Visa Lawyer Blog

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united-states-supreme-court-6330563_1280The recent Supreme Court decisions handed down in Loper Bright v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, have overturned a longstanding rule known as the “Chevron” doctrine, which eliminates the need for federal courts to defer to federal agency decisions and regulations moving forward. This move essentially strips power away from federal agency interpretations of the law and gives it back to the courts.

This is positive news in the world of immigration, considering that a federal agency’s interpretation of the Immigration and Nationality Act (INA) will no longer automatically prevail when litigating cases in court and filing immigration challenges to visa denials.

This will benefit many immigrants and businesses who for many years have been blocked by federal agencies from obtaining employment-based visas and green cards based on ambiguous agency interpretations of their cases.

For instance, in removal cases, those seeking review of decisions previously made by immigration judges’ or the Board of Immigration Appeals (BIA) will now have a clean slate, since courts no longer have to rely on an agency’s standpoint and can now interpret unclear laws with a new set of eyes.

These rulings could also pave the way for new litigation to be filed to defend challenges to previous visa denials. Where interpretations of the law once made by the U.S. Citizenship and Immigration Services (USCIS) were automatically upheld in court, they will now be challenged forcefully.

U.S. employers seeking a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also have greater opportunities to argue their cases in court and win on behalf of their clients.

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Source: Flickr Creative Commons Attribution Gage Skidmore

A estas alturas ya habrás visto los titulares de las noticias. Ahora analicemos la nueva acción ejecutiva histórica del Presidente Biden sobre inmigración y vayamos al meollo de todo lo que necesitas saber sobre esta orden diseñada para mantener unidas a las familias y brindar más oportunidades a los Dreamers.

Proceso para Promover la Unidad y Estabilidad de las Familias– Legalización de cónyuges Indocumentados de Ciudadanos Estadounidenses

Hoy, 18 de junio de 2024, el Presidente Biden anunció un nuevo proceso que permitirá la protección y legalización de los cónyuges indocumentados de ciudadanos estadounidenses que hayan residido en los Estados Unidos durante al menos diez años a partir del 17 de junio de 2024.

En virtud de la autoridad ejecutiva del Presidente, el Departamento de Seguridad Nacional (DHS), en coordinación con los Servicios de Ciudadanía e Inmigración de los Estados Unidos (USCIS), crearán un nuevo programa discrecional de “permanencia temporal” para que los cónyuges indocumentados de ciudadanos estadounidenses legalicen su estatus mientras permaneciendo en los Estados Unidos.

Aquellos que sean aprobados después de la evaluación caso por caso de su solicitud por parte del DHS tendrán un período de tres años para solicitar la residencia permanente. A los elegibles se les permitirá permanecer con sus familias en los Estados Unidos y ser elegibles para una autorización de trabajo por hasta tres años.

Las personas deben cumplir ciertos requisitos de elegibilidad para convertirse en residentes permanentes legales (titulares de tarjeta verde) bajo este nuevo proceso,

A continuación se encuentran respuestas a preguntas frecuentes sobre esta orden ejecutiva.

Q: ¿Cuáles son los requisitos para que los cónyuges sean elegibles para solicitar el permiso de permanencia temporal y legalizar su estatus en los Estados Unidos?

Para ser considerado caso por caso para una concesión discrecional de permiso de permanencia temporal en virtud de este proceso, una persona debe:

  • Estar presente en Estados Unidos sin admisión ni permiso de permanencia temporal;
  • Haber estado presente continuamente en Estados Unidos durante al menos 10 años a partir del 17 de junio de 2024; y
  • Tener un matrimonio legalmente válido con un ciudadano estadounidense a partir del 17 de junio de 2024
  • No tener antecedentes penales que lo descalifiquen o de otra manera constituir una amenaza a la seguridad nacional o la seguridad pública y
  • Merecer un ejercicio favorable de discreción para recibir permiso de permanencia temporal

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Source: Flickr Creative Commons Attribution Gage Skidmore

By now you’ve seen the headlines in the news. Now let us break down President Biden’s historic executive action on immigration and get to the nitty gritty of everything you need to know about this order designed to keep families together and provide further opportunities for Dreamers.

Process to Promote the Unity and Stability of Families – Legalization of Undocumented Spouses of U.S. Citizens

Today, June 18, 2024, President Biden announced a new process that will allow for the legalization of undocumented spouses of U.S. Citizens who have been residing in the United States for at least ten years as of June 17, 2024.

By virtue of the President’s executive authority, the Department of Homeland Security (DHS) in coordination with the U.S. Citizenship and Immigration Services (USCIS) will create a new discretionary “parole in place” program for undocumented spouses of U.S. Citizens to legalize their status while remaining in the United States.

Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years.

Individuals must meet certain eligibility requirements to become lawful permanent residents (green card holders).

