In a disappointing departure from the Sixth and Ninth Circuits, the Third Circuit recently published its position on TPS in Sanchez; Gonzalez v. DHS. In a precedential decision, the court held that TPS does not constitute an "admission" for purposes of adjustment of status under 8 USC 1255. Parsing through sections 1254a and 1255, the court distinguishes between lawful status and admission-two different and independent concepts. Essentially, while a grant of Temporary Protected Status confers "lawful status" upon an individual, that grant does not translate into "lawful admission"-which technically requires an inspection/admission or parole. In most cases, an applicant for adjustment of status must demonstrate 1) that he/she has been inspected/admitted/paroled and 2) he/she has not failed (other than through no fault of his own or for technical reasons) to continuously maintain lawful status since entry into the US. According to the holding, TPS will solve or cure the second prong for purposes of adjustment of status. However, if an individual entered the US without inspection-notwithstanding that he/she may currently have TPS-he/she will nevertheless be ineligible to apply for adjustment (subject to certain exceptions, of course, such as section 245i of the INA) due to the deficient first prong.
Court Issues Block On Public Charge Rule | Do I Still Have To File I-944?
Last week, the Southern District Court of New York granted a preliminary injunction effectively staying further enforcement of the public charge rule. This is extremely significant news given that the order is to be applied nationwide in light of the irreparable harm and public interests engendered by the COVID-19 pandemic. Under the decision, the government is "enjoined from enforcing, applying, implementing, or treating as effective the [public charge] Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak." In practical terms, what this means is that the government is forbidden from applying the stricter public charge guidelines to individuals seeking admission to the US. The plain language seems to indicate that applicants for adjustment of status should not have to complete the onerous I-944 when submitting the I-485 application, and applicants should not bear the burden of demonstrating self-sufficiency at their interviews so long as this injunction is in effect.
What To Expect At My Citizenship Interview During COVID-19?
Now that USCIS has begun rescheduling naturalization interviews in NJ that were previously postponed due to COVID-19, the natural question now is what to expect? Will things be drastically different?
The most obvious change is that there will be noticeably less people allowed into the waiting room. Unlike before, only the following people are allowed to come to the interview:
- The applicant
- The applicant's attorney or authorized representative; alternatively, attorneys may be available via phone
- If the applicant has a disability, an individual who assists the applicant
Can A USCIS Officer Deny A Case Because He/She Feels Like It? Maybe
Last week, USCIS amended its Policy Manual to incorporate some very importance guidance on the exercise of discretion. While discretion has always implicitly factored into an officer's adjudication, the new amendments, announced by way of a Policy Alert, formalize and flesh out what officers should be looking for specifically and herald a more pronounced emphasis on a discretionary approach. In practical terms, officers will be afforded and equipped with more tools to deny cases, even if eligibility for a benefit has been demonstrated. While there are a few categories of cases in which discretion is not involved, the vast majority of cases do allow and expect adjudicators to go through this analysis. Some examples include K-1 Fiancé petitions; Asylum; Adjustment of Status; and of course, Waivers of Inadmissibility. Discretion is defined as "the ability or power to exercise sound judgment in decision-making." Realistically speaking, discretion is essentially an officer's subjective evaluation-does he/she feel comfortable with the case/applicant? Does the applicant warrant an approval?
Not Carrying Your Green Card Is A Criminal Offense
A very disturbing article came out last Thursday that perhaps accounts for the interminable delay some individuals are experiencing in waiting for their green cards. According to the article which appeared in The Washington Post, USCIS has apparently cut back on the physical production of green cards due to budgetary strain. In June, the agency's contract with the company that was producing the cards supposedly lapsed, and operations have since slowed down to a crawl in the wake of news that nearly three quarters of its workforce stand to be furloughed next month.
2020 DACA Program Update | Supreme Court Issues Ruling
On June 18, 2020, the Supreme Court issued its much-anticipated decision on Deferred Action for Childhood Arrivals, or DACA. Fortunately, the ruling does not terminate DACA, as many had feared it would. While not delving into the politics behind the policy, the High Court held that the Administration's rescission was "arbitrary and capricious" and that the agency failed to reasonable explanations for its actions. The upshot is that the case essentially reinstates the 2012 DACA program, allowing individuals who have DACA to continue filing for renewals. Furthermore, those whose DACA has expired may also file deferred status, though for some it will be a renewal application, and for others, an initial application (depending on how long the lapse is). What is very interesting, though, and perhaps the best aspect of the decision, is that those who have never been granted DACA appear to be eligible to file initial applications. Additionally, since DHS is required to maintain the original DACA program, it also appears that DACA recipients should, in theory, be able to file for advance parole-special permission to leave and re-enter the US.
President Trump New Order Restricts H-1 Visas and Family Visas Through December
On June 22, 2020, President Trump issued another important Presidential Proclamation on immigration. This iteration is particularly pernicious, as it affects not only family-related visas but now popular business visas. Under the order, which became effective June 24, 2020, the government will be suspending the issuance of the following visas through December 31, 2020:
USCIS Resumes Green Card Applications
Approximately two weeks ago, an article in Roll Call reported that USCIS had stopped processing green card applications. This domestic policy was putatively to align with the President's proclamation effectively barring immigrant visas from abroad, although no such announcement was made public. Fortunately, the reporter later tweeted last week that USCIS has instructed employees via email to resume processing of I-485 applications.
Adjustment of Status Cases Being Denied Without RFE
According to the American Immigration Lawyers Association, a spate of anecdotal reports have come out that the National Benefits Center (or NBC) has been summarily denying adjustment of status cases without affording applicants any opportunity to rectify the alleged deficiency. Traditionally, USCIS would issue Requests for Evidence or Notices of Intent to Deny if missing documentation or problematic issues were discovered during an initial review of the file. This new practice aligns with recent enforcement changes implemented in 2018 granting adjudicators much more authority to deny cases.
USCIS Has Resumed In-Person Appointments
In some good news, USCIS began resuming in-person operations last week. Individuals may soon begin receiving appointments for interviews and naturalization oath ceremonies. That being said, this is still an incremental roll-out, with limited face-to-face services. As a consequence, expect to see interviews and appointments being conducted, but not on as an extensive scale as prior times.
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