Visa Lawyer Blog

Articles Posted in Court Injunction

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Welcome back to our blog! We kick off the week by bringing you recent developments regarding the government’s controversial rule entitled, “Inadmissibility on Public Charge Grounds” which sought to expand the scope of public benefits that could render a permanent resident or immigrant visa applicant ineligible for immigration benefits.

As you know, in October of 2019, the final rule “Inadmissibility on Public Charge Grounds,” was swiftly blocked by several federal judges shortly before going into effect. By court order, the government cannot implement the final rule anywhere in the United States until a final resolution has been reached in several lawsuits brought against the government challenging the validity of the public charge rule.

On Monday, January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court of the United States, asking the court to lift the remaining lower court injunction, that is currently stopping the government from enforcing the public charge rule.

The government’s request comes just one week after a three-judge panel for the U.S. Court of Appeals for the Second Circuit, upheld a lower court injunction, preventing the government from implementing the public charge rule on a nationwide basis.

Angered by the decision, the government decided to appeal the U.S. Court of Appeals decision by bringing the matter to the Supreme Court, urging the Court to side with the President and allow the implementation of the rule while a decision in the New York lawsuit is reached on the merits.

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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On Friday October 11, 2019, three Federal courts in California, New York, and Washington issued three temporary injunctions blocking the Trump administration from enforcing the Public Charge rule on a nationwide basis, which was set to go into effect on October 15, 2019.

The decision to block the government from enforcing the Public Charge rule is sure to set off a contentious legal battle that is just beginning to unfold.

California’s Injunction

In California, the City of San Francisco, State of California, and La Clinica de La Raza, a health care provider, joined together as plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), and the President of the United States to prevent the Public Charge rule from going forward.

U.S. District Judge Phyllis Hamilton granted the Plaintiffs a preliminary injunction bringing a temporary stop to the government’s plans to enforce the rule, in states falling under the purview of the U.S. District Court of Appeals for the Ninth Circuit.

Judge Hamilton wrote that in seeking to enforce the final rule, the government failed to consider the impact the rule would have on local and state governments when immigrants chose to leave public health benefit program, “[DHS] made no attempt, whatsoever, to investigate the type or magnitude of harm that would flow from the reality which it admittedly recognized would result—fewer people would be vaccinated,”

Washington’s Injunction

Similarly in a separate but related lawsuit, the States of Washington, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island joined together as Plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), the heads of these agencies, and the President of the United States.

The Washington injunction was more sweeping in scope in that the Federal Judge in that case, Rosanna Malouf Peterson, ordered a nationwide injunction forcing the government to refrain from implementing or enforcing the rule on a temporary but nationwide basis. In her decision Judge Peterson wrote, “the Court declines to limit the injunction to apply only in those states within the U.S. Court of Appeals for the Ninth Circuit.”

As a result, the broad scope of the injunction prevents the government from enforcing the Public Charge rule on a nationwide basis.

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USCIS Issues Notice Extending TPS Designation for Beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador

In compliance with a court ordered preliminary injunction issued in the case Ramos v. Nielsen, USCIS has issued a notice formally announcing the automatic extension of TPS documentation for beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador until January 2, 2020.

Beneficiaries under the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under Immigration and Nationality Act (INA) section 244(c)(3) or 8 CFR 244.14 because of ineligibility.

DHS has further announced that it is automatically extending through January 2, 2020, the validity of TPS related Employment Authorization Documents (EADs), Forms I–797, Notice of Action (Approval Notice), and Forms I–94 (Arrival/Departure Record) (‘‘TPS-Related Documentation’’), for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador, provided that the affected TPS beneficiaries remain otherwise eligible for TPS.

TPS for these countries will not be terminated unless and until any superseding, final, nonappealable judicial order permits such terminations.

Venezuelan Immigrant Visa Processing

The Department of State recently announced that the U.S. Embassy in Bogota, Colombia is now the designated primary site to process immigrant visas for residents of Venezuela. Beginning April 2019, the National Visa Center will begin scheduling Venezuelan immigrant visa interviews at the U.S. Embassy in Bogota. Appointment notices for all future immigrant visa interviews will take place at the U.S. Embassy in Bogota.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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In response to a court ordered preliminary injunction, that blocked the government’s plans to end the temporary protected status (TPS) of immigrants from El Salvador, Sudan, Haiti, and Nicaragua, the government has outlined a detailed plan to comply with the judge’s order.

As previously reported, U.S. District Judge Edward Chen issued a preliminary injunction temporarily stopping the United States government from rescinding the temporary protected status designation for immigrants from Sudan, El Salvador, Haiti, and Nicaragua.