Below are answers to frequently asked questions regarding this executive order. 

Q: What are the requirements for spouses to be eligible to apply for parole and legalize their status in the United States?

To be considered for a discretionary grant of parole in place under this process, spouses of U.S. Citizens must:

  • Be present in the United States without admission or parole;
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024
  • Have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and
  • Merit a favorable exercise of discretion to receive parole

Q: Are Noncitizen Children of Undocumented Spouses eligible for parole?

Yes. In addition to undocumented spouses of U.S. Citizens, their noncitizen children may also be considered for parole on a case-by-case basis under this process along with their parent, if they are:

  • Physically present in the United States without admission or parole and
  • Have a qualifying stepchild relationship with a U.S. citizen parent as defined by the Immigration and Nationality Act as of June 17, 2024

To qualify as a stepchild under the Immigration and Nationality Act, the noncitizen child must be unmarried, under the age of 21, and the marriage of their noncitizen parent and U.S. citizen stepparent must have taken place prior to the child’s 18th birthday.

Q: How is this new parole program different from the current laws in place?

This new “parole in place” program will eliminate the need for spouses of U.S. Citizens to travel outside of the United States to legalize their status through what is known as an extreme hardship “waiver” process.

The “waiver” process is an extremely cumbersome and lengthy process that requires the undocumented spouse to depart the United States and be interviewed and approved for an immigrant visa overseas. Only once the visa is issued can the applicant return to the United States.

This process has unnecessarily torn families apart and created much fear and uncertainty among applicants forced to remain away from their families for prolonged periods of time. Many applicants are the sole providers for their families and take care of children with disabilities, making this process extremely difficult to bear.

This executive action will instead open a pathway to permanent residence by allowing eligible undocumented spouses of U.S. Citizens to adjust their status to permanent residence while in the United States, without requiring them to depart the country.

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joshua-sukoff-SYHi8oX0JC8-unsplash-scaledThis is a developing story

The world of immigration has been shaken up by new reports that the Biden administration intends to release a groundbreaking executive action on immigration. The President’s order could soon allow spouses of U.S. Citizens to legalize their status in the United States.

According to government officials speaking on condition of anonymity, full details of the executive action are expected to be released as early as Tuesday – the twelfth anniversary of the Deferred Action for Childhood Arrivals (DACA) program. If passed, it would be one of the largest immigration relief proposals in recent history.

Essentially, a plan has been in the works to create a program known as “Parole in Place” that would offer work permits and deportation protections to undocumented immigrants married to U.S. Citizens, so long as they have lived in the United States for at least 10 years.

Such a program would eliminate the need for spouses of U.S. Citizens to travel outside of the United States to legalize their status through an extreme hardship “waiver” process, that has posed obstacles for many to become legalized.

Instead, the program would open a pathway to permanent residence for spouses of U.S. Citizens to adjust their status to permanent residence from the United States, without having to depart the country.

If passed, the White House’s measure could benefit more than 1.1 million undocumented spouses of U.S. Citizens, if they can meet the eligibility requirements.

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The Department of Homeland Security and Justice Department recently announced a new plan to expedite immigration court proceedings for asylum seekers who have recently arrived in the United States without lawful status.

On May 16th senior administration officials from the Department of Homeland Security and Justice Department made it known to the public that a new Recent Arrivals (RA) docket process will allow undocumented immigrants to resolve their immigration cases more expeditiously – within a period of 180 days.

Under the RA Docket process, DHS will place certain noncitizen single adults on the RA Docket, and EOIR adjudicators will prioritize the adjudication of these cases.

The RA Docket will operate in five cities: Atlanta, Boston, Chicago, Los Angeles, and New York City. Immigration judges will aim to render final decisions within 180 days, although the time to make a decision in any particular case will remain subject to case-specific circumstances and procedural protections, including allowing time for noncitizens to seek representation where needed.

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As the 2024 U.S. presidential elections draw nearer, Biden and Mexico’s President Andres Manual Lopez Obrador, have announced joint efforts to combat illegal border crossings.

The two leaders have said that their administrations will take steps to decrease illegal border crossings by ordering their national security teams to cooperate. While specific details were not disclosed, a government official has said that immigration enforcement actions may include a crackdown to prevent railways, buses, and airports from being used for illegal border crossings.

The issue of immigration will likely sway voting age Americans who believe President Biden has not done enough to prevent illegal immigration.

Under intense scrutiny and political pressure, the Biden administration has attempted to appease these voters by getting tougher on immigration. Recently, the Biden administration attempted to include restrictive immigration policies as part of a $95 billion foreign aid package for Ukraine, Israel, and Taiwan. Biden called the immigration reform measure the “strongest border security bill this country has ever seen.” If passed, the measure would have given him the authority to turn away migrants at the U.S. Mexico border.

