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Articles Posted in Court Decisions

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Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

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On October 1, 2020, federal judge Jeffrey White of the U.S. Court for the Northern District of California issued a preliminary injunction that prevents the government from enforcing Presidential Proclamation 10052 issued on June 22, 2020, but only against the Plaintiffs in the lawsuit which include the National Association of Manufacturers, the United States Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc. See National Association of Manufacturers v. Department of Homeland Security.

The plaintiffs brought the lawsuit before the court to challenge the issuance of Presidential Proclamation 10052, which suspends visa issuance for certain nonimmigrant workers until December 13, 2020, with discretion to be continued “as necessary.” Those impacted by this Proclamation include applicants who were not in the United States on June 24th or in possession of a valid visa as of that date, who seek visas in any of the following categories:

(1) H-1B or H-2B visa nonimmigrant visa applicants, and any alien accompanying or following to join such alien;

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We have important new developments to share with our readers regarding the United States Citizenship and Immigration Services (USCIS) planned increase in filing fees for certain applications and petitions, which was set to go into effect beginning October 2nd 2020.

As we previously reported on our blog, in early August USCIS published a final rule in the Federal Register entitled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” This final rule discussed the agency’s planned increase in filing fees for applications, petitions, or requests filed with USCIS postmarked on or after October 2, 2020.

*For a complete list of the planned increases and petitions affected click here.

According to USCIS, the final rule was intended to ensure that the agency would have enough resources to provide adequate services to applicants and petitioners. The agency stated that after having conducted a review of current fees, the agency determined that they could not cover the full cost of providing adjudication and naturalization services without a fee increase.

This news was not surprising to say the least. Since the emergence of the Coronavirus pandemic, USCIS has been facing an unprecedented financial crisis that has forced the agency to take drastic measures to account for its revenue shortfalls.

Federal Judge Grants Injunction Blocking Increase in Filing Fees

In a surprising turn of events, just days before the final rule was set to go into effect, several organizations filed a lawsuit against the Department of Homeland Security to stop the government from enforcing the final rule. Immigrant Legal Resource Center, et al., v. Chad F. Wolf.

On Tuesday, September 29, 2020, federal judge Jeffrey S. White of the District Court for the Northern District of California, granted the injunction temporarily preventing the government from enforcing the increase in filing fees as planned on October 2nd.

As a result of the court order, USCIS is prohibited from enforcing any part of the final rule while the lawsuit is being litigated in court. While the government is sure to appeal the court’s decision, for now applicants can continue to send their applications and petitions with the current filing fees as posted on the USCIS webpage.

In support of his ruling, judge White reasoned that the plaintiffs were likely to succeed in challenging the final rule because both the previous and current acting secretaries of the Department of Homeland Security (DHS) were unlawfully appointed to their posts and therefore were not authorized to issue the final rule. The judge also agreed that the fee hike would put low income immigrants at a severe disadvantage stating, “Plaintiffs persuasively argue that the public interest would be served by enjoining or staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, will block access to humanitarian protections, and will expose those populations to further danger.”

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The public charge rule is back. On September 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows the Department of Homeland Security to resume enforcement of the Public Charge Ground of Inadmissibility final rule on a nationwide basis, including in New York, Connecticut, and Vermont.

The court “stayed” or suspended the grant of a preliminary injunction issued on July 29, 2020 by the United States District Court for the Southern District of New York, meaning that the United States Citizenship and Immigration Services (USCIS) can now require Form I-944 in all jurisdictions, and continue to enforce the public charge rule nationwide.


Why the ruling?

The appellate court ruling comes after the Department of Homeland Security appealed the July 29th preliminary injunction preventing the enforcement of the public charge rule to residents of New York, Connecticut, and Vermont. The government asked the court to “stay” or suspend the preliminary injunction, pending resolution of the appeal before the courts.

A three judge panel ruled in favor of the government finding that they were likely to succeed on the merits of the case and in any event the judges said that it was doubtful that the district court had jurisdiction to issue the preliminary injunction in the first place, given that the court of appeals was considering the issues raised by the public charge rule.

What does this mean for applicants?

Pursuant to the appellate court’s order, the United States Citizenship and Immigration Services (USCIS) will resume enforcement and implementation of the Public Charge Grounds Final Rule nationwide. The government is no longer prevented from enforcing the rule during the coronavirus (COVID-19) pandemic.

USCIS has stated on their webpage that they will apply the public charge final rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. For applications or petitions sent by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.

