Immigration Lawyer Portland Oregon News

President Biden Ends Freeze on Green Cards

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On Wednesday, President Biden issued an executive order ending Proclamation 10014, the Trump-era ban on new green cards during the COVID-19 pandemic.

Proclamation 10014 was issued by former President Trump in April at the start of the coronavirus pandemic to bar the issuance of visas at U.S. Consulates and Embassies abroad and limit the entry of certain noncitizen classes. In June, Trump signed a new executive order (Proclamation 10052) which extended Proclamation 10014 and added new restrictions for nonimmigrant workers who supposedly pose a risk of disadvantaging U.S. workers during the coronavirus recovery. This includes nonimmigrant workers on H-1B, H-2B, J, and L visas. This order was rationalized by the need to protect U.S. jobs amid high unemployment rates caused by the pandemic. Critics of Trump have accused him of using the pandemic as an excuse to fuel his political agenda of restricting immigration. Many studies rebuke the idea that immigration threatens American jobs.

Yesterday, Biden overturned the measure by way of executive order. In his order, he wrote that rather than advancing the interests of the U.S., the Trump-era ban “harms the United States, including by preventing certain family members of United States citizens and lawful permanent residents from joining their families here.”

The Migration Policy Institute estimates that about 26,000 people monthly were prevented from getting green cards since the ban was implemented in April 2020.

Biden also denounced the Trump-era policies for harming U.S. industries that utilize expertise from individuals of various countries of origin. Proclamation 10014 has also been criticized for preventing individuals who received immigrant visas through the Fiscal Year 2020 Diversity Visa Lottery from entering the U.S., which resulted in the delay and possible loss of their opportunity to receive their visas.

Proclamation 10014 was set to expire on March 31st, and human rights advocates have been calling for Biden to overturn this measure since he took office. While its overturn is a win for immigrant rights activists, there are concerns about how DHS will process these applications. The U.S. is currently facing a backlog of hundreds of thousands of visa applicants. One immigration lawyer admitted, “that backlog may take [Biden’s] entire first term to clear out, unless he is ambitious to doing something to solve that problem.” Boundless estimated that Trump’s ban could lead to a backlog of 358,000 green cards.

Under Biden’s new order, family members of U.S. citizens and green card holders will be able to now immigrate to the U.S. This also includes individuals who were selected to get visas through the visa lottery. Note, however, Vox reports that even though Biden is reversing Proclamation 10014, many foreign workers applying for temporary visas are still barred from entering the U.S. until at least March 31st, 2021. This includes H-1B skilled workers and their spouses applying for H-4 visas as their dependents. Foreigners transferring to the U.S. office of their multinational companies through L visas, as well as scholars on J-1 visas, are still banned for the time being. It is unclear when Biden will lift immigration restrictions for these visa applicants.

Since he took office, Biden has overturned many of Trump’s most well-known anti-immigration policies, like the so-called Muslim travel ban and he has started to process asylum seekers at the southern border subject to the Migration Protection Protocols, also known as the “Remain in Mexico” policy.

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Immigration-Related Executive Orders: Biden’s First Week

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After only a few days in office, President Biden has already issued various immigration-related executive orders, starting on inauguration day.

End of Muslim Travel Ban

Among the first of Biden’s executive orders was an end to the Muslim Travel ban, which could reunite tens of thousands of families who are separated across international borders. The 2017 Muslim Travel Ban of the previous Administration banned individuals from the following Muslim-majority countries from traveling to the U.S.: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In 2020, the Trump Administration expanded the travel ban on Kyrgyzstan, Myanmar, Nigeria, Eritrea, Sudan, and Tanzania, although it only affected certain visas for residents in these countries. Biden’s Proclamation on Ending Discriminatory Bans on Entry to the United States emphasizes that beyond contravening with American values of tolerance, pluralism, and coexistence, these travel bans undermined the U.S.’s national security, having jeopardized the U.S’s network of alliances.

DACA and Biden’s Immigration Reform  

The Biden’s U.S. Citizenship Act of 2021 addresses the causes of migration, reformulates its border management, and most centrally, proposes a new path to citizenship. A central piece of Biden’s immigration reform bill is to offer 11 million undocumented immigrants an eight-year path to citizenship. This bill would give qualifying immigrants temporary legal status and offer them the chance to apply for green cards after five years if they meet certain requirements. After three more years, they become eligible to apply for citizenship.

