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Articles Posted in COVID 19

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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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During the past year, the United States Citizenship and Immigration Services (USCIS) has been facing a financial crisis caused by the coronavirus pandemic.

As early as May of this year, a USCIS spokesperson informed the United States government that it needed a cash bailout of $1.2 billion by summertime in order to meet its operational costs. The agency found that fewer and fewer applicants were filing applications and petitions with USCIS which created a massive revenue shortfall for the agency.

To keep itself afloat, the agency said it would be preparing to increase filing fees for certain types of applications and petitions.

Today, the Department of Homeland Security officially announced a final rule that will be posted in the Federal Register on August 3rd that will increase filing fees for certain types of immigration benefits.

The final rule will become effective 60 days from August 3rd – the date of publication which falls on October 2, 2020.

That means that applications postmarked on or after October 2, 2020 with incorrect fees will be rejected by USCIS.


MOST IMPACTED APPLICATIONS AND PETITIONS

The following types of immigration requests are the most impacted with significant price increases:

  • I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant

Current Fee: $230

Final Fee: $1,485 (Increase of 546%)

  • I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal

Current Fee: $285

Final Fee: $1,810 (Increase of 535%)

  • I-193 Application for Waiver of Passport and/or Visa

Current Fee: $585

Final Fee: $2,790 (Increase of 377%)

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In this blog post we share with our readers several new developments in immigration relating to COVID-19.

At a Glance: What’s in This Blog?

  • DOS Announces One-Month Extension for Immigrant Visa Medical Examinations
  • Phased Resumption of Routine Visa Services
  • DOS Releases SEVP Online Course Guidance for F and M Students for Fall 2020
  • When will the Presidential Proclamation Suspending Entry for the Schengen Countries be Lifted?
  • Are there any National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland?
  • Are there any National Interest Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market?

DOS Announces One-Month Extension for Immigrant Visa Medical Examinations


We are pleased to report that on July 24, 2020, the Department of State issued an important announcement confirming that the Centers for Disease Control and Prevention (CDC) have approved a one-month extension for medical examinations conducted between January 1, 2020 and June 30, 2020. As many of you know, medical examinations for immigrant visa applicants are valid for a maximum of six months.

The Department of State has advised applicants (1) who were unable to travel on an issued visa, or (2) who obtained a medical examination but did not receive a visa, to contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued or is adjudicating your visa application to determine whether you may be issued or reissued a visa for one additional month. Applicants who are unable to travel within one additional month, should consider waiting until they are able to travel to obtain a new, full validity medical examination and visa.


Phased Resumption of Routine Visa Services

In March 2020 the Department of State suspended routine visa services worldwide in response to the Coronavirus pandemic. On July 14, 2020 the Department of State released information on its webpage notifying the public that resumption of routine visa services will occur on a post-by post basis, in coordination with the Department’s Diplomacy Strong framework to safely return personnel to Department facilities. With that being said, the Department of State cannot provide a specific date for when each Consular post will return to processing at pre-Covid workload levels. Applicants are advised to monitor each individual U.S. Embassy or Consulate’s website for information regarding operating status, and updates on which services they are currently offering.

As always, U.S. Embassies and Consulates will continue to provide emergency and critical visa services.

The DOS has also stated that MRV fees are valid and may be used to schedule a visa appointment in the country where it was purchased within one year of the date of payment.

  • For more information about this announcement and FAQs please click here.
  • For a list of Embassies and Consular webpages click here.

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Great news! The Department of State has released the visa bulletin for August 2020 outlining the availability of immigrant visa numbers for the upcoming month.

NOTE: Adjustment of Status Filing Charts August 2020

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file using the Final Action Dates chart for August 2020.

For all the other family-sponsored preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for August 2020.

For Employment-Based Preference Filings:
For all employment-based preference categories, you must use the Final Action Dates chart in the Department of State Visa Bulletin for August 2020.

August Visa Bulletin Cutoff Dates


Employment Based Categories

According to the Department of State’s August Visa Bulletin, the following cutoff dates will apply for the issuance of an immigrant visa for employment-based categories:

  • EB-1: All countries remain current during the month of August except for China and India. EB-1 China will advance by almost six months to February 8, 2018, while EB-1 India will advance by nine months to February 8, 2018.
  • EB-2: All countries except EB-2 China and India remain current. EB-2 China will advance by more than two months to January 15, 2016, and EB-2 India will remain at July 8, 2009.
  • EB-3 Professional and Skilled Workers: All countries except EB-3 India and China will advance by almost a full year to April 1, 2019. Cutoff dates for EB-3 China will advance by almost 8 months to February 15, 2017, and for India by four months to October 1, 2009.
  • EB-5: EB-5 India will remain current, joining all other countries except for EB-5 China and Vietnam.  China’s cutoff date will advance by two weeks to August 8, 2015, while Vietnam’s cutoff date will advance by more than two months to July 22, 2017

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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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Today, Monday, July 6, 2020, the United States Immigration and Customs Enforcement (ICE) issued a news release introducing new modifications taken by the Student and Exchange Visitor Program (SEVP) that will apply to all international students in F-1 and M-1 status taking courses during this upcoming Fall 2020 semester. The U.S. Department of Homeland Security will be publishing new procedures and responsibilities for F-1 and M-1 students during the upcoming Fall 2020 semester in the Federal Register including changes to current policies for F-1 international students.

Monday’s modifications introduce surprising requirements for F-1 and M-1 students taking online classes due to the Coronavirus (COVID-19) pandemic during the fall 2020 semester.


What are these new requirements?

There are three sets of new requirements.

F-1 and M-1 Students Attending Schools with Full Online Instruction During the Upcoming Fall 2020 Semester Must Transfer to In-Person Instruction or Depart the United States

Nonimmigrant F-1 and M-1 students who are attending schools operating entirely online may not take a full online course load and remain in the United States.

The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall 2020 semester nor will U.S. Customs and Border Protection permit these students to enter the United States.

Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status.

If the student fails to transfer to a school with in-person instruction for the fall 2020 semester, the student may face immigration consequences including, but not limited to, the initiation of removal proceedings.

F-1 Students Attending Schools With In-Person Instruction Bound to Existing Regulations – Can Take 3 Credits Online

F-1 students who will attend schools operating under “normal” in-person instruction during the Fall 2020 semester (as opposed to online classes) will be bound by existing federal regulations. Eligible F students are permitted to take a maximum of one class or three credit hours online.

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