USCIS will not re-adjudicate any applications and petitions that were approved following the issuance of the July 29, 2020, injunction continuing until the date of the notice (September 22, 2020).

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We are happy to report that the Department of State has released an important announcement that describes the agency’s compliance with the recent court ruling, Gomez v. Trump, which orders the government to make good-faith efforts to expeditiously schedule, process, and adjudicate DV-2020 diversity visa applications by September 30, 2020, despite issuance of Proclamation 10014.

In accordance with the court’s ruling, DV-2020 applications are being processed at embassies and consulates as local health conditions and resources will allow during this pandemic.

To proceed with visa processing, applicants must be documentarily qualified (meaning the applicant has obtained all documents specified by consular officials sufficient to meet the formal visa application requirements), have paid all requisite application fees, have the ability to obtain the required medical examination conducted by a panel physician, and demonstrate eligible for a visa prior to issuance.

If a post is unable to process cases due to local health conditions and resource constraints, an applicant may request a transfer to another post

The Department expects that, due to resource constraints, limitations due to the COVID-19 pandemic, and country conditions, it will be unable to accommodate all DV applicants before September 30, 2020.

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We are very happy to announce a recent federal court ruling that grants DV-2020 diversity visa lottery winners the ability to apply for and obtain their immigrant visas.

Following the issuance of Presidential Proclamation 10014 on April 22, 2020 (which suspended the entry of all immigrants into the United States for a period of two months, except for limited classes of individuals) our office received an outpouring of emails, messages, and phone calls from readers asking whether DV-2020 lottery winners qualified for an exception, allowing them to apply for and obtain a DV immigrant visa before the September 30, 2020 deadline.

Unfortunately, we did not have any good news. The April 20th proclamation meant that DV-2020 lottery winners would have to wait for the ban to be lifted in order to apply for their visas. Then two months later, the President issued Proclamation 10052, further extending the visa ban until December 31, 2020. Rightfully so, this action caused anger among lottery winners, because it meant that DV-2020 lottery winners would not be able to apply for their visas by the deadline, and would lose out on the opportunity to receive an immigrant visa. For many this was a devastating realization.

In response, hundreds of DV-2020 lottery winners banded together and filed the lawsuit Gomez, et al. v. Trump, et al. against the government seeking an injunction to prevent the government from enforcing the Proclamations against DV lottery winners.

On September 4, 2020, their demands were answered. Federal Judge Mehta has issued a set of orders granting DV-2020 lottery winners a preliminary injunction which stops the government from applying the Proclamations against them. Unfortunately, however the judge’s order only grants relief to DV-2020 lottery winners and does not grant relief to non-DV immigrant visa applicants. We would like to remind our readers that the Judge’s orders are temporary and have been issued to prevent further injury to DV-2020 lottery winners, while the lawsuit comes to a final resolution through the court system.

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We have very unfortunate news regarding the implementation of the “public charge” rule by the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) on adjustment of status applicants.

In an unexpected turn of events, yesterday three judges from the United States Court of Appeals for the Second Circuit, issued a ruling in the case, U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al., stating that while they agreed with a lower court’s decision to issue a preliminary injunction to prevent the government from enforcing the “public charge,” rule during the Coronavirus pandemic, the judges held that the injunction was warranted only with respect to the states that filed the lawsuit and that were able to demonstrate standing, which included the states of New York, Connecticut, and Vermont.

Accordingly, the Second Circuit Court’s opinion modifies the scope of the “public charge” injunction, and only prevents DHS and USCIS from enforcing the “public charge” rule with respect to those residing in the states of New York, Connecticut, and Vermont. The Court’s decision modifies the previous lower court decision issued by Federal Judge George Daniels on July 29th.

As you may recall that decision was made out of the United States District Court for the Southern District of New York and applied nationwide.

Shortly after that decision was made, DHS immediately appealed the Daniels decision to the U.S. Court of Appeals for the Second Circuit which ultimately modified the scope of the injunction, preventing DHS from enforcing the public charge rule only with respect to New York, Connecticut, and Vermont, but allowing DHS and USCIS to enforce the “public charge,” rule elsewhere.

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We have great news for visa applicants regarding the public charge rule. On August 7, 2020, the U.S. Department of State issued an important update explaining that the agency will be complying with the July 29th injunction issued by a federal judge in the United States District Court for the Southern District of New York which temporarily blocks the government from “enforcing, applying, implementing, or treating as effective,” the public charge rule known as “Inadmissibility on Public Charge Grounds,” which was implemented on February 20, 2020.