If they meet certain requirements, Deferred Action for Childhood Arrivals (DACA) holders, Temporary Protected Status recipients, and immigrant farmworkers would be immediately eligible for a green card. All applicants must have been in the U.S. on January 1st, 2021 to qualify under the proposed bill, however.

Another central piece of Biden’s bill addresses the root causes of migration. The bill funds a $4 billion interagency plan constituting aid for El Salvador, Guatemala, and Honduras in order to bolster these countries’ efforts to reduce corruption, violence, and poverty.

Final aspects of Biden’s immigration bill include an increase of U-visa cap to 30,000. Additionally, Biden proposes to change all references of aliens to non-citizens.

Border Wall

Biden also revoked Trump’s 2018 declaration of a national emergency at the U.S.-Mexico border, in which he diverted billions of dollars to barrier construction. This proclamation allows for an immediate pause in border wall construction. As you may remember, Trump ultimately only built a small fraction of the promised 452 miles, most of which replaced already-established fencing, and was never funded by Mexico.

Instead, turning away from the border wall, Biden’s immigration reform bill focuses on enhanced technology to bolster security at the U.S. southern border. While officials did not release any specifics on the timeline or budget for increased technology and infrastructure at the southern border.

Deportation Pause
President Biden also issued a 100-day pause on most deportations in order to first establish a review of policies and practices of current immigration enforcement. This pause will also aim to allow the DHS to focus its resources where they are most needed.

Small Note on DHS  

President Biden has selected Alejandro Mayorkas to be the secretary for the Department of Homeland Security, as the agency’s first Latino candidate. Mayorkas stated he won’t abolish ICE, despite calls from immigrant rights activists, and that he would review pandemic-era restrictions on immigration at the border, according to Reuters. Supporters of his appreciate his moral compass, demonstrated by his opposition to separating families at the U.S.-Mexico border under the Obama Administration.

More immigration-related executive actions will likely occur in the coming week. While these immigration changes have been swift, the former president took more than 400 immigration-related executive actions, all of which didn’t have Congress’ input, which will take time to reverse.

 

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Immigration Lawyers in Portland Oregon can help initial DACA applicants

New DACA Applicants can now apply in Portland, Oregon: Federal Judge Orders USCIS to Fully Reinstate DACA Program

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Yesterday afternoon, a federal district judge ordered the Trump administration to reinstate the Obama-era DACA program. Those protected under the DACA program are commonly known as “Dreamers.” This program currently enrolls about 650,000 individuals. Immigration Lawyers in Portland Oregon have not been able to help new DACA applicants apply over the past few years because of this current Administration’s limitations. Up to 300,000 additional undocumented immigrant teens and young adults could be allowed to apply to DACA under this court ruling. DACA, known as the Deferred Action for Childhood Arrivals, was created by Obama in 2012. It has protected over 800,000 eligible non-citizens from deportation and has allowed these individuals to live and work in the United States legally.

In the new case of Batalla Vidal v. Wolf, Judge Nicholas Garaufis of the Brooklyn district court ordered the Trump administration to allow newly eligible immigrants to file new DACA applications. This reverses Department of Homeland and Security (DHS) secretary Chad Wolf’s July memorandum that restricted the program to only those who were already enrolled.

Judge Garaufis has instructed the U.S. DHS to publish a public notice by Monday that indicates that DHS will accept and adjudicate all new DACA petitions from eligible immigrants who are not currently enrolled in the program. Garaufis also noted that officials must grant approved DACA applicants two-year work permits, rather than the one-year permits proposed by the Trump administration this summer.

This November 2020, Garaufis issued another ruling in which he found that DHS’s acting secretary Chad Wolf did not have the legal authority to shut down DACA for new applicants or to shorten the validity of DACA-recipients’ work permits from two years to one. At the time, Garaufis said that Wold’s appointment to DHS was unlawful because it violated the 2002 Homeland Security Act. Congress’ Government Accountability Office also determined Wolf’s appointment to be invalid in August.

