Month: May 2021

As states implement new methods with the intention of making it easier for their residents to vote, they have unintentionally made it more difficult for Lawful Permanent Residents to naturalize and even put them at risk of deportation.

One of the most unforgiving violations of U.S. immigration law is to falsely claim to be a U.S citizen. A false U.S. citizen claim will make a foreign national inadmissible and deportable, and it is nearly impossible to overcome this violation. Upon adjusting their status, Lawful Permanent Residents are carefully advised by attorneys to avoid false claims to U.S. citizenship.

Many states have included the opportunity to register vote with their DMV applications and other state benefit application. While some of these applications ask the applicant to indicate whether they are U.S. citizens, many do not.   

As a result, applicants are unknowingly registering to vote after signing these forms. This presents a complication for Lawful Permanent Residents when they apply to naturalize and USCIS notices they are registered to vote. USCIS had previously determined that a Lawful Permanent Resident who registered to vote, intentionally or otherwise, can be denied U.S. citizenship by alleging that they either falsely claimed to be a U.S. citizen or they do not meet the “good moral character” requirement to warrant an approval.

USCIS recently updated its policy on this topic. USCIS will not penalize those who unknowingly or unlawfully registered to vote, and will not consider an applicant to have unlawfully registered to vote if they did not complete or sign the voter registration portion of a state benefit application. If an applicant did register to vote, USCIS will not consider it a false claim to U.S. citizenship if the registration form did not contain a question about citizenship, and if it did, the applicant did not affirmatively indicate they were a U.S. citizen. However, the burden is on the applicant to prove the question did not exist or that they did not answer in the affirmative. If the applicant answered in the affirmative, they may be denied immigration benefits based on a false claim to citizenship or lack of “good moral character”.

In sum, Lawful Permanent Residents who are unknowingly registered to vote can still be eligible to naturalize, but they need to prove they did not mean to register and they did not affirm they were U.S. citizens.

The new policy is effective immediately and USCIS will accept comments until June 28, 2021.

On Monday, May 17, 2021, five businesses and nonprofit organizations, represented by the American Immigration Lawyers Association (AILA) and Members of AILA’s Board of Governors, filed a lawsuit against the Department of Homeland Security (DHS) to enjoin the final rule published January 8, 2021, entitled Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, which is also known as the H-1B lottery rule. The rule is a holdover from the Trump Administration; the Biden Administration’s DHS announced it would delay the rule’s effective date until December 31, 2021, but it has not yet announced plans to rescind the rule. The USCIS final rule would create a wage-based selection process for the H-1B lottery, giving priority for lottery selection to those H-1B applicants who are paid the highest wages. The lawsuit was filed in the U.S. District Court for the District of Columbia (Humane Society of New York, et al. v. Mayorkas, et al., 5/17/21).

Today, President Biden rescinded President Trump’s Health Care Insurance Ban which was issued on October 4, 2019, and suspended the entry of immigrants unless they could demonstrate they would be covered by approved health insurance within 30 days of entry or would be able to pay for “reasonably foreseeable medical costs.” The controversial entry-ban, had been on hold while its legality was litigated in federal court.

USCIS has announced that applicants, petitioners, requestors, and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments. Previously, applicants were required to submit written requests to reschedule biometrics appointments. Applicants must establish good cause for rescheduling and must call before the date and time of their original appointment to reschedule.

On May 13, 2021, the U.S. Department of Labor (USDOL) published a notice in the Federal Register further delaying the implementation of the agency’s final rule on the computation of prevailing wages for PERM labor certifications and Labor Condition Applications until November 14, 2022 (with a phased-in transition to the new computation system). The final “Wage Rule” was initially scheduled to go into effect in March 2021 (with an effective date of July 1, 2021, and a phased-in transition to the new wage computation system). The new “Wage Rule” would have significantly changed the way the USDOL calculates prevailing wages. In February 2021, the USDOL published a notice in the Federal Register delaying the implementation of the final rule. In March 2021, the USDOL published an additional two notices further delaying implementation of the rule. The USDOL is delaying implementation of the new “Wage Rule,” so that it can research how the rule will affect the U.S. economy, U.S. employers, and both U.S. and foreign workers. Our hope is that the USDOL will decide to withdraw the new “Wage Rule” after it completes its research.

Acting Associate Director of Service Center Operations for USCIS Connie Nolan has confirmed that the requirement of biometrics for H-4, L-2, and E-1, E-2 and E-3 categories of Form I-539 will be suspended for 24 months, beginning May 17, 2021. Since March 2019, USCIS has required all individuals submitting a Form I-539 application to complete biometrics. The policy has resulted in numerous lawsuits that have challenged the reasonableness of processing times due to unprecedented backlogs of Form I-539 applications.

The suspension of the biometrics requirement is to apply to Form I-539 applications in H-4, L-2, and E-1, E-2 and E-3 categories that are pending as of the effective date of the policy and have not yet received a biometric services appointment notice, and new applications received by USCIS after the effective date of the policy through the stated expiration date.