, Notice of Action, with a notice date of December 1, 2019, through August 20, 2020, showing approval of their I-765 application as a list C #7 document for Form I-9 compliance until December 1, 2020. In other I-9 compliance news, DHS extended previously announced Form I-9 flexibilities in rules related to Form I-9 compliance until September 19, 2020.

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The Dept of State Clarified H1B Visa Exceptions under P.P. 10052 for certain travel in the national interest to include the following...

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Update in the Foreign Affairs Manual (FAM), Effective July 21, 2020

In line with the July 24, 2020 guidance issued by ICE, it should be noted that the State Department updated the corresponding FAM section, 9 FAM 402.5-5(C), to add a new requirement pulled from 8 CFR §214.2(f)(6)(i) requiring that in order to qualify for a student visa (F-1/M-1), the applicant must have the "intent to enter the United States solely for the purpose of pursuing a full course of study at an approved institution."

The revised FAM entry replaces previous guidance issued subsequent to the July 6, 2020 DHS guidance which stated that if the applicant did not take any in-person classes and could complete the intended course of study online from their residence abroad, their purpose of travel is not considered solely to pursue a "full course of study" and that the consular officers should refuse the visa pursuant to 214(b). It should also be noted that the definition for "full course of study" is pulled from 8 CFR 214.2(f)(6)(i) and reiterated in 9 FAM 402.5-5(I)(1).

Another Round of 2021 H1B Cap Registration Selection

Litwin & Smith has heard reports that USCIS may be selecting more H-1B registrations for the FY2021 cap, as early as this week, and that a new H-1B filing period may be opening August 17 through mid-November, 2020. Litwin & Smith continues to monitor the situation and will share any updates as they become available.

USCIS Issues Visitor Policy in Light of COVID-19

USCIS issued a visitor policy in light of COVID-19, requiring all applicants, petitioners, and visitors over the age of two to wear face coverings while in a USCIS office. USCIS is also limiting who can accompany applicants with appointments and prohibiting guests at naturalization ceremonies.

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DHS Will Reject Initial Requests for DACA, Limit Renewals to One Year

DHS Acting Secretary Wolf issued a Memo Rescinding the 2017 and 2018 memoranda that rescinded DACA. Pending reconsideration of the DACA policy, DHS will reject all initial DACA requests, reject new and pending requests for advanced parole, and limit the period of renewed deferred action to one year.

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USCIS Updates EB-5 Guidance on Initial and Further Deployment of Investment Capital

On July 24, USCIS issued a Policy Manual update on deployment of investment capital under the EB-5 Immigrant Investor Program. The update clarifies the deployment of capital by a new commercial enterprise before jobs have been created. It also clarifies further deployment of capital after an immigrant investor meets the program’s job creation requirements.

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DHS Lifts Ban on Trusted Traveler Programs for New York Residents

The Department of Homeland Security announced it will lift its ban on the Trusted Traveler Program (TTP) for New York residents. After DHS cut off the TTP program in February, Governor Andrew Cuomo and the state legislature amended the law that prevents sharing of information to federal law enforcement officers who are working to protect the citizens of New York and the American people. New York amended its Green Light Law to allow for information sharing of NY DMV records "as necessary for an individual seeking acceptance into a trusted traveler program".

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U.S. District Court for the District of Maryland Orders DHS Under the Trump Administration To Accept New DACA Applications

Following the Supreme Court ruling in DHS v. Regents of the University of California, on July 17, 2020, Judge Paul W. Grimm in the U.S. District Court for the District of Maryland ordered the following in Casa de Maryland, et al., v. DHS,

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DOS Provides Guidance on National Interest Exceptions for Certain Travelers from Europe

The US Department Of State provided guidance that certain business travelers, investors, treaty traders, academics, and students from the Schengen Area, the United Kingdom, and Ireland may qualify for National Interest Exceptions under Presidential Proclamations 9993 (Schengen Area) and Proclamation 9996 (United Kingdom and Ireland).

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DOS Provides Information on Limited Exceptions to Presidential Proclamations 10014 and 10052

US Department Of State (DOS) posted their application of limited exceptions to Proclamations 10014 and 10052 for humanitarian travel, public health response, and national security. DOS may provide limited exceptions to those who may age out, certain H and J applicants, and spouses/children of certain H, J, and L visa holders.

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