Ever since the election, the most common question I get during consultations is "How is Immigration Policy going to change under Trump?"
The good news is that the American Immigration Lawyer's Association (AILA) just hosted a roundtable discussing these anticipated changes, focusing on family immigration. And for the bad news: the changes are going to make most filings more difficult. Here's how... Anticipated Changes in Immigration Practices Include:
Increased Restrictions: Anticipation of stricter scrutiny on applications for immigration benefits, reductions in interview waivers, and heightened document fraud investigations.
Discretionary Decisions: Greater use of discretion in denying applications, even for minor technicalities.
Processing Delays: Longer wait times for adjudications, more in-depth reviews, additional interviews, and possible denials without RFEs or NOIDs.
Policy Rollbacks: Changes in policies supporting applicants, such as Child Status Protection Act protections, BIA case precedents, and provisional waivers.
Revival of Prior Policy Memos: Return to policies from the prior Trump Administration, including the RFE/NOID memo that allowed for officers to exercise discretion and deny applications without an RFE or NOID, and revival of the Prosecutorial Discretion policies (or lack thereof) which will roll back current PD memos. This may also affect an Immigration Judge’s ability to administratively close or terminate removal proceedings for purposes of the I-601A.
Specific Areas of Concern:
Deferred Action: Proactive steps advised for DACA renewals, U visa applicants, and special immigrant juvenile status (SIJS) cases to protect clients before policy changes.
Public Charge Rules: Likely re-emergence of stricter public charge standards requiring thorough preparation of affidavits of support and sponsor documentation.
Consular Processing Risks: Increased scrutiny at consulates, particularly in cases involving provisional waivers, with the potential for revocation of benefits due to additional inadmissibility findings.
USCIS has just released the following announcement. Applications are currently being accepted for "Keeping Families Together".
WASHINGTON—The Department of Homeland Security today announced a Federal Register notice to implement Keeping Families Together, a process for certain noncitizen spouses and stepchildren of U.S. citizens. This is part of an effort to promote the unity and stability of families, increase the economic prosperity of American communities, strengthen diplomatic relationships with partner countries in the region, reduce strain on limited U.S. government resources, and further national security, public safety, and border security objectives.“
Too often, noncitizen spouses of U.S. citizens – many of them mothers and fathers – live with uncertainty due to undue barriers in our immigration system.” said Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services. “This process to keep U.S. families together will remove these undue barriers for those who would otherwise qualify to live and work lawfully in the U.S., while also creating greater efficiencies in the immigration system, conducting effective screening and vetting, and focusing on noncitizens who contribute to and have longstanding connections within American communities across the country.”
On June 18, DHS provided the following information:
DHS will establish a new process to consider, on a case-by-case basis, requests for certain noncitizen spouses of U.S. citizens:
- who have lived in the United States for 10 years or more.
- do not pose a threat to public safety or national security.
- are otherwise eligible to apply for adjustment of status.
- and merit a favorable exercise of discretion.
If eligible, these noncitizens will be able to apply for lawful permanent residence without leaving the United States.
DHS estimates that approximately 500,000 noncitizen spouses of U.S. citizens could be eligible to access this process; on average, these noncitizens have resided in the United States for 23 years. Approximately 50,000 children of these spouses also will be eligible for this process.
Note that noncitizens who pose a threat to national security or public safety will not be eligible for this process. If a noncitizen poses a threat to national security or public safety, DHS will detain, remove, or refer them to other federal agencies for further vetting, investigation, or prosecution as appropriate.
Eligibility and Process
To be considered on a case-by-case basis for this process, an individual must:
- Be present in the United States without admission or parole;
- Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
- Have a legally valid marriage to a U.S. citizen as of June 17, 2024.
In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.
Noncitizen children of potential requestors may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024.
Upon receipt of a properly filed parole-in-place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has strong processes in place to identify and address potential fraud, which will be applied here to ensure the integrity of this program.
