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The Supreme Court Upholds DACA

Posted June 18, 2020Maria Cabrales - Law ClerkArticles

On June 18th,the Supreme Court ruled that the Trump administration’s rescission of DACA (Deferred Action for Childhood Arrivals) was arbitrary and capricious under the Administrative Procedures Act. The Administrative Procedures Act governs the process that federal agencies must follow when they issue new regulations. Now, DACA recipients can continue to renew their work authorization and USCIS can begin accepting new applications. DACA is an Obama-era program that protects thousands of children brought to the U.S as children from deportation.

The Trump administration decided to phase out the program in 2017, ending many applicants’ ability to apply for DACA. The Supreme Court stated that their decision is not about the Department of Homeland Security’s (DHS) ability to rescind DACA. DHS can end DACA. The primary argument was whether the Trump administration followed protocol per the Administrative Procedures Act, as the Supreme Court found that DHS failed “to provide a reasoned explanation” for the decision to phase out DACA. 

If you currently hold DACA or want to know if you are eligible to apply for DACA please contact our firm at: consultation@meltzerhellrung.com

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Extension of Form I-9 Rule Flexibility for Additional 30 Days

Posted June 18, 2020Stephanie Wedel - Sr. AssociateArticles

In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. While initially set to expire June 18, this guidance has been extended an additional 30 days due to the ongoing precautions related to COVID-19.

This provision only applies to employers and workplaces that are operating exclusively remotely. This provision does not apply where there is an in-office presence. Companies with employees working remotely due to the pandemic do not need to review the documents with the employee physically present, but instead must review the documents remotely within three days of the employees start date. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

Employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

Please reach out to your designated Meltzer Hellrung attorney with any questions.

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Ban on nonessential travel has been extended in the U.S., Mexico, and Canada

Posted June 17, 2020Maria Cabrales - Law ClerkArticles

The Department of Homeland Security has announced that it will extend the current nonessential travel restrictions at land ports still in place with Canada and Mexico. The only individuals permitted to travel to the U.S. are:

  • Legal permanent residents
  • U.S. citizens who are returning to the U.S.
  • Individuals travelling to work in the U.S.,
  • Individuals engaging in lawful cross-border trade
  • Individuals travelling to attend school
  • Individuals receiving medical treatment or other public health purposes

These restrictions only apply to boat travel, rail passenger, and other methods of land entry. The Department of Homeland Security has stated that these restrictions will expire on July 21st. 

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Presidential Proclamation regarding Chinese National F or J Nonimmigrants

Posted June 1, 2020Stephanie Wedel - Sr. AssociateArticles

On May 29th, President Trump signed a presidential proclamation that will ban certain Chinese nationals from entering the United States as F or J nonimmigrants, effective June 1st at 12pm EST.  The proclamation applies to those Chinese National F or J nonimmigrants who will (1) engage in graduate study or research in the U.S.; and (2) have received funding from or are currently employed by, study at, or conduct research at (or on behalf of) an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy” (MCF).  For purposes of the proclamation, MCF means “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

The Department of State (DOS) has been directed to consider whether or not to cancel the visas of Chinese F and J nonimmigrants currently in the United States that would be covered by this ban. DOS and the Department of Homeland Security (DHS) are directed to consider updated regulations concerning membership in a totalitarian party as a ground of inadmissibility.

U.S. legal permanent residents (green card holders), spouses of U.S. citizens and green card holders, foreign nationals in the U.S. armed forces (and their dependents), and foreign nationals who would further the U.S. national interest are exempt from this proclamation.

Undergraduate studies are also exempt from the proclamation, as well as those individuals who are studying or researching in fields that do not contribute to the MCF strategy as determined by DHS, DOS, and the Department of Justice, though the proclamation does not specifically identify these fields.

DOS and DHS are expected to provide additional clarification on how this proclamation will be implemented, as well as who will be subject to this suspension.

Please reach out to your designated Meltzer Hellrung attorney with any questions.

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Premium Processing to Resume in June

Posted May 29, 2020Stephanie Wedel - Sr. AssociateArticles, Green Card, H-1B

On March 20th USCIS suspended premium processing for all I-129 and I-140 petitions. On May 29th, USCIS announced a phased process to resume premium processing for all petitions over the next month.

  • June 1st – I-140 petitions will be eligible for premium processing.
  • June 8th – Pending H-1B petitions that are not subject to the cap, and all other pending I-129 non-immigrant (such as TN, O-1, and L-1) applications, that were filed before June 8th will be eligible for premium processing upgrades.
  • June 15th – Cap exempt H-1B employers (such as universities, non-profit research organizations, etc.) and employees (such as Conrad/IGA waiver recipients) can file the premium processing request concurrently with the I-129 (or request premium processing upgrades if filed after June 8th).
  • June 22nd – Premium processing for all I-129 petitions resumes and can be filed concurrently with the I-129. This includes cap-subject H-1B petitions.

Please contact your designated Meltzer Hellrung attorney with any questions.

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