Articles Posted in Court Orders

The Supus-supreme-court-building-2225766_1280reme Court of the United States has issued an important but temporary victory to the Biden administration. On Monday, the court temporarily halted the enforcement of a controversial immigration law from the state of Texas known as SB4, which would authorize state law enforcement officials to arrest and detain those suspected of entering the country illegally, while imposing harsh criminal penalties.

The administrative hold issued by Supreme Court Justice Samuel Alito blocks the law from taking effect in the state of Texas until March 13. This temporary pause will give the court enough time to review and respond to court proceedings initiated by the Biden administration. Alito has ordered Texas to respond to the government’s lawsuit by March 11.

U.S. Solicitor General Elizabeth Prelogar has argued that SB4 violates the law by placing the authority to admit and remove noncitizens on state law enforcement when these matters fall under the jurisdiction of the federal government, and not individual states.

Continue reading

eye-gd012fb6ce_1280

The Department of State raised eyebrows earlier this month when it released information that it will be reducing the waiting period for 221(G) “administrative processing,” in an effort to process visas more efficiently.

While this is welcome news, in practice it may not mean much. Consulates and Embassies have been notoriously secretive when it comes to 221(G) administrative processing and do not reveal the reason for a visa applicant being placed in administrative processing in the first place, nor the type of security checks that are being conducted.


What is 221(G) Administrative Processing?


First, let’s explain what administrative processing is. When an applicant visits a U.S. Consulate or Embassy overseas for their visa interview, there are only two possible outcomes that can occur at the conclusion of their interview. The Consular Officer may choose to either issue or “refuse” the visa. A refusal is not the same as a denial. It simply means that the visa applicant has not established his or her eligibility for the visa they are seeking for the time being, and the Consulate needs additional time or requires further information either from the visa applicant or another source to determine the applicant’s eligibility for the visa.

In most cases, visa applicants who have been “refused” will require further administrative processing.


How will I know if I have been placed in 221(G) administrative processing?


Visa applicants placed in administrative processing are often given what is called a “Notice of 221(G) Refusal” at the conclusion of their interview, which states that the visa application has been “refused” under section 221(G) of the Immigration and Nationality Act. The Notice should indicate whether additional administrative processing is required for your case, and whether any further action is required on your part, such as providing additional documentation or further information to process your visa.

However, in some cases visa applicants are not given such a Notice and will later discover that they have been placed in 221(G) administrative processing upon checking their visa status on the Consular Electronic Application Center (CEAC) visa status check webpage.

Continue reading

nathan-dumlao-vxHX2qLltdw-unsplash-1-scaled

DACA recipients can now breathe a sigh of relief. We are happy to report that the Department of Homeland Security recently published a final rule in the Federal Register, taking a major step to safeguard the Deferred Action for Childhood Arrivals (DACA) program, while the fight to uphold DACA is in litigation.


What does this mean?


The final rule officially took effect on October 31, 2022, to codify existing policy, preserve, and fortify DACA.

This means that effective October 31, 2022, pursuant to the final rule, the U.S. Citizenship, and Immigration Services (USCIS) will accept and process renewal DACA requests and accompanying requests for employment authorization (EAD), consistent with court orders and an ongoing partial stay. Currently, valid grants of DACA, related employment authorization, and advance parole will continue to be recognized as valid under the final rule. Those with pending DACA renewal applications, do not need to reapply.

USCIS will also continue to accept and process applications for advance parole for current DACA recipients and will continue to accept but will not process initial (new) DACA requests.

Pursuant to an injunction and partial stay, handed down by the U.S. District Court for the Southern District of Texas, DHS is prohibited from granting initial (new) DACA requests and related employment authorization under the final rule.

While this is a temporary measure to protect existing DACA benefits, Secretary of Homeland Security, Alejandro Mayorkas stated, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

Continue reading

eric-gonzalez-Z3CHkelnvHA-unsplash-scaled

In the latest legal saga concerning the Deferred Action for Childhood Arrivals (DACA) program, a federal appeals court has declared the DACA program illegal, causing uncertainty for the future of the program.

Yesterday, the three-judge panel for the 5th Circuit Court of Appeals handed down a ruling in which it found that the Obama administration did not have the legal authority to create the DACA program in 2012. The Circuit Court ruling affirms a previous ruling handed down by U.S. District Court Judge Andrew Hanen of the Southern District of Texas which halted the Biden administration’s plans to revive the program last year.

While the panel declared the DACA program illegal, it stopped short of ordering the Biden administration to completely invalidate the program for those with existing DACA benefits, or those seeking to renew those benefits. For the time being, DACA policy remains intact for current beneficiaries, allowing U.S. Citizenship and Immigration Services (USCIS) to continue to accept and adjudicate renewal requests. However, USCIS is prohibited from approving initial applications for DACA, and accompanying requests for employment authorization.


What happens next?


The appeals court has sent the lawsuit back to U.S. District Judge Andrew Hanen, the same judge that previously ordered a nationwide injunction preventing the approval of new DACA applications. Judge Hanen will review the legality of the program under the Biden administration’s policy memorandum which includes revisions to the program.

