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:
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.
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.
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.
Last Friday, President Trump issued another proclamation suspending entry of certain foreign nationals. This latest salvo is directed, in particular, at certain Chinese nationals attempting to enter the US on F-1 student visas or J-1 visas. At first blush, the order appears to restrict such visas to all Chinese nationals, but upon closer reading, is narrowly tailored towards Chinese nationals associated with organizations or entities that implement or support China's military civil fusion strategy. Military fusion strategy is further defined as actions "by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities." Subject to certain exceptions, the order covers any Chinese individual seeking to enter on an F-1 or J-1 to study or conduct research and who "either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of an entity in the PRC that implements or supports" China's military fusion programs.
When applying for permanent residence, it is critical to understand and distinguish between the two different agencies charged with processing green card applications. In general, after a petition is approved-whether though family or employment-an applicant must choose whether to pursue consular processing or adjustment of status (assuming that one's priority date is current). Put simply, consular processing refers to a process where an individual appears for an interview at a US consulate abroad. These types of cases are handled primarily through the Department of State through the National Visa Center, which collects certain documents and forms before forwarding them to the US consulate. In contrast, the adjustment of status procedure takes place inside the US. The case is filed with and adjudicated domestically by USCIS.
This past April, President Trump issued his immigration proclamation suspending the entry of Immigrants into the US for sixty days. We covered the salient points in earlier posts. However, unless you have read the order in its entirety, you may not realize that the order was only the first volley of what may turn out to be a series of immigration related restrictions prompted by the COVID-19 crisis. In fact, even before this proclamation was issued, the Center for Disease Control (CDC) had already issued an order on March 20 suspending the entry of certain persons from where outbreaks exists. The effect of that order virtually expels individuals traveling from Canada or Mexico who would otherwise be processed at Port of Entry and Border Patrol stations. As a result, people traveling from those countries without proper travel documents or who have entered without inspection-even with meritorious refugee claims-will be summarily denied entry out of public safety concerns.
Last week, USCIS quietly released for comments a proposed revision of the Affidavit of Support Form. The changes are purportedly to align with and have the forms better reflect the priorities emphasized in President Trump's Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. The revisions will apply to Forms I-864, I-864EZ as well as I-864A for Household Members. All forms will incorporate new language clarifying and explaining to the sponsor what his/her obligations are (the affidavit is technically a legal contract) as well as legal consequences if the obligations are not met.
Now that President Trump's Executive Order is out, we now know the breadth and extent of its mandate. Fortunately, it does not appear as draconian as the President touted when he initially tweeted the pronouncement. The order does not ban or suspend all immigration. And as mentioned in our previous blog, the consulates are currently closed anyway due to COVID-19, so there is little practical effect to the proclamation at this time. It is when consulates start resuming operations that we will see whether the order has its intended effect.
Just this week, President Trump declared via twitter at 10:06pm Monday night, that he would be suspending all immigration into the US. This fiat will presumably be implemented through an Executive Order--which as of now, has yet to be released-so there are naturally many unresolved questions. At this point, no one (arguably even staffers within the Administration) knows the extent or breadth of the forthcoming order, ie., whether it will provide "carve outs" (or exceptions) for certain classes such as medical and agricultural workers, or whether it will impose a blanket bar on all foreign nationals including but not limited to spouses, children and siblings of US Citizens and Lawful Permanent Residents. It is conceivable that all non-US citizens, including green card holders may come under the scope of the interdiction. Litigation will likely ensue once the order is put out and the issue will be whether President Trump is within his powers to declare such a moratorium on immigration, which is statutorily provided for in the Immigration and Nationality Act. At issue will be the President's power under INA 212(f), which provides, in part: