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Visa Lawyer Blog

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Great news has come down from the U.S. Court of Appeals for the Ninth Circuit this afternoon.

Dealing a blow to the Trump administration, the court issued a majority decision denying the federal government’s motion to lift a lower court injunction that prevented the government from implementing Presidential Proclamation No. 9945, signed by the President on October 4, 2019.

The Proclamation attempted to bar certain individuals from entering the United States pursuant to an immigrant visa, unless they could demonstrate (1) that they would be covered by certain approved health insurance within 30 days of entry or (2) that they had the sufficient financial resources to cover foreseeable healthcare costs.

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It’s been just a few days since President Trump signed his long awaited executive order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” and already it is being challenged in federal court.

On April 25, 2020, the first of what is sure to be many lawsuits, Doe v. Trump, was filed in the United States District Court for the District of Oregon challenging the President’s new executive order.

The lawsuit was filed by several individuals and the organization Latino Network against President Trump and the federal government.

Plaintiffs in this case have filed an emergency motion for a temporary restraining order to block the government from enforcing the new executive order, because the executive order does not contain exceptions that preserve the opportunity to request urgent or emergency services for immigrant visa applicants, including for children of immigrants who are at risk of aging out of their current visa eligibility status “by the simple passage of time.”

The lawsuit is concerned specifically with children who are in danger of aging out of their place in the visa queue because they do not have access to emergency services that would have otherwise been available had the proclamation not been issued.

“Without access to such emergency services, children whose underage preference relative status will result in unnecessary and prolonged family separation “for years—or even decades,” the lawsuit says.

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Credit: EpicTop10.com

UPDATE—The Latest on DACA: Last summer, the United States Supreme Court accepted the Trump administration’s writ of certiorari, agreeing to review several federal court cases challenging the Trump administration’s decision to terminate DACA. The Supreme Court could, at any moment, decide the fate of DACA, making this an extremely uncertain time for Dreamers. A decision is expected to be handed down by the Supreme Court in early 2020, just before the 2020 presidential election. In the meantime, given that no final decision has yet been made by the Supreme Court, DACA recipients may continue to submit renewal applications pursuant to three U.S. district court orders that remain in effect. As required by these orders, United States Citizenship and immigration Services (USCIS) resumed accepting renewal requests for DACA, however those who have never before been granted deferred action cannot apply.

DACA FREQUENTLY ASKED QUESTIONS

USCIS Continues to Accept DACA Renewal Requests

In early January of 2018, the U.S. District Court for the Northern District of California issued a preliminary injunction in favor of the plaintiffs in the case Regents of the University of California, et al. v. Department of Homeland Security, et al., which challenged the government’s decision to terminate DACA. The preliminary injunction had the effect of temporarily blocking the termination of the DACA program until a final decision is reached on the merits of the case. The injunction applied nationwide and required USCIS to resume accepting DACA renewal applications. Shortly after this court order, USCIS announced that it would resume accepting DACA renewal applications.

The Sapochnick Law Firm has drafted the following answers to your frequently asked questions regarding the current state of DACA, CIS’ announcement informing the public that it will continue accepting DACA requests, and further developments relating to DACA.

WHY YOU SHOULD APPLY FOR YOUR DACA RENEWAL NOW

At this time the fate of the DACA program is extremely uncertain. The United States Supreme Court is set to make a final decision regarding the legality of the DACA program at any time. Given that the liberal justices on the court are outnumbered by 5-4, it is more and more probable that the DACA program will be terminated. Once the Supreme Court casts the final vote, DACA recipients will likely lose the opportunity to apply for renewal of their benefits. Now more than ever DACA holders should take advantage of their ability to apply for a final renewal of their benefits. We hope that the Supreme Court will be on the right side of history, but there can be no guarantees.

1. I have never applied for DACA before, can I still submit an application?

No. The preliminary injunction does not require USCIS to accept DACA applications from first-time applicants. USCIS has made clear that it will not be accepting DACA applications from those who have never before been granted deferred action. The agency will only continue accepting applications to renew a grant of deferred action under DACA.

2. Why did I hear that applications for first-time applicants would be accepted?

In a previous case out of the U.S. District Court for the District of Columbia, NAACP v. Trump, federal judge John D. Bates ordered the government to submit additional information to justify its decision to terminate DACA—failure to do so meant that USCIS would be required to accept first-time applications for DACA as well as applications from DACA holders for advance parole.

The government did respond within the required period of time, issuing a memorandum outlining the government’s rationale for terminating the DACA program. Having satisfied the court’s requirement to produce the information, the U.S. District Court for the District of Columbia, “stayed” its previous order requiring that the DACA program be fully reinstated. As a result, the portions of the court order that would have allowed first-time applicants to seek DACA and allowed for DACA recipients to apply for advance parole, were stopped.

Given that the government complied with the court order, at this time, USCIS is not accepting DACA applications from first-time applicants, nor applications for advance parole from DACA recipients.

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In this post, we would like to provide our readers with an important update released by the United States Citizenship and Immigration Services (USCIS) with respect to the public charge rule.

Given the Supreme Court’s recent ruling in favor of the government, the United States Citizenship and Immigration Services (USCIS) has announced that they will begin implementing the “Inadmissibility on Public Charge Grounds” rule on February 24, 2020, EXCEPT for in the State of Illinois, where the rule remains enjoined for the time being by a federal court.

That means that EXCEPT for in the State of Illinois, USCIS will begin to apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

The postmark date for all applications and petitions sent by commercial courier (UPS/FedEx/DHL) is the date reflected on the courier receipt.

The public charge rule will NOT apply to applications or petitions postmarked before February 24, 2020 and petitions that remain pending with USCIS.