As we approach January 20th, President-elect Joe Biden has vowed to fully restore the DACA program after his inauguration. But if Garaufis’ order still stands, Biden’s goal would have already been completed. However, Biden continues to face pressure from immigrant rights groups to overhaul the U.S.’s existing immigration system to reform its laws to further support DACA recipients and other undocumented immigrants.

While this order is a beautiful victory for DACA recipients and potential eligible petitioners, many Republican-led states are pushing U.S. District Judge Andrew Hanen to declare the program unlawful and to terminate it. Hanen has previously blocked Obama’s 2014 expansion of DACA and also blocked the creation of another program meant to protect undocumented parents of U.S. green card holders and citizens from deportation. Look out for Hanen’s hearing on this case, scheduled for December 22nd.

Furthermore, the Trump administration could appeal the ruling by Judge Garaufis in the coming days. Immigration advocates certainly hope that the administration won’t pursue this legal fight to end the program, given that a new Democratic administration is soon to take over.

If you would like to apply for DACA contact our Immigration Lawyers in Portland, Oregon, contact us soon at (866)691-9894.

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Immigration Lawyer Portland

Citizenship Test Changes in Portland, Oregon

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On November 13th, USCIS announced its plans to implement a revised civics test for U.S. citizenship applicants. According to their memo last week, USCIS has revised this test “as part of a decennial update to ensure that it remains an instrument that comprehensively assesses applicants’ knowledge of American history, government and civic values.” USCIS had originally announced these plans in July 2019.

The new civics test must be taken orally and consists of 128 questions and answers. The test officer will ask an applicant 20 questions of the total 128, and an applicant must answer at least 12 questions correctly to pass the 2020 version of the civics portion of the naturalization test.

The previous test consisted of a total of 10 questions from a bank of 100 civics questions, and an applicant had to correctly answer 6 of the 10 questions. In this previous test, the civic portion of the test ended as soon as the applicant answered 6 of the questions correctly. However, in this revised test, the officer must ask all 20 questions, even if the applicant answers 12 correctly before the end of the exam. Note, however, that applicants who are 65 years or older and have permanently lived in the U.S. for at least 20 years will be asked 10 questions and must answer at least six correctly in order to pass the new test.

Don L. Fisher, who has spent the past 10 years teaching classes to immigrants preparing classes for their citizenship test, summarized the new test, “The exam is longer, requires more answers and more detailed answers.”

The U.S. civics test is taken by applicants for the U.S. Citizenship, and is a requirement for becoming naturalized as a U.S. citizen. This updated test will be taken by applicants who apply for naturalization on or after December 1st, 2020. If you have applied for citizenship before December 1st, you will take the current version of the test.

According to their November 13th memo, USCIS conducted pilot tests with volunteers and community organizations across the country. Using this pilot data, USCIS made choices about language and grammatical structure of every test item and determined the linguistic and cognitive weight of every test item as well.
The content of this revised test has also been altered. All the questions about U.S. geography, including oceans, rivers and states have been removed. Rather, the revised test includes more questions about politics, about the presidency, Congress and Supreme Court, and a bit about the U.S. founding fathers.
Certain updated answers to questions have sparked criticism. For instance, question number 31 asks, “Who does a U.S. senator represent?” In the 2008 version of the civics test, the answer to this question was “All people of the state.” But in the 2020 version, the answer is “Citizens of their state.” This seems to target and marginalized undocumented individuals in the United States.
Many community organizations and immigration activists have criticized these changes to the civics test. Eva Millona, CEO and President of the Massachusetts Immigrant and Refugee Advocacy Coalition said that the revised test is “another example of the Trump Administration seeking to put barriers to citizenship with little opportunity for input from communities that will be most impacted.” Millona is hopeful that the Biden Administration will reverse this change to civics tests. Many activists push for immigrants to take the civics test before December 1st if possible.
If you are planning to apply for citizenship on or after December 1st, 2020, consider the test items and study guides that are found on the Citizenship Resource Center on the USCIS website. There is a 2020 Civics Test Practice posted on the USCIS website with 128 questions. There is also an updated USCIS Policy Manual (PDF, 323.82 KB). For the English and Civics testing, see Volume 12, Part E, English and Civics Testing and Exceptions, Chapter 2, English and Civics Testing.

