United States Citizenship and Immigration Services (USCIS) Budget Crisis

The Coronavirus pandemic continues to affect all parts of the country including United States Citizenship and Immigration Services (USCIS). USCIS is an agency within the U.S. Department of Homeland Security, which is responsible for administering the country’s immigration system.

The pandemic has led to a large drop in the amount of applications submitted by immigrants for lawful permanent resident status, naturalization, as well as other programs. The budget that USCIS uses to operate is derived from the filing fees for these types of applications.

USCIS is now seeking $1.2 billion from Congress as well as planning to implement fee increases in order to continue its operations. Per the New York Times, USCIS “receipts could plummet by more than 60 percent by the close of the current fiscal year, which ends Sept. 30.”

A spokesman for the agency has stated that USCIS “would be unable to fund its operations in a matter of months.” In addition to the $1.2 billion dollars sought from Congress, “The agency plans to impose a 10 percent ‘surcharge’ on applications, on top of previously proposed increases, that it is expecting to implement in the coming months.”

Prior to the coronavirus pandemic, USCIS had already experienced a dramatic drop in applications due to the current admiration’s goal of decreasing immigration to the United States. Per CNN, “Between the end of fiscal years 2017 and 2019, USCIS received nearly 900,000 fewer petitions, according to Pierce, who added that the decrease was largely driven by the administration’s own decisions, such as ending Temporary Protected Status for nationals of several countries or drastically decreasing the number of refugees admitted to the United States.”

Due to the pandemic, USCIS suspended all in-person appointments and interviews on March 18, 2020. USCIS plans to reopen on June 4, 2020 at this time. However, whether the date will change remains to be seen as the coronavirus pandemic continues to plague the country.

Supreme Court Remands Free Speech Immigration Case Back to 9th Circuit

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.

Back in February 2020, we discussed a case at the U.S. Supreme Court  involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The question, as it was presented to the Supreme Court, was whether the federal statute is unconstitutional because it tends to criminalize protected free speech.

On May 7, 2020, the U.S. Supreme Court issued a unanimous decision, concluding that the lower appeals court – the U.S. Court of Appeals for the Ninth Circuit – had impermissibly stepped in to shape the legal questions in the case.  The Supreme Court vacated the Ninth Circuit’s decision and sent the case back to the Ninth Circuit to consider the case as the parties had presented it, and not as the Ninth Circuit had redesigned the case.

The Supreme Court did not decide the question that the Ninth Circuit had crafted – whether the federal statute unconstitutionally restricts free speech.  The Supreme Court did not decide that question because it concluded that the Ninth Circuit abused its discretion by crafting the question and then answering it.

The attorneys representing the criminal defendant, Evelyn Sineneng-Smith, had presented arguments to the Ninth Circuit that Sineneng-Smith was not guilty of the crime under the federal statute.  The Ninth Circuit decided to appoint three amicus groups, or “friends of the court,” to present arguments on a question that neither Sineneng-Smith’s lawyers nor the government had raised:  whether the federal statute is “overbroad” under the First Amendment.  The Ninth Circuit then issued an opinion stating that the federal statute is overbroad, and thus invalid because it violates the Constitution.

The U.S. Supreme Court concluded that the Ninth Circuit should not have made up its own legal question on the case.  Instead, the Ninth Circuit should have decided the legal questions that the lawyers for Sineneng-Smith and the government had presented.  The U.S. Supreme Court sent the case back to the Ninth Circuit for a do-over.

 

Executive Order Suspending Entry of Certain Immigrants

The spread of the Coronavirus (COVID-19) continues to have devastating impacts on immigration to the United States. On April 22, 2020, President Donald Trump signed a new executive order that restricts certain immigrants from entering the United States for 60 days, with some exceptions. The full order can be read here.

The Executive Order states that its aim is to suspend entry of certain immigrants to the United States due to the negative impact that foreign workers can have on the labor market during the Coronavirus pandemic.  President Donald Trump states, “I have determined that, without intervention, the United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand.”

