On July 29, 2020, the U.S. District Court for the Southern District of New York issued a nationwide temporary suspension of the application of the February 24th 2020 Public Charge Grounds Final Rule. The injunction of this rule will apply to any period during which there is a declared national health emergency due to the COVID-19 pandemic. As long as the July 29th decision is in effect, USCIS will only apply the 1999 Public Charge Guidance established before the Public Charge Grounds Final Rule.

On March 26th, 1999, “public charge” was defined by Immigration and Naturalization Services as a ground of inadmissibility for which an alien may be denied immigration. A “public charge” refers to an individual “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense.” In August 2019, DHS announced a new rule that would alter this definition of “public charge,” so that it made individuals receiving the following benefits are inadmissible for permanent residence: Supplement Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), Medicaid (with some exceptions), and certain public housing assistance. This secured self-sufficiency of permanent resident applicants, so that these individuals would not rely on American public resources. The change to the definition of “public charge” was adopted on February 24th, 2020, so that both applicants applying for permanent residents in the U.S. as well as those seeking immigration from abroad would be impacted. Until February 24th, 2020, the use of most public benefits did not have negative consequences to an immigrant’s legal status.

As long as the July 29, 2020 injunction is in place, USCIS will uphold the existing 1999 public charge guidance, rather than the Trump administration’s expanded rule. This injunction will certainly soften the process for permanent resident applicants, and will be applied throughout the COVID-19 national health emergency.

On July 29th, the U.S. District Court for the Southern District of New York concluded that the plaintiffs provided sufficient evidence to show that the February 2020 Public Charge Final Rule deterred immigrants from seeking testing and treatment for COVID-19, fearing that this would make them consequently inadmissible to the United States. This, of course, complicates efforts at stopping the coronavirus and even further aggravates the spread of the pandemic. An injunction, the plaintiffs argued, would be in the general American public’s interest.

 

This injunction applies to adjustment of status applications and to non-immigration change or extension of status. For any petition filed after July 29, 2020, the applicant or the petitioner does not need to include the Form I-944, Declaration of Self-Sufficiency. If an applicant or petitioner has already submitted this form, USCIS will not consider the information on this form regarding receipt of public benefits. Additionally, the applicant and petitioner do not need to include information on the receipt of public benefits in Part 5 on Form I-539 Application to Extend/Change Nonimmigrant status, Part 3 on Form I-539A, or Part 6 on Form I-129 Petition for a Nonimmigrant Worker.

On its website, USCIS has announced that it will issue guidance regarding the use of affected forms.

USCIS has been delaying the printing of green cards and employment authorization documents that the organization has already promised to individuals. This accompanies a wave of green card and work permit delays related to the U.S.’s response in immigration policy during the COVID-19 pandemic.

It is important to note that USCIS is currently still open, processing applications and accepting new ones. Typically, if USCIS approves a new application, the organization will issue an approval notice and will mail a green card or employment authorization document to the applicant. Historically, USCIS has outsourced the printing of these documents to a third-party company. In June, however, USCIS’s contract with the third-party company expired. Rather than renewing this contract, USCIS decided to handle the printing of these documents internally. Due to USCIS’s current budget crisis, however, the organization has not hired workers to handle this insourced printing, which contributes to the current delay in these documents’ issuance, printing, and delivery.

At the moment, there are 50,000 green cards and 75,000 employment authorization documents that have been promised to immigrants and that have yet to be printed, USCIS disclosed in a statement. Many of these missing green cards are for immigrants who are newly approved for legal permanent residency, although others are for existing permanent residents who are attempting to renew their identity cards. These are essential for lawful permanent residents to have, as these documents demonstrate proof of status in the U.S., which is needed when applying for a job. Without such documents, individuals in the U.S. can face fines or prison sentences.

Overall, green card and work permit issuances are dependent upon the capabilities of the U.S. Citizenship and Immigration Services. Since the COVID-19 pandemic, USCIS has seen a major decrease in immigration application filings. Now, USCIS finds itself in a budget crisis because of the steep decline in applications. USCIS seeks a $1.2 billion bailout from the U.S. Congress, proposing a 10% visa fee surcharge in efforts to repay the loan. If Congress cannot provide these funds before the 3rd of August, USCIS will have to furlough over 13,000 staff members. As a consequence, this will only further delay H-1B processing, green card renewals, and work permits.