If you are interested in applying for U.S. citizenship, now is the time to apply!   Contact us today at (866) 691-9894.

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Immigration Law Changes in Portland Oregon with Biden Administration

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Throughout President Trump’s four years in office, over 400 executive and regulatory actions on immigration have taken place to make it even more challenging for foreign nationals to immigrate to the United States. However, as the U.S. will soon transition away from a Trump administration with Joe Biden’s upcoming presidency, there are several key issues to which a Biden-Harris administration will apply a different approach which will have a direct impact on immigration cases your immigration lawyers are representing you on in Portland, Oregon.

Thus far, President-elect Biden has said that he will make a set of executive orders to reverse many of Trump’s previous immigration laws. It’s likely that cancelling the 2017 travel ban from 11 Muslim-majority countries, along with reinstating the Obama-era DACA program, will be central priorities and allow many individuals separated from loved ones to get immigrant visas and green cards. Additionally, during the third presidential debate, Biden claimed that within his first 100 days in office, he will send a comprehensive immigration reform bill to Congress.

 

Keep in mind, though: many immigration analysts have said that reversing Trump-era immigration laws will take time. While rescinding President Trump’s travel ban can be easily done since they were issued by executive order and presidential proclamation, lawsuits may delay the process. Sarah Pierce of the Migration Policy Institute announced, “We’re about to see the pace of immigration changes slow down significantly.” This is especially true now, as Biden will have tremendous work to do as soon as he enters office to combat the COVID-19 pandemic.

 

Immigration and COVID-19?  

Since the start of the COVID-19 pandemic, the Trump Administration has implemented many pandemic-related travel restrictions. Biden has criticized some of these in the past when speaking about immigration, calling many of these travel bans “xenophobic.” Thus far,, Biden hasn’t clearly stated whether he plans to reverse these immediately upon entering the office.

Refugee and Asylum Seeking

The Migration Policy Institute’s new policy brief analyzes the incoming administration’s main immigration priorities and predicts both challenges and opportunities of the Biden-Harris approach. The brief highlights that Biden plans to raise refugee resettlement from 2020 current record low of 15,000 to 125,000. Biden also says that he will raise funding to the operational capacity of the nonprofits that resettle refugees, which will help increase resettlement. Experts from the Migration Policy Institute have reported that Biden may adopt its policy recommendation to allow asylum officers to screen migrants for asylum and adjudicate their cases to completion, which would help to minimize court backlogs and speed up the entire process.

The Biden-Harris administration has also promised that it will halt border wall construction and revive the asylum process that the Trump administration has nearly stopped. Furthermore, Biden has said that he would end the Trump administration’s Migrant Protection Protocols policy, which is often called the “Remain in Mexico” policy. Trump’s August 2020 policy that requires asylum seekers to wait 365 days before applying for work permit eligibility will also likely be reversed.

Education
Biden has also proposed to exempt U.S. graduates of Ph.D. STEM programs from visa caps. He has also proposed to provide foreign graduates of U.S. doctoral programs a green card upon obtaining their degree. This automatic granting of green cards to graduates would reduce the number of applicants waiting for their green card petitions, and would also incentivize brilliant students from abroad to study in the U.S. and remain in the country as an employer after their studies, which would in turn benefit the American economy.

K-1 Fiancé Visas

K-1 Fiancee visa cases are currently being processed in a very slow manner, if at all, under the Trump administration. Since March 2020, the Trump administration suspended the routine processing of visas, including the halting of all K-1 visa processing. Once we have President-elect Biden in power, it is expected that this arbitrary decision to halt K-1 visa processing will be reversed. Of course, the pandemic will intervene with routine processing, and may intervene with consulates’ normal functioning.

 

Business-Related Immigration
The Biden administration will collaborate with Congress to raise the number of employment-based visas. The current annual employment cap of 140,000 visas, many argue, is a hindrance to the market. The Biden-Harris administration also the elimination of country caps on employment-visas as well. This would decrease the currently long backlogs for immigrants from certain countries. For instance, because of current per-country limits, certain employment-based green card applicants could wait decades.

