In May 2020, U.S. Citizenship & Immigration Services (USCIS) reported a massive funding shortage that threatens the agency’s operations. USCIS is primarily funded by application fees, which have dramatically fallen this year for a number of reasons, including the COVID-19 pandemic, as well as the implementation of unnecessary and inefficient policies like requiring in-person interviews for all employment-based cases and not giving deference to prior adjudications. USCIS has asked Congress for a $1.2 billion dollar bailout which it intends to repay by imposing a 10% surcharge on most immigration-related applications and petitions. Without the bailout, USCIS asserts that it will not have sufficient funds to maintain its operations through the end of the fiscal year (September 30, 2020) and that it will not have enough funds for the first quarter of FY2021. USCIS has begun issuing furlough notices to its employees and estimates that it will need to furlough approximately 13,400 employees (70% of the USCIS workforce) starting August 3, 2020 if Congress does not grant its funding request. If USCIS furloughs its employees, we anticipate even longer processing times, as well as more inconsistent and error ridden adjudications. We hope that the agency’s request for funding is granted along with safeguards to ensure that USCIS institutes policies and procedures to ensure quality adjudications in an efficient and cost-effective manner.
Update to Presidential Proclamation Barring Entry of Certain H, L, & J Visa Holders
On June 30, 2020 Presidential Proclamation 10052 was amended to clarify that individuals (and their dependents) outside of the United States are suspended from seeking entry as an H-1B, H-2B, J-1, or L-1, unless they had a valid H-1B, H-2B, J-1, or L-1 nonimmigrant visa on June 24, 2020 or are eligible for an exemption. For example, an individual outside the U.S. with a valid B-1 visa on the day of the proclamation would be barred from receiving an H-1B, H-2B, J-1, or L-1 visa until the end of the year.
June 22, 2020 Presidential Proclamation does not Bar Entry of Canadians in H, L, or J Status
On June 24, 2020, DHS confirmed that the H, L, and J entry ban announced on June 22, 2020 does not apply to Canadian citizens. However, the U.S./Canadian border restrictions remain in effect until July 22, 2020 and the U.S. Consular Offices in Canada remain closed. At this time, there has been no announcement regarding the reopening of routine visa services at the U.S. Consular Offices in Canada. Nor do we know whether the current U.S./Canadian border restrictions will be extended into August.
FAQ REGARDING PRESIDENTIAL PROCLAMATION ON IMMIGRATION, ISSUED JUNE 22, 2020
The information in this FAQ is general in nature and does constitute legal advice.
GENERAL
When does this proclamation take effect? June 24, 2020. Except the portion extending the suspension of immigrant visas which took effect June 22, 2020.
Till when is this order in effect? Until December 31, 2020. It is also eligible for extension and is to be reviewed for changes and/or extension every 30 days.
To whom does this order apply? It applies to non-permanent resident foreigners who are outside the U.S. at the time it takes effect.
NON-IMMIGRANT APPLICANTS (THOSE SEEKING STATUS SUCH AS H-1B, L-1, TN, J-1, ETC.)
How does this order affect foreigners seeking to come to the U.S. to work temporarily? The order bars entry into the U.S. of those seeking to come to work. in H-1B, H-2B, L-1A, and L-1B status unless they already had a visa of the corresponding type at the time the order took effect, June 24, 2020. It also bars entry of J-1s seeking to work in the U.S. as an intern, trainee, au pair, teacher, camp counselor or in a summer work travel program. It also bars the entry of family members of those barred who would be seeking to enter in H-4, L-2 or J-2 status.
Does it prohibit the issuance of a visa to such individuals or just the entry into the U.S.? The order specifically states that it bars entry of such individuals who did not have a visa prior to the time the order took effect. However, the order also states that it will be a consular officer’s decision whether a visa applicant for meets an exception and is therefore eligible for a visa. Reading these statements together, we believe the order bars the issuance of visas to individuals in the specified categories of H-1B, H-2B, L- 1, H-4, L-2, and certain J-1 and J-2. Additionally, it is important to note that at the time of preparing this FAQ, regular visa services have been suspended at U.S. consulates throughout the world which are open only for emergency situations, and a foreign worker needing to get a visa is not an emergency unless that worker meets one of the exceptions (e.g., medical researcher working in U.S. to combat COVIID-19). As such, though the order does not expressly say that it prohibits issuing specific visas, as a practical matter, such visas will not be issued.
