Latest Developments on Public Charge

September 20, 2020 § Leave a comment

On July 29, 2020, the U.S. District Court for the Southern District of New York barred the government from enforcing the USCIS Final Rule on Inadmissibility on Public Charge Grounds during the COVID-19 pandemic. The district court issued this injunction in favor of the plaintiffs due to the harsh components of the public charge rule which have prevented many immigrants from receiving proper medical care during the pandemic. Many immigrants seeking permanent resident status have avoided seeking proper medical care and have not utilized government relief during the pandemic due to the fear of triggering the inadmissibility ground of public charge.

However, the 2nd Circuit Court of Appeals then limited the scope of the district court’s national injunction to only the jurisdiction of the 2nd Circuit. Therefore, the public charge rule was only barred in the states of Vermont, Connecticut, and New York.

Most recently, on September 11, 2020, the Second Circuit Court of Appeals stayed the original district court’s nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944, Declaration of Self-Sufficiency, in all jurisdictions once again. However, uncertainties have come to light as USCIS has still not updated its web page related to the public charge injunction. Though USCIS has not added the Form I-944 back to its forms page, green card applicants should continue to fill out the pre-injunction I-944 Form until further notice. Applicants who use the Adjustment of Status process to apply for permanent residence from within the United States will be at risk should they submit Form I-485 packets without Form I-944. For those who are applying from outside the United States using consular processing, the Department of State has announced that in light of the pending litigation, applicants who may appear to be a public charge will be refused a visa under administrative processing (instead of a straight denial) to allow additional time for further assessment pending litigation.

As of now, USCIS has not yet updated its website with instructions on how impacted applicants should proceed to comply with the Public Charge Final Rule, nor how it will handle applications that were filed without public charge documentation while the injunction was in effect.

For a full background on the inadmissibility ground of public charge, refer to earlier immigration articles and also the American Immigration Lawyers’ Association website for litigation updates.

DACA Filings as per USCIS

September 6, 2020 § Leave a comment

On July 28, 2020, Acting Secretary of Homeland Secretary Chad Wolf issued a memorandum regarding the Deferred Action for Childhood Arrivals (DACA) policy. United States Citizenship and Immigration Services (USCIS) has since provided guidance on how it will implement Secretary Wolf’s memorandum. 

Despite the recent ruling in which the Supreme Court of the United States prohibited the Trump administration from dismantling the DACA program, USCIS stated that it will reject all DACA requests from aliens who have never previously received DACA and will return all fees. Should USCIS begin accepting new DACA requests in the future, rejected aliens will be able to reapply to DACA.

Aliens who have successfully received DACA status in the past may continue submitting DACA requests. For approved requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year instead of the previous two year authorization. The agency will not rescind any currently valid two-year grants of DACA or associated Employment Authorization Documents (EADs).

USCIS also recommends that DACA recipients file their renewal requests between 150 and 120 days before their DACA expires. The agency warns applicants not to submit renewal requests earlier than 150 days prior to expiration; requests submitted earlier than the recommended timeline will likely be rejected.

USCIS will continue to grant advance parole for travel outside the United States; however, the agency will only do so for cases of urgent humanitarian reasons or significant public benefit. The determination whether to grant advance parole to an alien is not guaranteed and is entirely dependent upon the discretion of USCIS.

Lastly, USCIS reminds DACA recipients that travelling outside the United States on or after August 15, 2012, without first receiving advance parole, will automatically terminate deferred action under DACA.

Official USCIS Announcement: https://www.uscis.gov/news/alerts/uscis-implements-dhs-guidance-on-daca

Presidential Proclamation Suspending H-1B and Other Visas That Allow Foreigners to Work in the U.S.

July 14, 2020 § Leave a comment

Summary

On June 22, 2020, President Trump signed an executive order barring the entry of immigrant workers on a slate of employment-based visas until at least December 31, 2020. President Trump issued this order in response to the COVID-19 pandemic—claiming that foreign workers pose a ‘threat’ to the current, volatile job market.

Which Visas are Suspended?

H-1B or H-2B visas, J visas (to the extent the Noncitizen is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program), and L visas are all suspended beginning June 24, 2020, until at least December 31, 2020. Furthermore, entry is suspended for any Noncitizen accompanying or following to join a Noncitizen on any of the aforementioned visas.

Whose Entry is Suspended?

