Proposed Regulation to Restrict Work Permits for Individuals with Final Orders of Removal

Under current law, some individuals who have received an order of removal from an immigration judge are not actually able to be removed. In some cases, no country will accept the person and in other cases the US Government declines to actually remove them. Some people are given “orders of supervision” during the period of time that they live in the US, which typically requires frequent appointments with ICE or other types of monitoring.

A person with an order of removal and an order of supervision has been able to apply for a work permit. This makes sense, because those people are not in fact going to be removed from the US and there should not be a policy of forcing them into poverty, homelessness, or unauthorized employment. Now, the Trump administration has released a 120 page proposed rule to restrict this relatively small population of individuals from getting work permits. The proposed regulation shows that the annual number of work permit applications for these individuals has never exceeded 27,000 in any fiscal year between 2010 and 2019.

Additionally, the proposed rule does not entirely eliminate the work permits anyway. It creates a carve-out for those individuals who cannot be removed because DHS has received a rejection from all countries from which it has requested travel documentation. It’s not clear what percentage of the current applicants will be restricted under the new regulations. However, it is clear that the new rule is quite complicated and will only add unnecessary levels of bureaucracy to a work permit category that only allows very limited employment to begin with.

The rule is available to review at https://www.federalregister.gov/public-inspection/2020-25473/employment-authorization-for-certain-classes-of-aliens-with-final-orders-of-removal

Biden’s Immigration Plan – What Does a Biden Presidency Mean for Immigration Reform?

Many immigrants and immigration lawyers are wondering what the election of Joe Biden will mean for immigration reform. No one is sure yet, but we do know that Biden will likely be much more pro-immigrant and in support of immigration reform than the Trump Administration. Presidents aren’t able to change immigration laws on their own because only Congress can propose and pass laws. However, presidents do make significant changes to immigration regulations and policies. We know that because the Trump Administration has changed them about as much as possible.

First, we should ask what Biden’s platform is currently. Then, we should consider what the political realities are for implementing that platform.

What has President-Elect Biden said about immigration?

Immigration lawyers are laser-focused on the particular details of a candidate’s platform. We have clients who would benefit from one policy or another. What does a President Biden want to do?

The overall tenor of President Biden’s plan is a more compassionate immigration policy that takes into consideration a balance of enforcement actions and humanitarian concerns. That means that a President Biden would likely reverse some of the immoral and controversial policies of the Trump Administration, such as separating families and punishing asylum seekers. We can also probably include the travel bans and public charge rules. It seems like that Biden and his administration will also be good faith negotiators on immigration reform. This would be a welcome change, because Trump has repeatedly expressed support for different policies only to take actions against them, such as rescinding DACA.

Biden has publicized his immigration policies. These are really campaign points and it remains to be seen what he will do on his own and what he will propose to Congress for new legislation. As a lawyer, the most impactful changes would be:

  • Ending family separation at the border. This Trump policy has separated many parents from their children, perhaps forever, and created a humanitarian crisis at the border.
  • Reverse some of the Trump Administration’s changes to asylum. Trump has punished asylum seekers, sending them to Mexico to await court hearings (which are constantly canceled) and prevented others from living their lives here in the US. Biden has committed to ending these changes.
  • Biden will reverse the public charge rule. This rule has basically turned routine immigration processes into paperwork nightmares. The point is to discourage people from immigrating to the US, as with many other Trump policies. Biden will end it.
  • Protecting Dreamers. Dreamers have been waiting since at least 2006 for Congress to take action. When Trump took power, he only made life worse for them. Biden will work to not only keep the DACA program alive, but also to push for a DREAM Act rather than pretending to while undercutting benefits, as Trump has.
  • Ending the travel bans. Trump has not missed an opportunity to restrict immigration. The COVID Pandemic has not only upended the lives of many people, it also presented an opportunity for Trump to end immigration. Today, many parents and children of US Citizens and permanent residents are stuck abroad under the imaginary guise of “affecting the labor market.” Biden will end the travel bans.
  • Prioritizing sensible immigration enforcement. When Trump took power, he decided to prioritize everyone who was in the country without permission. In reality, you can’t prioritize everyone. Case backlogs have grown by hundreds of thousands during every year of the Trump Administration. Biden would focus on dangerous people and not spend resources on people like mothers and fathers of US Citizens.

These proposals are high level policies that will impact millions of people. They aren’t detailed laws or regulations, which is to be expected. But they clearly show a compassionate and sensible response to immigration policy that would both enforce US laws and take into consideration the personal stories of people living in the US.

Is immigration reform like to happen during a Biden presidency?