Before the preliminary injunction the TPS designations would officially terminate as follows:

  • Sudan, TPS Designation was to terminate on November 2, 2018
  • Nicaragua, TPS Designation was to terminate on January 5, 2019
  • Haiti, TPS Designation was to terminate on July 22, 2019
  • El Salvador, TPS Designation was to terminate on September 9, 2019

To comply with the court order, USCIS has notified the court that the agency will be publishing a notice in the Federal Register, announcing that the TPS designations for Sudan, Haiti, El Salvador, and Nicaragua will remain in effect as long as the preliminary injunction remains in effect pending the resolution of the case. The Department of Homeland Security will continue to recognize the validity of TPS-related Employment Authorization Documents (EADs), Form I-94 Arrival and Departure Records, and Forms I-797 Notices of Action otherwise known as Approval Notices, to demonstrate the lawful status sand employment authorization of affected TPS beneficiaries.

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Yesterday, Federal Judge Edward Chen, of the United States District Court for the Northern District of California, issued a preliminary injunction temporarily stopping the United States government from rescinding the temporary protected status designation for immigrants from Sudan, El Salvador, Haiti, and Nicaragua.

By court order, the government must maintain the TPS designation for the above-mentioned countries, and continue to allow beneficiaries of these countries, to apply for employment authorization, while a lawsuit challenging the rescission of TPS for these countries moves through the court system.

Before the preliminary injunction the TPS designations would officially terminate as follows:

  • Sudan, TPS Designation was to terminate on November 2, 2018
  • Nicaragua, TPS Designation was to terminate on January 5, 2019
  • Haiti, TPS Designation was to terminate on July 22, 2019
  • El Salvador, TPS Designation was to terminate on September 9, 2019

The preliminary injunction comes on the heels of a class-action lawsuit brought by immigrants from these countries over the rescission of the TPS designation for Sudan, El Salvador, Haiti, and Nicaragua. The lead plaintiff named in the lawsuit Ramos v. Nielsen, is Crista Ramos, a 14-year old United States Citizen whose mother is a TPS holder from El Salvador. Ramos, along with other Plaintiffs in this lawsuit allege that the government rescinded TPS protections for the above-mentioned countries, based on a predetermined political agenda in violation of the law.

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A federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. The new ruling gives the Trump administration a 20-day deadline to implement the complete restoration of the program or file an appeal. The District Court judge behind the order stated in his ruling that the Trump administration failed to justify its decision to end the DACA program, which protected approximately 800,000 young adults from deportation.

The Trump administration plans to appeal the ruling using the 20-day delay granted by the judge in the ruling. Today the attorney general, Jeff Sessions, issued a statement following the court decision stating that the Trump administration strongly disagrees with the decision adding that, “The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.”

The attorney general claimed that the Obama administration “violated its duty to enforce our immigration laws” by allowing the establishment of the DACA program and the catch and release policy,” that the current administration not only had the authority to withdraw from the DACA program but had a duty to do so. The Trump administration has interpreted recent court decisions contradicting the termination of the DACA program as an improper use of judicial power.

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IMPORTANT UPDATE: On February 14, 2018 USCIS announced that due to federal court orders issued on January 9, 2018 and February 13, 2018, USCIS will resume accepting requests to renew a grant of deferred action under the DACA program. Please read this post to determine whether you qualify. 

On January 13, 2018, the United States Citizenship and Immigration Services (USCIS) issued a statement for recipients of Deferred Action for Childhood Arrivals (DACA) in response to a federal court order that resurrected certain provisions of the program.

USCIS has announced that they will resume accepting requests to renew a grant of deferred action for individuals who have received benefits under the DACA program. According to the statement, the DACA policy that was in effect before the program was rescinded by the Trump administration on September 5, 2017, will continue to be implemented on the same terms as it was before. It is important to note that although USCIS will begin accepting renewal requests for individuals who have received DACA benefits in the past, USCIS will NOT be accepting initial DACA requests from individuals who have never before been granted deferred action under the DACA program.

In addition, USCIS is NOT accepting applications for advance parole from recipients of DACA. Before the program was rescinded, individuals receiving DACA benefits could apply for an advance parole document (travel permit) allowing them to safely re-enter the United States after temporary foreign travel. This will no longer be the case. Although by federal court order USCIS may consider applications for advance parole on a case-by-case basis if it so chooses, the agency has definitively decided against accepting any such requests.

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In the middle of a hotly contested political battle among members of Congress, to pass a permanent legislative solution shielding Dreamers from deportation, late yesterday evening a federal judge in San Francisco handed down a ruling blocking the Trump administration from phasing out the Deferred Action for Childhood Arrivals (DACA) program enacted by former President Barack Obama.

As of Tuesday, January 9, 2018 U.S. District Judge William Alsup has issued a nationwide injunction ordering the Trump administration to restore DACA protections, while Congress legislates a more permanent solution to protect Dreamers from deportation. In his ruling, Judge Alsup said the Trump administration’s decision to rescind the DACA program was based on a flawed legal premise that was “not in accordance with the law.”

What does this decision mean for DACA enrollees?

The judge’s ruling mandates that the Trump administration maintain DACA protections open on a nationwide basis “on the same terms and conditions as were in effect before the recession (of the program) on September 5, 2017.”

This would include allowing Dreamers currently enrolled in DACA to renew their enrollments, with the following exceptions:

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