Federal Court Blocks USCIS Fee Increase

On September 29, 2020, a federal court in San Francisco temporarily blocked the United States Citizenship and Immigration Services (USCIS) planned fee increase that was set to take effect on October 2, 2020.  U.S. District Judge Jeffrey S. White of the Northern District of California issued a preliminary nationwide injunction that prevents USCIS from raising fees while the lawsuit challenging the fee rule continues.  A copy of the decision can be found here. 

In his decision, U.S. District Judge White criticizes the proposed fee increase, stating, “If it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, block access to humanitarian protections, and will expose populations to further danger.”

USCIS issued a pointed response to the injunction, declaring, “In a fee-funded agency such as USCIS, this increase is necessary to continue operations in any long-term, meaningful way to ensure cost recovery.  This decision barring USCIS from enacting its mandatory fee increase is unprecedented and harmful to the American people.”

USCIS published its fee increase rule on July 31, 2020.  A previous blog post regarding this rule can be found here on our website.  The rule would drastically increase the fees for many applications for immigration benefits. For example, “The rule would increase the cost to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated). The United States would also become one of the few countries in the world to charge an individual for applying for asylum ($50).”

This injunction brings temporary relief to immigrants who can continue to file for immigration benefits using the current fee schedule.  Although this injunction may be overturned in the future, this decision is still a win for immigrants against the Trump Administration and its continued effort to restrict immigration to the United States and naturalization.

USCIS’s Naturalization Delays Will Reduce Access to Voting

USCIS is processing naturalization applications at a slower rate than usual.  That means that many persons who had expected to be able to vote this November might not be able to do so.

The Coronavirus pandemic has contributed to the delays, but the Trump Administration had slowed down the process well before 2020.  In 2016, under President Barack Obama, the naturalization process averaged 5.6 months.  President Trump became president in January 2017.  By 2018, the average processing time was 10.3 months.

USCIS maintains that when they reopened field offices in June 2020, they focused on conducting naturalization oath ceremonies, and by the end of July 2020 they cleared the backlog of ceremonies.  But overall, July 2020 had only about one-twelfth of the number of naturalization ceremonies that typically occur in a month.

Although USCIS might have “cleared the backlog” in ceremonies of persons already approved for citizenship, the truth is, USCIS continues to delay the processing of many persons still stuck in the naturalization application process.  There are currently more than 700,000 people waiting for their naturalization interviews.

One research group estimates that the naturalization delays will mean that nearly 400,000 persons will not be able to vote.

Diego Iñiguez-López of the National Partnership for New Americans states, “It’s part of the larger anti-immigrant agenda that the Trump administration has pursued over the last few years.  Keep immigrants feeling unwelcome, keep them afraid, keep them intimidated, and keep them away from knowing and asserting their rights, including their right to vote.”

USCIS Fee Adjustments To Take Effect On October 2, 2020

On August 3, 2020, the Department of Homeland Security (DHS) published a final rule regarding fee adjustments for applications filed with United States Citizenship and Immigration Services (USCIS). A copy of the complete final rule can be found here. The final rule will take effect on October 2, 2020.

According to the news release, “USCIS conducted a comprehensive biennial fee review and determined that current fees do not recover the cost of providing adjudication and naturalization services. DHS is adjusting USCIS fees by a weighted average increase of 20% to help recover its operational costs. Current fees would leave the agency underfunded by about $1 billion per year.”

The new rule includes new fee increases, removal of certain fee exemptions, as well as changes to fee waivers and premium processing requirements. Some key aspects of the rule are listed below:

The new USCIS fees will undoubtedly impose hardships on immigrants and businesses. For example, USCIS is increasing “the cost of the application (N-400) to become a U.S. citizen by more than 80%, rising from $640 to $1,160 (for online filings, although a separate $85 biometrics fee would be eliminated).”

In addition, although there is a $10 decrease for adjustment of status applications, a separate fee will now be required for applications for employment authorization and advance parole (fees which were previously included with the adjustment of status application).

As the Trump administration continues to restrict immigration to the United States, this new rule is an additional measure that makes it more complicated and expensive for immigrants to pursue adjustment of status, citizenship, as well as other legal status within the country.

USCIS Plans to Increase Filing Fees

On November 14, 2019, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that instructs United States Citizenship and Immigration Services (USCIS) to raise filing fees for numerous applications for immigration benefits.  A 30-day period to allow for public comment begins on November 14, 2019.

USCIS is one of the few federal agencies that are funded by customers’ application fees.  USCIS states that “federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws.”

Unfortunately, this proposed plan to increase USCIS filing fees comes as no surprise given the Trump administration’s efforts to severely limit immigration.  The plan includes numerous spikes in fees that will undoubtedly make it more difficult for individuals to apply for immigration benefits in the future.

