Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban

A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.

(Panda, et al. v. Wolf, et al., 7/14/20)

Trump Administration rescinds rule requiring International Students to transfer or leave the country if their schools held classes entirely online because of the Coronavirus Pandemic

Good news for international students: DHS just did another one of its 180 degree pirouettes. Facing several federal lawsuits as well as vigorous opposition from hundreds of universities, the Trump Administration today rescinded a rule that would have required international students to transfer or leave the country if their schools held classes entirely online because of the coronavirus pandemic. DHS has agreed to fully rescind the July 6, 2020, ICE guidance and July 7, 2020, Frequently Asked Questions, and rescind all implementing guidance. The status quo based upon the agency’s March 13, 2020, guidance will remain in force.

See https://thehill.com/homenews/administration/507293-trump-administration-rescinds-policy-to-strip-visas-from-foreign

Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees

I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.

Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.

In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.

Supreme Court Upholds DACA

The U.S. Supreme Court today ruled that the Department of Homeland Security (DHS)’s decision to rescind the Deferred Action for Childhood Arrivals Program, also known as DACA, was arbitrary and capricious under the Administrative Procedure Act. As a result, the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation.

See DHS v. Regents of the University of California (Link to PDF)

Ashwin Sharma Quoted by the Times of India Regarding Issues Faced by Laid-Off H-1B Workers

“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”

Link to TOI Article

Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B

“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”

Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”

Attorney Sharma quoted again by the Times of India about the Presidential Proclamation Suspending Entry of Certain Immigrants (formerly known as the “Immigration Ban”)

“Ashwin Sharma, Florida based immigration attorney told TOI, “As per this proclamation, the categories most impacted would include green cards for parents and siblings of US citizens, and for spouses and children of green card holders.” 

Sharma says, “The Presidents proclamation is illogical. It characterizes a 65-year-old parent of a US citizen as a greater threat to the American worker than the same US citizen’s 20-year-old son. The proclamation is also disingenuous in that in that it is attempting to rebrand the existing processing delays caused by Covid-19 as a targeted ‘suspension’ to shift public scrutiny away from the administration’s delays in addressing the pandemic, and onto its favourite scapegoat, immigrants.” 

Read the TOI Article

 

Ashwin Sharma quoted by the Times of India on President Trump’s Threat to issue Executive Order Banning Immigration during the Pandemic

Ashwin Sharma, Jacksonville based immigration attorney told TOI,

“This is the umpteenth incarnation of this same threat and this one in particular seems toothless and impotent, though it’s always an effective dogwhistle for his anti-immigration supporters.  Anytime President Trump needs an escape from facts and critics, he is quick to break the glass door labelled “Break in Case of Emergency” to whip out an executive order on Immigration.  

Sharma added, “The simple fact is that courts will block any such overbroad executive order.  Plus immigrants aren’t exactly lining up to get into America at the moment.  And the ones that are here are helping American companies stay afloat, treating American COVID19 patients, researching virus cures, supporting healthcare technology, delivering food and supplies, and other key roles.”

Continue to TOI Article

UPDATE: AILA REPORTS VSC OPEN — ORIGINAL POST: AILA Reports that USCIS’s Vermont Service Center Is Temporarily Closed on April 10, 2020 due to COVID19

UPDATED POST

Via AILA.org – April 13, 2020

“Last week, USCIS informed employees about a presumed positive COVID-19 case in the Vermont Service Center (VSC), but the test results came back negative. The VSC is now able to accept files and/or any other form of correspondence.”

ORIGINAL POST

Via AILA.org – April 10, 2020

“AILA has received reports from various members that the Vermont Service Center (VSC) has been closed due to a potential COVID-19 exposure.

VSC will likely be closed at least until Wednesday April 15, 2020, for cleaning. During this time, it appears that mail cannot be delivered to the VSC. AILA National has reached out to USCIS for confirmation and further guidance on how filings should be handled in the interim. Updates will be provided as soon as more information is available.”

On behalf of myself and other Immigration Lawyers across the US: our prayers are with the VSC Staff.  The volume of complex cases they assess and adjudicate every day is underappreciated, as is the critical importance of their work.  We hope this issue is cleared up soon, and that the people at VSC are safe.

 

 

Ashwin Sharma2020Ultimate AttorneyBestoftheBaraward

43986896-d355-430f-b040-72acb44b5856 PNG

Ashwin Sharma was selected as one of the Recipients of the 2020 Jacksonville Business Journal’s Ultimate Attorney: Best of the Bar Award

USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency

Via USCIS

“U.S. Citizenship and Immigration Services today announced that, due to the ongoing COVID-19 National Emergency announced by President Trump on March 13, 2020, we will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.

USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified.[1] For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

[1] See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2]”

Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing

Via USCIS.gov

U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).

Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.

USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.

This temporary suspension includes petitions filed for the following categories:

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
  • I-140: EB-1, EB-2 and EB-3.

This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.

For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.