On Friday, July 16, 2021, a Federal Judge in Brownsville, Texas issued a 77-page decision that the Obama administration acted improperly, without legal authorization, when it issued the DIRECTIVE that started the DACA program in 2012.
The decision by Judge Andrew S. Hanen permits the USCIS to continue accepting new and renewal applications for DACA, but forbids the issuance of new DACA cards to applicants who did not have one before. Judge Hanen is the same judge who blocked the implementation of the DAPA program (for parents of U.S. citizen children) several years ago.
President Biden said that he was “deeply disappointed” by Judge Hanen’s decision.
USCIS will probably file an appeal of Judge Hanen’s decision, but this appeal would go to the 5th Circuit Court of Appeals, the same court that approved Judge Hanen’s previous decision against the DAPA Program.
The only way the Biden administration can bring a permanent solution to the DACA issue would be by legislation, through the Congress of the U.S.
In December 2020, the DACA program was reopened for new applicants (not just “renewals”), and during the next 3 months at least 50,000 new applications were filed with USCIS.
However, only very few, less than one thousand (1,000) of these applications were actually processed and approved, during the same three months.
USCIS has all kinds of explanations and excuses why so few applications (about 2%) of the total were processed and approved. For us, who deal with the immigration system on a daily basis, it is only additional proof that the system is still stuck in the “Trump” era, and things are still not moving as they should be.
CITIZENSHIP FOR “OUTSIDE” VETERANS
U.S. Armed Forces are still recruiting persons who are not LPR’s (Green Card holders) in the U.S. If they serve during designated periods of wartime, and are honorably discharged, Section 329 grants them eligibility to naturalize (to become American citizens). But, if they are not living in the U.S., they could not realize this eligibility. Now comes USCIS and clarifies: such honorably discharged veterans who served during periods of war, and who are not living in the U.S. – can file their applications for naturalization from outside the U.S. and when the paperwork is reviewed and approved – they will get special permits to come to the U.S. for personal interviews and for naturalization ceremonies.
SEND THEM BACK
Not to Mexico. To the USA. In recent years, under President Trump, when it became very difficult to apply for Political Asylum in the U.S., a great number of non-citizens (non-Americans) continued north through the U.S., all the way to the border with Canada, presented themselves at an official border crossing and asked for Political Asylum in Canada. Until a few days ago, Canadian border officials accepted the applications and let the asylum seekers into Canada to await the processing of their applications. Now a Canadian Court of Appeals decided that Canada does not have to admit those asylum seekers but can send them back to where they came from - to the U.S. So, if somebody has an asylum problem in the U.S., they can save themselves the trip to Canada. The problem will follow them.
The commotion at the border with Mexico is a little less noisy. All the UAC (unaccompanied children) have been moved to decent shelters. The Republican party is occupied with other issues.
The Biden administration is less distracted by border issues, and is able to pay attention to other immigration issues.
The major immigration issues require legislation – Congress must enact laws, such as: Comprehensive Immigration Reform, legalization of the millions of non-citizens in the U.S., pathway to citizenship for DACA recipients, etc., etc.
In the recent days, we began to notice more activity, more interest from the Biden administration in these major issues. Maybe something will finally happen.
Immigrant visas are issued by American Consuls in dozens of American embassies. Visas are issued after personal interviews with every applicant and after much paperwork is completed.
Since March 2020, most American consulates stopped normal functioning, and very few immigrant visas were issued in the past 14 months. This created a big backlog of cases for all consulates.
On April 30, 2021, the U.S. Department of State (DOS) published its system for scheduling immigrant visa interviews. The system is based on four (4) PRIORITY TIERS, based on different immigration categories. Not on PRIORITY DATES and not on FIRST COME, FIRST SERVED.
This means that applicants in the FAMILY preferences and those who are EMPLOYMENT-BASED, would have to wait even longer. How much longer? It is unknown. Hopefully, the DOS will find a better – and a more fair – way to overcome the mountain of applications that have built up in the consulates.
THE BIG FREEZE
For more than one year, the consular system of the U.S., the part of U.S. Embassies which is in charge of issuing immigrant visas, is not functioning.
At first, it was the policy of the Trump administration to delay and slow down the immigration process. Then it was the lockdown here, there and everywhere due to the Covid-19 virus, then there were all kinds of “travel bans”. Then, for the past three months, there is simply no movement to schedule interviews and issue visas of all kinds. No explanations are given.
The situation became so bad, and affected so many people, families, companies, institutions, etc., that last week the American Immigration Lawyers Associatio (AILA), together with some law firms filed a Federal lawsuit against the U.S. Department of State (DOS) asking the Court to order the DOS to resume normal visa issuance.
Wait and see.
Is a lawyer required to be nice?
Not necessarily, not always – but there are limits to how much nastiness is a lawyer permitted.
A certain lawyer in the Los Angeles area just lost his license for exceeding the limit. What was the particular nastiness?
The lawyer represented a client in a salary dispute with an ex-employee and threatened to have the ex-employee deported. NASTY.
The State Bar of California found that this piece of nastiness was too much and took away that lawyer’s license.
The foundation of our Immigration system is the Immigration & Nationality Act (INA), which was enacted by the U.S. Congress in 1965. It is very difficult to change the INA, because any change requires an Act of Congress. Such changes happen once every 10, or 20 years.
The second level of our Immigration system are Regulations. These, too, are not so easy to change because changes require many formal steps which take time and are subject to obstacles, opposition and contradictory court rulings. Changes are possible, but take time.
On top of these, we have a big pile of Guidelines, Policy Memorandums, Executive Orders, Presidential Proclamations, etc. etc. These are easy to change because they are done “administratively” – inside Government Agencies. When the changes are to cancel previous changes we refer to them as ROLLBACKS.
What President Biden can do now – early and quickly – are ROLLBACKS.
U. S. Ctizenship Act 2021
On Thursday, February 18, 2021, President Biden sent to the Congress his Bill proposing a new Immigration Law.
This is a long document (353 pages), and it proposes a great number of changes to the current Immigration and Nationality Act (INA). It should be remembered that this is only a proposal.
It is unknown when it might become an actual law, and what shape or content it might have at that time.
DREAM ACT OF 2021
Two senators, Dick Durbin (Democrat) and Lindsay Graham (Republican) introduced a Bill in the Senate, the Dream Act of 2021, to provide young people who were brought to the U.S. as children the opportunity to apply for Legal Permanent Resident status (Green Cards) and then U.S. citizenship. Don’t celebrate yet. It is just a proposal. Let’s wait and see.
About a year ago, President Trump issued an order to halt the issuance of immigrant visas to beneficiaries of approved petitions by family relatives and by sponsoring employers, from all countries. It was expected that President Biden would cancel this order and would resume visa issuance to such approved beneficiaries who have been waiting for consular interviews and immigrant visas for many months. It was expected that this might happen on Tuesday, February 2, 2021. To our great disappointment, it did not happen. The ban on legal immigration from all countries is still in place. To our astonishment, we were not given an explanation why and for how long this ban will continue.
In 2008, President-elect Obama promised that Comprehensive Immigration Reform would be on the top of his agenda.
In 2020, President-elect Biden promised that he would push for new immigration law immediately. In 2009-2010, President Obama had control over the House of Representatives and the Senate.
In 2021-2022, it seems that President Biden will have control over the House of Representatives and the Senate.
In 2009-2010, President Obama could have passed the Comprehensive Immigration Reform.
In 2021-2022, it seems that President Biden would be able to pass a new Immigration Law.
In 2009-2010, President Obama did not keep his promise about a new immigration law.
In 2021-2022, will President Biden keep his promise about a new immigration law?
WAIT AND SEE.
TRAVEL BAN – RENEWED
The TRAVEL BAN on issuance of most immigrant visas and most temporary working visas, which was imposed by President Trump during 2020, was supposed to expire on 12/31/2020. However, on that day, President Trump issued a new EXECUTIVE ORDER extending the same TRAVEL BAN for three (3) months, up to 3/31/2021.
This means no consular interviews and no visas issued to most categories of immigrants or skilled workers for another three months.
It remains to be seen what will Mr. BIDEN do when he becomes president on 1/20/2021: will he issue his own EXECUTIVE ORDER to cancel President Trump’s order, or will he simply let it run its course to expiration on 3/31/2021?
Once upon a time, in the pre-Trump days, when you filed an application or petition, you would get a Filing Fee Receipt within 7-10 days. This was good, because then you knew that your papers were received, processed and you are in the system.
