DHS Proposal Would Expand Biometrics Collection and Use for Immigration Enforcement

On September 11, 2020, the U.S. Department of Homeland Security (DHS) proposed a regulation that focuses on the expansion of the collection and use of biometric data in the enforcement and administration of immigration laws. The proposed rule would subject foreign nationals to periodic biometrics collection and continuous vetting after they enter the United States and until they become U.S. citizens.

State Department Issues Guidance on National Interest Exceptions to Proclamations Suspending Entry of Certain Foreign Nationals

On August 12, 2020, the U.S. Department of State issued guidance on scenarios that may qualify for a “national interest exception” under Presidential Proclamation 10052 of June 22, 2020 (“Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”) and Presidential Proclamation 10014 of April 22, 2020 (“Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”). Citing economic disruptions caused by the COVID-19 pandemic, President Donald Trump issued the proclamations and temporarily suspended the entry of certain foreign nationals into the United States. Although both proclamations referenced exceptions for individuals “whose entry would be in the national interest,” formal guidance had not been released prior to this announcement.

USCIS Issues Updated I-9 Guidance Due to Employment Authorization Document Production Delays

As the U.S. Citizenship and Immigration Services (USCIS) continues to operate under the stress of the ongoing COVID-19 pandemic and anticipated budget shortfalls, the production of certain Employment Authorization Documents (Form I-766, EAD) has become increasingly delayed. On August 19, 2020, in response to this situation, USCIS issued guidance providing employers and employees some flexibility to mitigate the myriad of I-9 compliance issues associated with the delays in EAD production.

Second Circuit Limits Scope of Injunction on Public Charge Rule to Connecticut, New York, and Vermont

On August 12, 2020, the United States Court of Appeals for the Second Circuit limited the scope of a nationwide injunction that had blocked the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) from implementing and enforcing the Inadmissibility on Public Charge Grounds final rule (commonly called the “public charge rule”) during the COVID-19 pandemic. The decision, which came only days after a series of recent federal court decisions on the controversial rule, restricts the scope of the nationwide injunction to only those states under the jurisdiction of the Second Circuit.

New Executive Order Calls for Review of Federal Contracts and Directs Agencies to Take Action to Protect U.S. Workers

On August 3, 2020, the Trump Administration issued an executive order  (EO) directing the secretaries of the Departments of Labor and Homeland Security to “take action … to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B [workers].”

Upcoming Changes to the UK Immigration System: Further Details for Employers

On 13 July 2020, the UK Home Office published further details on the UK’s points-based system through a detailed policy statement regarding the changes to the UK immigration system due to come into effect from 1 January 2021, once freedom of movement with the European Union has ended. The document builds on the policy statement published in February 2020 and aims to provide “more detail to applicants, employers and educational institutions on the draft requirements and conditions underpinning the key immigration routes in the Points-Based System.”

ICE Issues Updated Guidance and Restricts Online Options for New Students for Fall 2020 Semester

On July 24, 2020, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) issued updated guidance for international students pursing education programs in the United States. The follow-up guidance states that active students in F-1 and M-1 status, as well as schools certified by SEVP, should abide by SEVP guidance originally issued in March 2020, enabling schools and students to engage in distance learning in excess of regulatory limits during the COVID-19 public health emergency.

DHS Limits Scope of DACA—No New Applications, Restrictions on Advance Parole, Shortened Renewals

On July 28, 2020, only six weeks after the Supreme Court of the United States blocked the U.S. Department of Homeland Security’s (DHS) attempt to end the Deferred Action for Childhood Arrivals (DACA) program, DHS issued a memorandum announcing plans to limit the scope of the DACA program, pending a comprehensive program review by the Trump administration.

IRS Continues to Provide Relief for Nonresident Aliens in the Wake of COVID-19

The Internal Revenue Service (IRS) recently posted a set of frequently asked questions (FAQs) on its website to provide additional information on Revenue Procedure 2020-20. The IRS published this revenue procedure on May 11, 2020, to provide relief for certain nonresident aliens stranded in the United States due to COVID-19-related travel restrictions. The new FAQs provide relief for certain nonresident aliens who may be forced to remain in the United States longer than anticipated because of a medical condition. As indicated in our prior article on Revenue Procedure 2020-20, an extended stay could adversely affect a nonresident alien’s classification for federal income tax purposes.

ICE Announces Plans to Update Online Study Policies for Nonimmigrant Students for Fall 2020 Semester

On July 6, 2020, the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) announced plans to update its online study policies for F-1 and M-1 nonimmigrant students for the fall 2020 semester. According to the proposed policies, SEVP intends to prohibit F-1 and M-1 students from taking a fully online course load while in the United States during the fall 2020 semester.

Workforces Stranded Abroad Due to COVID-19 and Presidential Proclamation? Implications of Remote Work When Employees Cannot Enter the United States

COVID-19 has had significant implications on how employers engage a workforce—particularly with respect to U.S. immigration. The employment changes caused by the pandemic, combined with President Donald Trump’s recent proclamation prohibiting certain H1-B, H-2B, L-1, and J-1 visa beneficiaries from entering the United States, may forever change how U.S. employers engage non-U.S. nationals. In particular, without the opportunity to resume or start the employment of foreign nationals in the United States, employers are forced to consider remote cross-border engagements, including hiring foreign nationals in their home countries or, in cases where individuals are stranded away from home due to COVID-19-related restrictions, in other countries. The European Union’s recent announcement easing entry restrictions on some countries—but not the United States—signals that this phenomenon is relevant elsewhere as well.

DACA Survives: SCOTUS Blocks Trump Administration Bid to End Deferred Action for Childhood Arrivals Program

On June 18, 2020, the Supreme Court of the United States issued its decision in DHS v. Regents of the University of California, No. 18-587, effectively blocking the U.S. Department of Homeland Security’s (DHS) attempt to end the Deferred Action for Childhood Arrivals (DACA) program.

U.S. Suspends Entry of Certain Graduate Students and Researchers from the People’s Republic of China

On May 29, 2020, President Donald Trump issued a proclamation suspending the entry of a small subset of Chinese nationals that seek to study or conduct research in the United States, citing a threat to the “long-term economic vitality” of the United States “and the safety and security of the American people.” The accompanying press release notes that the proclamation “will not affect students who come to the United States for legitimate reasons.”

IRS Provides Relief for Nonresident Aliens Affected by COVID-19 Travel Disruptions

Because of travel restrictions, such as canceled flights and stay-at-home orders, the COVID-19 pandemic may have significantly limited a nonresident alien’s ability to leave the United States, regardless of whether the individual contracted the COVID-19 virus. An unexpected extended stay in the United States, however, could affect an individual’s tax residency classification or eligibility for certain tax treaty benefits. The Internal Revenue Service (IRS) recently released Revenue Procedure 2020-20 to address the potential tax consequences for eligible individuals impacted by the COVID-19 travel restrictions.

Recent USCIS Settlement Offers Substantial Relief to H-1B Employers

Following the March 10, 2020, decision of the U.S. District Court for the District of Columbia in ITSERVE Alliance, Inc. v. Cissna, U.S. Citizenship and Immigration Service (USCIS) has agreed in a settlement to rescind the 2018 third-party worksites memorandum (PM-602-0157) in its entirety no later than October 13, 2020.