On October 4, 2019, President Trump issued an immigration related proclamation that will affect nearly all family-based cases being processed abroad once it goes into effect. Titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System," the order directs immigrant visas to be denied to individuals who cannot demonstrate that they will be covered by approved health insurance within 30 days of the alien's entry into the United States or unless the individual possesses the financial resources to pay for reasonably foreseeable medical costs. What this essentially means, in layman's terms, is that immigrants who cannot prove that they are covered by health insurance or have financial means to pay for their medical costs will be barred from entering the US.
TPS Holders with Deportation Orders Applying for Green Card After Advance Parole
TPS applicants who are applying for adjustment of status with outstanding removal orders should be aware that the New Jersey District Office has reversed its policy with respect to these cases. Of course, every case is fact and circumstance specific, but in general, it now appears that individuals who initially entered without inspection, have been ordered removed, subsequently left and re-entered the US with advance parole are being deemed ineligible to adjust status before USCIS. The issue hinges on whether USCIS or the Immigration Court has jurisdiction to adjudicate an adjustment of status application filed by someone who has already been ordered removed. In most cases, the removal order is considered executed once a person under that order leaves the United States. Once an individual has a removal order, he/she is generally barred from the US for ten years unless an I-212 is filed and approved. In some cases, individuals who have returned with advance parole have filed I-212s in conjunction with their adjustment of status applications before USCIS. Now, the government's posture is that USCIS does not have jurisdiction over such cases because the individual has not actually departed (in a legal sense) to trigger execution of the removal order. Moreover, if a person with TPS has left the US with advance parole, he/she technically returns to the US in the same immigration status he/she had prior to the departure. So, in other words, if an applicant had initially entered without inspection and left with advance parole, he/she shall be inspected and admitted "in the same immigration status the alien had at the time of departure"-namely, as an individual who has entered without inspection. And unfortunately, in general, unless the individual is eligible under section 245i, applicants who enter without inspection do not qualify to adjust status here in the US.
New Rules Regarding Fast Track Deportation Soon To Take Effect
Given the magnitude and ramifications of the government's imminent expansion of expedited removal, the lack of media coverage is confounding. In any case, readers should be aware that the new criteria is set to be applied any day now. In fact, according to an internal ICE memo dated July 24, implementation was set begin at the beginning of September.
Asylum Work Permits Denied for DWI and arrests
If applicants for asylum have not suffered enough legal setbacks within the past year, we have recently heard of work permits for asylum applicants who have had brushes with the law. The instructions for the I-765 Application For Work Authorization indicate that for category (c )8-which applies to asylum applicants--USCIS "may, in its discretion, deny your application if you have been arrested and/or convicted of any crime." In one case, we recently heard of an adverse decision regarding an individual who had a DWI and very minor traffic infraction on his record. Apparently, USCIS is applying a very elastic understanding of "crime" to include not only felonies and misdemeanors but essentially any type of violation or infraction. Moreover, one does not necessarily need to be convicted or found guilty by a judge in order to trigger a denial. A mere arrest can potentially invoke denial under USCIS's boundless discretionary powers, which does not bode well for immigration applicants in general given that asylum work applications are not the only types of applications where some measure of discretion is accorded to adjudicators.
File Parent Green Card Cases Before October 2019
A recent podcast by our west coast colleague attorney John Khosravi brought up a very insightful point that is worth repeating. As we previously discussed, the new public charge rules go into effect October 15 of this year. The rule is extraordinarily complex and well over several hundred pages. Much of the media attention has focused on the expansion of what types of programs constitute public benefits. There is understandable fear that aspiring immigrants may be deterred from applying for benefits which they desperately need out of fear that their immigration cases will be jeopardized. What has not been emphasized, however, is perhaps even more significant than what additional programs will be considered: namely, the number of factors that an officer may consider when determining whether an individual may be a public charge, and hence, ineligible for permanent residence. These include:
New Residence Rules for People Born Abroad Claiming Citizenship Through Parent
During his administration, President Trump has repeatedly proclaimed his intentions on ending birthright or automatic citizenship for those born within the United States. To be clear, birthright citizenship is still intact, but the latest USCIS policy memo pertaining to residency for citizenship arguably represents an encroachment. Policy Memo PA-2019-05, issued on August 28 of this year, received much attention in the media regarding changes to the way USCIS will now adjudicate citizenship petitions for children of US government employees and armed forces members. Under the new policy, as elaborated in the memo, children of US government employees and armed forces members residing outside the United States will no longer be considers "residing in the United States" for purposes of citizenship applications filed under section 320 of the Immigration and Nationality Act. Section 320 is a part of the law that grants citizenship to certain children under the age of 18 who did not acquire citizenship at birth but who are residing in the legal and physical custody of a citizen parent pursuant to a lawful admission for permanent residence. (In these cases, the child applies for a Certificate of Citizenship, as opposed to filing to become a citizen through the naturalization process.) The upshot of the new rules, effective October 29, 2019, is that these children born abroad must now pursue applications for citizenship under a different section, notably section 322, which is more cumbersome and requires the child to complete the naturalization process before the age of 18. Because this is an extremely complex area, some news outlets may have exaggerated and oversimplified its impact, though there is no dispute amongst most immigration attorneys that the new guidance discriminates against armed forces families and threatens to damage morale.