For example, the cost to apply for U.S. citizenship will increase from $725 to $1,170.  According to the Los Angeles Times, the new fee for naturalization “totals about a month’s worth of gross income for an immigrant making the federal minimum wage.”

While there is currently a process in place for individuals to request a fee waiver if they cannot afford the USCIS filing fees, the proposed plan “would eliminate a reduced-fee option for applications from families with income between 150% and 200% of the poverty level and almost completely eliminate waivers for everyone else.”

There is no doubt that this plan aims to reduce the amount of individuals applying for naturalization who, if approved, would gain the right to vote.  Studies have shown that previous fee increases lowered naturalization rates and disproportionately affected lower income and Latino immigrants.

Under the current USCIS fee schedule, individuals applying to adjust status or become lawful permanent residents (“green card holders”) must file Form I-485, which costs $1,140, along with an $85 biometrics fee for most applicants, for a total of $1,225.  Currently, applicants may also file Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, may file them along with the I-485 at no additional cost.

The new rule will require applicants who want to concurrently file the I-765 and I-131 to pay an additional $1,075.  As a result, the total cost for an I-485, I-765, and I-131 package will increase from $1,225 to $2,195, a 79 percent price hike.

The new proposed rule is likely to draw widespread rebuke from immigration attorneys and advocates throughout the country as it is clearly another targeted ploy by the current administration to hinder legal immigration.

The Assault Against Asylum: Family Groups

The current presidential administration has been engaged in an unprecedented assault on the right to apply for asylum and to have adequate procedures to handle asylum claims.  One particularly painful example is the decision of Attorney General William Barr in a case called Matter of L-E-A-.  In this case, the Attorney General overturned the decision of the Board of Immigration Appeals (BIA) and issued his own decision to replace it.

The Attorney General’s decision makes it more difficult for certain people to apply for asylum.  Asylum applicants must show that the persecution they suffered in the past, or that they fear in the future, is because of one or more of the following five reasons:

  • race
  • religion
  • nationality
  • political opinion
  • membership in a particular social group

The reason of “membership in a particular social group” is complicated.  One such group is family.  For example, a person might be targeted by her country’s government or by gangs or rebel groups in her country because of her connection to her family.  Perhaps the person’s father is involved in politics, and the government targeted her to retaliate against her father’s political activities.  For years, the BIA and numerous federal courts of appeals concluded that a person like this woman is a member of the particular social group consisting of her immediate family.  In other words, she would be eligible to seek asylum because she was targeted for being her father’s daughter.

In Matter of L-E-A-, the Attorney General just made it considerably more difficult for a person like this to seek asylum.  The Attorney General indicated in the new opinion that if a person claims family as a particular social group, that group would be established for the asylum claim only if the group is “distinct in the society.”  It is not enough, according to the Attorney General, that the family is “set apart in the eye of the persecutor.”  The family must be perceived as distinct within the society.  The Attorney General says that the “average family … is unlikely” to be “recognizable by society at large.”

If, at this point, you are scratching your head and wondering what the Attorney General means, you are not alone.  In my view, the Attorney General is trying to close the door on many people who otherwise would have valid asylum claims.

Sudden Policy Shift on Deferred Action

USCIS recently announced that it will stop handling requests for non-military “deferred action.”  Deferred action is a form of temporary relief from deportation for immigrants facing special and often life-threatening circumstances.

It is reported that deferred action was granted for 20,000 immigrants from 2012 to 2016.  Deferred action does not confer lawful status on an immigrant and does not lead to permanent residence.  But those with deferred action will not have removal proceedings initiated against them and will be considered lawfully present in the country.  A grant of deferred action also does not excuse any past periods of unlawful presence.  Deferred action requests are handled on a case-by-case basis and can be renewed and terminated at any time.

USCIS did not give advance public notice for this change in policy.  Instead, people who have long relied on this form of immigration relief or had recently filed requests for deferred action received denial letters in the mail from USCIS, stating that the agency is no longer processing such requests.  Immigration Customs and Enforcement (ICE) will now assume responsibility of these deferred action requests even though the denial letters sent by USCIS did not state this fact.  Moreover, ICE is an enforcement agency that detains and deports countless immigrants each day.  People without lawful status in the United States will understandably be hesitant to request deferred action from the same agency that could detain and deport them.

It is important to note that this policy does not affect deferred action related to military members or DACA (Deferred Action for Childhood Arrivals).  Nevertheless, this policy will negatively affect a vulnerable population of immigrants who are unlikely to have any other form of immigration relief available to them, including children facing serious medical conditions like cancer, epilepsy, cystic fibrosis, and HIV and who cannot return to their home countries safely.  These individuals will now be at risk of facing deportation.