When a candidate proposes certain policies, it’s generally understood that they might not happen. That’s because a president of the United States has limited power. The president and propose laws and enact policies. But Congress passes laws. The President only gets to approve or veto a particular law. As a result, Presidents have limited influence in legislation.

Congress has the responsibility to create immigration laws. If immigration laws have been stagnant for years, it’s because Congress has not changed the laws. Arguably, most immigration laws have not changed for decades. President-elect Biden must work with Congress to get immigration reform passed.

Because Biden cannot go it alone, he has to depend on the House and Senate to craft and pass immigration reforms. That’s likely to be a struggle if the Senate is not controlled by Democrats. But it’s worth noting that immigration legislation has always been a challenge. Even when the Democrats held both Congress and the Presidency during the Obama Administration, very little immigration change occurred. Immigration bills are always compromises, and there is wide disagreement even within the Democratic Party about many immigration issues. As a result, it’s always a challenge to pass immigration reform.

Becoming a US Citizen through naturalization after divorce

Many US residents wonder whether they can still become US Citizens if they divorced the person who helped them get residency. There is no rule against getting divorced and it’s a common situation. At the same time, there are some situations which could come up and complicate the process. It’s best to speak with an immigration lawyer before applying for US Citizenship to make sure there are no issues in a particular case.

Here are some frequently asked questions by people applying for citizenship by naturalization.

Can I file for citizenship if I divorce the person who filed the family petition for me?

Some people became residents of the US through a family petition by a US Citizen or lawful permanent resident spouse. While no one is required to stay married, getting divorced can have consequences in different situations. USCIS is always concerned with marriage fraud, which usually means getting married only to get immigration status. And so, at each stage of the immigration process, USCIS checks to see if the marriage was intended for immigration purposes or other purposes.

Of course, it’s not unusual or illegal for a couple to have immigration issues in mind when they get married. After all, there are no immigration options for people who are dating or simply cohabitating. Immigrant couples often consider marriage more quickly than other couples because it impacts their ability to stay together lawfully. This is completely normal. What is not allowed is to pay for immigration paperwork, to get married only to get immigration status, or to lie about a relationship in some capacity as part of the immigration process.

Problems with a current or past marriage can come up at citizenship interviews

USCIS officers frequently meet with people who divorced from the spouse who filed for them. For many people, this comes up for the first time at the stage of applying for citizenship. All citizenship cases involve an interview and a thorough background check. Sometimes, USCIS realizes that information provided at an earlier stage was incorrect. This can lead to denial of a citizenship application and even deportation proceedings. Some common issues that come up are:

  • Claiming an incorrect marital status in any immigration application, such as filing a B2 visitor visa application as a married person rather than a single person
  • Failing to list children in a visa application or green card application, especially if doing so made it less likely that immigration would find some other problem such as another marriage or infidelity
  • Chain marriages where two people separate, get married to other people, immigrate to the US, and then later remarry
  • Undisclosed or common law marriages that were not properly terminated according to the laws of the country or state where the divorce took place
  • Having an affair or children outside of the marriage during the required good moral character period for the citizenship process

USCIS will likely look for these issues, so it’s a good idea to talk with an experienced immigration lawyer to review a case before filing.

How does getting divorced change the citizenship process?

There are a few important changes that can happen once someone has gotten divorced. For citizenship cases, USCIS wants to document the person’s marital status. For that reason, USCIS will typically require an original or certified divorce as part of the case.

USCIS reviews cases involving divorce for signs of marriage fraud

USCIS may screen cases of divorce more carefully. This is especially true where the applicant divorces from the person who petitioned for him or her. USCIS just wants to confirm that the marriage was valid. This comes up directly on the form N-400, and the officer will ask about all marriages, children, and whether any marriage was entered into for immigration purposes. This question is referring to marriage fraud, not whether the person intended to file some kind of immigration application when they got married.

People granted a two-year conditional residency must file to remove the conditions

If someone received a conditional residency (valid for two years), they must also make sure to file and complete the process. In most cases, you cannot become a citizen if you did not file the petition to remove conditions on the residency – but not all residents are subject to these conditions. Sometimes, people can file the petition to remove conditions and then file for naturalization while that process is pending. This is fine, so long as USCIS makes a decision on the petition before approving the naturalization application. They should do this automatically during the interview, but sometimes cases are not handled correctly.

Getting divorced can change the required amount of time to file for citizenship

The period of time that the applicant must wait before filing for naturalization also can change when the person has divorced. Spouses of US Citizens can often file after three years of residency rather than five. But it’s important to review the correct filing date for naturalization applications carefully.

