Author: Jaime McGuire

On December 4, 2020, a U.S. District Court in the Eastern District of New York ordered that the July 2020 Memorandum is vacated. Thus, on December 7, 2020, USCIS and DHS updated their websites to comply with the court order. The notices state that effective December 7, 2020, USCIS is:

• Accepting first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
• Accepting DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
• Accepting applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
• Extending one-year grants of deferred action under DACA to two years; and
• Extending one-year employment authorization documents under DACA to two years.

USCIS also states in the notice that it will “take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”

Please note that the DACA requirements have not expanded. The DACA requirements from 2012 remain intact. Thus, you may request DACA if you: 

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to the present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Had no lawful status on June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

On October 20, 2020, the Department of Justice and the Department of Homeland Security announced a new rule that bars certain immigrants from obtaining asylum. This rule will prevent certain immigrants from obtaining asylum based on their criminal history. 

Immigrants who are convicted of the following crimes will be barred from receiving asylum: any federal or state felony, alien smuggling, illegal reentry, gang activity, DUIs, drug crimes, domestic violence and offenses relating to false identification. The rule also bars immigrants who were merely charged in domestic violence offenses even if no conviction was made. If an immigrant’s criminal history falls into one of those categories, the immigrant is no longer eligible for asylum. They remain eligible for withholding of removal, a much higher burden and a much harder case. 

Most individual commenters and all organizations, including non-government organizations, legal advocacy groups, non-profit organizations, religious organizations, congressional committees, and groups of members of Congress, opposed this rule. This rule has already been challenged in federal court, specifically in the Northern District of California. In time, other challenges may also be filed in other federal courts. However, as of now, this rule goes into effect on November 20, 2020.

Due to USCIS delays in production of certain employment authorization documents, USCIS announced that employees may use Form I-797, Notice of Action to complete I-9 verification with the following caveats: 

• the notice date on the I-797 must be on or after December 1, 2019 through and including August 20, 2020; 
• receipt notice is not sufficient, it must be an I-797 informing an applicant of approval of an Application for Employment Authorization (Form I-765); 
• the I-797 approval notice functions as a List C document through December 1, 2020 even though it states on its face that it is not evidence of employment authorization; 
• the use of the I-797 as described above is not a List A document (establishing both identity and employment authorization) or a List B document (establishing identity), so employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. 

The lists of acceptable documents are on Form I-9.  

For reverification, employees can present this Form I-797 Notice of Action as proof of employment authorization under List C. 

By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C. We encourage employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement.  However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C. 

As always, contact Amaryllis Law if you have questions or need clarification. 

Current through 9.1.20

USCIS announced that it will not furlough approximately 13,400 employees but at the cost of increased USCIS delays. 

This year, USCIS processing times have increased substantially, including for work authorization. This decision, by USCIS’ own admission (Deputy Director for Policy Joseph Edlow) “comes at a severe operational cost that will increase backlogs and wait times across the board” and offers no guarantee that it will avoid future furloughs. 

USCIS announced that anticipated operational impacts include “increased wait times for pending case inquiries with the USCIS Contact Center, longer case processing times, and increased adjudication time for aliens adjusting status or naturalizing.” All of these filings have seen delays already under this administration and as a result of COVID closures.

As always, contact Amaryllis Law if you have questions or need clarification. 

Current through 9.1.20