A Federal Register notice will be published that outlines the specific steps to be considered under this program. To be considered, an individual must file a form with USCIS along with supporting documentation to show they meet the requirements and pay a fee.
Further information regarding eligibility and the application process, including a notice in the Federal Register, will be published soon. USCIS will reject any filings or individual requests received before the application period begins later this summer.
AILA (American Immigration Lawyers Association) has alerted members that the USCIS Final Fee Rule could be published as a final rule within the next few weeks.
The White House's Office of Information and Regulatory Affairs (OIRA) received the final rule containing the new fees on Monday, January 8, 2024. Although OIRA typically has up to 90 days to complete its review, the Administration may prioritize finalizing this rule as it has been eight years since the last fee increase. USCIS has previously stated that a significant increase in immigration fees is necessary to more fully recover operating costs and better manage its workload. Based on past fee rules, once it is published in the Federal Register, it will likely take effect at least 60 days later.
American Immigration Lawyers Association (AILA) has posted an ALERT to all of its members warning that USCIS could issue a new fee hike very soon. The alert states as follows:
"AILA alerts members that the USCIS Final Fee Rule could be published as a final rule within the next few weeks. The White House's Office of Information and Regulatory Affairs (OIRA) received the final rule containing the new fees on Monday, January 8, 2024. Although OIRA typically has up to 90 days to complete its review, the Administration may prioritize finalizing this rule as it has been eight years since the last fee increase. USCIS has previously stated that a significant increase in immigration fees is necessary to more fully recover operating costs and better manage its workload. Based on past fee rules, once it is published in the Federal Register, it will likely take effect at least 60 days later.
The H-1B Masters Cap has been reached! Yesterday, USCIS officially notified the H-1B community that a sufficient number of H-1B Masters Cap petitions have been submitted to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 Advanced Degree Cap.
Petitioners who had registered their potential employees for the H-1B lottery will begin to receive non-selection notices through their online accounts over the next few days.
In yesterday's communication, USCIS explained that the online status for properly submitted registrations that were not selected will who one of the following:
Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the United States;
Change the terms of employment for current H-1B workers;
Allow current H-1B workers to change employers; and
Allow current H-1B workers to work concurrently in additional H-1B positions.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. H1B petitioners are strongly urged to subscribe to the USCIS H-1B cap season email updates by visiting the H-1B Cap Season webpage on the official USCIS website.
PITTSBURGH — This city jumped into action multiple times recently amid rumors that buses of migrants would be arriving here from the U.S.-Mexico border. The emergency operations center and Red Cross were activated, temporary camps for men and women and children were identified, and interpreters from throughout Southwestern Pennsylvania were put on standby.
The buses never arrived, a setback for Pittsburgh-area leaders who are out to prove that just about anyone is welcome in their neighborhoods.
“We are not here to reject any immigration. As a matter of fact, we want to make this the most safe, welcoming, thriving place in America, and you can’t do that without immigration,” Pittsburgh Mayor Ed Gainey (D) said in an interview, adding that he does not make distinctions on the basis of someone’s immigration status or how the person entered the country. “Why wouldn’t we want them?”
The reaction of Gainey, and of many other residents in these hilly, ethnically distinct neighborhoods built by the nation’s initial waves of immigrants, contrasts sharply with the stance being taken by leaders in New York and other East Coast cities as the rift over where, how quickly and at whose cost tens of thousands of migrants should resettle in the United States.
Immigration Lawyers need to be prepared for the inevitability of a USCIS delay so that when the issue arises, there is a plan of action in place. While the large majority of lawyer-filed cases are approved within expected timeframes, USCIS delays do happen and any delay is a delay too many.
The American Immigration Lawyer's Association (AILA) has just released an information sheet addressing these delays, the primary audience being those who have filed without lawyer assistance and find themselves waiting months and months with no work from Immigration.
