What's New in the World of Immigration?

06/30/2020 - Summary of June 22 Presidential Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak

AILA and the American Immigration Council provide a summary of Presidential Proclamation 10052 suspending entry of certain nonimmigrants that took effect on June 24, 2020, at 12:01 am (ET) until at least December 31, 2020, as well as the amendment made to the proclamation on June 30, 2020.

AUTHORITY:

Immigration and Nationality Act sections 212(f) and 215(a) and 3 U.S.C. section 301

EFFECTIVE DATE:

The Proclamation takes effect on June 24, 2020 at 12:01 AM ET. It will remain in effect through December 31, 2020 and may be continued or modified as necessary.

BACKGROUND:

On June 20, 2020, President Trump issued Presidential Proclamation 10052, which suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

• H-1B visa and any foreign national accompanying or following to join them;

• H-2B visa and any foreign national accompanying or following to join them;

• J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and

• L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they:

• Are outside the United States on the effective date of the Proclamation;

• Do not have a nonimmigrant visa in one of the categories that is now suspended on which they are seeking entry1, that is valid on the effective date of the Proclamation; and

• Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.

EXEMPTIONS:

The Proclamation will not apply to the following individuals:

• lawful permanent residents;

• spouse or child of a U.S. citizen;

• any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;

• any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;

• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

• are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;

• are necessary to facilitate the immediate and continued economic recovery of the United States; or

• are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

DISCRETION:

The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

ASYLUM SEEKERS

Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

FRAUD:

Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

ADDITIONAL REVIEW:

Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 PREVENTION:

The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

06/19/2020 - DACA Upheld! What does this mean?

Impact of the Supreme Court Decision Blocking DACA Rescission

AILA Doc. No. 18011035 | Dated June 19, 2020

On June 18, 2020, the U.S. Supreme Court ruled that DHS’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act. This practice alert explains the immediate impact of that decision and thoughts about the next steps as we look ahead to the 2020 election.

BACKGROUND

On September 5, 2017, the Trump Administration rescinded the DACA program in a memorandum issued by then-acting Secretary Elaine Duke. Following the rescission, multiple lawsuits were filed challenging the termination, and several courts issued injunctive orders directing the government to partially maintain the DACA program. For more information on these legal challenges and a thorough discussion of DACA application processing under the court orders, see our previous practice, Filing DACA Applications in the Wake of Federal Court Rulings and our litigation tracking page, Documents Related to DHS v. Regents of the University of California. On June 28, 2019, the Supreme Court consolidated and granted certiorari in several of these cases. It heard oral argument on November 12, 2019.

On June 18, 2020 the Supreme Court blocked the government’s attempt to terminate DACA and remanded the case for further consideration. The 5 to 4 majority opinion issued by Chief Justice John G. Roberts, Jr., ruled, as a threshold matter, that the Court had jurisdiction to review DHS’s final decision to rescind DACA under the APA. Turning to the merits, the majority ruled that DHS’s rescission violated the APA as an arbitrary and capricious final agency action because the agency failed to consider “important aspects of the problem before the agency.” Specifically, the Court concluded that DHS failed to consider whether to continue only the deferred action part of the DACA program and that “omission alone renders [the decision] arbitrary and capricious.” In addition, the Court found that DHS failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.

Importantly, Justice Roberts noted that the parties agreed that DHS may rescind DACA and emphasized that the court is not deciding whether DACA or its rescission are “sound policies.” Ultimately, the Court rested its decision on well-settled principles rooted in government accountability as codified in the APA: the agency failed to provide a reasoned explanation for its action. Accordingly, the Court remanded the cases for DHS to “consider the problem anew.”

IMPACT OF THE SUPREME COURT DECISION ON DACA FILINGS

Under the SCOTUS decision, USCIS must continue to process the following types of DACA requests (as outlined USCIS guidance in place prior to the Supreme Court ruling):

- People Who Currently Have DACA: Current DACA recipients can file a renewal DACA request.

