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Articles Posted in DHS

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Welcome back to Visalawyerblog! Happy Friday. In this post we bring you very important yet unfortunate news regarding ongoing litigation in the fight to invalidate the public charge rule known as “Inadmissibility on Public Charge Grounds.”

As we previously reported, on November 2, 2020, a federal judge from the U.S. District Court for the Northern District of Illinois, issued a ruling in the case Cook County Illinois et al. v. Chad Wolf et al. which immediately set aside the public charge rule. The judge’s ruling allowed applicants to proceed with adjustment of status filings without having to include Form I-944 Declaration of Self-Sufficiency.

Now things have changed.

In a stunning rebuke of the lower court’s decision, the Seventh Circuit Court of Appeals has put the public charge rule back in place. As a result, the Department of Homeland Security (DHS) may continue to enforce the public charge rule as before.

What did the appellate court decide?

On November 4, 2020, the appellate court placed an “administrative stay” on the November 2nd decision stopping the lower court from invalidating the public charge rule.

What does this mean for applicants for adjustment of status?

As a result of this decision, the U.S. Citizenship and Immigration Services (USCIS) may continue to implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.

Accordingly, all applicants for adjustment of status must include Form I-944 Declaration of Self-Sufficiency as well as all appropriate fees and supporting documentation.

What does this mean for employers and foreign nationals?

Until further notice, adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with an important court ruling, decided today, that invalidates the Department of Homeland Security’s (DHS) final rule entitled “Inadmissibility on Public Charge Grounds,” also known as “the public charge,” rule. With this new ruling, the public charge rule has been officially set-aside effective immediately.

As you may recall since October of 2019 the state of Illinois has been involved in a contentious legal battle with DHS over the legality of the public charge rule. In October of last year, a federal court granted residents of Illinois a preliminary injunction temporarily stopping the government from enforcing the public charge rule on its residents. The government thereafter appealed the decision and filed a motion to dismiss Illinois’ lawsuit which was promptly denied.

The Seventh Circuit court later affirmed the issuance of the preliminary injunction holding that the public charge rule was substantively and procedurally invalid under the APA, and the issuance of the injunction was appropriate to stop the government from enforcing the rule.

With the support of the Seventh Circuit, the plaintiffs filed a motion to vacate or “set aside” the public charge rule once and for all in the United States District Court for the Northern District of Illinois. See Cook County Illinois et al. v. Chad Wolf et al.

Today, November 2, 2020, federal judge Gary Feinerman ruled in favor of the plaintiffs vacating the public charge rule effective immediately.

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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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In this post we discuss a new proposed rule published by the Department of Homeland Security (DHS) that seeks to amend regulations governing Form, I-864 Affidavit of Support. The I-864 Affidavit of Support is a required form that must be completed by the person petitioning the foreign national, in order for their relative to immigrate to the United States. The petitioner must attest that they meet the income requirement based on their household size to sponsor the foreign national. Petitioners who are unable to meet the income requirement, must obtain a joint sponsor who does meet this requirement.

Essentially, when the petitioner or joint sponsor signs the affidavit of support, he or she is entering into an enforceable contract with the U.S. government, in which they agree to use their financial resources to support the beneficiary named in the affidavit of support. Where the beneficiary seeks public benefits from a government agency, the petitioner or sponsor can be held legally responsible for repaying those costs to the government agency.

The rules and regulations governing the affidavit of support have recently come under fire during the Trump administration. The President has consistently pushed for stricter enforcement of a sponsor’s obligations, requiring government agencies to hold sponsors liable for any benefits paid out to beneficiaries of an affidavit of support.


What is the New Rule About?

On October 2, 2020 DHS announced a proposed rule that (1) clarifies how a sponsor must demonstrate that he or she has the means to maintain income (2) revises documentation that sponsors and household members must meet as evidence of their income (3) modifies when an applicant is required to submit an Affidavit from a joint sponsor and (4) updates reporting and information sharing between government agencies.

Changes to Documentation Required of Sponsors

The proposed rule updates the evidentiary requirements for sponsors submitting an Affidavit, to “better enable immigration officers and immigration judges to determine whether the sponsor has the means to maintain an annual income at or above the applicable threshold, and whether the sponsor can, in fact, provide such support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect.”

Specifically, this proposed rule would require sponsors and household members who execute an Affidavit or Contract to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Receipt of Means-Tested Benefits May Disqualify Sponsor

The proposed rule also seeks to change the regulations to specify that a sponsor’s prior receipt of any means-tested public benefits and a sponsor’s failure to meet support obligations on another executed Affidavit, or household member obligations on a previously executed Affidavit of Support, will impact the determination as to whether the sponsor has the means to maintain the required income threshold to support the immigrant.

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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 just 60 days away from Election day in the United States which falls on Tuesday, November 3rd. Do you know where your candidate stands on immigration? In this post, we cover Presidential nominee Joe Biden’s stance on important immigration issues, and everything you need to know about his vision for America.

