Visa Lawyer Blog

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On November 13, 2020, the United States Citizenship and Immigration Services (USCIS) announced important revisions to the civics examination component of the naturalization test.

Unfortunately, these changes will make it more difficult for at least some immigrants to successfully become U.S. Citizens.

As you may be aware the naturalization test consists of two components. The first is English proficiency – applicants must demonstrate English language proficiency as determined by their ability to read, write, speak and understand English. The second requirement is the civics examination – an oral examination requiring applicants to demonstrate knowledge of U.S. history and government.

As part of the civics examination a USCIS Officer asks the applicant up to 10 of 100 possible civics questions. To successfully pass the examination applicants are required to answer 6 out of 10 questions correctly.

With the new revisions applying to applications filed on or after December 1, 2020, USCIS will increase the number of civics test questions that will be asked from 10 to 20 and applicants will be required to answer 12 questions (instead of 6) correctly in order to pass.

What exactly do the new changes include?

The USCIS policy alert published on November 13, 2020 entitled “Civics Educational Requirement for Purposes of Naturalization,” outlines the changes that will be made to the naturalization civics examination beginning December 1, 2020.

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Welcome back to Visalawerblog! In this post, we discuss the newly released visa bulletin for November 2020 which outlines the availability of immigrant visa numbers for family-sponsored and employment-based preference categories.

Impact of April 22nd Presidential Proclamation

As a preliminary matter, we would like to remind our readers that presidential proclamation 10014 signed into law on April 22, 2020, temporarily suspends the entry and issuance of immigrant visas at U.S. Consulates and Embassies worldwide for the following types of immigrants until December 31, 2020.

*Note: Applicants residing in the United States are unaffected by P.P. 10014 and may apply for adjustment of status with USCIS provided their priority date is current on the visa bulletin.

  • Spouses and children of green card holders (US citizens are not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (over 21 years of age) of US citizens applying at the consulate (children under 21 years of age of US citizens are not affected)
  • Sons and daughters (over 21 years of age) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB2 employment based (NIW is not affected) and their family applying at the consulate
  • PERM EB3 employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate

Unfortunately, this proclamation applies to the majority of family-sponsored preference categories which means that U.S. Consulates and Embassies worldwide will not issue visas to these individuals until the visa ban is lifted after December 31, 2020.

It is possible that President Trump may choose to extend the proclamation beyond December 31, 2020 if he finds it necessary. However it is unlikely to remain in effect after Joe Biden becomes President on January 20, 2021.

Suspension of Routine Visa Services Continues

As an additional note, although spouses and minor children of U.S. Citizens applying for immigrant visas at the Consulate are not impacted by P.P. 10014, the majority of Consulates and Embassies nationwide have suspended routine visa services until further notice. Applicants with emergencies or urgent travel needs may request expedited visa processing with the National Visa Center. We strongly encourage applicants to obtain legal assistance to help expedite visa interviews where the applicant can demonstrate extreme hardship to the U.S. Citizen relative.

Other Visa Bans May Apply 

Certain immigrant visa applicants who are not impacted by P.P. 10014, may still be impacted by other presidential proclamations restricting visa issuance and travel to the United States.

For instance, beginning January 2020 the President issues a series of Coronavirus proclamations, which similarly restrict and suspend the entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

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Welcome back to Visalawyerblog! Happy Friday. In this post we bring you very important yet unfortunate news regarding ongoing litigation in the fight to invalidate the public charge rule known as “Inadmissibility on Public Charge Grounds.”

As we previously reported, on November 2, 2020, a federal judge from the U.S. District Court for the Northern District of Illinois, issued a ruling in the case Cook County Illinois et al. v. Chad Wolf et al. which immediately set aside the public charge rule. The judge’s ruling allowed applicants to proceed with adjustment of status filings without having to include Form I-944 Declaration of Self-Sufficiency.

Now things have changed.

In a stunning rebuke of the lower court’s decision, the Seventh Circuit Court of Appeals has put the public charge rule back in place. As a result, the Department of Homeland Security (DHS) may continue to enforce the public charge rule as before.

What did the appellate court decide?

On November 4, 2020, the appellate court placed an “administrative stay” on the November 2nd decision stopping the lower court from invalidating the public charge rule.

What does this mean for applicants for adjustment of status?

As a result of this decision, the U.S. Citizenship and Immigration Services (USCIS) may continue to implement the public charge rule until another order of the Seventh Circuit or another court states otherwise.

Accordingly, all applicants for adjustment of status must include Form I-944 Declaration of Self-Sufficiency as well as all appropriate fees and supporting documentation.

What does this mean for employers and foreign nationals?

Until further notice, adjustment of status applications and nonimmigrant extension and change of status applications must continue to be submitted with public charge forms and documentation.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with an important court ruling, decided today, that invalidates the Department of Homeland Security’s (DHS) final rule entitled “Inadmissibility on Public Charge Grounds,” also known as “the public charge,” rule. With this new ruling, the public charge rule has been officially set-aside effective immediately.