Sadly, it is unlikely that Judge Hanen will rule in favor of the Biden administration which will likely result in a formal appeal sent to the United States Supreme Court, where chances of its survival hinge on a conservative leaning court. Judge Hanen previously found the program illegal because the government failed to follow the notice and comment periods required by the federal Administrative Procedures Act. In 2016, the Supreme Court deadlocked in a 4-4 decision over expanding DACA to parents of DACA recipients, keeping in place a lower court decision preventing its expansion.

The appellate court’s decision will have long-lasting repercussions, as it forces members of Congress to safeguard the future of the program by passing legislation to settle the matter once and for all. While the topic has been argued for the past decade on Capitol Hill, no meaningful steps have been taken to preserve the program and create a path to residency for Dreamers.

Continue reading

37171919025_64031c19eb_z

Source: Flickr, Attribution: mollyktadams

We are saddened to report that late Friday, July 16, 2021, Federal Judge Andrew Hanen of the United States District Court for the Southern District of Texas, granted the plaintiffs in the case, State of Texas, et al., vs. United States of America, et.al, a permanent injunction, pending ongoing litigation over the legality of the Deferred Action for Childhood Arrivals (DACA) program.

As a result, new first-time applications for the DACA program will no longer be approved by the United States Citizenship and Immigration Services (USCIS) following Judge Hanen’s ruling.  Friday’s decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld, especially by the conservative leaning Supreme Court of the United States.

In his ruling, Federal Judge Hanen declared that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) with the initial creation of the Deferred Action for Childhood Arrivals (DACA) program and its continued operation. Accordingly, he has ordered that the DACA Memorandum and the subsequent creation of the DACA program be vacated and remanded to DHS for further consideration.

This action removes protections from deportation for thousands of undocumented young adults who came to the United States as children, otherwise known as Dreamers, and casts doubt on the future of the program.

Judge Hanen specifically stated that his ruling does not impact the hundreds of thousands of DACA recipients and others who have relied on the DACA program for almost a decade. This means that while new first-time applications for DACA will no longer be adjudicated by USCIS, Hanen’s ruling will not impact current DACA recipients.

Continue reading

tingey-injury-law-firm-L4YGuSg0fxs-unsplash-scaled

On June 4th, 2021, the interim guidance memorandum (“The Memo”) was publicly released. The reason the memo sent many, like me, into a frenzy was because of the million people currently in immigration court limbo who have just had their lives transformed by these thirteen pages.

This memo is proof the Biden Administration has set a new tone towards immigration. The memo beautifully states, “the government wins when justice is done,” reminding OPLA attorneys they should remain mindful that “immigration enforcement obligations do not consist only initiating and conduction prompt proceedings that lead to removals at any cost.” The memo provides internal direction to OPLA attorney’s regarding the following: 1. Removal Priority Cases, 2. Prosecutorial Discretion, 3. Ability to cancel NTAs, 4. Authority to Administrative closure or Continuance of Proceedings, and 5. Authority to Terminate  Proceedings.

(It is important to note this memorandum was released For Official Use Only by the Department of Homeland Security. You should seek the advice and counsel of an attorney to review your case specifically.)

  1. REMOVAL PRIORITY CASES

It is directed that OPLA attorneys prioritize agency resources in the following priority categories:

A. Noncitizens who engaged in or suspect to engage in terrorism or whose apprehension is otherwise necessary to protect the national security of the United States.

B. Noncitizens who were apprehended at the border or port of entry, while attempting to enter unlawfully into the United States after November 1, 2020.

C. Noncitizens convicted of an “aggravated felony” or convicted of an offense related to a criminal street gang and determined to pose a threat to public safety.

The memo also provides a non-exclusive list of civil immigration enforcement and removal decisions where the agency should identify any opportunities of a non-citizens process to ensure just fair and legally appropriate outcomes.

Continue reading

faq-3408300_1920

Welcome back to Visalawyerblog! It is the start of a brand new and exciting week in the world of immigration. In this post, we bring you the latest immigration updates from the U.S. Department of State’s Bureau of Consular Affairs.

In a recent post on their Facebook page, the Bureau published a Frequently Asked Questions guide addressing the Immigrant Visa Backlog, including information about what Consulates are doing to help reduce the backlogs, and helpful information for K-1 visa applicants, Diversity Visa lottery applicants, and interview scheduling for employment-based applicants.

Want to know more? Check out the Q & A below:

 


Frequently Asked Questions Regarding the Immigrant Visa Backlog


Q: Why are there still immigrant visa interview backlogs?

A: Our number one priority is the safety of our applicants and our staff. The IV (Immigrant Visa) interview backlog has developed because of limitations in staffing and other COVID-related operational constraints preventing us from processing the same volume of applicants as pre-pandemic. In addition, Presidential Proclamation 10014 and geographic COVID proclamations restricted visa processing for many immigrants for nearly a year; it will take time to process the cases that were impacted by these travel restrictions.