Green Cards for Stepchildren and Stepparents

US immigration laws permits green cards for stepchildren as well as for stepparents under certain circumstances. There are some special rules that apply in these cases. To be considered a stepchild, the marriage between the biological parent and the stepparent must have taken place before the stepchild’s 18th birthday. In many other respects, the process is similar to other child and parent green card applications.

Stepchildren and stepparents in US immigration law

Many people are not aware that US immigration law considers stepchildren to be just like other children as long as some basic requirements are met. This is because in most parts of immigration law that reference children, a specific definition of a “child” applies. That definition includes stepchildren.

Section 101 of the Immigration and Nationality Act defines a child for immigration law purposes (but only for titles 1 and 2 of the act). In immigration law, all children must be under 21 years of age. The law typically refers to older children as “sons and daughters” and they are treated differently in many respects. The stepchild definition says that a child includes:

“a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred”

INA Sec. 101(b)(1)(B)

This means that as long as the marriage between the stepparent and the biological parent occurred before the child’s 18th birthday, the law considers the child to be a stepchild. In some states, common law marriage allows the person to backdate the actual date of marriage. This can potentially be done even if the parents later married in a normal ceremony.

Stepchildren are not always considered children for immigration purposes. The most common situation that they aren’t considered to be children is for deriving citizenship from a US Citizen parent.

Green card applications for stepchildren

Based on this definition, there are greencards for stepchildren much like there are for biological children. A stepmother or stepfather can file an I-130 family petition for their step child if they meet all the requirements. If the stepparent is a US Citizen, the children may also be eligible to apply for a green card at the same time. Note, however, that the petition and green card applications are actually separate processes. Schedule a consultation with an immigration lawyer to review the entire process and confirm eligibility.

The simplest and most common situation is that a US Citizen marries a person who has children already. Assuming that the spouse and children entered with a visa, the US Citizen can then file I-130 petitions for the spouse and the children. Separate I-130 petitions are required for each person, even if they are applying together. Listing children in an I-130 does not mean that they are included as derivatives – there are no derivatives allowed if the relationship is considered to be “immediate relatives.” The spouse and children will also need to file I-485 adjustment of status applications in many cases. Again, each person must have their own I-485 with a separate fee, and the cases are technically separate but often decided at the same time.

Sometimes, people are not eligible to adjust status in the US, but this is not unique to the stepchild process. For example, if a child entered the US on a visa with her parent, but overstayed her status, she may be ineligible to adjust status in some cases. This is true for stepchildren of a lawful permanent resident. However, the stepparent can still file the petition for the stepchild, who can often consular process by attending an interview in her home country.

Green card applications for stepparents

Similarly to stepchildren, there are also green cards for stepparents if they meet the requirements. Stepparents can also be petitioned for by their stepchildren. The same definition of a child that applies to help the child also applies to the parent petitions. Petitions for parents follow different rules, however. In most circumstances, a child must be a US Citizen and over age 21 in order to file a petition for a parent. Stepchildren must also prove that the marriage which formed their stepchild relationship occurred before they turned 18.

In many cases where a stepchild relationship exists, the spouse would be the person filing the petition rather than their child. But there are some circumstances where it would still be helpful. One example would be if a parent came to the US, overstayed a visa, and then had a child in the US. The child is a US Citizen, and we can assume that their parent gets married at some point before the child turns 18. Both the biological parent and stepparent are out of status but entered on visas. Once the US Citizen child turns 21, he or she may be able to file for both the parent and stepparent.

It’s important to review all adjustment of status cases with a lawyer, because there are many requirements and getting denied can lead to deportation. In addition, completing the paperwork and forms has become more and more burdensome over the years. Schedule a free consultation to discuss a particular case.

When can you apply for US Citizenship and naturalization?

Most permanent residents must have four years and nine months of residency in order to apply for naturalization. The general rule is that someone can apply three months before the required time period, which is usually five years. As such, four years and nine months would be the earliest date to file.

There are a number of exceptions and variations on this general rule, some of which allow people to file even earlier, depending on their circumstances.

Filing for US Citizenship early based on marriage to a US Citizen

There is an important exception to the general five-year rule for spouses of US Citizens. If they meet all the requirements, spouses of US Citizens can apply for naturalization in two years and nine months. This is because they are permitted to apply in three years rather than five, and they can also take advantage of the three-month early filing law.

Spouses of US Citizens should carefully review the requirements to make sure they qualify for naturalization early, including:

  • The spouse must remain a US Citizen until the spouse becomes a US Citizen at the oath ceremony
  • The spouse must have lived in a marital union for three years prior to filing, which is not subject to the early-filing period. This may be an issue for spouses who married US Citizens after becoming permanent residents, rather than becoming permanent residents through marriage to a US Citizen.
  • The spouses must reside together and live in marital union up until the date of the oath ceremony, unless there are compelling reasons for living separately.
  • This early filing period may not be possible in the event of divorce, annulment, or death of the US Citizen spouse.