These delays come after President Trump’s June 22nd Executive Order, which temporarily suspended the entry of many foreign workers into the United States, pausing the overall issuance of H-1B visas (used by tech companies), H-2B visas (for seasonal employees), J-1 visas (for cultural exchanges), and L-1 visas (for corporate executives). While this excludes hundreds of thousands of individuals from obtaining employment and from uniting with their family members in the United States, the executive order does not impact the status of individuals already in the United States and who have already been promised these green cards or work permits.

The June proclamation heavily restricts immigration, justified by the rationale of strengthening the American economy through American job retention. However, multinational corporations continue to face shortages of skilled professionals in the U.S., according to Yasmin Mirreh in a Bloomberg News article.

The consequential delays that accompany this executive order are frustrating. In many countries, consulates have been closed or are operating during limited hours. Furthermore, once these offices do reopen, priority will likely be given to appointments that were canceled due to the coronavirus pandemic. This puts new applicants waiting for many more months (and possibly years, depending upon the circumstances). In a report last week, the USCIS announced that about 583,420 H-1B visa holders working in the U.S. are stuck in decades-long green card waiting lines due to per country caps.

As immigration policy continues to intersect with the COVID-19 pandemic, USCIS’s budget shortfall, and President Trump’s new executive orders, we are left wondering how – and when – individuals who have been promised green cards or work permits will obtain these documents.

On the 21st of July 2020, President Donald Trump signed a presidential memorandum that would exclude undocumented immigrants from being counted in congressional districts. This comes with the purpose of redrawing congressional districts, as unauthorized immigrants living in the United States will be excluded from census population counts. The White House justified these changes by claiming that by law, the president can determine who is counted in the census.

Today, states draw congressional districts and determine the areas that each elected official represents. This is based on aspects like a state’s total population and its population of unauthorized immigrants. After the 2020 census comes in, current maps will be redrawn across the nation – thus far 62% of the country has responded to the census. This reconfiguration will impact who will win elections, which communities will be represented in Congress, and what laws will ultimately be approved. Trump’s goal appears to be to reduce the counts of unauthorized immigrants in Democrat-ruled cities in order to undermine their political voice relative to Republic-ruled spaces. This will also certainly have an impact on Republican-led states like Texas, where there is a significant immigrant population.

Additionally, this memorandum will discourage immigrants from responding to the census if they have yet to do so. For months, community organizations and immigrant advocacy groups in the U.S. have pushed immigrants to participate in the census, regardless of status. Because census counts often determine federal funding, immigrant-majority communities will consequently be most negatively hurt, as they will lose funding for schools, infrastructure, and other community projects if they do not complete the census.

Note that the Constitution says congressional representation is allocated based on “the whole Number of free persons,” and not the number of American citizens.

As Nicole Narea writes in Vox News, Trump has politicized the U.S. Census in previous years. In June 2019, Trump fought to put a question regarding citizenship status on the 2020 census, although he lost his bid at the Supreme Court.

This marks the Administration’s latest effort to advance Trump’s immigration agenda, altering the ways in which U.S. populations are counted and supported. Blocking unauthorized immigrants from census counts will minimize these groups’ political weight. This executive order comes during a wave of other orders issued by the president that have restricted immigration.

Many actors plan on challenging the memorandum, including the American Civil Liberties Union. Dale Ho, director of the ACLU’s Voting Rights Project, announced in a statement, “[Trump’s] latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”

Immigration Lawyer Portland

On July 17th, a federal judge ruled that the Trump administration must accept new applications for DACA, a program started by former President Obama to protect undocumented immigrants who came to the U.S. as children. A month ago, the Trump administration attempted to completely end the DACA program, but this order was blocked by the U.S. Supreme Court on the basis that the administration did not provide sufficient justification for ending the DACA program.

The DACA program applies to undocumented immigrants who were younger than 16 years old when they came to the country and who were 30 years old or younger as of June 2012. Under the program, immigrants would receive a renewable, two-year work permit. USCIS has been renewing the DACA status for about 650,000 immigrants, but rejecting all new applicants since Trump took office.

