Visa Lawyer Blog

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In its latest attempt to limit the entry of asylum seekers to the United States, the Trump administration has published a new proposal in the Federal Register entitled, “Procedures for Asylum and Bars to Asylum Eligibility,” adding minor crimes to the list of offenses that would bar individuals from obtaining asylum.

The proposal primarily seeks to establish additional bars on eligibility for asylum seekers who have committed certain offenses in the United States after entering the country, including minor offenses. Offenses which have been committed in a foreign country will not be counted. Therefore, the proposal targets asylum seekers who were once present in the United States, now returning to the United States seeking asylum protection, or asylum seekers waiting for a decision on a pending asylum case in the United States who have committed an offense after entering the country.

Under this new proposal, the ineligibility bar would apply to the following individuals:

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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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We have news for petitioners seeking to use premium processing services. The Department of Homeland Security published a final rule in the Federal Register on October 31, 2019 to increase the premium processing fee to account for inflation.

The adjustment increased the premium processing fee from $1,410 to $1,440 beginning December 2, 2019. This increase in fees applies to applications postmarked on or after December 2, 2019.

What is Premium Processing Service?

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In this blog post we cover where the top democratic presidential candidates stand on the issue of immigration. At the moment only three Republicans have announced their participation in the 2020 election, therefore we will focus on the democratic candidates until more Republican candidates have formally announced their presidential bids.

On the democratic front, over sixteen candidates have formally announced their participation in the 2020 Presidential election, with many more rumored to join their ranks in the coming months.

Over the last five months, presidential hopefuls, Former Vice President Joe Biden, U.S. Senator Bernie Sanders, U.S. Senator Kamala Harris, U.S. Senator Elizabeth Warren, and U.S. Senator Amy Klobuchar, have battled one another taking part in debates across the country. Not surprisingly, the topic of interest in these debates has turned to immigration.

Joe Biden

Joe Biden is a familiar face to all Americans, having served as former Vice President during the Obama administration for 8 years, but Joe Biden’s performances in the latest democratic debates have been lackluster at best.

In a recent debate moderators criticized Joe Biden for being part of an administration that was responsible for deported 3 million people, the most in United States history. When asked if he did anything to prevent the deportations, Biden deflected stating that his own power was limited and that the former President “did the best that was able to be done.”

Joe Biden has appeared weak on immigration. Although he has acknowledged that the American immigration system is broken, he has provided few solutions on how to unify Congress to pass comprehensive immigration reform. Joe Biden has also prioritized securing the South West border and publicly stated during debates that undocumented immigrants need to “get in line,” to obtain legalization like everyone else.  Like his predecessors Joe Biden’s immigration policy prioritizes the entry of highly skilled immigrant workers, and fails to offer solutions to the millions of undocumented immigrants living and working in the United States for decades.

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On November 14, 2019, the United States Citizenship and Immigration Services will publish a proposed rule in the Federal Register to increase immigration fees for certain petitions. After publication, the proposal will be open for a 30-day comment period. After that point the agency will review public comments and draft the final rule. At this time there is no definitive date set out in the proposed rule for enforcement of these fees. Therefore, readers should note that these fee increases will likely not take effect until well into Fiscal Year 2020.

What does the rule propose?

The rule proposes the following fee increases by immigration benefit:

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Moreover, DHS proposes that fees for the following types of petitions be limited to a 5 percent increase above current fees:

  • Form I-290B, Notice of Appeal or Motion.
  • Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
  • Form I-600, Petition to Classify Orphan as an Immediate Relative
  • Form I-600A, Application for Advance Processing of an Orphan Petition
  • Form I-600A/I-600, Supplement 3, Request for Action on Approved Form I-600A/I600.42
  • Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative.
  • Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country.
  • Form I-800A, Supplement 3, Request for Action on Approved Form I-800A

Changes to Fee Waiver Requests

DHS further proposes to limit fee waivers grants to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guideline as defined by the U.S. Department of Health and Human Services (HHS).

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In its latest act of defiance against the judicial branch, the Trump administration has published an Interim Final Rule entitled “Visas: Ineligibility Based on Public Charge Grounds,” designed to give Consular officers wider discretion to deny immigrant and nonimmigrant visas to applicants on public charge grounds based on a variety of factors that could weigh positively or negatively on an applicant.

According to the rule, consular officials will now be able to weigh a variety of factors to determine whether a visa applicant is likely to become a public charge. These factors include the applicant’s age, health, educational background, and financial status. In addition, consular officers will have increased discretion to scrutinize certain applications more closely than others based on the type of visa classification sought by the applicant, as well as the duration of stay.

Applicants who are seeking a long-term visa, for example may be scrutinized more heavily than applicant’s seeking a short-term visa (such as a tourist visa).

How will these factors be weighed by Consular officials?

Age: Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and 62 as a positive factor.

Health: Consular officers will consider whether the alien’s health serves as a positive or negative factor in the totality of the circumstances, including whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work (if authorized).

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A new lawsuit filed in the Northern District of California now allows Freedom of Information Act (FOIA) applicants to challenge long standing delays in receiving their immigration records from the United States Citizenship and Immigration Services (USCIS).

The U.S. District Court has certified two class action lawsuits allowing FOIA applicants and attorneys requesting FOIA records on their behalf to join in the class action so that class members may receive timely determinations on their FOIA requests. This decision was made in response to significant delays that applicants face in obtaining their immigration records from the agency.

U.S. District Judge William Orrick who granted the class action request wrote in his order that delays in receiving immigration records are particularly precarious for, “Noncitizens in removal proceedings” who “particularly rely on FOIA requests because discovery is not available. Consequently, obtaining A-Files from defendants is critical in immigration cases; delays in obtaining A-Files leave noncitizen and their attorneys “in legal limbo” that inflicts substantial hardship.”

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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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The Trump administration has published a proposed rule in the Federal Register expanding the social media information that can be collected as part of the non-immigrant and immigrant visa process.

This new proposed rule is part of the President’s plan to “Protect the Nation from Foreign Terrorist Entry into the United States,” as stated in Executive Order 13780.

As you may recall this Executive order seeks to “establish screening and vetting standards and procedures to enable DHS to assess an alien’s eligibility to travel to or be admitted to the United States or to receive an immigration-related benefit from DHS.”

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Fresh off the press! In this blog post we will discuss a new proposed rule that is set to be published in the Federal Register on September 4, 2019. We have reviewed an advance copy of this proposed rule and will tell you everything you need to know about the new rule.

At a Glance

The proposed rule will require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition they submit to USCIS for the H-1B cap selection process beginning with the H-1B fiscal year 2021 cap season.

Overview

As you may recall, on January 31, 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions (including those eligible for the advanced degree exemption) to first electronically register with USCIS during the designated registration period (“H-1B registration final rule”).

USCIS stated that the new H-1B registration system would be implemented beginning with H-1B fiscal year 2021 to ensure the registration system and process work correctly.

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