The Biden-Harris campaign has also suggested that it may reform existing visa programs for temporary workers. These include agricultural, seasonal and highly skilled workers. Such reforms would include increasing the number of temporary visas available every year. Biden has also proposed to create a new visa category that could stimulate local and regional economic development, although details about this are still vague. He may also redirect federal funds from the border wall to other border enforcement and security needs.

If you have questions about these important immigration legal changes, contact us today at (866)691-9894 and speak to our Portland Immigration Lawyer.

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USCIS cancels furlough of 13,400 employees

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On the 25th of August, the United States Citizenship and Immigration Services (USCIS) announced that it would cancel the scheduled furlough of about 13,400 of its employees. USCIS justifies this decision by citing “unprecedented spending cuts” as well as a “steady increase in daily incoming revenue and receipts.” The agency expects to maintain operations through the end of the 2020 fiscal year. In a recently published announcement, USCIS notes that aggressive spending reduction measures will impact all agency operations and agency contracts.

The USCIS deputy director for policy, Joseph Edlow, said in a statement that, “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.” The deputy director emphasized that congressional intervention is still crucial to sustain the agency through the 2021 fiscal year, particularly since USCIS averted the furloughs scheduled for August 30th. This furlough was delayed numerous times before the final cancellation.

These furloughs would have drastically halted the immigration system. Not only would they have caused a standstill to essential services, but they would also have adversely impact millions of legal immigrants and U.S. citizens. This would be a detriment to the already-stalled U.S. economy. As USCIS has received fewer immigration applications filed over the past few months, USCIS’s revenue has also decreased. This budgetary restraint has led to a pause in the printing of 50,000 green cards and 75,000 worker permits.

Previously, the slow-moving pace of Congress’ plans about the next COVID-19 relief bill discouraged USCIS, as this funding has yet to be obtained by the federal agency. Notably, USCIS originally requested $1.2 billion in funding from Congress.

Fortunately, this past weekend, the House of Representatives unanimously introduced the Emergency Stopgap USCIS Stabilization Act, which would have temporarily kept USCIS afloat, although this legislation has yet to be passed by the U.S. Senate. This provides some hope that USCIS has caught Congress’ attention, and that subsequent funding may be allocated to USCIS with future bills.

 

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House of Representatives Introduces Emergency Stopgap USCIS Stabilization Act: Save USCIS and Avoid Furloughs?

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On the 21st of August, the House of Representatives introduced a new bill called the Emergency Stopgap USCIS Stabilization Act, which would allow the United States Citizenship and Immigration Services agency to halt the furloughs of over two-thirds of its employees and to expand its services for improved processing of applications.

USCIS is scheduled to furlough 13,355 of its 19,881 employees on August 30th, 2020, if no funding is provided by Congress to support the federal agency. The furloughs, announced in May 2020 when the agency was struggling to combat a funding shortfall, has already been delayed from the end of July. It is important to note that USCIS is now projected to have enough funds to keep its operations fully functional through the remainder of the fiscal year. Despite this, it is likely that the agency will run out of funds after November 2020, so USCIS is still planning to continue with the furloughs.

How the proposed bill works

In order to forestall the furloughs, the Emergency Stopgap USCIS Stabilization Act will increase USCIS’s “premium processing” revenues. Premium processing is a special service offered by the federal agency through Form I-907 to request faster processing of Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker. The additional fee for premium processing is currently $1,440, and would expedite the processing to 15 days on eligible petitions and applications.

In order to increase USCIS’s “premium processing” revenues, the premium fee will increase from $1,440 to $2,500 for petitions and applications eligible for premium processing. The sole exception is for H-2B and religious worker (R) petitions, in which case the fee increases to $1,500.

Additionally, the bill expands the availability of premium processing to more petitions and applications. The revenues collected are only allowed to be sued by USCIS to improve adjudication and naturalization services.

Finally, the bill provides benefits to all applicants, either premium and non-premium. The bill will ensure that premium processing funds improve adjudication times and reduce backlogs across all form types, including non-premium applicants. Furthermore, the bill will stabilize the rapidity of premium processing by ensuring that the premium service is only suspended when necessary.

According to Immigration and Citizenship Subcommittee Chairwoman Zoe Lofgren, this bill won’t serve as a complete solution to USCIS’s fiscal struggles, but it will provide USCIS with immediate access to supplemental revenue to eliminate the need for the August 30th furloughs.