No Birth Certificate for Green Card Case | School Leaving Certificates
For most green card applications, an applicant will ordinarily be required to submit his/his birth certificate. Unfortunately, it is very common for older individuals to not have birth certificates. We see this especially with our Indian clients who were born during times when no official register of births was maintained. In some cases, some applicants may have school leaving certificates or other documents bearing the birth date and parentage information. However, it is important to understand that school leaving certificates, baptismal certificates and the like are not considered primary evidence. In short, one cannot submit a leaving certificate or other document indicating the birth information in lieu of a birth certificate merely because obtaining the birth certificate is inconvenient. If there is a birth certificate, USCIS will expect to see one. The aforementioned alternative documentation is deemed secondary evidence and will not be considered unless a birth certificate is truly unavailable. Should this be the case, an applicant will ordinarily have to submit an official no birth registration letter from their government confirming this. If a no birth registration letter has been obtained, then one may start assembling the alternative secondary evidence of birth. As mentioned previously, this may come in the form of religious records, school records, or even census records. Should none of these records be available, then one may submit at least two affidavits obtained from two different people who have personal knowledge of the birth and parentage of the applicant. While the affiants do not need to be US Citizens, they must nevertheless identify themselves, explain how they know the fact at issue, and certify that the statements are truthful.
TPS Holders and Green Card Applications | No Inspection Issues
On July 31, 2019, USCIS issued an important policy memorandum adopting a case decided by the Administrative Appeals Office. The case is Matter of H-G-G, decided by the AAO on July 31, 2019. This case is particularly relevant to individuals who hold Temporary Protected Status (TPS). The gist of the case is essentially that while TPS provides a form of insulation from removal, a grant does not confer admission or cure a previous failure to lawfully maintain status. This is especially significant in the context of adjustment of status because an applicant must demonstrate lawful inspection and/or parole under section 245a; moreover, an individual who has failed to continuously maintain lawful status will generally be ineligible for adjustment under section 245c. In some jurisdictions, particularly the Sixth and Ninth circuits, applicants have successfully argued that TPS is a form of admission for purposes of adjustment of status-in effect, allowing them to adjust status although they may have initially entered without inspection. H-G-G strongly contravenes this interpretation, holding that TPS is a humanitarian measure intended to facilitate a grantee's eventual departure from the US, not a legal panacea that creates a path to residence or situates someone better than what they were before. As the AAO notes: "We find nothing in the statutory scheme or the legislative history to suggest that Congress intended to also confer new eligibilities on those who did not have them in the first place."
New Public Charge Rule Will Affect Green Card Applicants Who Have Used Government Aid
Last week witnessed the release of the much-dreaded final rule pertaining to the public charge ground of inadmissibility. To say that the new policy is a drastic reworking of the current practice is an understatement. The policy changes not only significantly expand the contours of what is considered a public charge but potentially arm adjudicators with additional tools to deny individuals seeking admission into the US. Since the Department of State has already implemented its own draconian public charge regulations, these new changes primarily affect people who are applying for family-based admission in the US, notably adjustment of status applicants. It also impacts certain non-immigrants requesting a change or extension of stay in the US.
New U Visa Policy | I-918 Application Will Not Stop Deportation
This month, Immigration and Customs Enforcement announced an important policy change pertaining to enforcement against individuals who have filed for protection under the U visa program. The changes are formalized in Directive 11005.2 and summarized in a Questions and Answers Fact Sheet issued by the agency on August 2. In a significant reversal of the former practice, ICE officers are no longer required to interact with USCIS to request a prima facie determination of eligibility for U status before executing a removal order against an individual who has lodged a Stay of Removal. Effective immediately, ICE officers and attorneys are now accorded a wide berth of discretion to determine what action to take against such individuals. Enforcement are to consider the totality of circumstances, including both positive and negative factors; the beneficial impact of an applicant's assistance to law enforcement; and whether a temporary reprieve from removal is appropriate-all this without input from USCIS, which is in charge of adjudicating the U visa application. As a consequence, a sizeable population of U visa applicants with outstanding removal orders but who have legitimate pending U visa applications, may be expeditiously removed notwithstanding that they may have meritorious, approvable cases.
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