In his 4-page order, U.S. District Court Judge Paul Grimm announced that the DACA program will return to its “pre-September 5, 2017 status,” which refers to the pre-Trump era when any eligible immigrant had the opportunity to apply to the program.

Judge Paul Grimm wrote, “Defendants [including the Department of Homeland Security] and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA.”

It is uncertain whether many will apply for the DACA program, as this requires releasing identifying information to officials who are serving an administration that has been increasingly hostile towards immigrants. Immigration and Customs Enforcement (ICE) of the Department of Homeland and Security (DHS) is currently reviewing the ruling. Amidst uncertainty, president and CEO of the National Immigration Forum, Ali Noorani, noted: “Ignoring this decision puts the administration directly at odds with the rule of law, and leaves DREAMers steeped in even more uncertainty about their futures.”

From the Supreme Court down, the courts have supported the decision for the DACA program to remain and to open for new applicants. The decision to restore DACA to a pre-Trump era will allow around 300,000 young and eligible immigrants to apply.

On the 10th of July 2020, President Trump announced that he would work to transform U.S. immigration policy, noting that an executive order will be released in the next four weeks to create a merit-based immigration system. This transformation will shift U.S. immigration policy to a structure in which an alien applicant’s skills are the central factor analyzed when determining whether he or she may immigrate to the United States. Skills include things like education level, financial ability, and fluency in English, but no specific list of criteria have been released thus far by the White House. The proposed system will replace family-based immigration, which the U.S. has had for decades to unite alien individuals with their spouses and other family members on U.S. soil.

In recent interviews, President Trump described a sort of point scheme that would be utilized in this new merit-based system, in which an immigrant applicant accumulates points based on their specific circumstances (for instance, an alien will earn points if he or she has a job offer in the U.S.). This point-based evaluation method will determine if an alien may immigrate and when an alien may immigrate. The White House released a statement noting that establishing this system would further protect U.S. workers. This points-based immigration system already exists in Canada and Australia.

Certainly, such a system will consequently favor privileged alien individuals who have wealthy backgrounds and high levels of education over marginalized individuals attempting to flee poverty. The ethics of this can be debated.

During his interview with Telemundo, Trump announced that a provision concerning DACA will also be included in the upcoming executive order, although the president’s statement was unclear. During the interview, Trump said that the executive order would include a “road to citizenship” for DACA individuals. Immediately after the president’s interview, however, a White House spokesman issued a statement that the order would not be related to DACA. The Trump administration has tried to rescind DACA numerous times, which many business leaders recently warned would negatively affect the economy and disrupt the battle against the coronavirus pandemic.

Over the past few weeks, the Trump administration has issued many executive orders that impact international students on F-1 visas, asylum seekers, and almost all green card applicants. Transforming the current U.S. family-based immigration system to a merit-based one plays into this narrative of restriction.

On July 6th, 2020, the Student and Exchange Visitor Program (SEVP) announced modifications to temporary exceptions for nonimmigrant students taking online classes due to the COVID-19 pandemic for the fall term of 2020. The SEVP, which sets all student visa regulations for student visas, is run by Immigrations and Customs Enforcement (ICE).

This spring and summer 2020, the SEVP allowed foreign students to take their courses online while remaining in the United States. Now, the U.S. The Department of State will not issue visas to students enrolled in schools or programs that are fully online for the fall semester. Additionally, the Customs and Border Protection will not allow such students to enter the country if they are abroad. International students on F-1 and M-1 visas residing in the U.S. whose schools are planning on using online platforms for classes this fall 2020 must leave the country or take other measures, such as transferring to another institution with in-person options. If international students do not do so, they risk violating their visa status and may be removed from the country.

In its announcement on the ICE website, SEVP noted that foreign students who do not transfer to in-person programs and who remain in the U.S. while enrolled in online courses would face “immigration consequences including, but not limited to, the initiation of removal proceedings.”

Students taking in-person classes with F-1 nonimmigrant visas may remain in the country, but continue to be bound by existing federal regulations. Eligible F students may only take one class or three credit hours online.

