Visa Lawyer Blog

Articles Posted in Policy

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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 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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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 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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Last week, the United States Citizenship and Immigration Services (USCIS) updated its policy manual to clarify acts that may prevent a naturalization applicant from meeting the good moral character requirement.

A successful naturalization applicant must show that they have been, and continue to be a person of good moral character during the statutory period prior to filing the application for naturalization and up until taking the Oath of Allegiance. The statutory period is generally give years for permanent residents of the United States, three years for applicants married to U.S. citizens, and one year for certain applicants applying on the basis of qualifying U.S. military service.

Two or more DUI Convictions

Firstly, the policy manual clarifies that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination (Matter of Castillo-Perez). However, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses.

DUI refers to all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Post-Sentencing Orders

Secondly, the policy manual clarifies the definition of “term of imprisonment or a sentence” to mean, an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence are only relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

Furthermore, the policy guidance provides the following as examples of unlawful acts recognized by case law as barring good mood character (this list is not exhaustive):

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The Trump administration’s controversial rule making certain foreign nationals inadmissible to receive permanent residence on public charge grounds, will become effective beginning October 15, 2019.

First, and foremost let’s recap what this rule is about and who it will apply to:

Under immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

This means that the rule applies to foreign nationals applying for a U.S. visa, foreign nationals seeking admission through a port of entry, and individuals applying for adjustment of status.

When an individual applies for any immigration benefit with the government, (whether a U.S. visa or green card application), the official adjudicating the petition must determine whether that individual is or will likely become a public charge. This determination is referred to as a “public charge determination.”

What makes someone a public charge in the eyes of immigration?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

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On August 28, 2019, the United States Citizenship and Immigration Services (USCIS) issued new policy guidance defining “residence” as it relates to U.S. Citizenship.

The new policy guidance clarifies what it means to “reside in the United States” for the purpose of acquiring citizenship and sets out new policy guidelines as it relates to the acquisition of citizenship of children of U.S. government employees and U.S. armed forces members employed or stationed outside the United States.

Effective October 29, 2019, children residing abroad with their U.S. citizen parents (who are U.S. government employees or members of the U.S. armed forces stationed abroad) will not be considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children, by filing Form N-600K Application for Citizenship and Issuance of Certificate Under Section 322 and must complete the process before the child’s 18th birthday.

The child of a member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.

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On August 20, 2019, Immigration and Customs Enforcement (ICE) announced “enhanced coordination” efforts to remove Guatemalan adults and families arriving at the border more quickly. These efforts have been implemented to discourage Central Americans from attempting to enter the United States illegally and to deter human smuggling.

Acting Associate Director of ICE ERO Timothy Robbins made the following statement regarding these enforcement actions, “Breaking U.S. laws by illegally entering the United States is an ineffective manner to petition to legally remain in the United States. Ultimately, if you have no basis to remain in the United States, you will be apprehended and returned to your home country.”

ICE has announced that since mid-July it has implemented a more streamlined process to expeditiously remove Guatemalans who have no basis to remain in the United States.

According to ICE, this process allows the US to repatriate these individuals, “without utilizing resources to house aliens or manage their cases while they await immigration or removal proceedings out of custody.”

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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