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Welcome to a start of a brand-new week. In this post we provide the latest updates in the world of immigration.
New Form I-765 Application for Employment Authorization
We would like to inform our readers that the United States Citizenship and Immigration Services (USCIS) will publish a new edition of Form I-765 Application for Employment Authorization with edition date 8/25/20. Beginning August 25, 2020, USCIS will only accept the new edition of Form I-765 (8/25/20).
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.
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.”
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.
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.”
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:
Current Fee: $230
Final Fee: $1,485 (Increase of 546%)
Current Fee: $285
Final Fee: $1,810 (Increase of 535%)
Current Fee: $585
Final Fee: $2,790 (Increase of 377%)
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:
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
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.
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:
In response to a high number of questions regarding the recent Maryland court decision ordering the government to reinstate Deferred Action for Childhood Arrivals (DACA) for first time applicants, we have prepared this helpful guide.
First, let’s briefly discuss the Maryland decision. As our readers will know on July 17th a federal judge in Maryland presiding over the case, Casa de Maryland v. U.S. Department of Homeland Security, ordered the government to restore the DACA program to its pre-September 2017 status. This means that first-time applicants are now able to apply for DACA benefits.
What does the Maryland decision mean for DACA holders?
For now, USCIS must continue the DACA program as it was before it was rescinded on September 5, 2017, when applications for DACA were being accepted by first-time applicants.
In order to comply with the Supreme Court’s decision, as well as the Maryland district court’s order, USCIS must also accept the following applications that were suspended under prior court orders and should publish guidance immediately on its processing of these applications:
Visa Lawyer Blog