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Visa Lawyer Blog

Articles Posted in Permanent Residents

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Welcome back to Visalawyerblog! In this blog post, we provide you with the most recent immigration updates from the United States Citizenship and Immigration Services (USCIS).

New Process to Extend Validity of Green Cards (Pending I-90’s)

On January 12, 2021 USCIS announced a new policy that will discontinue the agency’s prior practice of placing a sticker on currently issued permanent resident cards to extend their validity (also known as Form I-551, Permanent Resident Card or “Green Card.”)

Starting in January, USCIS will replace the sticker with a revised Form I-797, Notice of Action, that will automatically extend the resident’s green card validity, as part of the I-90 green card renewal application process

When presented together with the Green Card, the revised Form I-797 will extend the Green Card’s validity for 12 months from the date on the front of the Green Card, and also serve as temporary proof of the LPR’s status in the country.

This change was made to ensure that LPRs with a recently expired Green Card will have documentation of identity, employment authorization, and authorization to return to the United States following any temporary foreign travel.

Biometrics Appointments

Form I-90 applicants who have not been issued a notice for a biometrics appointment and are in possession of their Green Card, will no longer have to visit an application support center (ASC) to obtain temporary evidence of LPR status.

Applicants who have already been scheduled for a biometrics appointment will not receive a revised notice and will be issued an extension sticker at their biometrics appointment.

January I-90 Applicants

Starting in January, applicants who file Form I-90 to replace an expiring Green Card will receive the revised receipt notice in the mail approximately 7-10 days after USCIS accepts their application.

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On November 13, 2020, the United States Citizenship and Immigration Services (USCIS) announced important revisions to the civics examination component of the naturalization test.

Unfortunately, these changes will make it more difficult for at least some immigrants to successfully become U.S. Citizens.

As you may be aware the naturalization test consists of two components. The first is English proficiency – applicants must demonstrate English language proficiency as determined by their ability to read, write, speak and understand English. The second requirement is the civics examination – an oral examination requiring applicants to demonstrate knowledge of U.S. history and government.

As part of the civics examination a USCIS Officer asks the applicant up to 10 of 100 possible civics questions. To successfully pass the examination applicants are required to answer 6 out of 10 questions correctly.

With the new revisions applying to applications filed on or after December 1, 2020, USCIS will increase the number of civics test questions that will be asked from 10 to 20 and applicants will be required to answer 12 questions (instead of 6) correctly in order to pass.

What exactly do the new changes include?

The USCIS policy alert published on November 13, 2020 entitled “Civics Educational Requirement for Purposes of Naturalization,” outlines the changes that will be made to the naturalization civics examination beginning December 1, 2020.

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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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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with very exciting news about the upcoming Diversity Visa lottery.

On October 7, 2020 the State Department opened its online electronic registration portal for the 2022 Diversity Visa lottery program (DV-2022).

The online registration period for the DV-2022 Program began on Wednesday, October 7, 2020 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and will conclude on Tuesday, November 10, 2020 at 12:00 noon, Eastern Standard Time (EST) (GMT-5).  Please keep in mind that individuals who submit more than one entry during the registration period will be disqualified. Applicants must apply online within the registration period outlined above.

For fiscal year 2022, up to 55,000 Diversity Visas will be available with no cost to register for the DV program.

Who may apply?

The diversity visa lottery program allows nationals from countries with historically low rates of immigration the opportunity to apply for an immigrant visa to enter the United States.

If you are not a native of a country with historically low rates of immigration you may still qualify if your spouse is a native of such a country and you and your spouse are named on the selected entry. Additionally if you are a native of a country that does not have historically low rates of immigration to the United States, but in which neither of your parents was born or legally resident at the time of your birth, you may claim the country of birth of one of your parents if it is a country whose natives are eligible for the DV-2022 program.

What countries have historically low rates of immigration for DV purposes?

The Department of State distributes diversity visas among six geographic regions including Africa, Asia, Europe, North America, Oceania, and South America, Central America, and the Caribbean. No single country may receive more than seven percent of the available DVs in any one year.

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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 happy to report that the Department of State has released an important announcement that describes the agency’s compliance with the recent court ruling, Gomez v. Trump, which orders the government to make good-faith efforts to expeditiously schedule, process, and adjudicate DV-2020 diversity visa applications by September 30, 2020, despite issuance of Proclamation 10014.

In accordance with the court’s ruling, DV-2020 applications are being processed at embassies and consulates as local health conditions and resources will allow during this pandemic.

To proceed with visa processing, applicants must be documentarily qualified (meaning the applicant has obtained all documents specified by consular officials sufficient to meet the formal visa application requirements), have paid all requisite application fees, have the ability to obtain the required medical examination conducted by a panel physician, and demonstrate eligible for a visa prior to issuance.

If a post is unable to process cases due to local health conditions and resource constraints, an applicant may request a transfer to another post. 

The Department expects that, due to resource constraints, limitations due to the COVID-19 pandemic, and country conditions, it will be unable to accommodate all DV applicants before September 30, 2020.

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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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Interviews at the San Diego Field Office

We have great news for our local readers. The USCIS San Diego Field Office is scheduled to resume interviews on July 6, 2020, with priority given to adjustment of status applications filed by doctors and front-line workers fighting to mitigate the effects of Covid-19. Under certain circumstances, USCIS will exercise its discretion to waive adjustment of status interviews on a case-by-case basis.

What will be the approach for rescheduling?

The USCIS San Diego Field Office will begin rescheduling all other interviews on a “first-in, first-out,” basis based on receipt date of filing. This will occur as soon as possible.

When will biometrics offices reopen to the public?

Application Support Centers in San Marcos in Chula Vista are scheduled to reopen to the public on July 27, we ask our readers to please be patient while they wait to be rescheduled. Those with cancelled biometrics will be automatically rescheduled and will receive a notice in the mail with a new biometrics appointment.

What about Parole in Place cases?

Parole in place applications continue to be adjudicated, however applicants should expect delays.

What about citizenship applications?

USCIS will continue to prioritize the scheduling of oath ceremonies for naturalization applicants. Those who did not appear at a scheduled oath ceremony will receive a letter by mail. As we previously reported, oath ceremonies in San Diego are being held at the Cabrillo National Monument and the City of El Cajon parking lot adjacent to the police department.

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