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USCIS Furlough Plans for August 3 Continue to Move Forward

U.S. Citizenship and Immigration Services (USCIS) is expected to furlough more than two-thirds of its employees beginning August 3, 2020, for at least a month and up to three months or more, if Congress does not pass sufficient emergency funding. The furlough of approximately 13,400 USCIS employees is likely to have an enormous negative impact on the U.S. immigration system, effectively halting most adjudications.

There are several unknowns, according to the Alliance of Business Immigration Lawyers (ABIL):

  • The furlough may not go into effect. Congress may yet act to provide USCIS with bridge funding. Reportedly, members of both the U.S. House of Representatives and Senate Appropriations Committees are working with USCIS on its funding request. USCIS funding may be provided as part of a “Phase 4” COVID-19 pandemic relief bill, or as a separate appropriation.
  • The furlough may affect some types of applications more than others. Because in-person adjudications, like adjustment of status (I-485) and naturalization, require more staff than paper adjudications like H-1B petitions, the furloughs may hit local offices harder than the regional processing centers where most employment-based adjudications are done.
  • The furlough should not affect the ability to file applications, meaning employees can obtain benefits from timely filed extensions, but furloughs will likely affect processing times, which means that applications will take much longer to be decided.
  • The furlough may affect the Premium Processing service, although USCIS may decide to retain the service due to the extra revenue it brings.

We recommend filing any extensions of status needed in August, September, and October by August 1, 2020. Contact your KBI attorney for advice in specific situations.


Proposed Rule Would Include Pandemic-Related “Emergency Public Health Concerns” for Consideration in Asylum/Withholding of Removal Eligibility Determinations

The Department of Justice’s Executive Office for Immigration Review issued a proposed rule on July 9, 2020, that would amend existing regulations to clarify that the Departments of Homeland Security (DHS) and Justice may consider emergency public health concerns based on communicable disease due to potential international threats from the “spread of pandemics” when deciding whether there are reasonable grounds for regarding a person as a danger to the security of the United States and, thus, ineligible for asylum or withholding of removal.

The proposed rule provides that this application of the statutory bars to eligibility for asylum and withholding of removal would be effectuated at the credible fear screening stage for those in expedited removal proceedings “to streamline the protection review process and minimize the spread and possible introduction into the United States of communicable and widespread disease.” The proposed rule also would allow DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum in the United States on certain grounds, including “being reasonably regarded as a danger to the security of the United States.” Finally, the proposed rule would “modify the process for evaluating the eligibility of aliens for deferral of removal who are ineligible for withholding of removal as presenting a danger to the security of the United States.”

Comments on the proposed rule are due by August 10, 2020.


DOJ Settles With Florida Company Re Immigration-Related Discrimination Claims

The Department of Justice announced that it reached a settlement with Bel USA LLC (Bel USA), an online distributor and retailer of customized promotional products located in Miami-Dade County, Florida. The settlement resolves claims that Bel USA discriminated against work-authorized non-U.S. citizens by requiring them to provide specific and unnecessary immigration documents when verifying their work authorization, because of their citizenship or immigration status.

Under the terms of the settlement agreement, Bel USA will pay a civil penalty of $100,000, train its employees about the antidiscrimination requirements, and be subject to reporting and monitoring.


President Trump Alludes to New Plans for DACA

After President Trump’s attempt to end Deferred Action for Childhood Arrivals (DACA) through the Supreme Court failed, at least in the short term, he gave an interview on July 10, 2020, to Telemundo in which he referred to an “executive order” and a “bill” interchangeably that would make unspecified reforms. Congress has not passed a bill related to DACA, but he said he planned to sign “an immigration bill that a lot of people don’t know about.” He said he would “be signing a major immigration bill as an executive order, which the Supreme Court now, because of the DACA decision, has given me the power to do that.”

Legal commenters noted that immigration law cannot be changed through executive order. Several immigration-related bills are floating around, including a 600-page merit-based proposal supported by Jared Kushner, President Trump’s son-in-law and senior advisor, and a bill passed by House Democrats, but any chances of passage of immigration reform appear dim before the presidential election in November.