IMMIGRATION UPDATES

Status of Declaration of Self-Sufficiency (Form I-944) in Limbo as Courts Decide Its Fate and USCIS Considers Whether to Continue to Implement

As of this writing on August 17, USCIS has not provided guidance on whether the Declaration of Self-Sufficiency, Form I-944, is required in adjustment of status cases outside of Vermont, Connecticut, and New York. The form is clearly not required in those three states. Although the form was enjoined nationwide by a district court order on July 29, on August 12 a court of appeals limited the injunction to the three states. Since issuing guidance in response to the July 29 lower court order, USCIS has not provided updated guidance on the impact of the modified injunction on its Public Charge Injunction page, which continues to discuss only the July 29 decision. Moreover, USCIS has not added the Form I-944 back to its Forms page. According to a CBS News article, a USCIS spokesperson said on August 13 that the agency is reviewing the order to “determine the administrative viability of reimplementing” the policy “where applicable.”

This creates significant uncertainty for foreign nationals as to whether Form I-944 is required to be filed at this time for applicants residing in states other than Vermont, Connecticut, or New York. In some instances, clients and their counsel are choosing not to file the Form I-944. Instead, it is advisable to include a screen shot of the USCIS Public Charge Injunction page, as well as the Forms page, dated on the filing date, indicating that it was not available for filing at the time of submission and an explanation of why the Form I-944 is not being submitted. Others are choosing to submit Form I-944 out of an abundance of caution. The decision to include or not include the form should be made with immigration counsel until further guidance is released from USCIS.

DACA Update – USCIS Refuses to Accept New DACA Applications in Defiance of Federal Courts

As noted in our last newsletter, the Supreme Court temporarily blocked the Trump Administration’s attempt to rescind deferred action for childhood arrivals (DACA). In issuing the decision for the majority, Chief Justice Roberts noted that the DHS may rescind DACA and emphasized that the Court is not deciding whether DACA or its rescission are “sound policies.” The Court’s decision was rooted in the agency’s failure to follow the Administrative Procedure Act (APA), which requires agencies to provide adequate reasoning for their actions.

While many immigration advocates believed the decision would at least temporarily restore the program in its entirety, USCIS issued a statement the day after the decision indicating that the agency believed the decision had no basis in law and only delayed the termination of the program. Most unfortunately, in the months since the decision, USCIS has actively defied parts of the Court’s decision by not fully restoring the DACA program.

Even though a federal district court ordered USCIS to accept new DACA applications, the agency pushed back, indicating it would reject initial applications for DACA. USCIS will continue to accept renewal applications for individuals who previously filed and received DACA benefits. USCIS will accept and process applications for advance parole only under exceptional circumstances and will limit the renewed deferred action grant to one year.

Even though the Supreme Court’s decision was a remarkable victory for DACA recipients, DHS continues to have authority to end the program in compliance with the APA, and the Administration’s lack of compliance with the decision have limited its potential benefits. Ultimately, lasting relief for DACA recipients would need to come at the congressional level; however, DACA recipients still could benefit from consulting with an immigration attorney to screen for and explore other avenues for permanent residence in the United States.

More Cap-Subject H-1B Petitions Being Selected

Without any notice, some petitioners who registered for the H-1B lottery in early March but did not get selected are now being notified that new H-1B registrations are being selected for submission. Petitioners should login to their USCIS online account and check the status of their H-1B registration accounts for new selections. The new deadline for submitting cap subject H-1B petitions for the October 1 start date is 11/16/2020.

Executive Order on H-1B Workers on Federal Contracts

On August 3, President Trump signed another Executive Order, barring H-1B workers from replacing American workers on a federal contracts. The EO creates an extra step for federal contractors and agencies intending to hire foreign workers on H-1Bs by requiring them to prove that the position could not be filled by a qualified U.S. worker. Specifically, the EO will require federal employers to complete an internal audit to determine compliance with the requirement that only U.S. nationals are employed for competitive positions. The Department of Labor is also finalizing guidance to prevent employers from moving H-1B workers to job sites where U.S. workers may be displaced. While the new EO is not a significant change from current policy, it reflects yet another attack on the H-1B program by the Administration.

Wondering Where Your Green Card or Combo Card Is?

In early July, it was widely reported that USCIS had shut down printing of documents evidencing legal status and work authorization for immigrants and nonimmigrants, including green cards and employment authorization documents (EAD). According to a USCIS, approximately 50,000 green cards and 75,000 other employment authorization documents promised to immigrants and nonimmigrants hadn’t been printed. While printing seems to have resumed, it is unclear how the massive shutdown will continue to impact foreign nationals. And, with the announced August 30 furlough of 13,000 USCIS employees still on the horizon, more delays can be expected.

In response to this massive delay, a class action lawsuit and temporary restraining order (TRO) have been filed with district court, requesting that the court issue various legal writs that compel USCIS to issue EADs to plaintiff and class members immediately, and in no event later than seven calendar days after the date of the court’s order. The lawsuit is in response to USCIS approving EAD applications but failing to provide the actual card.