This sudden shift in policy is yet another targeted attack by the Trump Administration on legal immigration.  Policy changes like this continue to place vulnerable immigrants, including persons with life-threatening illnesses, at risk of deportation.  Only time will tell the lengths that this administration will go in order to unjustly limit the avenues of relief for immigrants in the United States.

The Trump Administration’s (Bad!) Shift on “Public Charge”

The term “public charge” is used in immigration law to refer to an individual who is likely to become primarily dependent on the government for support by receipt of cash assistance or long-term care at the government’s expense.

Whether someone is likely to become a public charge is considered when a person applies for a nonimmigrant or immigrant visa to enter the United States and when they apply for adjustment of status (to obtain a green card).  An immigration officer must look at the totality of circumstances when deciding whether a person will become a public charge.  They can consider factors such as age, health, family status, assets, resources, financial status, and education and skills in their overall analysis.  Any persons who are deemed to become a public charge will not be able to obtain the immigration benefit that they are seeking.

On October 10, 2018, the Department of Homeland Security (DHS) introduced a new rule regarding public charge.  The rule will soon take effect.  The rule is likely to negatively affect many immigrants by expanding the list of publicly funded programs that officers can consider when deciding if someone will become a public charge.  Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

The DHS proposal would also allow immigration officers to consider English proficiency as well as use of all cash aid including state and local cash assistance programs.

Under the DHS rule, consideration would be given not only to whether an applicant was so poor that they were likely to receive certain U.S. government benefits, but also to whether the applicant received these benefits already.

While the DHS proposed rule remains under development, the Department of State has already revised the Foreign Affairs Manual to tighten the public charge analysis.  U.S. consulates around the world have already been applying these new policies, which have led to an increase in visa denials.  From October 2018 through July 2019, the State Department has denied 5,343 immigrant visa applications for Mexican nationals based on public charge grounds.  That is up from only seven denials in 2016!

U.S. consulates in other countries have also begun denying more visa applicants on the public charge ground.  For example, the U.S. consulates in Bangladesh and Pakistan refused more than 2,700 applicants in the most recent fiscal year, a sharp increase over previous years.

This new change to the public charge assessment is just one of numerous actions that the Administration has taken and will continue to pursue in order to restrict immigration to the United States.  Sadly, many immigrant families are suffering the effects.

Legalized Marijuana and Immigration Consequences

Several states have begun the process of legalizing the use of marijuana.  In November 2018, Michigan passed a proposal that allows marijuana to be regulated similarly to alcohol.

Possession of marijuana, however, remains a federal offense and can lead to several immigration consequences.  With immigration, it is federal law that counts.  Even if the conduct is permitted under state law, a noncitizen who admits to an immigration official that they have possessed marijuana may be denied entry to the United States, have their application for adjustment of status or naturalization denied, or even be found deportable.  This includes possession of marijuana for medical purposes.

Noncitizens may be found inadmissible if they have been convicted of or admit having committed a violation of any law relating to a controlled substance.  This includes possession of marijuana.

There is a narrow waiver for this inadmissibly ground, but only for a single offense of simple possession of 30 grams or less of marijuana, and the noncitizen must meet other strict requirements in order to qualify for this waiver.

And even a noncitizen who has been admitted to the United States, for example as a permanent resident, a visitor, or a student, may be deported for any drug-related crime, other than a single offense involving possession for personal use of 30 grams or less of marijuana.

For noncitizens, it is very important to understand the consequences of marijuana possession.  Noncitizens must be careful when asked about marijuana use by an immigration official or even a doctor at a medical visa interview.  As described above, merely admitting to the possession of marijuana can result in being inadmissible to the United States.

If you are inadmissible to the United States and you are applying for entry into the country, you will not be allowed into the country unless you qualify for a waiver and you are subsequently approved for that waiver.  If you apply for adjustment of status and are found inadmissible, your application will be denied unless you qualify and obtain a waiver approval as well.

For naturalization applicants, it is also important to understand the consequences that marijuana possession raises.  USCIS might deny the naturalization application of a permanent resident who has just one conviction for simple possession of marijuana for personal use in the last five years.

Noncitizens need to take heed when it comes to possession of marijuana.  Even if you live in a state where the use of marijuana is legalized, you could still face severe immigration consequences because possession of marijuana is still a federal offense.

Citizenship for Children and Stepchildren

If you are in the process of becoming a U.S. citizen, also called naturalizing, and you have children and/or stepchildren, you are probably wondering what your naturalization will mean for your kids if they are not already U.S. citizens.  It is possible for your children or stepchildren to become U.S. citizens automatically when you do, but your family has to meet specific criteria in order for this to happen.  The criteria for a biological child to automatically become a citizen when you do also apply to your stepchild, but there are a few extra requirements for stepchildren.