Nonimmigrant F-1 students attending schools with a hybrid model (a mixture of online and in-person classes) can take more than one class or three credit hours. Such students must have valid certification from their universities that their programs are not entirely online. Such institutions must certify to SEVP with Form I-20 “Certificate of Eligibility for Nonimmigrant Student Status” to prove that their program is not entirely online, that the student is not taking an entirely online course load during the fall semester of 2020, and that the student is taking the minimum number of online courses required for their degree program.

Finally, students in English language courses and nonimmigrant M-1 visa students with vocational degrees may not take online courses.

If an international student begins his or her fall semester with in-person classes but is later required to switch to online classes (which could happen if the university’s policy changes due to changes in the COVID-19 pandemic), he or she must update their information in the Student and Exchange Visitor Information System (SEVIS) within 10 days of the change. Likewise, if the student changes his or her course selections so that all courses are taken online, this change must be noted in the SEVIS as well.

Note that the Department of Homeland Security (DHS) will publish procedures and responsibilities in the Federal Register as a Temporary Final Rule.

This change will result in the U.S. losing many thousands of students because of this regulation, which will negatively impact international perception of the United States. Today, the U.S. has over a million international students studying at universities and vocational institutions. Many educational institutions have already announced that they will adopt a fully-online program for the upcoming fall 2020 semester to support containment of the pandemic.

This new change comes during an unpredictable time during which the Trump Administration has already expanded restrictions on immigration, citing the pandemic as a valid justification. Like previous visa bans, this new restriction will lead to USCIS suffering financially, as fewer visa application fees will be deposited into the institution’s hands.

It is very likely that talented international students who are forced to leave will feel resentful towards the U.S., lessening the chance of them returning as a student, as a visitor, or as an employee in the future. This will hurt American industry innovation and productivity, since foreign workers have always added a profound richness to this country.

Last Tuesday, United States District Judge Timothy J. Kelly overturned the Third-Country Asylum Rule, one of the Trump Administration’s most severe asylum policies, ruling it illegal. Kelly, who was appointed to the court in 2017 by President Trump, claimed that the Third-Country Asylum Rule was “unlawfully promulgated” because it did not give a public notice or provide time for public comment, bypassing the Administrative Procedure Act (APA). Furthermore, the Administration failed to show how such a quick implementation was in the public interest.

The Third-Country Asylum Rule was issued in July 2019 so that aliens who sought asylum in the U.S. would have to apply for asylum in at least one country of transit on their way to the U.S. southwestern border. This policy has effectively barred many Central American migrants from obtaining asylum in the United States, forcing them to first seek asylum from Mexico.

In his 52-page opinion, Kelly argued that the Administration based this Third-Country Asylum Rule almost entirely on a single October 2018 newspaper article that insinuated that the proportion of asylum seekers with children increased after the Administration ended a policy of separating immigrant families at the U.S.-Mexico border. Kelly critiqued the Administration for not having complied with the APA’s notice-and-comment requirements after first issuing this rule, explaining that the broader a rule’s reach, the greater the necessity for public comment. He added that, “with these baseline principles in mind, the Court considers whether either the good cause or foreign affairs function exception applies here.

Note that while the decision will overturn the Third-Country Asylum Rule, this will likely not lead to an extreme increase in asylum claims because the Trump Administration has issued other policies that make immigration less accessible to aliens, including asylum seekers, that cite the COVID-19 pandemic and emergency health protections as justifications to restrict human movement that consequently prevent individuals from seeking protection. However, by striking down this rule, Judge Kelly reaffirms two fundamental principles, explains Claudia Cubas, the Litigation Director at CAIR Coalition, one of the plaintiffs in the lawsuit. Cubas added, “the protection of asylum seekers fleeing for a safety is intertwined with our national values and that the United States is a country where the rule of law cannot be tossed aside for political whims.”

Our Portland Immigration Lawyers in Portland, Oregon are providing you constant updates on how recent immigration changes may affect your immigration law case at USCIS located here in Portland, Oregon.

