Visa Lawyer Blog

Articles Posted in Court Injunction

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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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In complete defiance of a recent federal court order, mandating acceptance of initial requests for the Deferred Action for Childhood Arrivals (DACA) program, the Department of Homeland Security today issued a memorandum that states that effective immediately, the agency will reject all pending and future initial requests for DACA including all associated employment authorization applications, and reject all pending and future I-131 advance parole requests for beneficiaries of DACA. The agency has stated that it will refund all associated fees, without prejudice should DHS decide to accept initial requests for DACA in the future.

The memorandum orders, “DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA, to reject all pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals [to one year] consistent with the parameters established in this memorandum.”

Most shocking of all is that the memorandum limits the period of deferred action pursuant to the DACA program and associated employment authorization to just one year for DACA renewals filed after July 28th, when previously deferred action and employment authorization was issued for two years.

These actions are appalling and reflect judicial defiance that has never before been seen. These actions will surely set off a string of new lawsuits in the coming weeks. We must all stay tuned for new developments during this uncertain time for DACA.

Actions to be Taken by DHS as of July 28, 2020

The memorandum provides a list of actions DHS plans to take effective immediately which further detail the actions that will be taken by DHS as of today:

  • Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
  • Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
  • Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
  • Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.
  • Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.

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nesa-by-makers-IgUR1iX0mqM-unsplash-scaledWe are very happy to announce that yesterday July 14, 2020, the Trump administration backed down and agreed to cancel a new set of federal guidelines that would have required international students to attend classes in-person during the upcoming Fall 2020 semester.

As you may be aware, on Monday July 6th U.S. Immigration and Customs Enforcement (ICE) issued a news release with new modifications that would have applied to international students in the United States, and those awaiting their visas abroad. The announcement prohibited international students from taking courses entirely online during the upcoming semester. It stated that students enrolled in schools with only online instruction would not be issued visas, and CBP would not permit these students to enter the United States. In addition, students already in the United States, who had enrolled in an online program, were given two options, transfer to another school with a hybrid or in person curriculum or depart the United States.

Shortly after these measures were announced, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on behalf of all international students affected by the new guidelines. The universities requested an emergency hearing to block the government from enforcing these measures. That hearing was scheduled to take place yesterday morning, but in a surprising turn of events, just before the hearing was getting started, the judge announced that the government had agreed to rescind its policy and would no longer require students to attend in-person classes in order to remain in the country.

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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We have news that may be some relief to international students across the United States.

Today, Wednesday, July 8, 2020, Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit in District Court in Boston against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), challenging new guidelines that prohibit international students from taking online classes during the upcoming fall semester.

The lawsuit seeks a temporary restraining order, preliminary, and permanent injunctive relief to bar the Department of Homeland Security and Immigration and Customs Enforcement, from enforcing recent federal guidelines just announced on Monday, that prohibit international students from attending U.S. colleges and universities offering only online instruction during the upcoming Fall 2020 semester.

As our loyal followers know, early this week, Immigration and Customs Enforcement issued a news release introducing a new set of guidelines for international students who will take courses in the U.S. during the upcoming fall semester.

Among the new guidelines, we learned that F-1 and M-1 students will be prohibited from taking courses entirely online during the fall semester. The announcement stated that the Department of State would not issue visas to students enrolled in schools and/or programs operating entirely online, and Customs and Border Protection would not allow such students to enter the United States.

International students in the United States enrolled in schools and/or programs operating entirely online were only given two options (1) depart the United States or (2) take other measures such as transferring to a school with in-person instruction to remain in lawful status.

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Great news has come down from the U.S. Court of Appeals for the Ninth Circuit this afternoon.

Dealing a blow to the Trump administration, the court issued a majority decision denying the federal government’s motion to lift a lower court injunction that prevented the government from implementing Presidential Proclamation No. 9945, signed by the President on October 4, 2019.

The Proclamation attempted to bar certain individuals from entering the United States pursuant to an immigrant visa, unless they could demonstrate (1) that they would be covered by certain approved health insurance within 30 days of entry or (2) that they had the sufficient financial resources to cover foreseeable healthcare costs.

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It’s been just a few days since President Trump signed his long awaited executive order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” and already it is being challenged in federal court.