Furloughs will dramatically disrupt the process of all U.S. immigration and naturalization services, which is why such a bill – if passed by the Senate – would significantly alleviate a burden on American business and families.

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Significant Increases to USCIS Application Fees

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On July 31st, 2020, DHS announced a final rule regarding the U.S. Citizenship and Immigration Services (USCIS) fee schedule, which would dramatically increase USCIS filing fees for certain immigration and naturalization benefit requests. Overall, USCIS fees are being increased by a weighted average of 20 percent, according to USCIS.

The changes to filing fees include a first-ever $50.00 fee for asylum seekers and an 80% increase for naturalization services, which would raise the cost of online naturalization applications from $640 to $1,160. In addition, the changes announced include a $10 fee for the registration requirement for petitioners filing H-1B petitions on behalf of cap-subject aliens. I-765 Application for Employment Authorization fees will be increased by $140 (34% increase of the original $410 fee) and I-485 Application to Register Permanent Residence fees have been reduced by $10 to amount to $1,130.

A detailed fee schedule, noting old fees and new fees for each application type, can be found here (or on uscis.gov/forms) on the USCIS website. On its website, USCIS specified that all filings postmarked December 23rd, 2016 or later must include the new fees or they will be rejected.

Effective on October 2nd, 2020, this new rule will support payroll, technology, and operations of USCIS. According to the agency, current fees would leave USCIS underfunded by around $1 billion per year. Immigration fees have risen to an extraordinary level in recent decades in the United States. For instance, in the 1990s, naturalization application fees were under $100.

The addition of a new asylum fee is important, as the U.S. joins Iran, Fiji, and Australia as countries that impose fees on asylum-seekers. Many immigration attorneys and activists have decried the added financial burden, as the right to seek asylum in the U.S. should not be conditioned on the ability to pay a fee, no matter what amount.

Human Rights First, a nonpartisan 501(c)(3) international human rights organization, denounced the rule soon after it was issued. The organization’s Deputy Legal Director, Anwen Hughes, stated: “Asylum seekers typically arrive in the United States with very limited resources that quickly dwindle. For some who are detained upon arrival, the total amount of money they have available to them by the time they are filing for asylum can be less than this application fee.”

While these fee changes have been added, the proposed $275 renewal fee for DACA recipients has been removed so that DACA fees for employment authorization and biometric services will remain at 2017-levels.  

USCIS deputy director for policy, Joseph Edlow, has stated that “USCIS is required to examine incoming and outgoing expenditures and make adjustments based on that analysis.” He added, “These overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans.” In a Facebook post, USCIS announced that these fees are reviewed every other year by law.

Note that USCIS, experiencing the economic consequences of the coronavirus pandemic, risks facing a revenue shortfall for the calendar year, despite having a budget surplus for the fiscal year. This will likely contribute to over 13,000 furloughs if USCIS does not receive a $1.2 billion emergency fund from Congress. USCIS is a peculiar federal agency because, rather than coming from the government, it receives its funds mainly from fee collection. Because of the COVID-19 pandemic and Trump’s recent immigration restriction-oriented policies, the agency has received fewer applications, contributing to its revenue shortfall.

According to the American Immigration Lawyers Association, such furloughs will halt U.S. immigration, which will hurt families, businesses, educational institutions, medical facilities, and churches. Additionally, if USCIS is close to being shut down, immigrants in the process of naturalization will be unable to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face significant delays to their cases, and businesses will be unable to hire and retain non-citizen employees. The Migration Policy Institute concluded that for every month that the USCIS furlough lasts, 75,000 applications will not be processed. Fortunately, USCIS has agreed to move the previously-set date for these furloughs from August 3rd to August 30th.

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Immigration Lawyer Portland Oregon

Re-Implementing Public Charge Rule After Recent Injunction

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Last evening, the 2nd Circuit Court of Appeals limited an order that blocked the application of Trump’s Public Charge Grounds Final Rule during the duration of the COVID-19 pandemic. The federal appellate court concluded that the Department of Homeland and Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) may implement the public charge policy in every state but New York, Connecticut, and Vermont. These three states had previously sued the Trump administration over the public charge rule.