Pursuant to the order, suspension and limitation on entry applies to immigrants who are:

  • are outside the United States on the effective date of this proclamation;
  • do not have an immigrant visa that is valid on the effective date of this proclamation; and
  • do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The order does not apply to “lawful permanent residents, spouses of United States citizens, immigrants entering pursuant to the EB-5 Immigrant Investor Program, or any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications.” There are other immigrants who are exempt from the order; a full list can be found here.

Although the Executive Order expires in 60 days, the President can extend its application if necessary.

There has been a lot of criticism of the new order by immigration advocates.  According to Omar Jadwat, director of the Immigrants’ Rights Project at the ACLU, “While the order is limited in scope, President Trump’s transparent attempt to distract from his own failures with this unwarranted suspension will cause real pain for families and employers across the country.”

There are many prospective immigrants outside the United States who have been waiting for years to obtain their visas and enter the country. They will be unable to do so for the next 60 days, or possibly longer.

Throughout his tenure, President Trump has taken many steps to limit immigration to the United States, resulting in damaging consequences for immigrants and their families. While all efforts must be taken to combat the spread of the Coronavirus, a valid question is whether this order is aimed to do so or is rather an attempt to further the anti-immigration agenda of the Trump Administration.

States Ask Supreme Court to Put “Public Charge” Rules on Hold

In earlier posts, we discussed the Trump Administration’s proposed new rule about denying permanent resident status to applicants who are considered likely to become a “public charge.”

In January 2020, the Supreme Court issued an order that allowed U.S. immigration officials to put the new rules into effect while it is still being challenged in the courts.

In February 2020, USCIS and the U.S. Department of State began to require applicants to follow the new public charge rules.

On April 13, 2020, officials representing New York, along with Vermont and Connecticut, asked the Supreme Court to put the public charge rules on hold until the Coronavirus emergency is over.

In their request, the state officials argued that the public charge rule has the effect of discouraging noncitizens from seeking health care, including testing and treatment for the Coronavirus.  Leaving the public charge rule in place at this time “makes it more likely that immigrants will suffer serious illness if infected and spread the virus inadvertently to others—risks that are heightened because immigrants make up a large proportion of the essential workers who continue to interact with the public.”

On April 24, 2020, the Supreme Court denied the requests, but indicated that the petitioners could file motions in the federal district court.  It appears that officials representing the state challengers likely will file a motion in district court.

Immigrant Detainees Battling Coronavirus

Over the past few weeks, Coronavirus (or COVID-19) has wreaked havoc all throughout the United States. One highly vulnerable population at this time includes immigrants who are currently being held in detention.

While Attorney General William Barr has ordered the release of medically vulnerable federal inmates, there has yet to be a nationwide effort by Immigration and Customs Enforcement (ICE) to do the same for the more than 34,000 immigrant detainees around the country. Sixty percent of these detainees do not have criminal records and are only detained for immigration violations.

The Trump Administration is putting immigrant detainees at great risk by not mandating their release. According to Amnesty International, “ICE and its detention facilities have failed to adequately provide soap and sanitizer or introduce social distancing. Nor has it halted the unnecessary transfers of people between facilities in the interest of public health, routinely transporting thousands in and out of facilities.”

ICE has also continued to understate the number of detainees who have been exposed to or contracted COVID-19. Amnesty International has received reports of “suspected COVID-19 cases and lockdowns in multiple ICE facilities, where lawyers said ICE officials refused to comment on the health situations.”

The American Civil Liberties Union (ACLU) of Michigan has filed a federal lawsuit this week, demanding the release of immigrant detainees in Calhoun, Monroe, and St. Clair County Jail. Senior Staff Attorney, Miriam Aukerman, has said that “social distancing and strict hygiene are virtually impossible in a detention setting.”

One of the detainees who provided testimony for the lawsuit is Gener Alejandro Chinchilla-Flores, a 36-year-old Costa Rican national who has been detained at Monroe County Jail since Feb. 25, 2020. He has reported “numerous inmates are coughing and have reported an infestation of maggots.”

