Author: Adrianna Romero

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Biden’s Civil Immigration Enforcement Priorities

On September 30, 2021, USCIS issued a memo outlining the Biden administration’s new immigration enforcement policies. The memo makes it clear that ICE agents are to prioritize the detention or deportation of those suspected of terrorism or pose a national threat to the U.S. Undocumented immigrants who have committed serious crimes or are recent arrivals (entered the U.S. after November 1, 2020) are also among the priority list for ICE.

After the policy goes into effect on November 29, 2021, ICE agents will not detain undocumented immigrations merely because of their immigration status. Instead, ICE agents will use their limited resources and discretion to pursue undocumented immigrants who may be a threat to border security, public safety, and national security. Undocumented immigrants who have been in the U.S. for an extended period of time and can show they satisfy any of the enumerated mitigating factors are not a priority for deportation. While this policy may be a sigh of relief for millions of undocumented immigrants living in the U.S., they are still living in limbo while they wait for a path to work authorization, legal status, and citizenship.

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22,000 Additional H-2B Visas Available for the Fiscal Year 2021

H-2B visas are temporary employment-based visas available to non-agricultural employees. H-2B petitions are filed by employers who need seasonal or one-time help because they are unable to find U.S. workers who are able, wiling, or qualified to do temporary work.

Together the Department of Labor and the Department of Homeland Security have authorized the addition of 22,000 H-2B visas to help businesses affected by COVID and will suffer irreparable harm if they cannot hire H-2B workers. 6,000 of those additional visas will be reserved for workers from the Northern Triangle (Honduras, Guatemala, El Salvador).

This is a one-time increase in visa numbers that will expire in September 2021.

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Accidental Voter Registration & Naturalization

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.

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Ban on Travel From India will Take Effect on May 4, 2021

The Biden admiration has restricted entry into the U.S. for those traveling from India. The new travel ban is set to take effect Tuesday, May 4th. India has recently seen an extreme spike in positive COVID-19 cases and the government is struggling to contain the spread of the virus and its variants. The new travel ban will look a lot like previous bans imposed early last year:

  • U.S citizens and Lawful Permanent Residents (LPRs) will be granted entry
  • Anyone arriving in the US will be subject to COVID-19 testing
  • Anyone that has not been vaccinated may be subject to a quarantine period of 14 days upon arrival
  • Anyone who is not a U.S. citizen or LPR and has been in India in the 14 days prior to arrival, will not be granted entry
  • There will be narrow exceptions for essential travel

If you are in the U.S. on a non-immigrant visa and you have to travel to India, schedule an appointment with our team to determine your eligibility for a travel exception.

by Adrianna Romero Adrianna Romero No Comments

It’s Official: Biden’s Immigration Reform Proposal is Introduced

On February 18, 2021, the U.S. Citizenship Act was formally introduced to Congress. The proposed bill calls for comprehensive reform to all areas of immigration law. President Biden declared on this first day in office that he intended to “restore humanity and American values to our immigration system”. The massive, 353-page bill, proposes innovative solutions to the current and outdated immigration framework that has failed to keep up with the country’s needs.

The bill provides for a pathway to permanent residency and eventually citizenship for those with DACA, TPS or H-2A status.

With the goal of stimulating economic and scientific development, the bill proposes many changes to employment-based immigration including:

  • Clearing visa backlogs by increasing per-country caps and exempting Ph.D. graduates working in STEM fields from the green card quota. 
  • Prioritizing the distribution of H-1B visas by wage offered by employers.
  • Work authorization for H-4 dependants.
  • Increasing penalties for employers who violate labor laws.
  • Extensions of F-1, H-1B, L-1, and O-1 status if the foreign national has a labor certification or I-140 immigrant visa petition pending for over a year.

While the bill is only in the early stages of the legislative process, it will certainly be subject to debate and revisions in an effort to garner bipartisan support.

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President Biden’s Immediate Immigration Plan

On January 21, 2020, President Biden signed six presidential executive actions that will affect immigration and visas in the U.S. immediately.

DACA: President Biden has instructed the Department of Homeland Security to preserve and fortify the DACA program and calls for legislation to provide a path to citizenship for DACA recipients.