FOREIGN WORKERS CURRENTLY IN THE U.S.
I am in the U.S. lawfully and need to change my status to H-1B, H-2B, or L-1; or I hold such status and need to extend it. Does this order affect that change or extension of status? No. Individuals lawfully in the U.S. who are eligible to change their status to H-1B, H-2B, or L-1, or the dependent statuses of H-4 or L-2, are not affected by this order and may continue with the process to change or extend status in the U.S.
I am lawfully in the U.S. in H-1B, L-1, H-2B, H-4, or L-2 status, but do not have a valid visa in my passport. Can I leave the U.S., obtain a visa and reenter the U.S.? The language of the order is conflicting. It says it only applies to those who are outside of the U.S. on the day it took effect, but there is sufficient language in it for us to believe that it bars all individuals from obtaining visas in these categories, and therefore, reentering the U.S. Additionally, as noted above, regular visa services are currently suspended throughout the world. Therefore, any individuals who hold the specified statuses, should carefully consider if a trip outside the U.S. is absolutely necessary, because it is highly likely that such individuals will not be able to return before year end, and possibly longer. Additionally, we do not have a way to help those who are stuck outside the U.S. return to the U.S.
I have applied or am eligible to apply for an employment authorization document (EAD). Does this order affect my EAD application or eligibility? No.
I’m a Canadian in the U.S. in L-1/L-2 status. Since I do not need a visa to reenter the U.S., am I safe to leave the U.S. and reenter? Sadly, we do not know. We are awaiting clarification on this point since the order does not expressly address it. As an individual who already holds L-1 or L-2 status and is in the U.S., we believe you should be able to leave and re-enter the U.S., assuming there is no other travel ban in place that effects your entry into the U.S. However, we caution all who are in this situation that they leave the U.S. at the risk of not being able to return until after the end of the year.
INDIVIDUALS OUTSIDE THE U.S. WHO ARE NOT SPECIFICALLY MENTIONED IN THE ORDER
I am a Canadian seeking to enter the U.S. in H, L or J status, will I be able to enter? The USCBP has clarified that the order does not apply to Canadians entering the U.S. in the restricted categories. As such, once travel restrictions at the U.S. – Canada border due to the pandemic are lifted, you should be able to enter the U.S. We recommend entering at the U.S. – Canada border as USCBP officers elsewhere may not be trained on this issue.
Can individuals outside the U.S. enter in other non-immigrant statuses to work in the U.S.? The order does not bar entry for those seeking to enter in other statuses, including E-1, E-2, E-3, O-1, R- 1 and TN. However, those seeking to enter another status, except Canadians seeking TN or O-1, must first obtain a visa to travel to the U.S. Since regular visa services are currently suspended at consulates across the world, it would be difficult for individuals to obtain a visa in one of those statuses. At this point, we believe that Canadians who are eligible to enter in TN or O-1 status may do so.
PERMANENT RESIDENCE / GREEN CARDS / IMMIGRANT VISAS
How does this order affect those applying permanent residence? It extends the order issued April 22, 2020 with respect to those seeking to come to the U.S. as immigrants, until the end of 2020.
Are all individuals applying for green cards or wanting to apply for green cards affected? No. The bar on immigrants only applies to those seeking immigrant visas at a U.S. consulate abroad. It does not apply to individuals in the U.S. who apply to adjust status to permanent residence.
I am in the U.S. and applying for permanent residence or about to apply. Can my application move forward? Yes. As long as your last step of permanent residence is applying to adjust status from your current non-immigrant status (H-1B, H-4, E-3, etc.) to that of a lawful permanent resident (green card holder / immigrant), you are eligible to continue your application (I-485).
I am in the U.S. applying for permanent residence but my spouse (and child) is outside the U.S. and will need an immigrant visa. Will my spouse (and child) be able to continue that process? At this point in time, no. At least until the end of 2020, issuance of immigrant visas is suspended unless the individual meets one of the exceptions.
I am in the process or about to start the process to apply for permanent residence. How can I speed up my permanent residence application? Unfortunately, permanent residence generally cannot be sped up. Some I-140 petitions, which is Step 1 or 2 depending on your application pathway, can be filed with premium processing but none of the other steps are eligible for premium processing.