We would also like to take this opportunity to remind those of our readers who are American citizens to exercise their right to vote. It is your civic duty and will help shape the nation’s immigration policy for the next four years. For voter registration information please click here.


Immigration under Joe Biden

If elected President of the United States, Joe Biden has stated that he will enact a number of policies during his four-year term. Among these policies, he promises to take urgent action to undo destructive policies implemented by the Trump administration, modernize the immigration system, reassert America’s commitment to asylum-seekers and refugees, and implement effective border screening.


Comprehensive Immigration Reform

First and foremost, Joe Biden supports working with Congress to pass a comprehensive immigration solution that would offer nearly 11 million undocumented immigrants a path to citizenship. As vice president, Joe Biden worked alongside former President Obama to push forward a bill that would do just that. Unfortunately, the Republican-led Congress refused to approve the bill, leaving millions of undocumented immigrants in limbo including Dreamers.

Joe Biden advocates for the creation and expansion of the Deferred Action for Childhood Arrivals program (DACA), the Deferred Action for Parents of Americans (DAPA) program,  the Central American Minors program, which allows parents with legal status in the U.S. to apply to bring their children from Central America to live with them, and the creation of a White House task force to support new Americans to integrate into American life and their communities.

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We would like to inform our readers of very important information relating to the Deferred Action for Childhood Arrivals (DACA) program. Recently, the United States Citizenship and Immigration Services (USCIS) released a new memorandum that explains how the agency will handle new requests for DACA and advance parole requests in light of recent court rulings.


New DACA Requests Will Be Rejected

As clarified by the new memorandum, USCIS has confirmed that it will reject all initial DACA requests and associated applications for Employment Authorization Documents, and return all associated fees to applicants without prejudice. “Without prejudice” means that applicants may reapply for DACA in the future should USCIS choose to accept initial DACA requests at a later time.


DACA Renewal Requests Continue to Be Accepted for those Granted DACA in the past

As before, USCIS will continue to accept DACA renewal requests from aliens who were granted DACA at any time in the past.

In addition, USCIS will continue to accept requests for advance parole that are properly submitted for individuals who can demonstrate that their travel is for any of the following purposes: to support the national security interests of the United States, to support U.S. federal law enforcement interests, to obtain life-sustaining medical treatment not otherwise available to the alien in the U.S., or where travel is needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien  (see below).

Please note that even with a valid advance parole document re-entry to the United States is not guaranteed.


DACA Renewals Limited to One-Year Duration

DACA renewal requests that are approved will receive a grant of deferred action and employment authorization for a period of no more than one year. For those that were previously issued a two-year employment authorization card that remains valid, USCIS will not be rescinding these two-year benefits. USCIS may only terminate an alien’s validly issued DACA for failure to continue to meet DACA criteria, including failure to warrant a favorable exercise of prosecutorial discretion.

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Congress is moving quickly to avert the financial crisis currently plaguing the United States Citizenship and Immigration Services (USCIS). On Saturday August 22nd the House of Representatives unanimously passed a bill aiming to provide much needed emergency funding to help USCIS meet its operational needs.

Earlier this year, USCIS made clear that without additional funding the agency would need to furlough two-thirds of its workforce by the end of August, even after announcing an increase in fees set to go into effect on October 2nd. The agency has been struggling to stay afloat in the wake of the Coronavirus.

While the bill still needs to pass the Senate and be signed into law by the President, this is very promising news and a step in the right direction for applicants waiting in line for their applications to be processed on a timely basis.

Should the bill be successful it will stop the agency’s planned furloughs and inject much needed capital to help USCIS deal with the significant backlogs across the board. The Senate is expected to return to chambers in September and will likely take up the issue as soon as possible.

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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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In this blog post we would like to report on a new executive order recently signed by President Donald Trump on August 3, 2020, entitled “Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers,” which carries implications for temporary foreign workers, especially those whose job depends on or was created by a federal government contract.


What is the order all about?

The executive order was passed to create increased opportunities for American workers to compete in the job market, especially during the difficult economic crisis created by COVID-19.  The order directs the heads of federal agencies to review federal contracts to assess any “negative impact” that the hiring of temporary foreign workers has had on American workers. The order states, “when employers trade American jobs for temporary foreign labor, for example, it reduces opportunities for U.S. workers in a manner inconsistent with the role guest-worker programs are meant to play in the Nation’s economy.”

Specifically, the executive order calls upon departments and agencies to review federal contracts and hiring practices of temporary foreign workers in fiscal year 2018 and 2019 to assess “whether contractors (including subcontractors) used temporary foreign labor for contracts performed in the United States and if so…whether opportunities for U.S. workers were affected by such hiring…”

Most importantly, section three of the executive order requires the Secretaries of Labor and Homeland Security to take action within 45 days (by September 17) to protect the jobs of American workers and insulate them from any negative effects on wages and working conditions caused by the employment of H-1B visa workers specifically. The order grants DHS and DOL broad discretion to introduce new measures that could negatively affect H-1B employers. While these measures are yet to be seen, we believe this may signal the proposal of additional regulations to prevent the displacement of U.S. workers in the future.

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