As you may recall since October of 2019 the state of Illinois has been involved in a contentious legal battle with DHS over the legality of the public charge rule. In October of last year, a federal court granted residents of Illinois a preliminary injunction temporarily stopping the government from enforcing the public charge rule on its residents. The government thereafter appealed the decision and filed a motion to dismiss Illinois’ lawsuit which was promptly denied.

The Seventh Circuit court later affirmed the issuance of the preliminary injunction holding that the public charge rule was substantively and procedurally invalid under the APA, and the issuance of the injunction was appropriate to stop the government from enforcing the rule.

With the support of the Seventh Circuit, the plaintiffs filed a motion to vacate or “set aside” the public charge rule once and for all in the United States District Court for the Northern District of Illinois. See Cook County Illinois et al. v. Chad Wolf et al.

Today, November 2, 2020, federal judge Gary Feinerman ruled in favor of the plaintiffs vacating the public charge rule effective immediately.

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Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with very exciting news about the upcoming Diversity Visa lottery.

On October 7, 2020 the State Department opened its online electronic registration portal for the 2022 Diversity Visa lottery program (DV-2022).

The online registration period for the DV-2022 Program began on Wednesday, October 7, 2020 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and will conclude on Tuesday, November 10, 2020 at 12:00 noon, Eastern Standard Time (EST) (GMT-5).  Please keep in mind that individuals who submit more than one entry during the registration period will be disqualified. Applicants must apply online within the registration period outlined above.

For fiscal year 2022, up to 55,000 Diversity Visas will be available with no cost to register for the DV program.

Who may apply?

The diversity visa lottery program allows nationals from countries with historically low rates of immigration the opportunity to apply for an immigrant visa to enter the United States.

If you are not a native of a country with historically low rates of immigration you may still qualify if your spouse is a native of such a country and you and your spouse are named on the selected entry. Additionally if you are a native of a country that does not have historically low rates of immigration to the United States, but in which neither of your parents was born or legally resident at the time of your birth, you may claim the country of birth of one of your parents if it is a country whose natives are eligible for the DV-2022 program.

What countries have historically low rates of immigration for DV purposes?

The Department of State distributes diversity visas among six geographic regions including Africa, Asia, Europe, North America, Oceania, and South America, Central America, and the Caribbean. No single country may receive more than seven percent of the available DVs in any one year.

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In this post we discuss a new proposed rule published by the Department of Homeland Security (DHS) that seeks to amend regulations governing Form, I-864 Affidavit of Support. The I-864 Affidavit of Support is a required form that must be completed by the person petitioning the foreign national, in order for their relative to immigrate to the United States. The petitioner must attest that they meet the income requirement based on their household size to sponsor the foreign national. Petitioners who are unable to meet the income requirement, must obtain a joint sponsor who does meet this requirement.

Essentially, when the petitioner or joint sponsor signs the affidavit of support, he or she is entering into an enforceable contract with the U.S. government, in which they agree to use their financial resources to support the beneficiary named in the affidavit of support. Where the beneficiary seeks public benefits from a government agency, the petitioner or sponsor can be held legally responsible for repaying those costs to the government agency.

The rules and regulations governing the affidavit of support have recently come under fire during the Trump administration. The President has consistently pushed for stricter enforcement of a sponsor’s obligations, requiring government agencies to hold sponsors liable for any benefits paid out to beneficiaries of an affidavit of support.

What is the New Rule About?

On October 2, 2020 DHS announced a proposed rule that (1) clarifies how a sponsor must demonstrate that he or she has the means to maintain income (2) revises documentation that sponsors and household members must meet as evidence of their income (3) modifies when an applicant is required to submit an Affidavit from a joint sponsor and (4) updates reporting and information sharing between government agencies.

Changes to Documentation Required of Sponsors

The proposed rule updates the evidentiary requirements for sponsors submitting an Affidavit, to “better enable immigration officers and immigration judges to determine whether the sponsor has the means to maintain an annual income at or above the applicable threshold, and whether the sponsor can, in fact, provide such support to the intending immigrant and meet all support obligations during the period the Affidavit is in effect.”

Specifically, this proposed rule would require sponsors and household members who execute an Affidavit or Contract to provide Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

Receipt of Means-Tested Benefits May Disqualify Sponsor

The proposed rule also seeks to change the regulations to specify that a sponsor’s prior receipt of any means-tested public benefits and a sponsor’s failure to meet support obligations on another executed Affidavit, or household member obligations on a previously executed Affidavit of Support, will impact the determination as to whether the sponsor has the means to maintain the required income threshold to support the immigrant.

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On October 1, 2020, federal judge Jeffrey White of the U.S. Court for the Northern District of California issued a preliminary injunction that prevents the government from enforcing Presidential Proclamation 10052 issued on June 22, 2020, but only against the Plaintiffs in the lawsuit which include the National Association of Manufacturers, the United States Chamber of Commerce, the National Retail Federation, Technet, and Intrax, Inc. See National Association of Manufacturers v. Department of Homeland Security.