Filing for US Citizenship early based on a VAWA self-petition or abuse by a US Citizen

The early-filing period for spouses of US Citizens also applies in some cases to people who were abused by US Citizen spouses. This may be possible even if the spouse has since divorced the US Citizen. USCIS will allow certain spouses to file if they became permanent residents based on:

  • An approved I-360 self-petition as an abused spouse of a US Citizen
  • An approved I-360 self-petition as an abused spouse of a lawful permanent resident who later became a US Citizen
  • Approved beneficiaries of special-rule cancellation of removal where the abusive spouse was a US Citizen or in some cases an intended spouse
  • Marriage-based residency applications where an I-751 removal of conditions application was approved on the basis of battery or extreme cruelty by a petitioning citizen or lawful permanent resident

Filing for US Citizenship early based on a relationship to a member of the US Armed Forces

Spouses of US Citizens who are residing abroad and in the employment of the US Government can sometimes file without any specific period of time as a permanent resident, so long as they are residents. This is a common situation with spouses of members of the US Armed Forces. The naturalization ceremony typically must occur in the US, and certain modifications are possible for conditional permanent residents as well.

There are other options available to spouses and children of members of the US Armed Forces, veterans, and members who died in active duty. It’s important to review some of these less common options with a lawyer in order to determine eligibility and discuss the process.

Filing for US Citizenship based on current or prior service in the US Armed Forces

In recent years, most people must become US Citizens before or shortly after joining the US Armed Forces. There are some exceptions to this. However, in previous decades, some people joined the US Armed Forces and served in active duty without ever becoming US Citizens. Some people never even had lawful status to begin with. If that individual served during a period conflict (including 09/11/2001 to the present date), they may qualify for direct naturalization without ever becoming a permanent resident.

Backdating of green cards and filing early for US Citizenship

Certain permanent residents receive their green cards dated to before the actual date of approval. As long as USCIS has correctly dated the green card, this is normal and that date can be used to figure out when they can file for naturalization. USCIS does sometimes make errors with the dates on green cards, so it is always important to compare that date to the actual date of approval and the applicable law for the type of residency application. Green card backdating usually applies to only certain case types, such as:

  • Cuban Adjustment Act green cards (date of arrival or 30 months prior to green card approval)
  • Refugees (date of entry to the US)
  • Asylee green cards (one year prior to date of approval)
  • Lautenberg parolees (date of parole into the US)

If the green card has been dated incorrectly, it does not affect the actual date of eligibility for citizenship and the applicant should review the issue with a lawyer.

New Green Card Rules in 2020

This year has seen significant changes to the green card process. Not only has the COVID-19 pandemic delayed and practically halted many cases, but also the new public charge rule went into affect causing a great deal of confusion.

It should be noted that the overall process of applying for a green card in the United States is still the same. USCIS is still open and operating, only more slowly and with some added precautions. Most people should not delay in filing applications if they are eligible. It’s always a good idea to schedule a free consultation in order to discuss a particular case.

Here’s a summary of key changes to the green card process in 2020:

  • The public charge rule has gone into effect and is applying retroactively to cases postmarked on or after February 24, 2020.
  • COVID-19 shutdowns have caused severe delays for cases, particularly those received in February and March of 2020. Delays have been uneven.
  • USCIS implemented COVID-19 accommodations for certain deadlines and types of situations.
  • Travel bans have completely halted certain types of green card immigration to the US, particularly for parents of US Citizens and family of lawful permanent residents.
  • Fee increases proposed by USCIS were enjoined before going into effect, but will likely still be implemented at some future date.

Green card public charge rule in 2020

One of the most significant changes in 2020 was the implementation of the new public charge rule. USCIS wanted to start enforcing this rule in 2019, but was stopped by courts. The final rule went into effect starting February 24, 2020. Cases filed before that date should not be impacted by the rule. However, USCIS is retroactively applying the rule to cases filed since that date, even if a case was filed during a period when it was not required, like during the recent court injunction.

The public charge rule is a significant burden on applicants and just another barrier to people getting green cards. It requires applicants to demonstrate that they will not become a public charge of the US Government, meaning that they will not be dependent on the government. Applicants must submit form I-944, declaration of self sufficiency, and provide a lot of documentation mentioned in the form instructions. USCIS will determine if someone meets the new test by looking at whether the applicant has serious medical conditions, health insurance, a decent income if authorized to work, assets, significant debts, as well as their level of education.