Recently, the Trump Administrations suspended the approval of green card requests to immigrants abroad seeking residency in the United States. Last week, this administration temporarily halted the process of requests from green card applicants already living in the country. The agency argues that this hold on processing green card applications is due to the suspension of in-person services caused by precautions taken during the coronavirus pandemic. Its current priority, USCIS claims, is to resume naturalization ceremonies.   

A senior USCIS officer told CQ Roll Call that some field adjudicators stopped processing green card applications from noncitizens residing in the U.S. back in April. While there may still be a larger hold on I-845 adjustment of status cases, there remain certain exemptions that have been released through internal communication within the USCIS network. Such exemptions that allow for cases to continue include

1) Case already distributed to adjudicator (for instance, if your interview was rescheduled due to COVID)

2) Continuations

3) Case related to a medical provider 

4) National Benefits Center work on adjustments 

5) Older, pending cases 

6) Liberian Refugee Immigration Fairness (LRIF) I-485s

7) Identified national security concerns  

8) Fraud Detection and National Security Directorate cases 

9) ELIS beta cases 
10) Age outs

11) DV cases 

12) Mandamus and other litigation cases

13) Detailed immigrants 

14) Military families

The USCIS also will allow immigration officers to submit applications that concern an “emergent or sensitive matter” outside these exemptions to their supervisors for consideration. 

While most federal agencies receive funding from Congress, USCIS receives most of its funding from immigration application fees. Since March, when USCIS temporarily suspended in-person services due to the COVID-19 pandemic, echoed by an overall decrease of human movement because of restricted international travel, USCIS has received an extremely low volume of immigration petitions and fees.   

As USCIS has experienced falling petition rates over the last two years, increased funding has been dedicated to vetting and enforcement by the Trump Administration. This shift reflects the administration’s immigration goals, which definitely have an unsustainable impact on USCIS’ finances. As the processing of green cards is being halted, we can predict that such restricted immigration will further constrain USCIS’ financial sustainability. While USCIS had a $790 million cash carryover at the end of fiscal 2017, it now faces a $1.5 billion deficit. 

End-of-Year Immigration Examinations Fee Account Carryover Balances, FY 2008-20

Source: Migration Policy Institute

Recently, USCIS urged Congress to provide $1.2 billion to address its severe budget shortfall. It is very likely that without this emergency infusion, USCIS will have to furlough up to 15,000 of its 18,700 employees. Such a measure will likely further slow down visa and green card processing in the near future. The agency claims that it will be able to pay back this requested $1.2 billion by imposing a 10 percent surcharge to USCIS application fees. This is important to note, because such a surcharge may act as a deterrent to future immigrants. 

Last November, USCIS proposed fee increases; for instance, this includes an 83 percent increase in naturalization application fees from $640 to $1,170. As immigration continues to be restricted through expanding proclamations, such proposed fee increases are likely to occur in order for USCIS to continue running. Retroactively, this would likely decrease the types of foreign nationals who are capable of affording this steep increase. 

 

Since the Trump Administration published new proclamations restricting certain immigrants from entering the U.S. on April 22nd, further proclamations have been expected to be added to restrict the entry of nonimmigrant visa holders. On June 5th, 2020, the Whitehouse, the Department of Labor, and the Department of Homeland Security have agreed to some changes that will restrict merit-based immigration into the United States. Thus far, no final version of the order has been published (only a draft of the order has been leaked). The final details of the ban will likely be announced on June 15th.

This new visa ban will impede the entry of nonimmigrants with temporary visas, particularly visas of categories J-1 (temporary work visa for students and trainees), L-1 (visa for high-level executives transferring to the U.S.), H-2B (temporary nonagricultural work visa used by many in the food processing industry), and H-1B (most common high-skill work visa). It is likely that the ban will also obstruct the initial obtainment of these visas by nonimmigrants, and that other temporary visas will also be impacted.

The Trump Administration also reported that it would target the Optional Practical Training (OPT) program, which offers recent graduates of U.S. institutions the opportunity to work in the U.S. for a short period of time (typically one year for students, or three years for STEM students) after graduating. This new restriction would only allow for students graduating at the top 5%-15% of their classes to have this opportunity.

A very devastating change created by this ban would be to include a new additional $20,000 filing fee for H-1B visas that would be added to the pre-existing filing fee. This would automatically deter many employers from staffing their agencies with foreign national workers. However, note that this change has not yet been made, and it is doubtful that this is even legally permissible.