Prepare for Changes: USCIS to update all Adjustment of Status Forms

USCIS has announced that the agency will be updating all forms associated with the filing of adjustment of status, its policy manual, and will be providing updated submission instructions on its website this week to give applicants and their legal representatives enough time to review filing procedures and changes that will apply to all applications for adjustment of status postmarked on or after February 24, 2020.

Failure to submit forms with the correct edition dates and/or abide by the new filing procedures will result in the rejection of an application or petition.

The Final Rule provides that adjustment of status applicants subject to the public charge grounds of inadmissibility will be required to file Form I-944 Declaration of Self-Sufficiency along with Form I-485, as part of the public charge inadmissibility determination to demonstrate they are not likely to become a public charge. Therefore, we expect USCIS to provide instructions regarding the submission of Form I-944 with adjustment of status applications.

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With just a few weeks into the new year, the judicial branch has been hard at work issuing decisions that spell trouble for the Trump administration.

On Wednesday, January 15th a federal judge in Maryland issued a temporary injunction preventing the Trump administration from implementing the President’s executive order “Enhancing State and Local Involvement in Refugee Resettlement,” issued by the President on September 26th of last year.

As part of the executive order, the President authorized state and local governments to refuse the placement or resettlement of refugees in their communities stating that, the Federal government, as an exercise of its broad discretion, “should resettle refugees only in those jurisdictions in which both the State and local governments” consent to receive refugees under the Department of State’s Reception and Placement Program.

The government by its order sought to tighten the placement of refugees in the United States by allowing refugees into the United States only if both the State and local government consent to their placement in the State or locality.

In response to a lawsuit filed by refugee-resettlement organizations challenging the executive order, U.S. District Judge Peter Messitte said that the plaintiffs were “clearly likely to succeed in showing, that, by giving states and local governments veto power over the resettlement of refugees within their borders, the [executive] order is unlawful.”

To preserve the status quo, until a final decision is made on the merits, Judge Messitte issued a temporary injunction blocking the government from enforcing any part of the executive order on a nationwide basis.

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Welcome to 2020! It’s a new year and a brand-new decade. In this post, we cover the things you need to watch and groundbreaking events taking place in 2020 that will shape the future of immigration for years to come.

2020 Presidential Election

One of the most momentous events in American history will take place November 3, 2020, as Americans head to the polls to vote for the next President of the United States. The winner of the 2020 presidential election will be inaugurated on January 20, 2021.

Candidates for the Presidency will take part in dozens of debates leading up to the presidential election during the next few months. As it stands, fourteen Democratic nominees remain in the 2020 presidential race vying for an opportunity to oppose President Donald Trump come November.

The top Democratic candidates include Joe Biden, Bernie Sanders, Pete Buttigieg, and Elizabeth Warren. On February 3, 2020 these candidates will participate in the Iowa Democratic caucuses, the first nominating contest in the Democratic Party presidential primaries.

For its part, the Republican National Committee has pledged its support to President Trump in his re-election bid, meaning that Donald Trump will likely be unopposed in the 2020 Republican Party presidential primaries. Only two other Republican candidates have formally announced their intent to take part in the presidential race, including Joe Walsh and Bill Weld.

As previously reported, the outcome of the 2020 Presidential election will have a profound effect on the future of immigration, given the central role that the topic has had in American politics during the Trump administration, and its continued level of importance in the 2020 election.

The Supreme Court will take on the issue of DACA

During the Spring of 2020, several big decisions will be made on immigration by a conservative Supreme Court.

On June 28, 2019, the U.S. Supreme Court agreed to hear lawsuits filed against the Trump administration challenging the President’s decision to abruptly terminate Deferred Action for Childhood Arrivals (DACA). Oral arguments began on November 12, 2019 in Washington D.C., and a final decision is expected to be handed down by the court this spring.

Currently five conservative justices sit on the bench (Chief Justice Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh), tipping the scales in favor of conservatives with regard to the future of DACA.

A decision in favor of the President would mean the end of the program and no legislative solution to shield Dreamers from deportation. Perhaps more importantly, the decision would re-energize the President’s base, increasing the President’s chances for re-election.

While a decision against the Trump administration would preserve the DACA program and allow Dreamers to continue to live and work in the United States without fear of deportation. Such a decision would also impact the outcome of the Presidential election, given that it would unify the Democratic party and supports sympathetic to the plight of Dreamers.

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In this post, we discuss the latest developments in U.S. immigration news.

As you may recall, back in September USCIS issued a proposed rule requiring petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition submitted to USCIS for the H-1B cap selection process, beginning with the H-1B fiscal year 2021 cap season.

Today, November 7, 2019 the United States Citizenship and Immigration Services (USCIS) published the final version of this rule which will become effective beginning December 9, 2019, although the $10 fee will not be required until registrations are submitted beginning with the fiscal year 2021 H-1B cap selection process.

The final rule is scheduled to be published in the Federal Register tomorrow November 8th. An unpublished version of the rule is available here.

Extension of Temporary Protected Status

On November 4, 2019, USCIS published a notice in the federal register announcing the automatic extension of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

TPS-related documentation for individuals from these countries will remain valid through January 4, 2021.

This automatic extension will apply to all TPS-related documentation (including Employment Authorization Cards) set to expire on the following dates:

  • Beneficiaries under TPS designations for El Salvador, Haiti, and Sudan—January 2, 2020
  • Beneficiaries under TPS designations for Honduras—January 5, 2020
  • Beneficiaries under TPS designation for Nepal—March 20, 2020

A beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received his or her new EAD is covered by this automatic extension, provided that the EAD he or she possesses contains one of the expiration dates indicated above.

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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.”

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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.

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On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

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