-Noncitizens who are outside the United States on or after June 24, 2020;
-Noncitizens who do not have a nonimmigrant visa that is valid on or after June 24, 2020;
-Noncitizens who do not have an official travel document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—that is valid on or after June 24, 2020, or any date thereafter.

Who is Exempt?

The suspension does not apply to LPRs, any Noncitizen who is the spouse or child of a U.S. citizen, Noncitizens seeking to provide temporary labor essential to the U.S. food supply chain, and any Noncitizen whose entry would be in the national interest (as determined by DHS and Secretary of State).

SCOTUS Decision on DACA

June 30, 2020 § Leave a comment

On June 18th, 2020, the Supreme Court of the United States issued a stunning rebuke to the Trump Administration’s efforts to terminate the program known as the Deferred Action for Childhood Arrivals (DACA). The Supreme Court cited the Trump Administration’s efforts to terminate the program as “arbitrary and capricious” under the Administrative Procedures Act (APA). In other words, the Court ruled that the administration did not adequately explain its decision to end DACA and that its reasoning was faulty.

While this ruling is a significant victory for immigrants brought to the United States as young children, it is important to note that this decision is more nuanced and complicated than one might expect. For example, the Court did not necessarily rule in favor of DACA recipients. In fact, it never decided on the issue of whether the DACA program is legal. The Court merely ruled against the Trump Administration on procedural grounds. Therefore, this ruling is only a temporary win for DACA recipients. The president could still end the program in the future, but he would have to articulate valid reasons for doing so. But for now, the Department of Homeland Security must continue processing DACA applications.

What does this ruling mean for the immigrant community? This ruling means that current DACA recipients will continue to be protected from deportation and remain eligible for benefits under the DACA program like work authorization. Eligible recipients may continue to apply to renew their DACA for two more years. Individuals who never had DACA status can apply at this time as well. All eligible individuals should consult with a legal service provider to apply for the first time, renew applications, and explore options beyond DACA. To find a trusted legal service provider, please visit this link.

Checklist for Noncitizen Protestors and Their Attorneys

June 30, 2020 § Leave a comment

As protests and mass demonstrations emerge throughout the world in response to injustice and racist acts against Black people in the United States, many Noncitizens in America find themselves in a dilemma: join the protests and jeopardize legal status, or stay silent and safeguard legal status and oneself from deportation. Of course, Noncitizens living in the U.S. have every right to speak out against injustice. However, it is important to recognize that Noncitizens face additional risks when participating in protests and demonstrations. The purpose of this checklist is to provide immigration attorneys and their Noncitizen client’s a list of issues to address should said-client wish to partake in protest.

  1. Conduct Research in Your Jurisdiction 
    1. Inquire into potential issues regarding identification laws. Find out whether the particular jurisdiction has stop-and-identify laws or if the client is required to carry identification. It is recommended that clients carry some form of local, state, or student ID while avoiding documents that reveal immigration status. 
    2. Look into the jurisdiction’s processing of a criminal case. Understanding how a typical criminal case is processed in the jurisdiction is important for the client and attorney to prepare should the client come into contact with law enforcement. 
    3. Determine what law enforcement agencies may be present and how they interact with protestors. Some of these agencies include ICE, FBI, CBP, and U.S. Marshals. ICE and CBP have been deployed in many places to assist law enforcement in the current Black Lives Matter protests.
    4. Determine the extent of communication and collaboration between state and local police and ICE. Determine whether the police department has agreements with ICE, or if it generally prohibits assistance to ICE.
    5. Research the immigrant consequences of local offenses. Common offenses may trigger additional immigration consequences such as bars from relief, mandatory detention or deportation, delays in relief, or may prevent establishing the good moral character requirement.
    6. Identify support networks in the jurisdiction for Noncitizen protestors. These include bail funds and immediate legal support hotlines.
  2. Advise Your Client
    1. Be aware of the client’s circumstances. A lawful permanent resident has a different risk than someone who has no authorized status or is in removal proceedings.
    2. Provide information to the client regarding their rights. Everyone, including Noncitizens, has a right to remain silent. Noncitizens should refrain from disclosing their immigration status, but should not falsely claim U.S. citizenship or provide false information.
    3. Be cautious with digital privacy. Cell phones may be confiscated by police and can be used for incriminating evidence. If bringing a cell phone, the client should turn off fingerprint or Face-ID features, add a secure password, and turn off location tracking.
    4. Noncitizen protestors should have contact information with them. This includes their attorney, emergency contacts, and any support networks.
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