I have heard that some colleagues who were getting close to having their applications for permanent residence adjudicated have had them held by USCIS because USCIS is not issuing green cards due to the ban. Is this true? USCIS has, in some cases, held up the issuance of green cards because it has interpreted the order to mean that green cards cannot be issued. This is not our interpretation of the order and the American Immigration Lawyers Association is working with USCIS to resolve this issue. Please note that even subsequent to the April 22 order, suspending the issuance of immigrant visas, that we have had applications for permanent residence approved and have had clients receive their green cards. As such, there is confusion in this area, and we hope it is resolved soon.
EXCEPTIONS
What are the exceptions, or who would be eligible to enter the U.S. in one of the barred non- immigrant categories such as H-1B? Only those coming to work in the U.S. in an area of the national interest. These include those coming to work in roles to combat COVID-19, roles which are essential to economic recovery or roles critical to national security. The order is silent regarding family members of such individuals. Children who would turn 21 and thereby lose visa eligibility are also excepted.
Who is excepted from the ban on issuance of immigrant visas? The list is long but exceptions are primarily for those related to U.S. citizens, permanent residents, or members of the armed services, or those seeking a visa to enter the U.S. to work in an area in the country’s national interest.
MORE INFORMATION
Where can I get further updates? This is the latest information as of June 24, 2020. We will post new information to our website www.cyavisalaw.com.
“Public Charge” Takes on New Meaning
USCIS publishes new public charge rule that will likely have a negative effect on green card applicants.
This week, the U.S. Department of Homeland Security (DHS) published a final rule that redefines the public charge grounds for inadmissibility. The term “public charge” is used to describe individuals applying for admission to the U.S. or adjustment of status who are considered likely to become a burden on society. The new rule is set to go into effect on October 15, 2019, and may affect somewhere between 60-80% of green card applicants. Lawsuits have already been filed challenging the lawfulness of the new rule and seeking restraining orders to stop the new rule from going into effect.
What was the old public charge rule?
The current rule defines public charge as an individual who is likely to become primarily dependent on the government for support, meaning that they rely on cash assistance programs for income support or government funded long-term care. Immigration officers currently consider whether applicants have used these benefits in the past, which include welfare (TANF) and SSI (Supplemental Security Income). Under existing policy, the use of housing and nutrition programs or publicly-funded health care is not considered.
What has changed?
Under the new rule, any intending immigrant who received public benefits for more than a total of 12 months within a 36-month period has a heavily weighted negative factor against their application for permanent residence, and may be considered a public charge. Benefits considered for public charge determinations now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP/Food Stamps), Section 8 housing assistance, federally subsidized housing, and any form of federal, state, or local cash assistance.
The following are not public benefits under the new rule:
- Medicaid for those under 21;
- Medicaid for pregnant individuals (including 60 days after giving birth);
- Medicaid under the Individuals with Disabilities Education Act;
- Emergency medical care or disaster relief;
- Members of the U.S. armed forces (and their spouses and children) who are enrolled in benefits programs;
- National school lunch programs;
- Student loans or mortgage loans; and
- Food pantries or homeless shelters.
Only benefits received directly by immigrants will be considered, so U.S. Citizen family members who receive benefits are not considered. Also, some immigrants, such as those granted asylum and refugees, are exempt from the public charge rules.
Immigration officers may also consider lack of proficiency in the English language to be a negative factor, and English proficiency to be a positive factor. Additionally, an individual’s medical conditions can weigh negatively against their applications, especially if they will likely require extensive medical treatment, are unable to work, and will likely be uninsured. The rule will still consider an applicant’s entire circumstance, including examining their financial status, size of family, age, education, skills, and employment status.
TRUMP EXPECTED TO ISSUE NEW EXECUTIVE ORDER NEXT WEEK
In a news conference held Thursday, President Trump announced that rather than continue fighting for the reinstatement of his controversial executive order on visas and refugees, he will instead start from scratch and issue an entirely new executive order on the matter. President Trump expects to release the new order next week.
In its supplemental brief to the Ninth Circuit filed Thursday, the Justice Department confirmed Trump’s announcement, stating that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” The Department filed that brief in response to Chief Judge Thomas’s call for a vote considering whether the three-judge panel’s ruling blocking Trump’s original travel ban should be reviewed by the full Court. The Department further stated that though the injunction “readily meets the normal standards for rehearing,” the government “respectfully submits that the most appropriate course would be for the Court to hold its consideration of the [pending] case until the President issues the new Order and then vacate the panel’s preliminary decision.”