Deportation of Liberians: Due to foreign policy reasons, President Biden reinstated and extended Deferred Enforced Departure (DED) for Liberians that are currently present in the U.S. Granting qualifying applicants protection from deportation, work authorization, and the opportunity to apply for adjustment of status (green card).

The Border Wall: Former President Donald Trump declared a national emergency at the southern border to allocate funds to construct a wall along the border. President Biden terminated the declaration of a national emergency, halted construction of the wall, and plans to reallocate funds to other methods of securing the border.

Census: To ensure that all inhabitants and those living in the U.S. are equally represented, President Biden revoked the previous administration’s order to include immigration status in the national census.

Immigration Enforcement: A previous executive action signed by former President Trump broadly increased interior immigration enforcement by encouraging local authorities to enforce federal immigration laws, and stripped funding from “sanctuary cities”. President Biden revoked this order and will adhere to previous policies regarding the enforcement of civil immigration violations.

Discriminatory Bans on Entry: The so-called “Muslim Ban” was several presidential proclamations and executive orders that prohibited people from primarily Muslim countries from seeking admission into the U.S. People from these countries will once again have the ability to apply for visas/admission and the current administration plans to assess the harms caused by the discriminatory bans.

A memo regarding pending regulatory actions issued by White House Chief of Staff, Ron Klain, states that pending rules at the Federal Register that have not been published yet must be withdrawn. Also, the effective dates the the rules that have been published but have not taken effect may be postponed.

As a result, the “Strengthening the H-1B Nonimmigrant Visa Classification Program Final Rule” will be immediately withdrawn. The rule meant to “clarify” how USCIS determines whether there is an “employer-employee relationship” to qualify as a “U.S. Employer.”

The effective date of the “H-1B Wage Selection Final Rule.” will be postponed until March 21, 21. The rule replaced the annual H-1B visa lottery that randomly selects foreign professionals with a process that prioritizes those offered the highest salaries for their occupation and geographic area.

In addition to the signing several executive orders on his first day in office, President Biden has also sent the “U.S. Citizenship Act of 2021” to Congress. U.S. Senator Bob Menendez (D-NJ) has announced that he will lead the legislative effort in the Senate to introduce the bill. Representative Linda Sanchez (D-CA) announced that she will lead the introduction of the bill House of Representatives. The Biden-Harris bill calls for immigration reform that will modernize the current immigration policies to treat noncitizens more humanly and will stimulate the economy.

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DACA IS BACK!

In response to a court order issued on 12/4/2020, USCIS has announced that the DACA program will be fully restored, they will resume the previous DACA policies. Meaning USCIS will once again:

  • Accept first-time requests for DACA
  • Accept DACA renewal requests
  • Accept applications for advance parole, and
  • Extend current one-year deferred action and employment authorization to two years

Judge Nicolas George Garaufis of the U.S. District Court of the Eastern District of New York issued an order requiring the Department of Homeland Security to resume adjudicating DACA applications according to the DACA policy terms in place before September 4, 2017. The order required USCIS to comply with the ruling by 12/7/2020.

The eligibility requirements for first-time applicants are the following:

  • The applicant arrived in the U.S. before their 16th birthday
  • The applicant was under the age of 31 as of June 15, 2012
  • The applicant has continuously resided in the U.S. since June 15, 2007
  • The applicant has graduated from high school or is currently enrolled or is an honorably discharged veteran
  • The applicant is over 15 years old (with some exceptions)
  • The applicant has not been convicted of disqualifying crimes and does not pose a threat to national security or public safety

Newly eligible applicants:

  • The applicant turned 15 years old after the program was rescinded in 2017 and they had previously met the eligibility requirements.

Advanced Parole allows applicants to travel temporarily outside of the U.S. for humanitarian, employment of educational reasons and re-enter the U.S. lawfully.

If DACA recipients received deferred action and work authorization for only one year (according to the July 2020 DHS memo), their current status has been extended to two years.

For assistance with renewing your DACA deferred action and work authorization or with applying for the first time, please send an email to DACA@cyavisalaw.com for more information.

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