Visa Lawyer Blog

Articles Posted in Employment Authorization Document

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In response to a high number of questions regarding the recent Maryland court decision ordering the government to reinstate Deferred Action for Childhood Arrivals (DACA) for first time applicants, we have prepared this helpful guide.

First, let’s briefly discuss the Maryland decision. As our readers will know on July 17th a federal judge in Maryland presiding over the case, Casa de Maryland v. U.S. Department of Homeland Security, ordered the government to restore the DACA program to its pre-September 2017 status. This means that first-time applicants are now able to apply for DACA benefits.

What does the Maryland decision mean for DACA holders?

For now, USCIS must continue the DACA program as it was before it was rescinded on September 5, 2017, when applications for DACA were being accepted by first-time applicants.

In order to comply with the Supreme Court’s decision, as well as the Maryland district court’s order, USCIS must also accept the following applications that were suspended under prior court orders and should publish guidance immediately on its processing of these applications:

  • People Who Have Not Previously Been Granted DACA: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. As a result, USCIS should immediately publish guidance on processing new, initial DACA applications.
  • Advance Parole Requests: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. Because advance parole based on DACA was a part of the 2012 DACA program, USCIS should immediately publish guidance on processing advance parole applications filed by DACA recipients.

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Welcome back to Visalawyerblog! In this post we bring you the latest immigration updates.

Naturalization Ceremonies

Great news for naturalization applicants waiting for an oath ceremony. On July 1, 2020, USCIS issued an announcement notifying the public that it anticipates that it will complete nearly all postponed administrative naturalization ceremonies by the end of July of 2020.

USCIS has been prioritizing the scheduling of oath ceremonies for all naturalization applicants who were approved following their interviews. As we previously reported, USCIS is also exploring options to bypass the formal oath ceremony process in the future, and administer the oath immediately following a successful naturalization applicant’s interview. This will help move cases along quickly during the pandemic and limit further exposure.

USCIS remains committed to being as flexible as possible to welcome new citizens to the United States as fast as possible. We are glad that in the very least, naturalization applicants are being accommodated by the agency during this difficult time.

If you have not yet received your naturalization oath ceremony notice, you should be receiving one very soon. As always, we recommend calling USCIS to expedite the process.

Calls to Extend TPS for Yemen and Somalia due to COVID-19

Dozens of organizations are calling on the government to extend Temporary Protected Status (TPS) for at least 180 days to all current Yemen and Somalia TPS holders due to the COVID-19 pandemic. A letter was issued in early April by interested organizations urging USCIS and DHS to automatically extend work authorization and TPS for all current Yemen and Somalia TPS holders, or at the very least extend the re-registration period for TPS holders from Somalia and Yemen for a total of 180 days.

The letter emphasizes the importance of granting relief for Yemeni and Somalia TPS holders stating, “While states across the country are rightfully taking precautions to prevent the spread of COVID-19, these measures and the subsequent loss of income and freedom of movement establish insurmountable barriers for TPS holders to renew their status before the rapidly approaching re-registration deadline. TPS holders should not have to choose between missing a deadline and violating health directives that keep themselves, their families, and their communities safe.”

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UPDATE: Green card interviews are being waived for at least some applicants during COVID-19

Unprecedented times call for unusual measures. Recently USCIS announced the closure of field offices nationwide—until May 3rd–to help slow the spread of COVID-19.

This announcement was immediately concerning given that green card applicants (family and employment-based) must attend in-person interviews at USCIS field offices to establish green card eligibility before their green cards can be approved.

USCIS indicated in their announcement that all impacted interviews would be rescheduled at a future time when offices re-open to the public. Of course, the decision to reschedule interviews at a future time would create a backlog, delaying the adjudication of thousands of green cards.

As it appears, to avoid a drastic backlog, USCIS is relaxing the green card interview requirement for employment-based green card applicants during the COVID-19 pandemic.