Against political gridlock however, Congress blocked the inclusion of the measure from the bill. This has left the Biden administration to consider the possibility of executive action and internal policy decisions to ramp up its enforcement efforts.

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This week we bring you new updates regarding the I-693 medical examination.

On April 4, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced that any Form I-693, Report of Immigration Medical Examination and Vaccination Record, that was properly completed and signed by a civil surgeon on or after November 1, 2023, does not expire and can be used indefinitely as evidence to show that the applicant is not inadmissible on health-related grounds.

What is Form I-693?

The Form I-693 is a medical examination report that must be completed by a USCIS approved civil surgeon. It is a required document for certain noncitizens who must prove to USCIS that they are free of any health-related conditions that would make them inadmissible to the United States. This includes applicants applying for adjustment of status on Form I-485 (green card applicants).

Beginning December 9, 2021, USCIS recognized the validity of Form I-693 for a period of 2 years from the date the civil surgeon signed the form, regardless of when the underlying application was submitted.

What changed?

Medical Examinations Completed On or After November 1, 2023

USCIS has consulted with the Centers for Disease Control and Prevention (CDC) and determined that the validity of Form I-693 will no longer be limited to a certain period, so long as it was properly completed and signed by a civil surgeon on or after November 1, 2023.

Effective November 1st, the CDC has required civil surgeons to share certain medical data from the Form I-693 directly with CDC electronically. CDC and USCIS have also collaborated to improve the reporting of public health information collected on Form I-693 by civil surgeons to local U.S. health departments.

Before this policy update, civil surgeons were not required to share such information with CDC electronically.

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Without any prior notice, the U.S. government has started requiring immigrants without passports, to submit to facial recognition technology in order to board domestic flights in the United States.

The Transportation Security Administration (TSA) recently confirmed this policy change, stating that migrants who do not have the proper photo identification, must submit to facial recognition technology, to verify their identify using Department of Homeland Security (DHS) records. Those who refuse to undergo facial recognition are turned away at the airport.

This change came to light after several migrants flying out of Texas were unexpectedly required to submit to the technology.

A spokesperson for the agency further confirmed that if TSA cannot match the person’s identity to DHS records, they will be denied boarding and entry to secure areas of an airport.

This has been alarming news for immigrants who must relocate to areas where they are pursuing their immigration claims, or where they have been scheduled to appear before immigration court.

It has also caused concern for immigrants who were blindsided by the change and spent their hard-earned money on nonrefundable domestic flights.

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Ahead of the U.S. presidential election, President Biden is considering the rollout of a set of new executive actions aimed at curbing illegal migration at the U.S. southern border and measures that would create new obstacles for asylum applicants. Individuals speaking on condition of anonymity have said these policies could come as soon as March 7th as part of President Biden’s State of the Union speech.

According to reports by insiders of the Biden administration, the proposals under discussion would use a provision of the Immigration and Nationality Act (INA) to stop migrants from requesting asylum at U.S. ports of entry once a certain number of illegal crossings has been reached.

While the exact details of the executive order are still unclear, the proposal would likely carve out several exceptions for unaccompanied minors and those who meet the requirements of the United Nations Convention Against Torture. A similar proposal was previously discussed in the U.S. Senate as part of a border deal earlier this month.

To further appease conservative voters, the Biden administration is also considering implementing policies that would make it harder for migrants to pass the initial screening of the asylum interview process. Under these proposals, the administration would elevate the “credible fear standard” of the asylum process, thereby narrowing the pool of applicants eligible to seek asylum. Those who cannot meet the elevated standard, would be swiftly deported.

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Recently, the American Immigration Lawyers Association (AILA) requested an update from the U.S. Citizenship and Immigration Services (USCIS) regarding the delayed adjudication of Form I-829 petitions filed by EB-5 investors seeking to remove their conditions on permanent residence.

AILA suggested two alternatives for providing evidence of continued lawful permanent residence which consisted of making simple adjustments to the language of Form I-829 receipt notices.

On January 19, 2024, USCIS responded to these concerns indicating their awareness of the issue and ongoing efforts to reduce the burden on investors.

USCIS pointed out that beginning on January 11, 2023, the agency extended the validity of Permanent Resident Cards (also known as Green Cards) for petitioners who properly filed Form I-829, for 48 months beyond the green card’s expiration date.

This extension was made in consideration of the long processing times USCIS has been experiencing to adjudicate Form I-829, which have increased over the past year.

They also note that USCIS field offices also recently began issuing and mailing the Form I-94 (arrival/departure record) with ADIT (temporary 1-551) stamps as temporary evidence of Legal Permanent Resident status without requiring an in-person appearance at field offices, for investors who have requested evidence of their LPR immigration status from USCIS.

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