Since July 29th, U.S. District Court for the Southern District of New York issued an injunction of the Trump administration’s public charge rule, meaning that USCIS and DHS had temporarily reverted to the 1999 Interim Field guidance established before Trump’s Public Charge Grounds Final Rule. The N.Y. district court reasoned that Trump’s rule had deterred immigrants from seeking testing and treatment for COVID-19, as they feared such acts would negatively impact their immigration cases.

The federal appellate court’s most recent decision, briefly detailed in a one-paragraph order written by U.S. Circuit Judge Peter Hall, will revive Trump’s “wealth test” for immigrants, a victory for the Trump administration as this is one of the most extensive restrictions on legal immigration. Under this test, DHS may negatively consider immigrants’ past usage of public benefits programs, such as food stamps and housing subsidies, as well as health and education level, to determine whether they will rely on government assistance. Such a reliance would adversely impact green card applications.

In the short order, the 2nd Circuit Court of Appeals – a higher level court than the U.S. district court that issued the primary injunction – explained that the public charge injunction is no longer nationwide and only applies to residents of New York, Connecticut, and Vermont.

Since the nationwide injunction was announced, USCIS instructed applicants to hold off from filing Form I-944 Declaration of Self-Sufficiency for those filing on or after July 29th, 2020. USCIS has yet to publish further instructions for applicants who have already filed without the Form I-944, and USCIS has yet to update its website with the new ruling. However, because USCIS still has these instructions from July 29th on its website despite having adopted a new ruling, it may be useful to save a copy of this, along with the date, if an applicant has already filed without Form I-944.

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Injunction of Public Charge Final Rule

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On July 29, 2020, the U.S. District Court for the Southern District of New York issued a nationwide temporary suspension of the application of the February 24th 2020 Public Charge Grounds Final Rule. The injunction of this rule will apply to any period during which there is a declared national health emergency due to the COVID-19 pandemic. As long as the July 29th decision is in effect, USCIS will only apply the 1999 Public Charge Guidance established before the Public Charge Grounds Final Rule.

On March 26th, 1999, “public charge” was defined by Immigration and Naturalization Services as a ground of inadmissibility for which an alien may be denied immigration. A “public charge” refers to an individual “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense.” In August 2019, DHS announced a new rule that would alter this definition of “public charge,” so that it made individuals receiving the following benefits are inadmissible for permanent residence: Supplement Security Income (SSI), Temporary Assistance for Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), Medicaid (with some exceptions), and certain public housing assistance. This secured self-sufficiency of permanent resident applicants, so that these individuals would not rely on American public resources. The change to the definition of “public charge” was adopted on February 24th, 2020, so that both applicants applying for permanent residents in the U.S. as well as those seeking immigration from abroad would be impacted. Until February 24th, 2020, the use of most public benefits did not have negative consequences to an immigrant’s legal status.

As long as the July 29, 2020 injunction is in place, USCIS will uphold the existing 1999 public charge guidance, rather than the Trump administration’s expanded rule.  This injunction will certainly soften the process for permanent resident applicants, and will be applied throughout the COVID-19 national health emergency.

On July 29th, the U.S. District Court for the Southern District of New York concluded that the plaintiffs provided sufficient evidence to show that the February 2020 Public Charge Final Rule deterred immigrants from seeking testing and treatment for COVID-19, fearing that this would make them consequently inadmissible to the United States. This, of course, complicates efforts at stopping the coronavirus and even further aggravates the spread of the pandemic. An injunction, the plaintiffs argued, would be in the general American public’s interest.

 

This injunction applies to adjustment of status applications and to non-immigration change or extension of status. For any petition filed after July 29, 2020, the applicant or the petitioner does not need to include the Form I-944, Declaration of Self-Sufficiency. If an applicant or petitioner has already submitted this form, USCIS will not consider the information on this form regarding receipt of public benefits. Additionally, the applicant and petitioner do not need to include information on the receipt of public benefits in Part 5 on Form I-539 Application to Extend/Change Nonimmigrant status, Part 3 on Form I-539A, or Part 6 on Form I-129 Petition for a Nonimmigrant Worker.

On its website, USCIS has announced that it will issue guidance regarding the use of affected forms.

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