USCIS COVID-19 accommodations

USCIS is providing some accommodations that are important for green card applicants as well as other case types. One key accommodation has been flexibility in responding to requests for evidence and other requests. It has been impossible to get many types of documents during the pandemic, and this allows 60 days beyond the date in most types of requests for applicants to respond. It also applies to some kinds of appeals and motions.

USCIS is also providing some flexibility with changes of status and extensions of status due to the pandemic. Additionally, applicants who have to reschedule due to illness or travel outside the US should not be penalized for their rescheduling requests, although in some cases USCIS has been issuing denials in error.

USCIS immigration fee changes in 2020

USCIS attempted to increase immigration fees for many common types of applications such as work permits, citizenship, and waivers. Currently, the fee rule has not gone into effect because it was stopped by multiple courts. That doesn’t mean that it won’t become effective in the future, however. Now is a good time to file those applications, like citizenship, before fees increase significantly. Some applicants will also lose their ability to get a fee waiver once that rule becomes effective, unless USCIS changes its policy.

Schedule a free consultation today to review how these changes impact your case.

Diversity Visas and the Green Card Lottery

Every year, the US Government selects applicants from a wide list of countries in a lottery system known as the diversity visa lottery. In most years, many more people apply than are able to complete the process. There are some requirements to enter, but they are not as difficult as employment-based cases and do not require the family relationships that many green card cases require.

The US Department of State operates the diversity visa lottery. Each year in October and November, people are invited to register for the lottery for visas available during the next fiscal year. Fiscal years are not the same as calendar years in the United States, and the fiscal year begins on October 1st. As a result, registrants in October are applying for visas that would become available the next October, which means it is always two fiscal years ahead of the current calendar year (as October of 2020 is fiscal year 2021, and visas would be available starting in fiscal year 2022).

How Does the Diversity Visa Process Work?

The diversity visa process involves four main stages:

  1. Registration
  2. Selection
  3. Application
  4. Interview and decision

Only the individuals who are able to make it through all the steps by the end of the fiscal year will be able to obtain an immigrant visa or green card.

Registration

The diversity visa registration process opens every year for qualified applicants to register. The registration process is fully online and completely free. Applicants for the 2022 Diversity Visa can register here: https://dvprogram.state.gov/

Selection

Diversity visa applicants are selected on about May 8th each year. This is when everyone who registered must go and check to see if their entry was drawn and to know whether they will be eligible to seek permanent resident status. If not, they can apply during the next registration period.

Application

If selected, diversity visa applicants will still need to submit an application. If outside the United States, they must apply for an immigrant visa. Inside the United States, most people will apply for adjustment of status unless they prefer to leave and attend an interview abroad. The exact application process varies, but involves payment of visa fees, completion of forms, submission of evidence, and an interview.

The application process is often time sensitive. Diversity visa numbers are not issued all at once and so people often must wait several months into the fiscal year before they can apply. This waiting period is determined by the visa bulletin. If a visa number becomes available late in the fiscal year, everything must be filed quickly in order to be able to complete the process before the end of the fiscal year.

Interview and Decision

Whether getting a visa abroad or adjusting status in the United States, diversity visa cases generally have in-person interviews. Most countries have US embassies or consulates where diversity visa applicants must go to have an interview. In the United States, the place of interview will depend on where the applicant lives and files for adjustment of status.

The purpose of the interview is to confirm the accuracy of the application and to confirm the applicant is eligible for permanent residency. There are many factors that can make someone ineligible for permanent residency or a visa, such as criminal history, misrepresentation, prior immigration problems in the US, deportations, and more.

Frequently Asked Questions About the Diversity Visa Lottery

When can I submit an application for the diversity visa lottery?

The current diversity visa registration period will open on Wednesday, October 7, 2020 at 12:00 noon, and conclude on Tuesday, November 10, 2020 at 12:00 noon. Visas that are becoming available now in the month of October, 2020, were selected from registrants in November, 2019. This registration period is for visas that will become available in October of 2021 (fiscal year 2022).

Do I get a green card if I am selected for the diversity visa?

The diversity visa process allows someone to get permanent residency, which is the same has having a green card. This is a permanent immigrant visa, not a temporary visa. Applicants abroad will go for a consular interview first, and have to pay for the green card once they have been approved. In the US, people are sometimes eligible to file for adjustment of status and become residents without leaving based on the diversity visa process.

Diversity visa selection is not the same as approval. In most years, many more people are selected than those who are able to complete the process and become permanent residents.

What countries are eligible for the diversity visa lottery?

Diversity visas are authorized for natives of certain countries. The term “native” is a legal one and it means the country where someone was born, not necessarily their country of residence. Some people can choose to be “charged” to a different country based on their spouse’s or parents’ countries of birth. The “chargeability” rules can get complicated and should be reviewed with a lawyer.