- People Whose DACA Expired One Year Ago or Less: Recipients whose previous DACA expired one year ago or less may still file a renewal DACA request.

- People Whose DACA Expired More Than One Year Ago: Recipients whose previous DACA expired more than one year ago cannot file a renewal DACA request but may file an initial DACA request.

- People Whose DACA Was Terminated: DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal but may file an initial DACA request. In order to comply with the Court’s order, USCIS will have to publish guidance on processing the following applications that were suspended under prior court orders:

- People Who Have Not Previously Been Granted DACA: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. As a result, USCIS should immediately publish guidance on processing new, initial DACA applications.

- Advance Parole Requests: The Court’s June 18, 2020 decision requires DHS to maintain the DACA program unless and until DHS follows correct procedure to terminate it. Because advance parole based on DACA was a part of the 2012 DACA program, USCIS should immediately publish guidance on processing advance parole applications filed by DACA recipients.

Practitioners and their clients may want to consider several factors when deciding whether to submit a new, initial DACA application before guidance is issued, including: 1) the possibility that the administration may issue a new memorandum rescinding DACA before the applicant receives a decision; 2) that – in the absence of guidance – USCIS officers will reject new, initial applications or accept them and deny them; and 3) that USCIS is experiencing significant delays in processing as well as a budget shortfall that may further delay adjudications. Given uncertainty surrounding DHS plans, and also given the state of travel during the COVID-19 pandemic, AILA does not recommend practitioners encourage their clients with DACA to apply for advance parole until DHS weighs in on the issue.

WHAT'S NEXT?

While the Supreme Court’s decision is an incredible victory, DHS still has authority over the DACA program as well as the fate of the DACA recipients. For now, DHS must continue the program and continue processing DACA applications, but it remains to be seen how it will comply with the Court’s order. The Court’s opinion leaves open the possibility that DHS could attempt to issue a new memorandum rescinding DACA that rectifies the inadequacies in its prior memorandum. Such guidance could come very quickly or could be put on hold until a future point in time, such as after the presidential election in November.

The ultimate responsibility for granting lasting relief for Dreamers, rests not in the hands of the executive branch but that of Congress. The overwhelming majority of Americans (eight out of ten) across the political spectrum want Dreamers to remain in the United States. With such resounding support, AILA urges Congress to delay no longer and pass bipartisan legislation granting Dreamers permanent legal status.

04/23/2020 - Summary of New Executive Order Suspending Green Cards

The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant ("green card holder") who:

● Is outside the United States on the effective date of the proclamation;

● Does not have a valid immigrant visa on the effective date; and

● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

The following categories are EXEMPT from the proclamation:

1. Lawful permanent residents (LPR)

2. Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, (as determined by the Secretaries of State and Department ofHomeland Security (DHS), or their respective designees)

3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program

4. Spouses of U.S. citizens

5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa

6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

7. Members of the U.S. Armed Forces and their spouses and children

8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

Nonimmigrant visa holders are not included in the proclamation. However, the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

Asylum seekers are not included in the ban. The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Prioritized Removal. Individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Expiration. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

Severability Clause. If any provision of the proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.

02/24/2020 - The Public Charge Rule, Explained

What is the “public charge” rule? - Selected excerpts from Boundless.com 02/24/2020

IMPORTANT UPDATE: The U.S. Department of Homeland Security’s new public charge rule took effect on Feb. 24, 2020, and applies nationwide...

The new rule affects people applying for green cards and visas from within the United States, through a process known as “Adjustment of Status.”

Among all the measures that the Trump administration has pursued so far to constrain legal immigration, the “public charge rule” could have the biggest impact.

Various legislative proposals to reduce legal immigration have been endorsed by the Trump administration but have effectively zero chance of becoming law. In contrast, the administration believes that it can implement the public charge rule through executive action, without an act of Congress.