Both the President and the Department of Justice have stated that the new executive order will obviate the constitutional concerns articulated by the Ninth Circuit in its appraisal of the original order, though the Executive’s maintains that the Court’s ruling was “seriously flawed.” Whether the legal battles over the President’s immigration reform are over however, largely depends on the contents of his new order.
The 9th Circuit Refuses to Reinstate President Trump’s Travel Ban
The 9th Circuit Court of Appeals on Thursday upheld a lower court’s stay blocking enforcement of President Trump’s ban on admitting travelers from seven predominantly-Muslim countries: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. The court’s decision means that the Trump administration will likely choose to either appeal the decision to the Supreme Court, or attempt to issue a new Executive Order that complies with the constitution.
Due Process Violations
The court based its ruling largely on the Executive Order’s due process violations, namely a lack of notice and hearing prior to restricting an individual’s ability to travel. Although the government argued that the travel ban mostly impacts individuals who have no protection under the Constitution’s Due Process Clause, the 9th Circuit disagreed. Citing the Supreme Court’s decision in the 2001 case Zadvydas v. Davis, the court reminded the government that the protections of the Fifth Amendment’s Due Process Clause apply not only to citizens, but to all persons within the United States, “regardless of whether their presence here is lawful, unlawful, temporary, or permanent.” The 9th Circuit stated that restricting the ability of lawful permanent residents and temporary visitors to travel and return is likely an impermissible violation of the people’s due process rights.
Reviewability
The government initially argued that the President’s actions in the field of immigration are unreviewable by the courts when motivated by national security concerns, even when the actions may violate constitutional rights and protects. While recognizing the deference that courts have historically given to the political branches in matters of immigration and national security, the 9th Circuit stated in its decision that this assertion lacks precedent and “runs contrary to the fundamental structure of our constitutional democracy.”
Government Interest
In weighing the government and public interests and the potential injury to those affected by the Travel Ban, the court found that the government failed to provide any evidence that persons from any of the seven countries named in the Executive Order had perpetrated a terrorist attack in the United States. Additionally, the court pointed to the strong public interest in the free flow of travel, preventing the separation of families, and protecting the people’s freedom from discrimination, which in this case would likely outweigh the government interest in banning travel from these countries.
January 27th Executive Order Regarding Immigration
On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The following provides information on the key provisions of this order and any clarifications and updates that are known to date:
· The order bans entry for 90 days (from January 27, 2017) of immigrants and non-immigrants from the following countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. (The following visas are exempt from this order: A, G, NATO, C-2 and C-3). All embassies and consular posts have been instructed to immediately suspend the issuance of non-immigrant and immigrant visas for nationals of those countries. Other countries may be added to the list in the future.
o Department of Homeland Security (DHS) has clarified that the order applies to anyone who holds a passport from a designated country, including dual citizens who hold passports from a designated country as well as a non-designated country.
o Legal Permanent Residents (LPR) may be admitted on a case-by-case basis following security review. DHS has deemed entry of LPRs to be in the national interest and absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, LPR status will be a dispositive factor in case-by –case determinations.
· The order suspends the U.S. Refugee Admissions Program for 120 days. However, there may be exceptions made on a case-by-case basis, based on whether it is in the national interest, the person poses a risk to the U.S., the person is a religious minority facing religious persecution or the admission of the person is required to conform U.S. conduct to an international agreement, or the person faces hardship when already in transit.
o The order suspends indefinitely the admission of Syrian refugees and reduces the number of refugees allowed to be admitted to the U.S. in 2017 to 50,000.
· The order further provides for additional security protocols as well as requires that the U.S. consular officers interview everyone who applies for a non-immigrant visa.
On January 28, 2017, the U.S. District Court for the Eastern District of New York in Darweesh v. Trump, signed an emergency order prohibiting the removal of individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the U.S. This emergency order applies to all noncitizens who are detained at U.S. airports because of this January 27, 2017 executive order and will remain in effect until a full hearing is held.
Stern & Curray strongly condemns the President’s executive orders and maintains they are discriminatory and unconstitutional. We will continue to keep clients and the public apprised of any developments in the immigration laws.