Biological Children: In order for your biological child to automatically gain citizenship when you do, the following conditions must apply:

  1. The child must have one parent who is a U.S. citizen, so that would be you once you are sworn in at your naturalization ceremony.
  2. The child must be under the age of 18 when you naturalize.
  3. The child must be a lawful permanent resident, meaning the child is a green card holder.
  4. The child must be residing in the U.S. in the legal and physical custody of the U.S. citizen parent. That means that you, the parent applying for citizenship, need to be the legal guardian of your child. Additionally, the child needs to be living with you.

If your biological child meets all four of these criteria, the child will become a U.S. citizen when you do and can receive a certificate of citizenship and a U.S. passport.  However, if the child is missing just one of the above requirements, he or she needs to apply for citizenship on his or her own after being a permanent resident for 5 years, or 3 years if he or she has been married to a U.S. citizen and been a permanent resident for 3 years.

Stepchildren: As stated above, in order to get automatic citizenship when you naturalize, your stepchild will need to meet all of the same criteria as your biological child, plus a few more.  The only way for your stepchild to gain citizenship automatically when you do is if your family meets all of the following requirements:

  1. The child must have been in the legal and physical custody of the permanent resident stepparent for at least 2 years. This means you need to have legally adopted your stepchild over 2 years ago and lived in the same home as him or her for at least 2 years.
  2. The child must have been under the age of 16 when legally adopted by you.
  3. The child’s legal parent-child relationship with his or her previous parent needs to be terminated. For example, if you are married to the child’s mother, you would need to make sure the child is no longer in the legal custody of the father.
  4. The child must have one parent who is a U.S. citizen, so that would be you once you are sworn in at your naturalization ceremony.
  5. The child must be under the age of 18 when you naturalize.
  6. The child must be a lawful permanent resident, meaning the child is a green card holder.
  7. The child must be residing in the U.S. in the legal and physical custody of the U.S. citizen parent. That means that you, the parent applying for citizenship, need to be the legal guardian of the child. You would, of course, already be the legal guardian if you adopted your stepchild.  Additionally, the child needs to be living with you.

The main difference between getting your biological child and getting your stepchild citizenship automatically when you do is that you need to have legally adopted your stepchild at least 2 years ago, and you need to have lived with him or her for at least 2 years as well.  Only if you meet all seven of the criteria can your stepchild automatically become a U.S. citizen when you naturalize.

What if your stepchild doesn’t meet all of the above requirements?  You can still petition for your stepchild to become a permanent resident, even if you haven’t legally adopted or lived with him or her.  You can do this if they are inside or outside of the country.  An immigration attorney can help you through this process to get your stepchild permanent resident status, so he or she can one day apply for citizenship.

See our recent blog post, “The Benefits of Citizenship,” if you want to learn about the advantages your children and/or stepchildren will have if they too become citizens.

Patience required

Do you have conditional permanent residence? You will probably need some patience. If you married a U.S. citizen and obtained permanent residence less than two years after your marriage, then your permanent residence is conditional, which means that your first permanent residence card has a validity of two years. Three months before your card expires, you will need to submit a petition to remove the conditions of permanent residence.

Depending on your location, your petition will be processed by one of the four USCIS centers that handle them. The time it takes for each of the centers to process your application varies from 14.5 to 23 months. In some cases, the process can take up to 43 months. Yes, you read that right: in some circumstances, USCIS could take 3 years and 7 months to process the petition.

Normally, a few weeks after USCIS receives your petition, they will send you a receipt for the payment of fees in which they assign you a receipt number. The receipt will indicate that if you filed timely, you will have an 18-month extension to your permanent resident status.

Unfortunately, some applicants have had to wait weeks or months to receive that important notification in which USCIS grants them an extension of 18 months to their permanent resident status. We understand that this creates uncertainty, especially for those who need to travel abroad.

USCIS is constantly modernizing and automating processes. Every day, the agency processes thousands of requests, and with USCIS errors, applicants must prepare to wait a long time, usually at least 14 months, for the petition to be processed. If approved, you will have your second permanent residence card, now with a validity of 10 years.

For many people who file the petition to remove conditions, they become eligible to apply for U.S. citizenship while their petition to remove conditions is still pending. In fact, filing for naturalization can speed up your process. When the application for naturalization is made, there is an opportunity to provide more evidence that reinforces the request to remove the conditions. Part of the process in both includes an interview. USCIS often conducts both interviews on the same date.

Some advantages of naturalizing are that you will become a U.S. citizen, you will be able to vote, and you will obtain a United States passport. You also will never have to renew a permanent residence card again.