Jose Nicolas Chavez-Vargas, a 50-year-old Mexican national who has been detained at the Monroe County Jail since February 20, 2020, also provided testimony, stating, “Everyone sleeps in dormitories that house approximately 100 people, with about 50-60 bunk beds per dormitory. The beds are only 3 to 4 feet apart from each other. People continue to eat their meals communally, multiple times per day.”

While ICE continues to hold immigrants in detention, other county jails including Wayne have released all prisoners without felony cases and who do not pose a risk to public safety.

While it is clear that immigrant detention could lead to the deaths of many detainees due to the spread of COVID-19, it remains to be seen what measures ICE will take, if any, to protect the health and safety of this vulnerable population.

 

 

We are STILL here for you

Just a short note to let you know that we are STILL working with you on your immigration matters during the Coronavirus public health emergency.  Although we are not able to see you in person at this time, we are able to work with you by phone calls, video consultations, and communications by email, U.S. mail, and any other ways that we can get the work completed.  We are still actively working on your cases, and we continue to send in applications to USCIS and the Immigration Courts.

If you would like to contact us, please simply give us a phone call at (734) 369-3131, or send us an email to mike@mcarlinlaw.com, and we will be in touch with you right away.  It is our pleasure to continue to provide high quality legal services during this difficult time.  Thank you!

Coronavirus Updates on Immigration

 

Over the past few weeks, the spread of the Coronavirus (or COVID-19) has caused major upheaval all around the world. Every facet of life has been impacted in the United States including immigration. President Donald Trump declared a national emergency on March 13, 2020. His complete proclamation can be found here.

One of the measures that President Trump has taken is to suspend entry of all foreign nationals who were present in countries with COVID-19 outbreaks within the prior 14 days including China, Iran, and the Schengen area of Europe. This temporary ban only applies to foreign nationals and does not include lawful permanent residents or U.S. citizens.

In addition, this week, the Executive Office for Immigration Review (EOIR) cancelled all non-detained Master Calendar and Individual Hearings that were scheduled to take place from March 16, 2020 to April 10, 2020. These hearings will be rescheduled for later dates. Detained hearings are still taking place at this time. These measures are being taken to combat the spread of COVID-19, which is spread from person to person through respiratory droplets caused when a person coughs or sneezes. Immigration courts may be filled with hundreds of immigrants, attorneys, staff, and judges daily, and to ensure their safety, limiting the amount of people in each court is a necessary precaution.

According to The Hill, “the delay will affect 68 immigration courts around the country and comes as the immigration courts already face a backlog of about 1 million cases.”

While many immigrants have been waiting for their hearings in courts for several years, the importance of combatting the spread of the virus is of utmost priority.

United States Citizenship and Immigration Services (USCIS) has also suspended all in-person services including biometrics appointments and interviews until at least April 1, 2020.  These appointments and interviews will all be automatically rescheduled for later dates. In special circumstances, USCIS will conduct emergency appointments.

In our own effort to ensure the safety of our clients, we urge clients to schedule phone and video appointments as an alternative to in-person meetings. Our office is still open for clients who wish to drop off documents as well as to sign forms. If you have any questions, please do not hesitate to contact us. We wish you good health and safety in this difficult time.

Supreme Court Hears Free Speech Immigration Case

Among the eight immigration cases pending at the U.S. Supreme Court is one involving the First Amendment.  On February 25, 2020, the Supreme Court heard oral arguments in U.S. v. Sineneng-Smith, a case involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The Supreme Court will decide if this federal statute is unconstitutional. A decision is expected by June 30, 2020.

The case stems from a California woman, Evelyn Sineneng-Smith, who ran an immigration consulting business serving Filipino home health care workers.  From 2001 to 2008, she collected more than $3 million from clients applying for an adjustment of their immigration status.  But the particular program Sineneng-Smith was filing under had ended in 2001, so the clients she applied for were not actually eligible.

Sineneng-Smith was convicted of mail fraud and tax violations.  She was also charged with the crime that is at issue in the case at the Supreme Court:  illegally encouraging an alien to remain in the United States.