These new visa ban efforts, drafted by Jared Kudlow and Jared Kushner, seem to be a continuation of President Trump’s executive order in April that limited the issuance of green cards to foreign nationals abroad on the basis that this was a crucial step to protect American jobs during the economic crisis catalyzed by the coronavirus pandemic. Many experts doubt the validity of this justification.

Additionally, the U.S. nonimmigrant visa ban will likely last between 90 to 180 days, but there are certain exemptions related to the coronavirus pandemic that will permit an alien to enter the United States. Such exemptions will be made for aliens who are healthcare professionals, food supply workers, or medical researchers working in fields related to COVID-19. However, these exemptions are only valid if American employees have enacted additional recruitment efforts to hire American workers to fill these positions.

It is also important to note that a 120-day ban will likely apply after October 1st, 2020, which is when the H-1B cap-based petitions of the autumn will be approved. The implications of this are that even if companies have passed the lottery and submitted successful H-1B petitions after October 1st, their workers may still be prevented from entering the U.S. under this ban.

Many actors, such as the U.S. Chamber of Commerce’s CEO Thomas Donohue, have written letters to President Trump or spoken publicly against such a new visa ban, warning against the negative economic effects. Overall, if this ban is implemented completely, the implied changes will impact the 5% of the American workforce that rely on nonimmigrant visas, along with the companies that hire these nonimmigrants. It has been recommended by some experts that if you are currently outside the U.S. and have a valid H-1B/H-4 or an L-1 or L-2 visa, you should consider returning to the U.S. as soon as possible.

Before the end of June 2020, the U.S. Supreme Court is expected to deliver a ruling about the future of DACA. This ruling will have deep impacts for the 649,070 immigrants with DACA status across the country. It is suspected that the Supreme Court will favor the Trump Administration and rule to terminate the DACA program.

The Deferred Action for Childhood Arrivals program was created by President Obama in 2012 after considerable pressure from immigrant rights advocates. Since its conception, DACA was not intended to be a permanent solution, but rather, a “temporary stopgap measure,” as President Obama explained. The program helped individuals who were brought to the United States before the age of 16 and who were younger than 31 years of age as of June 15, 2012 (the date the program was announced). Individuals with DACA status have a two-year deferment from deportation, a Social security number, and the right to work legally in the U.S. This status is renewable every two years.

On September 5th, 2017, the Trump Administration announced that DACA would begin phasing out, pushing for Congress to establish a replacement program. Since 2017, immigrants have been unable to apply for DACA and can only renew if they are already recipients. There are concerns that immigrants with DACA status will be unable to renew their statuses after June.

Even if the Supreme Court rules to terminate or pause DACA this June 2020, President Trump still has the authority to allow individuals with DACA status to continue receiving DACA benefits. It is possible that the President may allow for renewals to continue, even after June 2020, until a new permanent solution is established.

A recommendation to individuals with DACA status is to try renewing DACA statuses before the end of June, in case the ruling does establish termination. DACA renewals received earlier than 150 days and up to 365 days in advance may be accepted. At the end of March 2020, 23,020 DACA recipients with April, May, and June expirations were reported to have yet to apply for renewals of their protections. If DACA recipients lose their ability to renew protections, about 1 in 5 individuals with DACA statuses in the U.S. will lose their protections by November 2020.

The COVID-19 pandemic is a unique period of time, and a termination of DACA will have deep impacts on the U.S.’s management of the pandemic. Today, more than 200,000 DACA recipients are considered to be essential workers, including 28,200 nurses, personal care aides, and medical assistants, according to the Center for American Progress. Can the U.S. afford to lose this medical support during this pandemic?

On a positive note, immigrant-rights advocates continue to push for a permanent solution in Congress that will benefit noncitizens. The HR-6 Act, the American Dream and Promise Act of 2019, would offer 2.5 million immigrants eligibility for protections and a pathway to citizenship. This is a bill that was passed by the House of Representatives, but has not yet been heard by the Senate. Perhaps, if DACA is paused or terminated, the HR-6 Act will gain more momentum.