Welcome back to Visalawyerblog! In this post, we bring you the latest immigration news for the week.
USCIS Announces Workload Transfers
In an effort to manage heavy workloads, increase efficiency, and decrease processing times, the United States Citizenship and Immigration Services (USCIS) has been transferring cases between service centers.
In this blog post, we would like to remind our readers that today is the last day to submit a public comment on the USCIS proposed rule increasing immigration fees for certain petitions. Initially USCIS had set a 30-day comment period ending on December 16, 2019, however the comment period was later extended for two more weeks, ending today December 30, 2019.
Once the comment period has closed, USCIS will review all public comments and publish a final rule in the Federal Register which will contain the rule’s effective date of implementation.
The filing fees for the following petitions would increase substantially under the proposed rule:
The U.S. Department of State recently released the December 2019 Visa Bulletin. In this post, we will discuss the current state of the visa bulletin, potential for advancement, retrogression, and predictions.
Family-based Preference Categories
The Final Action Date for F2A has been current and remains current since July 2018 across all countries through December. Low demand in this category has made it “current” and is expected to remain current for the foreseeable future.
Movement for all other family-preference categories remains as before.
F-4 visa demand is increasing which may result in slow movement in this category in the foreseeable future, but not nearly enough to cause a retrogression.
Employment-based preference categories
Overview
For the month of December 2019, EB-2 Worldwide, as well as EB-2 El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam remain current.
Similarly, EB-3 Worldwide, as well as EB-3 El Salvador, Guatemala, Honduras, Mexico, and Vietnam remain current.
The Visa Bulletin notes that visa availability is likely to slow down for employment-based visa categories due to the steady increase in the level of employment-based demand for adjustment of status cases filed with USCIS. If the current pace of demand continues, a final action date will be implemented for EB-2, EB-3, and EB-3 Other Worker preference categories as early as January.
Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State has reported that if the level of demand subsides, it is possible that these categories will remain current, however there is no evidence that demand will slow down for these categories, therefore visa applicants should be prepared for the implementation of Final Action Dates as early as January 2020.
On November 14, 2019, the United States Citizenship and Immigration Services will publish a proposed rule in the Federal Register to increase immigration fees for certain petitions. After publication, the proposal will be open for a 30-day comment period. After that point the agency will review public comments and draft the final rule. At this time there is no definitive date set out in the proposed rule for enforcement of these fees. Therefore, readers should note that these fee increases will likely not take effect until well into Fiscal Year 2020.
What does the rule propose?
The rule proposes the following fee increases by immigration benefit:
Moreover, DHS proposes that fees for the following types of petitions be limited to a 5 percent increase above current fees:
Changes to Fee Waiver Requests
DHS further proposes to limit fee waivers grants to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guideline as defined by the U.S. Department of Health and Human Services (HHS).
In the latest blow to President Trump’s embattled Presidency, on November 2nd federal judge Michael Simon issued a preliminary injunction blocking the government from enforcing the President’s Proclamation issued on October 4, 2019, suspending the entry of any immigrant who will “financially burden the United States healthcare system.”
Judge Simon’s decision came just one day before the government’s planned implementation of the Presidential Proclamation.
The judge’s order applies nationwide and prohibits the government from implementing any part of the Proclamation requiring individuals seeking an immigrant visa to provide evidence “to a consular officer’s satisfaction” that they would either be covered by an approved health insurance within 30 days of entry to the United States, or possess the financial resources to pay for reasonably foreseeable medical costs.
Judge Simon’s decision came in response to a class action lawsuit filed in Federal District Court in the District of Oregon by seven United States Citizens and a non-profit organization against the Trump administration, challenging the legality of the Presidential Proclamation.
Plaintiff’s argued that the Proclamation should be found unlawful because it does not advance the President’s goal of reducing the burden of uncompensated care for uninsured individuals. Plaintiff’s called into question the President’s true intentions in issuing the Proclamation, stating that the Proclamation “is but the latest link in a long chain of statements and actions by this President and his Administration expressing antipathy toward all noncitizens. . .particularly immigrants of color, from Central and Latin America, Africa and the Middle East.”