As always, my clients can reach out to me anytime for a case checkin, and if the case is outside of normal processing time, or if there is an emergency, I will always request an expedite. Once a case is over 30 days beyond the expected case processing time, it is appropriate to call USCIS for an expedite request, and to aggressively stay on top of the requests every 30 days. If I find there is no response after 2 requests, we can get creative with an alternate expedite strategy to encourage the USCIS Officer along, which we discuss on a case by case basis if the situation arises.
U.S. Citizenship and Immigration Services has finally launched a new online form for individuals and their attorneys to request an in-person appointment at their local field office without having to call the USCIS Contact Center.
This online appointment request form allows individuals or their legal representatives to request an in-person appointment at a local Field Office only for:
ADIT stamps (proof of permanent residence status),
Emergency Advance Parole (emergency travel document for example if you have a green card pending),
Immigration Judge Grants,
and other categories related to asylum.
USCIS warns that this is not a self-scheduling tool for appointments across the board; individuals cannot schedule their own appointments with USCIS. For example, this tool cannot be used to checkin on a case that is taking too long, or to request an interview for the final adjudication of a pending case.
U.S. Citizenship and Immigration Services today released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:
The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
The principal applicant has not filed an adjustment of status application;An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
The applicant and their dependents provide biometrics as required;
The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; andUSCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The guidance covers compelling circumstances for principal applicants and their dependents and provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.
The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances. For example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has lived in the United States for a significant amount of time, could submit evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a potential finding of compelling circumstances. Compelling circumstances could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.
On March 16, 2023, USCIS announced a new procedure to obtain ADIT stamps, which constitute temporary evidence of permanent residence, typically issued while Form I-90, I-751, or N-400 applications are pending. This new procedure is due to USCIS delays in processing these applications. Please see Practice Pointer: When Is It Necessary to Request an ADIT Stamp? for an explanation of ADIT stamps and when they are needed.
Under the prior procedure, residents were required to call the USCIS Contact Center, request an InfoPass appointment, wait for that appointment to be scheduled, and then attend the appointment at the local USCIS Field Office to obtain the ADIT stamp in their passport. Due to delays at the Contact Center and limited InfoPass appointment availability, many residents were not able to get ADIT stamps in a timely manner.
Under the new procedure, USCIS will mail temporary evidence of permanent residence to those who request it. In order to make a request, residents must follow these steps:
In our communities, ICE often encounters people who are parents of minor children or who may be the legal guardians of a child or an incapacitated adult. Last summer, the Biden administration released a “policy directive” or instructions for ICE officers on how to handle these situations. The instructions include things ICE officers must do when they arrest a parent or legal guardian. Many of these instructions are about who will take care of minor children or incapacitated adults if ICE separates them from their parents or legal guardians. The
instructions put the responsibility on ICE to make sure that they do not abuse the “fundamental interests” (i.e., rights) of parents, legal guardians, and their minor child(ren) or incapacitated
H-1B season is upon us! If you have an employee you would like to sponsor, now is the time to start planning. For your convenience, we are distributing the below fact sheet through AILA. Please reach out for any questions via "Schedule a Consultation."
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.
The new Green Card and EAD designs contain state-of-the-art technology that continue to safeguard national security and improve service for our customers. Changes include:
- improved detailed artwork;
- tactile printing that is better integrated with the artwork;
- enhanced optically variable ink;
- highly secure holographic images on the front and back of the cards;
- a layer-reveal feature with a partial window on the back photo box; and
- data fields displayed in different places than on previous versions.
Washington, DC – The American Immigration Lawyers Association (AILA) responded to the announcement from President Biden today expanding Title 42 and humanitarian parole programs for migrants from Nicaragua, Cuba, and Haiti. The program is modeled after the Venezuela Parole Program announced in October and provides a legal pathway for some migrants from these three countries, provided they fulfill the program’s requirements, including having a U.S. sponsor. However, the announcement includes several measures that severely restrict asylum access including expansion of the Title 42 ban on asylum seekers from these countries at the border and a new version of the third-country transit ban on asylum seekers will be forthcoming in a proposed rule.
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