Now, this is a far-away memory. To make it official, a few days ago, USCIS issued notice that Filing Fee Receipts would be mailed within 30 days of filing. It remains to be seen if they keep even this timeline.
They also “hammered” in another change: if the paperwork is “incomplete or improperly filed” it would be REJECTED. They will not give you a chance to correct mistakes, they will just “reject” the whole package, so that you can try again.
DACA IS BACK – AGAIN
On Friday, 12/4/2020, a Federal Judge issued an order instructing the USCIS to immediately begin implementing the DACA program exactly as it was before President Trump tried to cancel it. Meaning: USCIS must accept and process new applications from eligible applicants who never applied before (not only renewals of old applications), and DACA-based employment permits must be for two years (not one year), and DACA recipients should be eligible for Advance Parole to enable travel out of the U.S. and legal return. Good, very good news. But, it remains to be seen how the present management of USCIS would obey this order – or find new ways to distort and evade it.
On Tuesday, November 24, 2020, on a TV interview, President-elect Joe Biden declared that during the first 100 days of his administration (beginning on January 20, 2021), he would submit to the U.S. Congress a Bill for legalization of millions of undocumented aliens in the U.S. – with a path to citizenship. Congress would need to approve it and pass it as a Law.
WHAT SHOULD WE EXPECT FROM THE NEW ADMINISTRATION?
Former Vice President Joe Biden, is now President Elect Biden. He will become President Biden on January 20, 2021.
A little more than two (2) months from now. He still cannot govern the U.S. WHAT RIGHT NOW: as President Elect, Mr. Biden cannot issue orders, make or change laws. For these powers, he needs to wait until January 20, 2021, when he is sworn in as the 46th President of the U.S. But, he can make preparations and publish his plans. What can we expect from him in the field of IMMIGRATION?
GOOD NEWS – OPEN EMPLOYMENT QUOTAS
All the restrictions and difficulties imposed by the Trump Administration over the past four years, had his desired effect: the number of legal immigrants has been reduced dramatically, maybe by 50%. As a result, the “waiting lists” (or “quotas”) for employment-based (the “EB” categories) for all countries (except China and India), have been shortened, until there is no waiting list for any employment category (except for China and India). This means that if you are “in status” (you entered legally and your visa has not expired), or if you are outside of the U.S., and you have a good prospective employer to sponsor you, you (and your family) can get Green Cards within a relatively short time. We cannot predict or promise how long this happy condition will remain available, but as long as it is – why not grab the opportunity?
VOTING IN THE UPCOMING ELECTIONS? BE CAREFUL – IT COULD BE DANGEROUS IF YOU ARE NOT AN AMERICAN CITIZEN – DO NOT VOTE.
If you believe that you are an American citizen - because that was what your parents told you, or because the DMV REGISTERED you to vote, or because you have a Green Card for many years – but you do not have a valid U.S. passport in your hands, or a Certificate of Naturalization or Citizenship – DO NOT VOTE. If you vote when you are not entitled to vote – you are committing a crime that (practically) has no forgiveness.
On October 2, 2020, a new FEE SCHEDULE becomes effective for all Petitions, Applications, etc. filed with U.S. Citizenship and Immigration Services (USCIS). The Schedule was published a few weeks ago, showing the “old” fees, the “new” fees and even the differences between them. But, some increases were not published, they were sort of hidden.
The published schedule shows the fees for an Application for Adjustment of Status – Form I-485 (Green Card) as: OLD FEE - $1,140, NEW FEE - $1,130. No increase. Actually, a reduction of $10. How nice.
But the published schedule does not tell you that if you file, at the same time, together with Form I-485, also Form I-765 (for Employment Authorization), the new fee will be $550, while the old fee was 0 (yes, zero) dollars. And if you also file a Form I-131 (for a Travel Document), the new fee will be $590, while old fee was 0 (yes, zero) dollars. In most cases, the Application for Adjustment of Status (Form I-485) is, actually, a package of four (4) applications. We call it “Combined Processing”. The new fee picture for such a “combined processing” per person will be:
Form Old Fee New Fee
I-130 $ 535 $ 560
I-485 $ 1,140 $ 1,130
I-765 $ 0 $ 550
I-131 $ 0 $ 590
Bio $ 85 $ 0
Total: $ 1,760 $ 2,830