Tag Archive for: Coronavirus

Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

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By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

How USCIS Can Remain True to its Mission by Exercising Compassion During the COVID-19 Period

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Although the United States Citizenship and Immigration Services is mandated by Congress to grant benefits, it has become an enforcement oriented agency under the Trump administration that has displayed remarkable hostility towards immigrants.    During the period when people are mandated to stay confined and practice social distancing in order to prevent the spread of the coronavirus, and many will unfortunately also fall sick, the USCIS ought to become compassionate and true to its mission of  being a benefits granting agency.

The USCIS has admittedly made some changes in a niggardly fashion. Although the public charge rule got rolled out last month, which is intended to deny immigration benefits under a more expansive interpretation of who is likely to become a public charge, it made one small exception on March 13, 2020 by encouraging noncitizens with symptoms resembling COVID-19 to seek medical treatment or preventive services. “Such treatment or preventive services will not negatively affect any alien as part of a future public charge analysis,” the agency said in a statement.  The exception goes beyond treatment and preventive services, and the USCIS goes onto state: “[I]f the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation.” The USCIS has also allowed applicants to reschedule appointments if they have travelled internationally to any country within the past 14 days of their appointment, believe they have been exposed to the COVID 19 virus or are experiencing flu like symptoms. Separately, DHS has notified that foreign students  should be able to maintain status even if the program goes online so long as the school makes the notification within 10 days.

While these fixes are steps in the right direction, USCIS ought to make more bold changes to provide ameliorative relief to noncitizens that would be in the best interests of the nation. Below are some suggestions:

  1. As employers and law firms have allowed their staff to work remotely, USICS should immediately allow all filings with USCIS to be made online, and also allow scanned or electronic signatures. The electronic H-1B Registration is a good example of how this can be implemented for all USCIS filings.
  2. While an H-1B workers who works from home in the same area of intended employment or within commuting distance does not need a new LCA, eliminate the need to file a new LCA and H-1B amendment even if the home is located outside the MSA or beyond the area of commuting distance. The DOL rules governing LCAs never contemplated telecommuting, and it makes no sense for affected workers to post the LCA on their refrigerator.  The telecommuting is tied to the location where the work is actually performed and for which the LCA was originally obtained and where the posting already occurred.
  3. While the USCIS should give a blanket 90 day extension for filing extension and change of status requests (and this is beyond the 60 day grace period that is given to certain nonimmigrants upon cessation of employment); any delay beyond the 90 days can still be deemed an extraordinary circumstance, and thus excused, under 8 CFR 214.1(c)(4) or 248.1(c) if it is based on a corona virus circumstance.
  4. Coronavirus issues should be deemed technical reasons for INA 245(c)(2) purposes to allow delayed adjustment filings when necessary.
  5. Similar extensions ought to be given with respect to filing responses to RFEs and I-290B appeals or motions as well as filing an I-140 beyond 180 days of the grant of labor certification.
  6. Auto-extend EADs, Advance Paroles and I-551s to eliminate the need to file I-765, I-131 and I-90 extensions.
  7. Automatically reschedule all missed USCIS appointments (biometrics, adjustment and naturalization interviews and oath ceremonies) rather than deem that the application has been deemed abandoned. Also, if possible, develop technology for noncitizens to securely process their biometrics through their own phone devices.
  8. The filing of a meritorious and nonfrivolous I-290B should no longer trigger unlawful presence for purposes of the 3 and 10 year bars.
  9. Have a policy of granting parole in place to one otherwise eligible to adjust status if it can be demonstrated that it would be impossible or harmful for a person to return to the home country.
  10. Advance the Chart B filing dates to Current or close to Current as the notion of an “immigrant visa is immediately available” under INA 245(a)(3) has always been viewed with elasticity, especially in the case of the July 2007 visa bulletin and more recently in the implementation of Chart B filing dates. In the same vein, rescind the USCIS policy that requires the CSPA age to be triggered only if the final action date becomes current rather than the filing date becoming current.
  11. Allow for video interviews for adjustment of status and naturalization applications, as well as with respect to an oath swearing ceremony. If that is not feasible in the short run, at least minimize the interviews. For example, employment-based adjustment cases do not need interviews, which was the case before.
  12. Relax the standard for competent representation at 8 CFR 1003.102(o) and diligent representation at 8 CFR 1003.102(q), as well as the duty to communicate at 8 CFR 1003.102(r), if an attorney is affected by the coronavirus and is forced to be quarantined for several weeks and has no other attorneys who can act on his or her behalf.

These are a few suggestions for USCIS to revert to its historic role of viewing its mission as providing benefits rather than being a junior partner to Immigration and Customs Enforcement. Other agencies also need to step up to also take appropriate actions, and this blog only focuses on USCIS fixes. If God forbid the situation goes out of hand,  bolder action would need to be taken. There is statutory authority to grant mass Temporary Protected Status under INA 244(b). There is also authority to grant deferred action to large groups of noncitizens who may be at grave risk to themselves and others if they are asked to leave the US. The President has broad powers in times of a national emergency. Now is not the time for restrictionists to oppose such measures that benefit noncitizens, and it would also be perverse for them to advocate that the President use these powers to hurt noncitizens. The health and safety of everyone is paramount, and all people living in this nation, whether citizen or non-citizen, are intractably connected and the administration must take all measures to protect everyone.