The plaintiffs brought the lawsuit before the court to challenge the issuance of Presidential Proclamation 10052, which suspends visa issuance for certain nonimmigrant workers until December 13, 2020, with discretion to be continued “as necessary.” Those impacted by this Proclamation include applicants who were not in the United States on June 24th or in possession of a valid visa as of that date, who seek visas in any of the following categories:

(1) H-1B or H-2B visa nonimmigrant visa applicants, and any alien accompanying or following to join such alien;

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We have important new developments to share with our readers regarding the United States Citizenship and Immigration Services (USCIS) planned increase in filing fees for certain applications and petitions, which was set to go into effect beginning October 2nd 2020.

As we previously reported on our blog, in early August USCIS published a final rule in the Federal Register entitled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” This final rule discussed the agency’s planned increase in filing fees for applications, petitions, or requests filed with USCIS postmarked on or after October 2, 2020.

*For a complete list of the planned increases and petitions affected click here.

According to USCIS, the final rule was intended to ensure that the agency would have enough resources to provide adequate services to applicants and petitioners. The agency stated that after having conducted a review of current fees, the agency determined that they could not cover the full cost of providing adjudication and naturalization services without a fee increase.

This news was not surprising to say the least. Since the emergence of the Coronavirus pandemic, USCIS has been facing an unprecedented financial crisis that has forced the agency to take drastic measures to account for its revenue shortfalls.

Federal Judge Grants Injunction Blocking Increase in Filing Fees

In a surprising turn of events, just days before the final rule was set to go into effect, several organizations filed a lawsuit against the Department of Homeland Security to stop the government from enforcing the final rule. Immigrant Legal Resource Center, et al., v. Chad F. Wolf.

On Tuesday, September 29, 2020, federal judge Jeffrey S. White of the District Court for the Northern District of California, granted the injunction temporarily preventing the government from enforcing the increase in filing fees as planned on October 2nd.

As a result of the court order, USCIS is prohibited from enforcing any part of the final rule while the lawsuit is being litigated in court. While the government is sure to appeal the court’s decision, for now applicants can continue to send their applications and petitions with the current filing fees as posted on the USCIS webpage.

In support of his ruling, judge White reasoned that the plaintiffs were likely to succeed in challenging the final rule because both the previous and current acting secretaries of the Department of Homeland Security (DHS) were unlawfully appointed to their posts and therefore were not authorized to issue the final rule. The judge also agreed that the fee hike would put low income immigrants at a severe disadvantage stating, “Plaintiffs persuasively argue that the public interest would be served by enjoining or staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, will block access to humanitarian protections, and will expose those populations to further danger.”

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Our office has been eagerly awaiting the release of the October visa bulletin which ushers in the beginning of a brand-new fiscal year. As our readers will know, a lot has been happening in the world of immigration.

Since March of 2020, U.S. Consulates and Embassies nationwide have suspended routine visa services to the public amid the Coronavirus pandemic. To make matters even more complicated, the President issued a series of Presidential Proclamations suspending the issuance of immigrant visas for most family-sponsored preference categories with limited exceptions including spouses and minor children of United States Citizens. In this post we cover the good, the bad, and the ugly of the release of the October 2020 visa bulletin.

THE BAD AND THE UGLY –

Most Family Sponsored Categories Unable to Obtain Immigrant Visas Due to Consular Closures and Presidential Proclamations

For the most part, nearly all family-sponsored categories on the visa bulletin are impacted by the Presidential Proclamations and individuals impacted cannot obtain an immigrant visa at the U.S. Consulate until the Proclamations terminate on December 31, 2020.

What Family Preference Categories are Impacted?

Presidential Proclamations 10014 and 10052 together suspend the entry of and issuance of visas for the following types of family-sponsored immigrants until December 31, 2020:

  • F2A Spouses and children of green card holders applying at the consulate
  • F-2B Unmarried sons and daughters of green card holders applying at the consulate (21 years of age or older)
  • F-3 Married sons and daughters meaning of US citizens applying at the consulate (children under 21 years old of US citizens are not affected)
  • F-4 Brothers and sisters of US citizens applying at the consulate

As you can see these categories make up the vast majority of the family-sponsored preference categories on the visa bulletin. Only very narrow categories of individuals have been specifically exempted from the Proclamations.

Those exempted include the following:

  • Spouses and children of US citizens applying at the consulate are not affected
  • Sons and daughters under 21 years old of US citizens applying at the consulate are not affected
  • Lawful Permanent Residents of the U.S.
  • Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
  • Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
  • Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
  • Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
  • Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
  • Aliens whose entry furthers important United States law enforcement objectives
  • Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
    • SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
    • SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
  • Any alien whose entry would be in the national interest of the United States (national interest waivers)
  • Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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