On April 25, 2020, the first of what is sure to be many lawsuits, Doe v. Trump, was filed in the United States District Court for the District of Oregon challenging the President’s new executive order.

The lawsuit was filed by several individuals and the organization Latino Network against President Trump and the federal government.

Plaintiffs in this case have filed an emergency motion for a temporary restraining order to block the government from enforcing the new executive order, because the executive order does not contain exceptions that preserve the opportunity to request urgent or emergency services for immigrant visa applicants, including for children of immigrants who are at risk of aging out of their current visa eligibility status “by the simple passage of time.”

The lawsuit is concerned specifically with children who are in danger of aging out of their place in the visa queue because they do not have access to emergency services that would have otherwise been available had the proclamation not been issued.

“Without access to such emergency services, children whose underage preference relative status will result in unnecessary and prolonged family separation “for years—or even decades,” the lawsuit says.

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UPDATE—The Latest on DACA: Last summer, the United States Supreme Court accepted the Trump administration’s writ of certiorari, agreeing to review several federal court cases challenging the Trump administration’s decision to terminate DACA. The Supreme Court could, at any moment, decide the fate of DACA, making this an extremely uncertain time for Dreamers. A decision is expected to be handed down by the Supreme Court in early 2020, just before the 2020 presidential election. In the meantime, given that no final decision has yet been made by the Supreme Court, DACA recipients may continue to submit renewal applications pursuant to three U.S. district court orders that remain in effect. As required by these orders, United States Citizenship and immigration Services (USCIS) resumed accepting renewal requests for DACA, however those who have never before been granted deferred action cannot apply.

DACA FREQUENTLY ASKED QUESTIONS

USCIS Continues to Accept DACA Renewal Requests

In early January of 2018, the U.S. District Court for the Northern District of California issued a preliminary injunction in favor of the plaintiffs in the case Regents of the University of California, et al. v. Department of Homeland Security, et al., which challenged the government’s decision to terminate DACA. The preliminary injunction had the effect of temporarily blocking the termination of the DACA program until a final decision is reached on the merits of the case. The injunction applied nationwide and required USCIS to resume accepting DACA renewal applications. Shortly after this court order, USCIS announced that it would resume accepting DACA renewal applications.

The Sapochnick Law Firm has drafted the following answers to your frequently asked questions regarding the current state of DACA, CIS’ announcement informing the public that it will continue accepting DACA requests, and further developments relating to DACA.

WHY YOU SHOULD APPLY FOR YOUR DACA RENEWAL NOW

At this time the fate of the DACA program is extremely uncertain. The United States Supreme Court is set to make a final decision regarding the legality of the DACA program at any time. Given that the liberal justices on the court are outnumbered by 5-4, it is more and more probable that the DACA program will be terminated. Once the Supreme Court casts the final vote, DACA recipients will likely lose the opportunity to apply for renewal of their benefits. Now more than ever DACA holders should take advantage of their ability to apply for a final renewal of their benefits. We hope that the Supreme Court will be on the right side of history, but there can be no guarantees.

1. I have never applied for DACA before, can I still submit an application?

No. The preliminary injunction does not require USCIS to accept DACA applications from first-time applicants. USCIS has made clear that it will not be accepting DACA applications from those who have never before been granted deferred action. The agency will only continue accepting applications to renew a grant of deferred action under DACA.

2. Why did I hear that applications for first-time applicants would be accepted?

In a previous case out of the U.S. District Court for the District of Columbia, NAACP v. Trump, federal judge John D. Bates ordered the government to submit additional information to justify its decision to terminate DACA—failure to do so meant that USCIS would be required to accept first-time applications for DACA as well as applications from DACA holders for advance parole.

The government did respond within the required period of time, issuing a memorandum outlining the government’s rationale for terminating the DACA program. Having satisfied the court’s requirement to produce the information, the U.S. District Court for the District of Columbia, “stayed” its previous order requiring that the DACA program be fully reinstated. As a result, the portions of the court order that would have allowed first-time applicants to seek DACA and allowed for DACA recipients to apply for advance parole, were stopped.

Given that the government complied with the court order, at this time, USCIS is not accepting DACA applications from first-time applicants, nor applications for advance parole from DACA recipients.

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