The President has once again targeted the immigrant population by signing a Presidential Proclamation suspending the entry of any immigrant who will “financially burden the United States healthcare system.”
While the Presidential Proclamation is likely to encounter resistance in court, as it stands the Proclamation is slated to become effective on November 3, 2019.
According to the Proclamation, a person seeking to immigrate to the United States will be found to be a financial burden on the U.S. healthcare system, unless they can prove either one of the following:
Beginning November 3, 2019, prior to the adjudication and issuance of an immigrant visa, a non-citizen seeking to immigrate to the United States, must establish to the satisfaction of a consular officer that they will not become a burden on the health care system by either of the means outlined above.
Who does the Proclamation apply to?
Only non-citizens seeking to enter the United States pursuant to an immigrant visa.
In its latest act of defiance against the judicial branch, the Trump administration has published an Interim Final Rule entitled “Visas: Ineligibility Based on Public Charge Grounds,” designed to give Consular officers wider discretion to deny immigrant and nonimmigrant visas to applicants on public charge grounds based on a variety of factors that could weigh positively or negatively on an applicant.
According to the rule, consular officials will now be able to weigh a variety of factors to determine whether a visa applicant is likely to become a public charge. These factors include the applicant’s age, health, educational background, and financial status. In addition, consular officers will have increased discretion to scrutinize certain applications more closely than others based on the type of visa classification sought by the applicant, as well as the duration of stay.
Applicants who are seeking a long-term visa, for example may be scrutinized more heavily than applicant’s seeking a short-term visa (such as a tourist visa).
How will these factors be weighed by Consular officials?
Age: Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and 62 as a positive factor.
Health: Consular officers will consider whether the alien’s health serves as a positive or negative factor in the totality of the circumstances, including whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work (if authorized).
A new lawsuit filed in the Northern District of California now allows Freedom of Information Act (FOIA) applicants to challenge long standing delays in receiving their immigration records from the United States Citizenship and Immigration Services (USCIS).
The U.S. District Court has certified two class action lawsuits allowing FOIA applicants and attorneys requesting FOIA records on their behalf to join in the class action so that class members may receive timely determinations on their FOIA requests. This decision was made in response to significant delays that applicants face in obtaining their immigration records from the agency.
U.S. District Judge William Orrick who granted the class action request wrote in his order that delays in receiving immigration records are particularly precarious for, “Noncitizens in removal proceedings” who “particularly rely on FOIA requests because discovery is not available. Consequently, obtaining A-Files from defendants is critical in immigration cases; delays in obtaining A-Files leave noncitizen and their attorneys “in legal limbo” that inflicts substantial hardship.”
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.
Instructions for the 2021 Diversity Immigrant Visa Program
The Diversity Immigrant Visa Program registration season is now among us. The U.S. Department of State has released instructions on how to apply for the FY 2021 Diversity Immigrant Visa Program in which 55,000 Diversity Visas (DVs) will be up for grabs. Registration will begin promptly at 12:00 pm (ET) on October 2, 2019 and will continue until 12:00 pm (ET) on November 5, 2019. There is no cost to register for the Diversity Visa Program.
Please remember that the law allows only one entry per person during each registration period. Individuals who submit more than one entry will be disqualified.
How does selection occur?
The Department of State determines selectees through a randomized computer drawing. The Department of State distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.
Am I eligible to apply?
You are eligible to apply if you meet the following requirements:
Requirement #1: You must be a national of one of the following countries (see below) OR
If you were not born in an eligible country, you may apply if your spouse was born in a country whose natives are eligible provided that both you and your spouse are named on the selected entry, are found eligible and issued diversity visas, and enter the United States simultaneously
OR
If you were born in a country that is ineligible, but neither of your parents were born or legally residents of that country at the time of your birth, you may claim the country of their birth.
Visa Lawyer Blog