Articles Posted in Immigration in the News

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On Monday, March 8, 2021, the White House announced that it would be granting Temporary Protective Status (TPS) to Venezuelans living in the U.S.  Beginning on March 9, 2021, nationals of Venezuela are eligible to apply for permission to remain in the U.S.

What is TPS?

Created by Congress in 1990, TPS is a temporary immigration status provided to nationals of specifically designated countries that are experiencing problems that would make it unsafe for them to return to their home country. Venezuela received TPS designation due to the political and economic crisis it is experiencing, which includes widespread hunger and malnutrition, a growing influence and presence of non-state armed groups, repression, and a crumbling infrastructure. TPS status protects individuals from being deported from the U.S., and allows them to obtain a work permit and travel authorization. However, TPS is a temporary status and does not lead to a permanent immigration status.

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The Trump administration’s “Inadmissibility on Public Charge Grounds Rule” places an extra layer of difficulty on immigrants seeking green cards through an Adjustment of Status or through consular proceedings. According to the U.S. Citizenship and Immigration Service (USCIS), the Department of Homeland Security (D.H.S.) published an Inadmissibility Rule on August 14, 2019. Since that date, several federal courts have enjoined the implementation of the rule. The U.S. Supreme Court removed those injunctions, which means that all applications and petitions submitted after February 24, 2020, must comply with the rule.

A broad public charge rule dates back to the Immigration Act of 1882. The Trump administration’s Inadmissibility Rule defines explicitly what information USCIS can request. The 2019 rule also states that a person will be considered a public charge if they receive one or more public benefits (as set forth in the new rule) for more than 12 months in any 36-month period. The new rule means many applicants are inadmissible even though many immigrants who have received benefits in the past have become productive residents and citizens.

A federal district judge Northern District of Illinois, in November 2020, ruled that the 2019 Inadmissibility on Public Charge Grounds Rule violates the Administration Procedures Act (A.P.A.). The U.S. Seventh Circuit Court of Appeals (which includes Illinois, Indiana, and Wisconsin) stayed that judge’s ruling.

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Immigrants and the businesses who hire them can expect numerous changes in a Biden/Harris administration. Restrictions on immigration were a hallmark of the Trump administration, starting with the processing and eligibility for workplace visas and for green cards. The Trump administration rolled back many protections for immigrants – to focus on hiring and retaining American workers.

The main change will be one of tone – one of saying that immigrants are valuable contributors to the American economy. Many changes can be made immediately through Executive Orders by the President. Changes in legislation will be very difficult unless there’s a change in tone in the federal legislature. The Biden administration will likely review many other administration and court challenges to the immigration process – to make the process more friendly to immigrants and their families.

Executive Actions

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The Trump administration drafted a rule that made it harder for legal immigrants in American to obtain their green cards. That rule requires that immigrants be denied a green card – if they receive any public benefits such as food stamps. The idea behind the controversial rule is that people who use public benefits may not be an asset to America.

The position of the Trump administration is that only immigrants who are self-sufficient should be able to apply. Opponents argue that many citizens use public benefits at some stage of their life – and the benefits are just a stepping-stone to becoming able to contribute to the American success story.

The court cases

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According to a report by the National Foundation for American Policy (NFAP), U.S. Citizenship and Immigration Services (USCIS) and the State Department have increased their denial of family, student, and work visa applications since fiscal year (FY) 2017, coinciding with President Donald Trump’s crackdown on lawful and unlawful immigrant entry through the U.S.-Mexico border.

The NFAP, a non-partisan organization dedicated to research on immigration and other matters of national concern, found that the number of immigrants being deemed “ineligible” for acquiring lawful permanent residence in the U.S. has increased by 39% between fiscal year 2017 and fiscal year 2018. In addition, temporary permits for nonimmigrants like the H-1B special working visa have seen a 5% increase in refusals.

But that’s not all the NFAP report has to say.

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A recent federal court ruling may be key to preventing the government from deporting immigrants seeking asylum at the border should they fail the mandatory initial screening.

In 1996, Congress passed a law essentially barring asylum-seekers from accessing U.S. courts to appeal the decisions of asylum officers and immigration judges on their case. However, as was established in this unanimous ruling by the U.S. 9th Circuit court of Appeals, these limitations are unconstitutional.

Writing for the unanimous court, Judge A. Wallace Tashima argued in the 48-page ruling that that law offered “meager procedural protections” to asylum seekers and that it prevents further review of whether the rejection of an asylum claim was based on proper legal standards.

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Tens of thousands of foreign nationals from countries under Temporary Protected Status (TPS), a temporary immigration status, can continue seeking employment authorization until January 2, 2020. This status extension specifically applies to nationals from El Salvador, Haiti, Nicaragua, and Sudan. It does not, however, not include countries not covered in the Ramos v. Nielsen suit, namely Honduras and Nepal.

Temporary Protected Status is provided by the Department of Homeland Security to nationals from foreign countries (or parts thereof) that have extraordinary conditions threatening the safety and lives of its people. These conditions include civil unrest, a natural calamity, an epidemic, or other temporary conditions. Nationals from these countries may be allowed to stay, work in, and travel from and to the United States for humanitarian reasons, until the conditions in their home countries have passed, at which point they should ideally return.

This was the rationale behind the Trump administration’s move to terminate the TPS designation for the five aforementioned countries announced in 2017, an order that took effect last year.

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The Trump Administration announced that it will no longer be hiring additional immigration judges and will implement a number of cost-saving measures to the U.S. immigration system, despite the tremendous backlog the court system is currently struggling to resolve.

According to a Justice Department email obtained by BuzzFeed News, the federal government is pausing all hires of immigration judges, slowing down hiring of support staff, and canceling a training conference. These moves are supposedly designed to cut costs until there is enough funding to resume hiring of judges to handle the backlog of immigration cases.

Steven Stafford, an official with the Justice Department, says the decision is not a full hiring freeze but is instead a slowdown in the pace of hiring judges.

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With the H-1B cap season in full swing, the Trump administration continues make a number of policy updates and changes that will substantially affect this year’s H-1B processing flow and, in particular, the family members of migrant workers applying for H-1B visas.

H-1B Processing Will Begin with “General” Pool Before “Master’s”

U.S. employers can fill positions by sponsoring H-1B visa applications with U.S. Citizenship and Immigration Services (USCIS) on behalf of foreign workers who meet the requirements of these roles.  Only 65,000 H-1B visas are issued every fiscal year with an additional 20,000 slots specifically allotted to migrant workers with graduate degrees (or their equivalent) acquired from institutions in the United States. These limitations, known as the “cap,” are set by Congress.

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In an effort to catch students enrolling in graduate programs after not being selected in the H-1B lottery, the Department of Homeland Security (DHS) has been discreetly operating a number of fake universities targeting these migrant students abusing the system.

Immigration officials have been monitoring universities for students whose only intentions for enrolling in graduate programs is to obtain additional Optional Practical Training (OPT) and Curricular Practical Training (CPT). Enrolling qualifies them for work authorization and allows them to extend their lawful presence in the U.S despite not being picked in the H-1B lottery.

The standard U.S. Citizenship and Immigration Services (USCIS) protocol would be to issue Requests for Evidence (RFE) regarding H petitions of suspect students. USCIS, however, appears to have turned to more drastic enforcement measures, putting up nonexistent universities to entrap students.

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