While there is no official policy or memorandum waiving the interview requirement for employment-based green card applicants, USCIS has been doing just that.

We can report that certain employment-based green card applicants who had their interviews canceled as a result of the COVID-19 office closures, have seen their green card “case status” change to “approved” and have received their green cards in the mail shortly thereafter.

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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 bring you the latest immigration related COVID-19 updates. During this difficult time, we would like to extend our heartfelt regards to you and your families. We hope you are staying safe and taking the necessary precautions to prevent the spread of COVID-19. The sooner we abide by government measures, the sooner we can overcome this pandemic as a Nation. Additionally, please remember that although our office is closed to the public, we continue to function behind the scenes to file your petitions on a timely basis. If you have any questions regarding your immigration options, or your currently pending case, we would be glad to assist you by telephone, Zoom, or Skype.

President Extends Federal Social Distancing Guidelines to April 30

This past Sunday, March 29, 2020, the President of the United States extended the Nation’s social distancing guidelines for another 30 days, following warnings from health advisers of the serious consequences that could result if Americans were allowed to return to normal life. Pursuant to this order, social time will continue to be limited only to necessary outings such as grocery shopping, medical appointments, etc. until April 30.

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In the midst of the ongoing Coronavirus (COVID 19) pandemic, USCIS reminds applicants and petitioners impacted by the pandemic that they can seek certain types of discretionary relief on a case-by-case basis.

Relief for Individuals Seeking Extensions/Change of Status

Special relief is available to individuals who were unable to file an extension or change of status petition before the end of their authorized stay expired, if a special situation prevented the individual’s departure and/or filing.

According to USCIS, “when applying for an extension or change of status due to a special situation that prevented your planned and timely departure,” the agency “may take into consideration how the special situation prevented your departure.”

In addition, if an applicant was not able to apply for an extension or change of status before their authorized period of admission expired, USCIS in their discretion may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control. An applicant in such a situation should be prepared to provide documentary evidence of those extraordinary circumstances. Depending on the applicant’s situation, the types of evidence that can be provided will vary.

Relief for F-1 Students Based on Severe Economic Hardship Caused by Unforeseen Circumstances

F-1 students who are experiencing severe economic hardship because of unforeseen circumstances beyond their control (such as those impacted by the COVID 19 pandemic) may request employment authorization to work off-campus (if they meet certain regulatory requirements) by filing Form I-765 Application for Employment Authorization along with Form I-20, and supporting materials. See 8 CFR 214.2(f)(9).

The student’s Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.

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On September 23, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that current beneficiaries of Temporary Protected Status (TPS) under Syria’s designation, who want to maintain their status through March 31, 2021, must re-register between Sept. 23 and Nov. 22, 2019.

All applicants must submit Form I-821, Application for Temporary Protected Status and request an EAD by submitting Form I-765, Application for Employment Authorization, when they file Form I-821 or separately at a later date.

USCIS will issue new EADs with a March 31, 2021 expiration date to eligible beneficiaries under Syria’s TPS designation who timely re-register and apply for EADs.

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On September 9, 2019, the United States Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register aimed at (1) removing a regulatory provision which states that USCIS has 30 days from the date an asylum applicant files the initial Form I-765, Application for Employment Authorization (EAD), to grant or deny the initial employment authorization application and (2) removing a provision that requires an asylum applicant to submit an I-765 Renewal of Employment Authorization to USCIS 90 days prior to the expiration of the employment authorization document’s validity.

Why the Change?

Initial applications for employment authorization from pending asylum applicants are the only category of employment authorization applications adjudicated by USCIS that have a required processing timeline attached to them.

Because of this, the agency must frequently divert resources away from other legal immigration application processing categories in order to meet the 30-day deadline for asylum seekers. These categories include family members of certain high skilled employees and those seeking adjustment of status in the United States, among others.

The proposed regulation is meant to improve the process for granting or denying an initial application for employment authorization documents (EADs) by reforming the current 30-day timeline pertaining to pending asylum applicants.

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