The list of countries eligible to file for the diversity visa is in the program instructions, linked below. Some individuals may be eligible for multiple countries and should consider the comparative benefits of filing under one country as opposed to another.

Can my spouse and I register separately for the diversity visa lottery?

Yes, while a single applicant can only file a single application, spouses can file their own individual applications. Because diversity visas allow for derivative spouses, this often gives spouses two chances at the diversity visa rather than one.

Resources for the Diversity Visa Lottery

Adjustment of Status with TPS and Matter of Z-R-Z-C

Temporary Protected Status (TPS) is a type of immigration status for citizens of certain countries which have suffered from war, natural disaster, or other significant problems. Although it’s temporary, some countries have been designated for decades. Many people look for ways to become permanent residents if possible.

Sometimes, people with TPS become eligible to apply for permanent residency. Typically this is the result of getting married to a US Citizen or having a US Citizen child turn 21, but there are sometimes other options. These cases can quickly become complicated by the passage of time, the fact that the TPS statute is unique, and because USCIS has been making significant changes especially during the Trump Administration.

Everyone applying for adjustment of status is recommended to talk with an immigration lawyer before filing, but this is especially important for people who have had TPS at some point.

Can TPS holders adjust status in the US?

Many people with TPS have successfully adjusted status to become permanent residents, but not everyone with TPS will qualify to do so. TPS was never intended to allow people to live in the US permanently and the law does not create a pathway for people to become permanent residents after a period of time. Instead, TPS holders must continuously renew their status and face the constant threat that any president could simply terminate TPS for their country, as the Trump administration has repeatedly tried to do.

While not everyone with TPS qualifies, there are some common situations in which people with TPS can adjust status:

  1. Marriage – sometimes people with TPS marry a US Citizen or resident of the US and are able to either apply for adjustment of status or consular process in their home country
  2. Children – once a US Citizen child turns 21, the child can petition for their parent and sometimes they can adjust status in the US
  3. Old Petitions – Another law, INA Sec. 245(i), allows some people with very old petitions filed for them to adjust status
  4. Other – There are many exceptions and less common options that allow people to become permanent residents, and TPS can help prevent unlawful presence and sometimes help people adjust status

Changes to TPS adjustment of status after Matter of Z-R-Z-C

In a significant departure from prior law, USCIS has decided that it will no longer consider people who travel with parole and TPS to have been paroled for purposes of adjusting status. USCIS announced this new rule when it issued and adopted Matter of Z-R-Z-C on August 20, 2020. This decision said that, despite many years of considering people who travel with parole and TPS to have been paroled, USCIS will no longer consider that parole to count for purposes of adjustment of status.

This change is extremely important. Previously, people with TPS could travel on parole and use that new entry to allow them to get residency through a family member, such as a US citizen spouse or child. Traveling with parole not only allowed those with TPS to make temporary trips abroad, but also it provided an entry for them to use to adjust status. Many people have become residents on the basis of a parole in this way.

USCIS is now saying that travel with parole after August 20, 2020, will not give people that same benefit. However, there are two important exceptions. USCIS has allowed people who already adjusted status to keep their residency and will even consider travel with parole prior to August 20, 2020, to still qualify for adjustment of status. USCIS stated that these groups of people had a significant reliance interest in the prior law.

Is this policy change legal? In my opinion it seems completely arbitrary, contrary to years of USCIS interpretation, and legally baseless. As such, I don’t expect the policy to withstand legal challenge, but those cases can take a long time. Because this is a change in policy rather than a change in law, a new president could undo this change quickly and easily.

Resources

Court Halts the Implementation of USCIS Fee Changes

On September 29, 2020, US District Court Judge Jeffrey White issued a preliminary injunction in the case of Immigrant Legal Resource Center v. Wolf, 4:20-cv-05883-JSW. This case was filed by a number of non profit organizations impacted by the increased fees and removal of access to fee waivers which were two of the main features of the new fee rule. A preliminary injunction here prevents USCIS from implementing any portion of the fee rule, but there remains a possibility that the 9th Circuit Court of Appeals could overrule this decision at any time.

What Did the Court Order about the USCIS Fee Changes?

In this case, the judge ordered the following:

Pursuant to 5 U.S.C. section 705 the Court STAYS implementation and the effective date of of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.

Immigrant Legal Resource Center v. Wolf, 4:20-cv-05883-JSW, Preliminary Injunction

How to Respond to the Court’s Blocking the New USCIS Fee Rule

Some people may be tempted not to file before October 2nd now that the fee rule has been enjoined. However, it is still recommend to file before October 2nd in most cases if possible. Many people who were not going to be able to file by then will now gain some additional time to prepare their cases, which is great news.