The legal question in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.

During oral arguments, only Justice Samuel Alito seemed to believe that the government could actually punish anybody who ‘encourages’ undocumented immigration.  “If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense.”

Representing the government, Deputy Solicitor General Eric Feigin asserted that the law covers only criminal conduct or ‘solicitation’ of a crime, not mere advocacy or expression.

Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”

A ruling for the First Amendment right to free speech this case would establish that the government cannot punish people for wanting to help immigrants in need.

Stayed tuned to see what the U.S. Supreme Court ultimately decides in this case.

U.S. Consulates Implementing New Public Charge Rule

On Monday, February 24, 2020, the U.S. Department of State will implement new policies related to the Trump Administration’s public charge rule.  The new policy is scheduled to go into effect worldwide on February 24, 2020.

Applicants for immigrant visas will now be required to complete an additional form, called the DS-5540.

The U.S. Department of State has also amended the sections of the Foreign Affairs Manual (FAM) relating to the public charge ground of inadmissibility.

The new form asks for the following information regarding the immigrant visa applicant:

  • Whether you currently have health insurance in the United States
  • Whether you will be covered by health insurance in the United States within 30 days of your entry to the United States with your immigrant visa
  • Members of your household and whether they are employed
  • Information regarding your federal tax returns within the last 3 years
  • Your current income
  • Whether you have a job waiting for you in the United States, the name of the employer, and the proposed yearly income
  • Your assets
  • Your debts
  • Public benefits you have received on or after February 24, 2020
  • Your education level
  • Your employment skills

There is at least one lawsuit challenging the U.S. Department of State’s implementation of the public charge rule.  For now, it is required for immigrant visa applicants.

Judge Permanently Blocks DHS Policy Shift on Student Visas

On February 6, 2020, a federal judge permanently blocked a DHS policy shift regarding persons who entered the United States on student visas and who later fell out of valid status.

Background

Many noncitizens who enter the United States on certain nonimmigrant visas – including F, J, and M student visas – are permitted to remain in the United States for the time during which they are pursuing their educations at accredited schools or engaging in authorized training after the completion of their studies.  When persons with these visas are admitted to the United States, they generally are admitted not for a specific period of time, but rather for the “duration of status.”  When DHS issues an I-94 to these persons, they generally state that they are permitted to remain through “D/S,” which stands for “duration of status.”

Noncitizens who accumulate “unlawful presence” in the United States suffer certain penalties when they depart the United States:  They are prohibited from returning to the United States for either 3 or 10 years, depending on the length of their “unlawful presence” in the United States before they departed.

For more than 20 years, DHS has maintained that persons with F, M, or J visas who fall out of valid status – who stop attending school or who stop authorized training – do not begin to accumulate unlawful presence unless or until a U.S. government official formally determines that they have lost their valid status.

DHS Policy Shift in 2018

DHS announced an abrupt change in this policy in August 2018, by stating that, effective immediately, persons with F, J, or M visas who stop going to school or who stop their training immediately begin to accumulate unlawful presence, without the requirement of any formal determination by a DHS official.

Federal Court Decision

A number of colleges, organizations, and noncitizens filed a federal lawsuit in North Carolina against DHS, asserting two main things:  (1) that DHS’s policy shift was a “rule” change that required that they give advance notice of the proposed change and give the public a chance to provide comments on the proposal, and (2) that the policy shift is unlawful because it conflicts with established immigration laws that Congress has passed.

In May 2019, the court issued a preliminary injunction against the DHS policy shift while the court considered the merits of the case.

On February 6, 2020, the court issued a final decision, agreeing with the colleges, organizations, and noncitizens that the DHS policy shift is unlawful for both reasons described above:  (1) the policy shift was a “rule” that requires the notice-and-comment procedure, and (2) the policy shift conflicts with federal immigration law.  The court permanently blocked DHS from implementing the policy shift against anyone, anywhere in the world.

We will need to wait and see if DHS appeals the court’s decision.  For now, the DHS policy is permanently blocked.