Q: What are you doing to decrease the backlog?

A: We are committed to decreasing this backlog by prioritizing certain visas, creating efficiencies in the visa process, and utilizing all available resources until our task is accomplished. Applicants should check the website of their nearest U.S. embassy or consulate for updates on what visa services are currently available.

Q: Are virtual/Zoom interviews available for Immigrant Visa applicants?

A: No. Current regulations require all immigrant visa applicants to appear in person before a consular officer.

Q: I live near a U.S. Consulate, but they do not process Immigrant Visas at that particular location and therefore I am forced to travel a long distance to appear for my interview. Why don’t you process IV interviews at every U.S. Embassy/Consulate?

A: As the best use of limited U.S. government resources, immigrant visa processing is consolidated in certain embassies and consulates. The Department of State continuously reviews the services we provide to best balance our service standards with efficient use of resources.

Continue reading

pablo-heimplatz-fVL0zZdk-R4-unsplash-scaled

Happy Friday! Welcome back to Visalawyerblog! In this blog post, we bring you a recent success story and share with you how our office was able to expedite our client’s fiancé visa to help him reunite with his U.S. Citizen fiancé, despite the suspension of routine visa services at the U.S. Consulate in Mumbai, India.

As you may recall, during March of last year, in an unprecedented move, the Department of State made the decision to suspend all routine visa services at U.S. Embassies and Consulates worldwide, in response to significant worldwide challenges posed by the COVID-19 pandemic.

Thereafter in July of 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services, but only on a post-by-post basis as resources and local conditions would allow.

In reality routine visa services at the majority of U.S. Embassies and Consulates have remained suspended with posts granting appointments only for emergency and mission-critical services.

Due to these visa suspensions, K visa applicants have been unable to proceed with visa issuance, with many applications sitting idle at the National Visa Center (NVC) waiting to be forwarded to the local Consulate for interview scheduling.

Most recently K visa applicants expressed their frustrations by filing a class action lawsuit known as Milligan v. Pompeo in an effort to force visa interview scheduling.

Continue reading

steven-aguilar-9kmy3mYHo6Y-unsplash-scaled

We have very exciting news for our DACA community. Yesterday, December 7, 2020, the United States Citizenship and Immigration Services (USCIS) issued the long-awaited public notice we have all been waiting for.

Pursuant to a federal court order issued on November 14, 2020, by Judge Nicholas George Garaufis of the U.S. District Court for the Eastern District of New York, which invalidates the July 28, 2020 “Wolf memorandum,” DHS has been ordered to immediately reinstate the DACA program to policies that were in effect prior to September 5, 2017 (the attempted rescission of the program by USCIS).


In order to comply with the federal court order, USCIS has issued an official public notice on its webpage confirming that effective December 7, 2020 the agency will:

  • Accept first-time requests for consideration of deferred action under Deferred Action for Childhood Arrivals (DACA) based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Accept DACA renewal requests based on the terms of the DACA policy in effect prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Accept applications for advance parole documents based on the terms of the DACA policy prior to September 5, 2017, and in accordance with the Court’s December 4, 2020, order;
  • Extend one-year grants of deferred action under DACA to two years; and
  • Extend one-year employment authorization documents (EADs) under DACA to two years.

Additionally, USCIS will take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the Wolf Memorandum.

With this announcement, DHS will comply with Judge Garaufis’ order while it remains in effect, but the agency has stated they may seek relief from the order. Therefore, you should take advantage and file your initial request for DACA and/or advance parole as soon as possible.

Continue reading

ronny-sison-LUdelQ2EO2g-unsplash-scaled

We are very happy to bring you this late breaking news.

Today December 04, 2020, a federal judge from the United States District Court for the Eastern District of New York, issued a ruling that requires the Trump administration to post a public notice within 3 calendar days that it will accept new initial requests for DACA (Deferred Action for Childhood Arrivals) applications effective immediately.


Overview of DACA Litigation 

This order builds on the judge’s previous ruling which declared the actions of Department of Homeland Security Secretary Chad Wolf unlawful, given the court’s finding that Wolf was not lawfully serving as acting DHS secretary when he signed rules limiting applications and renewals for the Deferred Action for Childhood Arrivals (DACA) program.

As you may recall back in 2017 the Trump administration engaged in aggressive tactics to eliminate the DACA program, however the U.S. Supreme Court successfully blocked such attempts, ultimately allowing DACA renewals to continue to be accepted.

In its opinion, the Supreme Court stated that the government did not follow the law – namely the Administrative Procedure Act – when it sought to eliminate DACA. Thus, the court found that because the government did not go through the appropriate process to dismantle DACA it would remain in place. Interestingly, the Supreme Court made clear that while the government did not go through the appropriate process to eliminate DACA, that it had the power to do so provided the government followed the appropriate procedures. The justices also stopped short of requiring the government to accept initial requests for DACA.

The following year on July 28, 2020, the Trump administration continued to stand its ground in blocking acceptance of initial DACA applications with the release of a scathing memorandum authored by Wolf. In it Wolf directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.

Continue reading