U.S. Immigration Updates – Border Closure Extended and Regulatory Restrictions

Here are some updates from the world of U.S. immigration. In a nutshell, the U.S. and Mexico borders continue to be closed to “non-essential” traffic, and the Administration is rushing through a slough of regulations to further restrict U.S. immigration. In turn, the new regulations–which impact H-1Bs, prevailing wages, public charge rules, filing fees, expedited removal, asylum and much more–are being challenged in federal court.

Border closure extended. The U.S.-Canada border remains closed to non-essential travel, as has been the case since March. The latest closure will last until at least November 21st, but it seems unlikely to open in the next few months. Commercial traffic continues to be allowed to cross, and indeed has increased according to the customs brokers I’ve spoken with. Essential workers are also allowed to travel, including TN, H-1B, L, E, and O status holders. All border travelers receive more scrutiny these days, in part because of the 97% reduction in ordinary visitor travel. The agents have to stay busy. The economic and family impacts of the continuing border closure have been tough, as reported widely in national news outlets. Entering by air continues to be a workaround for persons coming south. The 14 day quarantine continues to be a challenge for those going north. Some exemptions have developed over these months, but Canada and Prime Minister Trudeau have been vocal about limiting traffic. On the recent extension, Acting DHS Secretary Wolf said, via tweet, “We are working closely with Mexico & Canada to identify safe criteria to ease the restrictions in the future & support our border communities.”

Aside from the continuing border closure, the big news in immigration continues to be the Administration’s efforts to severely restrict most types of immigration. The Administration has fast tracked a number of immigration regulations in recent weeks, which make immigration processes less available, more costly for employers and individuals, and more complicated. Typically, a rule is proposed, and not too long after, the Government is sued for not following proper administrative procedures and for other flaws in the specific rule.

H-1Bs and Prevailing Wages. In particular, the Administration has once again focused on the H-1B program. The Department of Labor issued a rule this month which elevates prevailing wage calculations (85 FR 63872, 10/8/20). On the same day, USCIS issued a rule which redefines the specialty occupation category, places stringent limits on off-site employment, and otherwise guts the H-1B program (85 FR 63918, 10/8/20). The Administration expedited the publication of these rules without going through the ordinary public comment process, and now several lawsuits are pending in federal court, contesting the regulations. In my view, the new prevailing wage rule is a mess and inaccurately reflects employer wages. The USCIS rule seems to be out of step with the Immigration and Nationality Act, and such major changes should be left to Congress. We’ll watch the litigation for updates. Several major universities and employers are litigants.

Family-based Immigration and Public Charge Rules. Family-based immigrant petitions are running into many roadblocks during the COVID crisis. The Administration issued a Proclamation restricting the grant of immigrant visas abroad, ostensibly as a labor market protection. Several other travel bans persist. The Field Office closures delayed many adjudications during COVID closures. Adjudications are now processed amidst COVID protections for applicants and adjudicators (e.g. video screens in some cases).  Additionally, the Administration has implemented complex public charge rules which limit immigration, while making the process much more complicated. E.g. 85 FR 62432, 10/2/20; Inadmissibility on Public Charge Grounds, 84 FR 41292, 8/14/19.  These rules too have been the continued subject of litigation. Before everything is through, I anticipate the Supreme Court will weigh in on some of these rules.

Filing Fee Increases. The Administration has also endeavored to price people and employers out of immigration. A rule was published raising filing fees for petitioners by a weighted average of over 20% and limiting fee waivers.  The price of a nonimmigrant waiver application rose to $1400, from $585. This rule too is on hold due to pending litigation. Meanwhile, Congress authorized an increase in premium processing fees, which allows petitioners to pay for faster adjudications. I’ve always questioned the essential character of this program. Setting that aside, the bad news is the maximum price will now be $2500, up from $1440. The good news is Congress authorized extending this program to a wider range of immigrant benefits, which should end up being helpful for those who need an employment authorization document fast, but previously were stuck waiting.

Asylum and Humanitarian Relief. The Administration has been very tough on all forms of humanitarian relief for immigrants. It has recently issued rules further limiting the U.S. asylum program, going further than the much publicized numeric limits placed on accepting refugees. The measures add several mandatory bars to asylum claims (e.g. certain convictions, illegal re-entry, fraudulent documents. The existence of post-conviction relief in State courts is also to be largely ignored. See, e.g. Procedures for Asylum and Bars to Asylum Ineligibility, 85 FR 67202, 10/21/20, effective November 20, 2020; see also, Joint EOIR and USCIS Proposed Rule on Procedures for Asylum, Withholding of Removal, and Convention Against Torture Protection, 85 FR 30264, 6/15/20) (DOJ, DHS).

Expedited Removal. The Administration has also expanded its use of expedited removal, to bypass immigration court proceedings, in cases where undocumented persons have been in the United States for less than two years. We have already seen CBP use this authority more expansively at Sea-Tac and Blaine over the past year. Immigration and Customs Enforcement on 10/21/20 announced that it will expand its use of expedited removal, stating: “Pursuant to the July 2019 expedited removal designation, aliens, except for unaccompanied alien children, are subject to expedited removal if they:

  1. are not already subject to an expedited removal designation;
  2. are encountered anywhere in the United States;
  3. have not been admitted or paroled into the United States;
  4. are determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the Immigration and Nationality Act (INA); and
  5. have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.

Travel bans based on COVID-19. Several immigration proclamations remain in effect related to COVID. Additionally, nonimmigrant visas bans are in place ostensibly due to the labor downturn related to the pandemic. Exceptions exist for certain persons and industries, and the Department of State continues to update guidance. Each case has to be reviewed individually.

E visas. In better news, the Canadian Consulates, and in particular the Toronto Consulate, are processing E visas again. For months, the E visa process was stalled out.  E visas are available to Canadians and nationals of other countries with qualifying treaties, who substantially invest in a U.S. business, or who do substantial trade principally with the United States. This is one immigration device for routinely helping Canadian businesses establish and maintain a presence in the U.S. During the summer, with consulates closed, we were beginning to see real issues develop for Canadian business owners with expiring visas and substantial interests in the U.S.

USCIS case processing. Despite the flood of new restrictions, the agencies continue to adjudicate applications, albeit slowly. Requests for additional evidence are more common than ever, and some sorts of applications have very long waiting times. We’ve also seen some applications adjudicated with USCIS in faster time frames than their posted processing times. However, most cases are taking longer. Extra time should be built into an application process, for more predictable results.

We are happy to discuss any of these matters with more particularity, as appropriate. Wishing well to all.