September 2020 Immigration Alert

Updates to USCIS Policy on New Forms, Premium Processing, and Filing Fee Increases Take Effect on October 2, 2020

As previously reported in Epstein Becker Green’s August 2020 Immigration Alert, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will increase filing fees effective October 2, 2020.  In line with the announcement, USCIS has updated its Policy Manual and the Federal Register with the following changes:

• USCIS will revise the edition date of certain forms. As a result, any affected form filed on or after October 2, 2020, that does not possess the 10/02/2020 edition date will not be accepted.  The forms affected by this change include H-1B, H-1B1, H-2A, H-2B, L, O, E, TN, H-3, P, Q, and R petitions (Form I-129); a Request for Action on Approved Form (Form I-600/600A); the Application for Employment Authorization (Form I-765); and the Request for Fee Waiver (Form I-912).
• Premium processing adjudications will move from 15 calendar days to 15 business days, excluding weekends and holidays.
• If USCIS is not able to complete premium processing within 15 business days, the agency will refund premium processing fees and may thereafter adjudicate the case under normal processing times.
• Premium processing fees may be subject to increases based on inflationary rates under the Consumer Price Index.
• I-485 application fees for minors under 14 years of age will increase to the I-485 application fee for adults.
• USCIS may require that permanent resident cards (i.e., green cards), EAD work authorization cards, advance parole or reentry permit travel permission documents, or certificates of naturalization (i.e., U.S. citizenship certificates) not be delivered by the post office unless they are delivered with a signature confirmation.

Homeland Security Further Extends Special Flexibility for Verifying Forms I-9

Back on March 20, 2020, Epstein Becker Green posted a Special Immigration Alert indicating that, due to the COVID-19 pandemic, the Department of Homeland Security (“DHS”) is allowing special flexibility to verify Form I-9 documents without requiring viewing the actual original documents. To benefit from this remote Form I-9 verification process, an employer had to adhere to specific requirements, which are set forth here. Although originally meant to be in place for 60 calendar days, this special flexibility has been extended several times by DHS.

DHS has once more extended this special flexibility up to November 19, 2020.  Unless extended again, all employers must revert back to the pre-COVID-19 requirement to complete I-9 verification of new hires after that date lapses.  We will advise if this special flexibility is again extended.

USCIS Settles Class Action Lawsuit Due to Delayed EAD Work Permit Issuance

On July 22, 2020, a class action lawsuit (Subramanya v. USCIS) was filed with the U.S. District Court for the Southern District of Ohio compelling USCIS to issue EAD cards that were approved but not yet sent to the foreign nationals.  Approximately 75,000 applicants joined the class because USCIS approved their applications, but did not send the actual EAD work permit cards months after approving their applications.  On August 21, 2020, the court entered a Consent Order and Final Statement requiring USCIS to produce the EAD cards immediately.

Since producing and sending out 75,000 EAD cards immediately would be an operational impossibility, the plaintiffs in the class action agreed to work with USCIS to settle on how USCIS could comply with the Consent Order. As a result, the settlement provides the following:

Sub-class 1: There were over 27,000 applicants in this group to whom USCIS sent an EAD approval notice and the production of the EAD card has been ordered but not completed.  All EAD cards for this group were required to be produced and mailed by August 28, 2020.

Sub-class 2: There were over 17,000 applicants in this group to whom USCIS sent an EAD approval notice, but not their EAD cards was not ordered by USCIS. USCIS explained that these EAD cards were not ordered because the applicants’ biometrics have not been completed. The EAD cards for this sub-class will be produced and mailed within seven business days of capturing their biometrics.

As for the other approximately 30,000 applicants involved in the class action, USCIS issued and mailed out their EAD cards between the date the complaint was filed (July 22, 2020) and the date the class list was prepared (August 20, 2020).

USCIS Allows EAD Approval Notices as Temporary Forms of Work Authorization in Lieu of the Actual EAD Card

USCIS reported that because of the COVID-19 pandemic, the production of EAD cards is delayed.  Accordingly, USCIS updated its policy to allow the use of a Form I-797 Notice of Action (“Approval Notice”) approved between December 1, 2019, and August 20, 2020, as interim proof of work authorization for EAD applications (Forms I-765). This interim policy is valid until December 1, 2020.

As a result, employees in receipt of an Approval Notice during the qualifying period stated above may present to their employer the Approval Notice as a Form I-9, Employment Eligibility Verification, document to establish employment authorization, even though Form I-797 specifically states that it is not evidence of employment authorization.  The Approval Notice may be presented to an employer as a List C document for Form I-9 purposes until December 1, 2020.  The Approval Notice, however, may not be used as a List B document to establish identity.

Employers that accept an Approval Notice to complete a Form I-9 are advised to re-verify the employees’ work authorization on or before December 1, 2020.

USCIS Provides Memorandum Updating DACA After Supreme Court Decision

On August 21, 2020, the USCIS issued a memorandum following last month’s U.S. Supreme Court decision upholding the Deferred Action for Childhood Arrivals (“DACA”) program.  In summary, USCIS will reject new or first-time DACA requests from applicants. USCIS will accept DACA requests only from applicants who were previously granted DACA status.  USCIS will also accept requests for advance parole travel permits for DACA applicants that are properly submitted.

For approvable DACA renewal requests, USCIS will limit EAD work authorization cards to a period of no more than one year.  USCIS will also reject any DACA renewal requests received more than 150 days before the current DACA granted period expires. Therefore, DACA applicants should plan to submit DACA renewal requests between 120 and 150 days before their current DACA expiration date.

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If you have any questions or wish further guidance on these or any other immigration issues, please contact one of the authors or your Epstein Becker Green attorney.