Visa Lawyer Blog

Articles Posted in Court Injunction

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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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On February 21, 2020, the Supreme Court of the United States by a vote of 5-4 stayed the remaining statewide injunction issued by the U.S. District Court for the Northern District of Illinois, which prevented the government from enforcing the Inadmissibility on Public Charge Grounds rule also known as the “public charge” rule in the State of Illinois. A “stay” is a ruling made by a court to stop or suspend a proceeding or trial temporarily.

What this means

The Supreme Court’s ruling means that the government may now enforce the “public charge” rule in the state of Illinois, while it appeals the District Court’s decision.

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In this blog post we answer your frequently asked questions regarding the public charge rule.

Overview:

On October 10, 2018, the Department of Homeland Security first published the final rule “Inadmissibility on Public Charge Grounds” which dramatically changes the way in which an individual is determined to be a “public charge.” Although five separate courts issued injunctions to stop the government from implementing the final rule, on January 27, 2020, the Supreme Court of the United States ruled in favor of the Trump administration, allowing the government to implement the public charge rule, except in the state of Illinois where a state-wide injunction remains in place.

The new regulations will make it more difficult for certain adjustment of status and immigrant visa applicants to prove that they are not likely to become a public charge to the United States government.

The following frequently asked questions have been prepared to better inform our readers and address concerns regarding the effect of the public charge rule.

Q: When will the public charge rule take effect?

A: Shortly after the Supreme Court’s ruling, USCIS formally announced on its website that the public charge rule will affect all applications for adjustment of status (green card applications) postmarked on or after February 24, 2020 (except in the state of Illinois, where the rule remains enjoined by a federal court).

Q: Who does the public charge rule apply to?

A: In general, all applicants for admission to the United States are subject to the public charge ground of inadmissibility under INA § 212(a)(4) unless specifically exempted.

The following non-citizens are affected by the public charge rule:

  • Applicants for adjustment of status in the United States
  • Applicants for an immigrant visa abroad
  • Applicants for a nonimmigrant visa abroad
  • Applicants for admission at the U.S. border who have been granted an immigrant or nonimmigrant visa, and
  • Nonimmigrants applying for an extension or change of status within the United States (new policy under the final rule).

Applicants seeking lawful permanent resident status (applicants for adjustment of status) based on a family relationship are most affected by the public charge rule.

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Welcome back to our blog! We kick off the week by bringing you recent developments regarding the government’s controversial rule entitled, “Inadmissibility on Public Charge Grounds” which sought to expand the scope of public benefits that could render a permanent resident or immigrant visa applicant ineligible for immigration benefits.

As you know, in October of 2019, the final rule “Inadmissibility on Public Charge Grounds,” was swiftly blocked by several federal judges shortly before going into effect. By court order, the government cannot implement the final rule anywhere in the United States until a final resolution has been reached in several lawsuits brought against the government challenging the validity of the public charge rule.

On Monday, January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court of the United States, asking the court to lift the remaining lower court injunction, that is currently stopping the government from enforcing the public charge rule.

The government’s request comes just one week after a three-judge panel for the U.S. Court of Appeals for the Second Circuit, upheld a lower court injunction, preventing the government from implementing the public charge rule on a nationwide basis.

Angered by the decision, the government decided to appeal the U.S. Court of Appeals decision by bringing the matter to the Supreme Court, urging the Court to side with the President and allow the implementation of the rule while a decision in the New York lawsuit is reached on the merits.

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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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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USCIS Issues Notice Extending TPS Designation for Beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador

In compliance with a court ordered preliminary injunction issued in the case Ramos v. Nielsen, USCIS has issued a notice formally announcing the automatic extension of TPS documentation for beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador until January 2, 2020.

Beneficiaries under the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under Immigration and Nationality Act (INA) section 244(c)(3) or 8 CFR 244.14 because of ineligibility.

DHS has further announced that it is automatically extending through January 2, 2020, the validity of TPS related Employment Authorization Documents (EADs), Forms I–797, Notice of Action (Approval Notice), and Forms I–94 (Arrival/Departure Record) (‘‘TPS-Related Documentation’’), for beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador, provided that the affected TPS beneficiaries remain otherwise eligible for TPS.

TPS for these countries will not be terminated unless and until any superseding, final, nonappealable judicial order permits such terminations.

Venezuelan Immigrant Visa Processing

The Department of State recently announced that the U.S. Embassy in Bogota, Colombia is now the designated primary site to process immigrant visas for residents of Venezuela. Beginning April 2019, the National Visa Center will begin scheduling Venezuelan immigrant visa interviews at the U.S. Embassy in Bogota. Appointment notices for all future immigrant visa interviews will take place at the U.S. Embassy in Bogota.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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