Top Homeland Security Appointments are Invalid
The Government Accountability Office (GAO) found that the heads of the Department of Homeland Security were appointed without regard to the Federal Vacancies Reform Act. GAO determined the appointments of Chad Wolf, acting secretary of Homeland Security, and Ken Cuccinelli, acting deputy secretary of Homeland Security, were invalid and did not follow the proper chain of succession in 2019.
The GAO stated:
“Upon Secretary Kirstjen Nielsen’s resignation on April 10, 2019, the official who assumed the title of Acting Secretary had not been designated in the order of succession to serve upon the Secretary’s resignation. Because the incorrect official assumed the title of Acting Secretary at that time, subsequent amendments to the order of succession made by that official were invalid and officials who assumed their positions under such amendments, including Chad Wolf and Kenneth Cuccinelli, were named by reference to an invalid order of succession.” (Emphasis added.)
The statement continued to explain that GAO had not reviewed the legality of other actions taken by Wolf or Cuccinelli, but are “referring the matter to the Inspector General of DHS for review.” The GAO opinion is likely to result in lawsuits questioning the legality of the actions Wolf and Cuccinelli have taken since leading the DHS. Several of the agency’s controversial policies have been struck down by federal judges in recent months, including heightened requirements for H-1B visas that led to additional denials and shorter approvals.
Challa Law Group will monitor the court challenges and report the latest updates.
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Judge Orders USCIS to Address EAD and Green Card Printing Backlogs
A federal judge has ordered USCIS to print all backlogged green cards and EADs within seven days, citing the harm the lack of income is causing plaintiffs in the midst of the pandemic. The suit claims that the USCIS backlog is purposeful, stating that the agency has “either an intention to harm plaintiff and class members or deliberate indifference.”
USCIS typically prints and mails EADs within 48 hours of approval but argued in court documents that the agency is not legally required to provide the documents within that timeframe. Judge Algenon Marbley disagreed: “The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish.”
Even as companies are struggling to stay profitable, USCIS has delayed printing documents critical to continued employment of skilled workers. Thousands of individuals who have been approved to legally work in the United States are instead without proper documentation to present to employers due to the USCIS backlogs and reduced printing capacity. The USCIS website reports processing times up to 12 months for some service centers, but in public statements the agency has reported four-month processing times, insisting that the speed is faster than 2019 and consistent with 2018 processing times.
While it is reasonable to assume the delays were due to COVID precautions, many USCIS workers continued to process EAD and green card applications. Approvals were still generated during adjudications, but the documentary proof required for work authorization continues to be delayed. The printing backlog is in part attributable to USCIS ending a contract with a company responsible for green card and EAD production. The agency intended to continue production in-house, but instead shut down one of the two facilities and reduced capacity at the second.
USCIS has acknowledged that 50,000 green cards and 75,000 employment authorization documents remain to be printed and continually points to the financial problems on the horizon. The agency is primarily fee-funded, so the temporary closure of offices and reduction of services left USCIS with a projected billion-dollar shortfall.
On July 31, DHS announced the final rule on increasing fees for immigration and naturalization benefit requests. The new fees will become effective on October 2, 2020. Read more about the planned increases.
File your extension and EAD early to account for longer processing times and printing delays. Contact us at firstname.lastname@example.org or 804-360-8482 to get your case started.
USCIS Extends Flexibility for Responding to Agency Requests
In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibility it announced on March 30, 2020, to assist applicants and petitioners who are responding to certain:
- Requests for Evidence;
- Continuations to Request Evidence (N-14);
- Notices of Intent to Deny;
- Notices of Intent to Revoke;
- Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
- Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
- Filing date requirements for Form I-290B, Notice of Appeal or Motion.
Read Challa Law Group’s update from the previous USCIS announcement.
Notice/Request/Decision Issuance Date:
This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and Sept. 11, 2020, inclusive.
Response Due Date:
USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. We will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action. USCIS states:
“We are adopting several measures to protect our workforce and community and to minimize the immigration consequences for those seeking immigration benefits during this time. USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection.”
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