Agency Declarations and Federal Litigation Continue to Reshape U.S. Immigration Policy

Agency Declarations and Federal Litigation Continue to Reshape U.S. Immigration Policy

The policies and processes associated with U.S. immigration law have changed more frequently and more profoundly in the past four months than in the preceding four years. The past week alone included several developments that directly affect the administration of U.S. immigration law.

Rescission of New Restrictions for Foreign Students

On July 14, 2020, The Department of Homeland Security (DHS) agreed to rescind the guidance published on July 6th by Immigration and Customs Enforcement (ICE) prohibiting foreign students from remaining in the U.S. if taking exclusively online courses. Previously, ICE had created a temporary exemption for students in F and M status allowing them to pursue online studies due to the COVID-19 pandemic. Following a lawsuit by Harvard and the Massachusetts Institute of Technology, DHS agreed to revert to the earlier guidance permitting F and M students to remain in legal nonimmigrant student status while pursuing their education through online courses offered by their schools.

Lawsuit by H-1B Workers Affected by PP 10052

Separate litigation seeking to overturn the provisions of Presidential Proclamation 10052 (PP 10052) suspending the entry of H-1B workers remains pending at this time. The lawsuit argues that the sweeping restrictions on the entry of certain nonimmigrant workers imposed by the proclamation are not authorized by statutory authority given to the president.

Section 212(f) of the Immigration and Nationality Act (INA) authorizes the president to suspend the entry of any aliens or class of aliens if their entry would be detrimental to the United States. The rational provided in PP 10052 for suspending H-1B, H-2B, L-1 and certain J nonimmigrants is the protection of U.S. workers against foreign competition during a period of high unemployment. The U.S. Supreme Court previously sustained the president’s authority under INA 212(f) to suspend the entry of foreign persons from predominantly Muslin countries through PP 9645 (sometimes inelegantly referred to as the “Muslim Ban”).

The restrictions imposed by PP 9645, however, are premised on national security considerations and address broad, undefined concepts in the administration of immigration law. In contrast, PP 10052 subverts an exceptionally detailed statutory and regulatory system for the selection and admission of nonimmigrant workers. The current litigation tests the scope of presidential power under 212(f) and the willingness of the Supreme Court to place limitations on the exercise of presidential authority. Currently pending in a federal district court, the issues raised by this case may ultimately be decided in the Supreme Court.

The DOS previously expressed the view that citizens of Canada are not subject to PP 10052 suspending the entry of H-1B, H-2B, L-1 and certain J-1 nonimmigrant workers. If the spouse or child of such a Canadian nonimmigrant has a different nationality, however, that family member would require a visa to enter the U.S. Fortunately, the DOS announced that consulates will continue issuing dependent (H-4, L-2 and J-2) visas to otherwise qualified family members of nonimmigrant workers who are currently in the U.S.

Resumption of Visa Services

In more positive news, the U.S. Department of State (DOS) announced on July 14th the phased resumption of routine visa services at U.S. consulates. Consular posts will reopen as local conditions and resources permit. Unfortunately, U.S. consulates in Canada were continuing to report that they are unable to resume nonimmigrant and immigrant visa services at this time.

Canadian citizens do not require nonimmigrant visas to enter the United States for most purposes. Those seeking E-1 or E-2 nonimmigrant classification as treaty traders or investors, however, are required to obtain a visa at a U.S. consulate in most situations. Furthermore, Canadian citizens seeking to make an initial entry to the U.S. as a lawful permanent resident must obtain an immigrant visa. Those persons who already acquired the status of a U.S. permanent resident remain eligible to enter the U.S. upon presentation of their Permanent Resident (“green”) Card.

Visa services at U.S. consulates were suspended worldwide on March 13th due to the COVID-19 pandemic. Consulates beginning to resume visa services are urging patience as consular staff work through significant backlogs that have developed since then. Based on this information coming from posts resuming visa services, it is reasonable to expect that U.S. consulates in Canada will face similar backlogs for E nonimmigrant visa and immigrant visa applications.

This article was prepared by Kenneth Harder, www.DunbarHarder.com.