The year 2020 will go down in history as one of humanity’s most difficult. Immigration-related developments in the United States and elsewhere were no exception. From COVID-19 pandemic-related restrictions to travel bans and Brexit, people everywhere were whipsawed by a combination of crackdowns, border closings, virus surges, mixed signals, reversals, and court orders. Litigation has been credited with mitigating some of the excesses of the Trump administration’s attempts to keep immigrants and nonimmigrants out of the United States.
Below is a non-exhaustive list of selected highlights of developments in 2020 and where things stand now, to orient us as we head into 2021 with the dawn of the Biden-Harris administration and a new Congress.
What would 2020 have been without the pandemic? We’ll never know, but it certainly seemed a gift to those who oppose immigration.
What happened: Borders were shut down for much of the year; travel bans were imposed by many countries; reopenings were followed by slapdowns as the virus surged and receded, and surged again.
Where things stand now: Many borders are closed, with travel restrictions ranging from outright bans depending on the country of origin and destination to testing and quarantine rules upon arrival. Notable exceptions in many cases include returning residents, the military, and those coming to perform COVID-related medical care.
In the United States, U.S. Customs and Border Patrol issued notices in December shutting down the land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico. There are various exceptions related to “essential travel,” defined as including returning U.S. citizens and lawful permanent residents; those traveling for medical purposes or to attend educational institutions in the United States; those traveling to work in the United States, such as for emergency response and public health purposes; and those engaging in cross-border trade, among others. Restrictions are imposed on tourism, which is defined as including sightseeing, recreation, gambling, and attending cultural events.
On the plus side, the Trump administration allowed temporary flexibilities, such as temporarily easing physical presence requirements for the I-9 verification process for those working remotely. As of late December, I-9 flexibility had been extended to January 31, 2021. U.S. Citizenship and Immigration Services (USCIS) also extended flexibilities for responses to certain types of requests.
The administration was also hamstrung as a result of litigation against the Trump administration’s attempt to prevent the entry of diversity visa (DV) recipients. A court said the government could not simply refuse to process DV-2020 applicant visas due to the pandemic and that DV-2020 selectees could pursue their visas at their local consulates.
Travel Bans, Entry Bans
What happened: The Trump administration continued its attempts to impose broad travel bans on a variety of immigrants and nonimmigrants, with some exceptions. Reasons given included the pandemic but also “excess labor supply” and displacement of U.S. workers. Lawsuits sought to halt the bans.
Where things stand now: Some lawsuits were successful, at least in the short term. For example, in National Association of Manufacturers (NAM) v. DHS, a U.S. district judge ruled against certain aspects of the visa issuance block against many foreign workers. In Anunciato v. Trump, plaintiffs include more than 245 visa applicants (family, employment, and diversity-based) and their U.S. sponsors, who argue that a Trump proclamation unlawfully bars them from immigrating.
Regarding temporary protected status (TPS), the Ninth Circuit ruled that the President can end it if he wishes. This means that Haitian, Nicaraguan, and Sudanese TPS beneficiaries may need to leave the United States or find a legal way to stay by March 2021, and those from El Salvador could be required to leave by November 2021. The latter group is the largest by far, at an estimated 263,000 TPS beneficiaries in the United States. A Supreme Court appeal is expected.
H-1B and ‘Specialty Occupation’ Issues; Bans on Nonimmigrant Workers
What happened: The Trump administration took a variety of actions against H-1B workers and imposed restrictions including redefining the employer-employee relationship and the term “specialty occupation,” adversely affecting H-1B workers and companies that hire them, and drastically raising prevailing wages. The administration published several interim final rules that took effect immediately without providing an opportunity for public notice and comment.
Where things stand now: The administration backed down in some instances following litigation. For example, USCIS agreed with ITServe Alliance, Inc., to overturn more than 200 H-1B denials. Other litigation was filed. In Chamber of Commerce v. DHS, a U.S. district court in December vacated two related H-1B interim final rules published by the Departments of Labor and Homeland Security. Also, the Department of State revised its guidance implementing a court order in NAM v. DHS. In Innova Solutions v. Baran, the Ninth Circuit ruled in December that USCIS acted in an “arbitrary and capricious” manner when it denied a visa for a computer programmer on the basis that the position was not a “specialty occupation.”
Ah, Brexit, the gift that keeps on giving…
What happened: As many know, the United Kingdom (UK) has been struggling for years with how to proceed with “Brexit,” its formal departure from membership in the European Union (EU). The transition period winds down at the end of December, and the UK’s new immigration system starts January 1, 2021.
Where things stand now: The UK’s new immigration system, which will apply to both EU and non-EU citizens, requires that EU citizens moving to the UK to work on or after that date obtain a visa. This applies to others also, such as European Economic Area (EEA) nationals and Swiss nationals, but not to Irish citizens, who will remain free to work in the UK without a visa.
Also, at the eleventh hour, after much hand-wringing and gnashing of teeth, the UK has just struck a “deal” with the EU. There was widespread celebration that Brexit-with-a-deal will be much better than Brexit-without-a-deal, although some critics remain unsatisfied, and the EU and its member countries still need to assess and vote on the agreement. Many countries have put in place temporary policies in the meantime.
There were other immigration-related developments in the United States of immense significance, of course, which are outside the scope of this article—including actions affecting asylum applicants, international students, Chinese immigrants, Deferred Action for Childhood Arrivals “Dreamers,” and others. The list above focuses on business immigration primarily.
As 2020 winds to a close, we wish our readers a very Happy New Year!
Contact your WR attorney for advice in specific situations.
- CBP Mexico border notice, https://bit.ly/3hwNbe9
- CBP Canada border notice, https://bit.ly/3ruJbz3
- Court order in Chamber of Commerce v. DHS vacating H-1B interim final rules, https://www.courtlistener.com/recap/gov.uscourts.cand.367484/gov.uscourts.cand.367484.73.0.pdf
- DOS cable re NAM v. DHS, https://drive.google.com/file/d/1i-ag8fTx4xmKC_DQdb2UGbXI7L-EFUui/view
- Presidential Proclamation 10052, https://bit.ly/3pQQ2Cf
- Innova Solutions v. Baran, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf
- New Immigration System, Gov.UK, https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know