Since 1999, immigration officers have adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” as demonstrated by either (a) using public cash assistance for income maintenance or (b) institutionalization for long-term care at government expense. Specifically, this has included:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
  • State and local cash assistance, sometimes called “General Assistance”
  • Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution

Under this policy, very few immigrants have been denied green cards on public-charge grounds, for two primary reasons. First, Congress has already barred most immigrants from using welfare, so prior use of these benefits is out of the question. Second, Congress requires that most green card applicants have a financial sponsor — typically a U.S.-citizen spouse or other family member — who can demonstrate sufficient income to prevent future dependency on government benefits. That income threshold is defined in statute as 125% of the Federal Poverty Guidelines, currently $21,137 for most couples without children.

That’s why, for the past two decades, the vast majority of visa applicants have been able to avoid the “public charge” roadblock by submitting a financial sponsor’s Affidavit of Support, accompanied by evidence of meeting the statutory income threshold.

What will change under the new DHS “public charge rule” proposal?

DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied not for being “primarily dependent on the government for subsistence” (the current standard) but instead for being “more likely than not” to use certain public benefits at any point in the future.

Under the final regulation, DHS would create the following new criteria for denying a green card application from within the United States:

(1) Prior use of certain government benefits. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the new policy would expand the definition to include a wider range of common government benefits:

  • All of the status quo benefits list above (SSI, TANF, general assistance, and long-term institutional care)
  • Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
  • Section 8 housing and rental assistance
  • Federal housing subsidies
  • Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

    A “public charge” denial would be triggered if someone has received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.

    (DHS will not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)

    It’s important to note that DHS does not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS would, in effect, be penalizing visa applicants for using benefits they are allowed to take advantage of under existing law.

    And it’s also important to understand that the great majority of people applying for green cards are not even eligible for the very benefits that the DHS public charge rule seeks to penalize. Unfortunately, this rule has created a “chilling effect” that scares many people into disenrolling from public benefits even though they don’t need to.

    (2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS plans to greatly expand the number of specific factors that immigration officers must take into account when determining whether or not a visa applicant is likely to become a “public charge” at any point in the future.

    • Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacts their “ability to work.”
    • Health: DHS plans to scrutinize any medical condition and assess whether this condition could affect the applicant’s ability to work, potentially expanding the scope of the required medical examination.
    • Family size: Having more children or other dependents could increase the likelihood of a visa denial.
    • Skills: DHS plans to determine whether an applicant has “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
    • Financial status: Above and beyond looking at an applicant’s income and assets (see below), DHS plans to assess credit history, credit score, and financial liabilities, plus whether the applicant has private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.
    • (3) Insufficient financial resources. Even if an applicant has never used government benefits in the past and meets all of the above criteria to demonstrate low likelihood of using benefits in the future, they could still be blocked by an entirely new requirement: personal financial resources. DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards. This form would collect information intended to help immigration officers determine whether the applicant is a “public charge” under the new, more expansive criteria outlined above.

      This new form is not to be confused with the “Affidavit of Support” (Form I-864), which Congress has mandated since 1996 to demonstrate the financial resources of the person sponsoring the applicant for a green card or other visa. Until now, immigration officers have typically given great deference to an Affidavit of Support showing that the sponsor has an income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines, since this is a statutory threshold indicating that the visa applicant will have sufficient financial resources to avoid becoming dependent on government benefits.

      Under the new policy, however, DHS plans to impose similar financial requirements on the applicant, not just the sponsor. It appears that at a minimum, applicants will have to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS would set an entirely new and higher household income threshold at 250% of the poverty guidelines, establishing this much higher hurdle as a “heavily weighted positive factor.”

      This could mean that, to safely avoid denial on public-charge grounds, an applicant would need to show annual household income of $41,150 (for a couple with no children) on up to $73,550 (for a family of five) or higher.

      Who would be affected by this policy change?

      The new public charge rule would apply to the vast majority of applicants for green cards (permanent residence). This includes green card applicant's sponsored by U.S. citizen or lawful permanent resident family, employer sponsorship, and temporary visa applicants.