As a result, effective June 29th (the date of the Judge’s order) neither Consular officials nor the United States Citizenship and Immigration Services (USCIS) can enforce any part of the public charge rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak, and for as long as the injunction remains in place.

In other words, visa applicants applying for both immigrant and non-immigrant visas at a U.S. Consulate or Embassy abroad, can rest assured that Consular officials will not enforce the public charge rule known as “Inadmissibility on Public Charge Grounds,” in any way pursuant to the Court’s ruling on June 29th.

In their statement the Department of State made clear, “the Department is complying with the court’s order and is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. In the interim, visa applications that appear to be ineligible under INA 212(a)(4) will be refused for administrative processing to allow for consultation with the Department, including legal review to ensure compliance with applicable court orders.  Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled.  Applicants are not required to complete, nor should they present the DS-5540, Public Charge Questionnaire.”

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We have great news for our readers regarding a recent court’s decision to temporarily halt the “public charge” rule during the Coronavirus pandemic. On Wednesday, July 29, a federal judge in the state of New York issued a ruling that blocks the government’s enforcement of the “public charge” rule on non-citizens seeking permanent residency in the United States, and nonimmigrant visa applicants alike, for as long as the coronavirus pandemic remains a public health emergency. The ruling was made in response to a federal lawsuit filed by several states against the government entitled, U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al.


What does this mean for visa and adjustment of status applicants?

Federal Judge George Daniels has approved a nationwide injunction, immediately stopping the government from “enforcing, applying, implementing, or treating,” as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.

This means that effective June 29th both consular officers and USCIS immigration officials cannot enforce any part of the “public charge” rule for as long as the injunction remains and place, and a national public health emergency exists.


Why did the judge make this ruling?

The judge agreed with the states of New York, Connecticut, and Vermont that the “public charge” rule would cause irreparable harm on non-citizens seeking entry to the United States because the rule discourages such individuals from obtaining the necessary treatment and care needed during the Coronavirus pandemic. The judge considered the “substantial harm” the public would suffer if the government continued to enforce the “public charge” rule and found that the temporarily injunction was necessary to allow non-citizens to obtain much needed public benefits for preservation of the public’s health and safety.

In defense of his opinion, the judge stated, “no person should hesitate to seek medical care, nor should they endure punishment or penalty if they seek temporary financial aid as a result of the pandemic’s impact.”

The judge further stated in his ruling that the continued application of the “public charge” rule during the global pandemic, “would only contribute to the spread of COVID-19 in our communities.”

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This afternoon, a federal judge in Maryland quietly handed down a victory for new DACA applicants. The judge in the case, Casa de Maryland v. U.S. Department of Homeland Security, has ordered the government to restore the Deferred Action for Childhood Arrivals (DACA) program to its pre-September 2017 status, meaning that first-time applicants can now apply for Deferred Action and an employment authorization document from the United States Citizenship and Immigration Services.


What was this lawsuit about?

The Casa de Maryland v. U.S. Department of Homeland Security lawsuit was brought on October 5, 2017, in the U.S. District Court for the District of Maryland, to challenge the Trump administration’s revocation of the Deferred Action for Childhood Arrivals (DACA) program. The plaintiffs were a group of nonprofit organizations and DACA recipients who sought to enjoin (stop) the federal government from terminating the DACA program. The plaintiffs argued that the Trump administration’s 2017 rescission of the program was motivated by discriminatory animus toward individuals from Mexico and Central America. They also argued that revoking DACA violated Fifth Amendment due process and equal protection, and the Administrative Procedure Act.

In response to the lawsuit, the government filed a motion to dismiss the lawsuit. On March 5, 2018, the judge ordered the government to stop using or sharing information provided by DACA applicants for enforcement or deportation purposes, but declared that the Trump administration’s rescission of the DACA program was valid and constitutional.

On April 27, 2018, the plaintiff’s appealed the case to the Fourth Circuit Court of Appeals. The appeals court reversed the district court’s decision finding that the rescission of DACA was invalid and unconstitutional. The court decided that the government’s rescission of DACA was arbitrary and capricious and remanded the case back to the lower courts.

Today, on remand in accordance with the U.S. Supreme Court’s June 18, 2020 decision holding that rescission of DACA was arbitrary and capricious in violation of the APA, the judge’s decision “restores DACA to its pre-September 5, 2017, status…”

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