But those who were planning to file should make sure to do so. There is always a risk that the Court of Appeals for the 9th Circuit could stay this injunction. That would allow it go to back into effect. It has happened with other injunctions in the 9th Circuit during the Trump Administration. As a result, the general advice is to get your application in as soon as you are able to, but to also make sure it’s not missing documents or too rushed, which will increase mistakes.

October 2020 Visa Bulletin Advances Priority Dates Significantly Allowing Green Card Applications

On October 1, 2020, the new visa bulletin will take effect and it contains significant advances for certain categories of green card applicants. Due to travel bans, many people are unable to enter the US and the pandemic continues to keep embassies and consulates closed. Those in the US remain eligible to adjust status, however.

USCIS decides each month which chart from the visa bulletin that will allow someone to file an application for adjustment of status. There are charts for family and for employment based applications. While family based charts have not advanced significantly, some employment based categories have.

USCIS has stated that for October filings, applicants may use the dates for filing chart rather than the final action date chart. This is a big deal because the dates on the filing chart have advanced by nearly five years in some categories, as well as significant advances in others. Take a look at the dates for filing chart from the October 2020 visa bulletin in the employment based category:

EBOthersChinaEL SALVADOR
GUATEMALA
HONDURAS
INDIAMEXICO PHILIPPINES 
1stC01SEP20C01SEP20CC
2ndC01OCT16C15MAY11 CC
3rdC01JUN18C01JAN15CC
Other WorkersC01OCT08C01JAN15CC
4thCC01FEB18CCC
Religious WorkersCC01FEB18CCC
5th Non-RegionalC15DEC15CCCC
5th RegionalC15DEC15CCCC
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html

What Green Card Categories are Impacted by the October 2020 Visa Bulletin?

Here are some short observations about the primary categories that have advanced significantly in the October 2020 visa bulletin:

  • All employment categories are now current for those filing outside of China, El Salvador, Guatemala, Honduras, and India
  • EB1 categories for China and India advanced by nearly two years
  • EB2 for India advanced nearly two years
  • EB3 for China advanced a year while EB3 for India advanced nearly five years

USCIS Is Allowing for Adjustment of Status Applicants to Use the “Dates for Filing” Chart for October 2020

Each month, USCIS decides which dates will be used for those filing green card applications. Generally speaking, there must be a visa available to file for adjustment of status. If not, the application will be rejected. Not only have some important categories advanced significantly in the October 2020 visa bulletin, but also USCIS has decided to allow the Dates for Filing chart to be used rather than the much slower Final Action Date.

What Does the October 2020 Visa Bulletin Mean for Green Card Applicants?

The short answer is that many employment based green card applicants are going to be eligible to file as of October 1, 2020. Because people will be eligible to file using the Dates for Filing chart and that chart has made significant advances, many people are going to receive a welcome surprise and become eligible to file green card applications. This can have other benefits for employment based workers, and applicants are encouraged to consult with an attorney to determine what are the best options for them and their families.

Form I-944 and the Public Charge Rule Return to Green Card Applications

Dollars

The USCIS public charge rule is one of the most confusing and highly litigated rules in the history of the agency. Immigration attorneys will remember that the rule was initially supposed to go into effect in October of 2019, only to be stopped by federal courts. It then entered into effect in February of 2020, but was again stopped by courts in July of 2020. Following another decision by a court of appeals, the rule is back, and effective immediately.

What Happened to the Public Charge Rule and Form I-944?

On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) enjoined DHS from enforcing, applying, implementing, or treating as effective the public charge rule during a declared national health emergency. In response to that decision, USCIS removed the form I-944 from its website and explicitly stated that it was not required when submitting I-485 applications for adjustment of status. This was good news for applicants, is it meant that they did not need to submit hundreds of pages of extra documentation for their cases.

On September 11, 2020, the U.S. Court of Appeals for the Second Circuit granted a full stay of the July 29, 2020, injunction pending the government’s appeal. For a while after this decision, USCIS did not formally respond. However, the USCIS website was quietly updated recently to show that the rule is not only back in effect, but also it is being applied retroactively to all the applications filed during the time the rule was stopped.

This decision is bad news for applicants because it means that any cases filed without the I-944 during the period of time it was not required will likely have to review and submit the form and required documents. Not only is this unfair to applicants who submitted all required documents, it could even effect eligibility in some cases where the family member’s income was near the threshold. No doubt this will generate even more litigation.

What is the Status of the Form I-944 and Public Charge Rule Now?