      Those seeking temporary visas will not be subject to the Form I-944 or future-looking tests described above, but still must demonstrate that they have not received the above-mentioned public benefits “for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

      Exemptions

      The public charge rule will not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who have experienced domestic violence, and other special categories.

      Estimated impact

      Given that the new public charge rule would create an entirely new income requirement for visa applicants (not just their sponsors) and would set this household income threshold as high as 250% of the Federal Poverty Guidelines, the following possible impacts have been estimated:

      DHS could begin denying up to nearly half of all marriage green card applicants, each year forcing nearly 200,000 couples to either leave the United States together or live apart indefinitely. (Source: Boundless Immigration)

      Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement — more than the 47% at risk based on prior use of government benefits. (Source: Migration Policy Institute)

      Moreover, this new hurdle would have disproportionate effects, blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia — but only 36% from Europe, Canada, and Oceania. (Source: Migration Policy Institute)

02/10/2020 - USCIS to Begin Implementing Public Charge Rule as of February 24

From The National Law Review, 02/10/2020

On January 30, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin implementing the new public charge regulations on February 24, 2020. The regulations broadly expand the list of public benefits that can be considered, as well as the discretion given to immigration officers when deciding whether someone is “more likely than not” to become a public charge.

The rule was originally scheduled to take effect on October 15, 2019 but was blocked by nationwide injunctions filed by several federal judges across the country. The Supreme Court of the United States recently ruled in favor of the Trump administration to allow implementation of the regulations while legal challenges play out in the lower courts. The public charge rule will not be applied in the State of Illinois where a statewide injunction is still in place.

The public charge rule applies to certain adjustment of status (also known as green cards) applicants, as well as nonimmigrants seeking to change their status or extend their stay. USCIS will apply the new standards to applications or petitions that are postmarked on or after February 24, 2020.

USCIS will release new and updated application forms the week of February 3, 2020, giving employers some time to adjust filing practices. Based on drafts released in October, the forms are expected to require significant amounts of personal information and supporting documentation including a credit report. In conjunction with adjustment of status filings, USCIS will also require an additional form, the I-944, Declaration of Self-Sufficiency.

Summary of Key Changes

Some of the key changes included in the new public charge regulations include the following.

Definition of Public Charge. The regulations define a “public charge” as an individual who receives one or more “public benefits” for more than 12 months in the aggregate within any 36-month period. Under the rule, receipt of two benefits in the same month will count as two months. This definition will apply only to those public benefits received on or after February 24, 2020.

Public Benefits. USCIS has expanded the list of benefits that are considered “public benefits” to include all of the following:

Supplemental Security Income (SSI)

Temporary Assistance for Needy Families (TANF)

Any federal, state, local or tribal cash assistance for income maintenance

Medicaid (with limited exceptions)

Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps)

Any benefits related to institutionalization for long-term care at government expense

Section 8 Housing Choice Voucher Program and Rental Assistance Program

Public Housing

Weighted Factors. USCIS will analyze each applicant based on the totality of the circumstances. Under the regulations, immigration officers are authorized to weigh certain factors more heavily when deciding whether an individual is likely to become a public charge. Examples of negatively weighted factors include poor health, lack of private health insurance, low credit score, debt, inability to speak English, and lack of education and/or work history. USCIS will heavily weigh an income of at least 250 percent of the federal poverty guidelines for the individual’s household size as a positive factor.

Form I-944, Declaration of Self-Sufficiency. USCIS will require Form I-944 in addition to an Affidavit of Support for adjustment of status applicants. Draft versions of the form have included questions and require the submission of documentation related to household income and assets, debts and liabilities, credit history, use of public benefits, education level, employment history, health insurance, etc.

Public Charge Bond. USCIS may allow individuals to post a public charge bond if the individual is otherwise admissible.

Nonimmigrants. Nonimmigrants seeking to change their status or extend their stays will be required to prove that they have not received one or more public benefits for more than 12 months in the aggregate within any 36-month period since obtaining the nonimmigrant status that they seek to change or extend. This will only apply to public benefits received on or after February 24, 2020.