Lynn Susser’s Update – July 30, 2020

Posted on: July 30th, 2020
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Finally some good news to report:

In response to a lawsuit, the State Department reversed its position on L2’s, H4, and J2’s stuck outside the US without valid visas when President Trump signed his June 22nd executive order.  Consulates will issue L2, H4 and J2 visas to dependents where the L1, H1B or J1 spouse is currently in the U.S.  Hopefully, this will be implemented smoothly across consulates and families will be quickly reunited. Visa issuance is still hampered by closed consulates in many countries but this is a step in the right direction.

In addition, last week, the State Department tweeted that it would issue new visas to H’s, L’s and J’s that were in the US on 6/24 as they are not subject to the proclamation issued on 6/22.  We are still waiting for clarification as to whether this includes L1’s applying for Blanket-based extensions at the consulate but the language sounds hopeful as it concedes they were not subject to the proclamation.

In response to a lawsuit by Harvard and MIT (as well as dozens of other universities), ICE reversed its position on foreign students having to depart the U.S. if they enrolled in online-only classes in the fall in response to the pandemic.  Foreign students can remain in the U.S. and continue their studies if their respective schools decide that online classes are necessary to combat COVID-19 this fall. This decision is important for many reasons not the least of which is the ability of these students to apply for OPT when they graduate.

In response to the Supreme Court’s ruling that the Trump administration’s rescission of DACA was “arbitrary and capricious,” the US District Court in Maryland ruled that USCIS must start accepting new DACA applications and DACA recipients’ requests for Advance Parole (temporary travel documents).  Everyone was thrilled for about 2 weeks, then this week USCIS announced it would not comply with the court’s order and is refusing new applications. No doubt more litigation is coming.

US Consulates are slowly beginning to reopen and accept applications from applicants applying in categories other than H1B, L1 and J1.  In addition, we should be able to begin booking appointments for those H’s and L’s we think are eligible for the national interest exceptions to the ban.

DHS has extended its I-9 compliance flexibility deadline to 8/19/2020.  This is the provision that allows employers to continue to inspect documents electronically and defer the physical inspection until after the emergency is lifted.

The threatened furlough of 13,000 USCIS employees has been deferred until the end of August to give Congress time to provide further funding.

Yesterday, a court struck down the administration’s new Public Charge rule for the duration of the COVID-19 pandemic.  Likelihood of becoming a public charge has always been a ground for denial of admission to the U.S.  Historically, the beneficiaries of employment-based green cards were assumed not to be a public charge because they had guaranteed employment . However, the Trump administration published a new rule in February requiring the completion of form I-944 (18 pages) with each adjustment application and voluminous documentation to support it including: a credit report, copies of all bank statements, mortgage agreements, all other financing agreements, stock portfolios, proof of health insurance, etc.  We are waiting for guidance on how to move forward.