USCIS is now reimplementing its public charge regulations, effective immediately, and effective retroactively to previously submitted cases. The USCIS website is not transparent at this time but it has been partially updated to explain the new requirements. The most important points are the following:

  • The public charge rule will apply to ALL cases filed after February 24, 2020
  • Any applications for adjustment of status, form I-485, filed after October 13, 2020, must include the form I-944 and all required evidence
  • Filing a form I-485 before October 13, 2020, does not mean that USCIS will not request the form I-944 at a later date
  • Applications approved during the period of time the stay of the public charge rule was in effect will not be modified and should be final

What is the filing fee for an I-765 work permit application based on a pending asylum case?

Work Permit

Many people are confused about the cost of filing a work permit application based on a pending asylum application. There have been a lot of changes and it can be difficult to put them all together, but this guide covers all the important information

Currently, the cost for an initial asylum work permit (Form I-765) is $85. A renewal asylum work permit is $495. This is because the $85 biometrics fee is now required for both application types.

There is one significant exception to this rule. Member of two nonprofit organizations can file under the old asylum work permit rules. That means that if you are a member of those organizations, the fee is going to be less. For someone who is a member of those organizations, the initial asylum-based work permit application is $0, completely free. A renewal application is the old fee of $410.

Read on for some additional information about why this is the case and how to join those organizations mentioned above.

How you can join a nonprofit organization to file under the old asylum fee, processing timeframe, and application deadline

Many people are unaware that a lawsuit could provide some benefits in filing their work permit applications. By joining either “CASA de Maryland” or “Asylum Seeker Advocacy Project (ASAP)” an individual can become part of the “class” of people who are included in that case’s preliminary injunction. USCIS is now providing instructions on its website for the form I-765 work permit application. Read the section “Preliminary Injunction Impacting CASA and ASAP Members.”

You can join those organizations for free and file your work permit application with proof of your membership. You do not have to have been a member of those groups earlier or at the time of the decision. This could change in the future, but work permit applicants should take advantage of this important opportunity for all cases.

Joining one of these groups provides some really significant benefits, including:

  • It requires USCIS to process your application within 30 days
  • It allows someone to file after waiting 150 days since the filing of an asylum application, rather than 365 days
  • You don’t need to pay the $85 biometric fee
  • There are some other situations where people would be ineligible for a work permit that should not apply

All these rules do make the process more complicated, so it is recommended to schedule a free consultation to discuss how an immigration lawyer can help you with the process.

When and why did the price change for work permits based on a pending asylum application?

Immigration attorneys and asylum applicants were preparing for fee increases that were to take effect on October 2nd, but for work permits in particular, an important change happened a little bit earlier on August 25th.

The Department of Homeland Security finalized a new rule on August 25, 2020, which required USCIS to charge the biometrics fee of $85 with all work permit applications, including initial ones. That rule was not part of the larger fee change rule, which was stopped from going into effect by at least two separate courts. There is no timeframe for it to go back into effect and at this point we will likely have to see what the Biden Administration wants to do with the fee changes.

However, the biometric fee was part of the earlier separate rule, and it is still required for those people who are not members of the groups listed above.

What changes were supposed to become effective on October 2, 2020?

As mentioned above, the fee change rule did not go into effect due to severeal federal courts stopping it. However, it may become effective at some point. Typically, USCIS will announce a future date if that were to occur, rather than change fees overnight.

The rule was intended to go into effect on October 2, 2020, but did not. That rule actually reduced the biometrics fee to $30 from $85, a slight savings. However, it increased the work permit fee, resulting in a fee increase overall. The new I-765 fee for asylum work permits was going to be $580 for each applicant (the new I-765 filing fee was $550 and the biometrics fee was $30).

This was supposed to be applied to both initial work permit applications and renewal work permit applications based on a pending asylum case. Why is USCIS imposing a fee for asylum seekers filing initial work permit applications? USCIS provided the reason in the final rule:

DHS acknowledges the concerns of the commenters related to the requirement of a fee ($550) for initial filings of Form I-765 for applicants with pending asylum applications. Initial EAD applicants with pending asylum applications account for a large volume, approximately 13 percent, of the Form I-765 workload forecast and DHS has decided to no longer provide this service for free. Charging initial Form I-765 applicants with pending asylum applications allows DHS to keep the fee for all fee-paying EAD applicants lower. Asylum applicants will pay no more and no less than any other EAD applicant (except for those who are eligible for a fee waiver) for the same service.

https://www.federalregister.gov/documents/2020/08/03/2020-16389/us-citizenship-and-immigration-services-fee-schedule-and-changes-to-certain-other-immigration

As noted above, this fee change rule is not in effect and so the current fees are as stated at the top of the article.