Author: Alan Lee

As published in the Immigration Daily on July 12, 2021

1. Preserving F-2B preference at the NVC or consulate.

In an earlier article, this writer questioned the procedure that applicants could use to notify USCIS that they wished to keep the F-2B designation as unmarried son or daughter of a permanent resident even as their petitioners naturalized, which move automatically changed their designations from F-2B to F-1 unmarried son or daughter of a US citizen. The aim of course is to immigrate at the earliest time, and the July 2021 visa chart shows that for all countries of the world except Mexico and the Philippines, there is visa availability for those filing I-130 petitions before 9/15/15 under the F-2 B category while there is only availability under the F-1 category for those filing by 11/15/14. The Child Status Protection Act (CSPA) allows for the preservation of the F-2B category with the agreement of USCIS, and the question was whether there was a fixed procedure for the retention of classification. It appears that there now is and in looking at the Department of State FAQs, the process is stated as the following:

• Applicants whose case is at NVC should submit requests using NVC’s online inquiry form. NVC will forward the request to USCIS and change the visa category back to F2B upon receipt of USCIS’s approval.
• Applicants whose case is at a U.S. Embassy or Consulate overseas should ask the embassy to submit a request on their behalf. The consular officer will forward the request and adjudicate the visa application in the F2B category only upon receipt of USCIS’s approval.

Although F-2B has been the faster category, there have been times in the past when F-1 was quicker. Applicants may wish to hold off making the decision on which category to choose until their cases are closer to visa availability.

2. Video interviews at Immigration.

Do not be surprised if you walk into the interview at USCIS and there is no officer there. From reports, video interviews with remote officers are being implemented to varying extents, and may comprise a good portion of future adjudications. In asylum interviews, attorneys complain about being placed in a chair in the middle of the room with no desk, facing the screen, and having the feeling of being in an interrogation setting. In naturalization cases, it appears that video interviews are being used more commonly, and the New York District office even has a new iPad unit. One attorney noted that at an interview in the New York District office, the iPad officer was from Ohio. While video interviews may be more appealing during the pandemic and take less time than traditional person-to-person interviews, one wonders how a remote officer can look at many items that an applicant brings in on the date of interview, or what happens when the applicant sent all the paperwork and documents through filing online or to a lockbox, and part of the documents for some reason do not make it to the system for the interview. As we all know, the reliance of electronic records is only as good as the people inputting the information. In cases involving bona fide marriage, applicants typically bring in reams of documentation to show an officer that they are living together with their spouses. An officer usually asks to see this or that, and applicants take the relevant documents from their bag or folder. In a video interview, how is an officer to get a good look at the documents or to determine whether they are genuine? Except by sending the applicants to the front desk or a clerk, how are the new documents to reach the remote officer?

3. New ground for denying China NIV applications.

As if we did not see enough bars on immigration during the Trump years, here is another one by the Department of State. In the State Department 5/27/21 liaison meeting with the American Immigration Lawyers Association, AILA raised reports of NIV rejections in China based on INA section 243(d) due to China’s failure to accept deported nationals, and DOS confirmed that 243(d) rejections are possible in China, but that this should not affect most student visa applications. It said that Chinese nationals subject to 243(d) can avoid that ground for denial if they apply at a consular post outside of China. The difficulty of course is the well-known reluctance of consulates in third countries to accept and adjudicate most nonimmigrant applications because of caseload and the belief that consulates in the home country are better equipped to handle cases of their own nationals.

4. Three items from USCIS on June 9, 2021, on EAD’s, RFE’s, and expedites:

• Initial and renewal EAD’s for adjustment of status cases will now be for two years instead of one.
• The old RFE policy from 2013 is back. That policy instructed officers to issue RFE’s in cases involving insufficient evidence before denying such cases unless the officer determined that there was no possibility that the benefit requester could overcome a finding of ineligibility by submitting additional evidence. In 2018, USCIS rescinded the no possibility policy and issued guidance that officers could deny benefit requests for lack of initial evidence without first sending an RFE or NOID.
• The expedite policy is tweaked with USCIS saying that it will generally not consider expedites where premium processing is available, but now will restore that ability for nonprofit organizations whose request is in the furtherance of the cultural and social interests of the United States. Otherwise the criteria are the same – severe financial loss to a company or person; emergencies and urgent humanitarian reasons; US government interests; clear USCIS error. Company financial loss can be recognized where it is at risk of failing, losing a critical contract, or required to lay off other employees – e.g. medical office if a gap in a doctor’s employment authorization would require laying off medical assistants.

The three changes by and large make for fairer and more efficient policy– the EAD change as it has largely been because of the increasing delays in adjudications that adjustment applicants must file second applications for EAD’s; the RFE change as petitioning organizations have a right to believe that USCIS will not unfairly flip-flop on subsequent petitions involving the same individual and same set of facts; and the expedite policy to allow nonprofits to obtain expedites without having to pay the same premium processing fee as private organizations with deeper pockets.

5. Where no administrative closure of cases in I-601A cases, the further actions that can be taken.

In the event that you are unable to adjust status here in the US, but have a good possibility of having an I-601A application for provisional waiver approved to consular interview overseas, yet are stymied by the ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018) which prevents immigration judges from administratively closing cases to allow the filing of such applications, the Biden administration is encouraging DHS to allow another form of relief. On May 27, 2021, DHS sent a memorandum to all OPLA (Office of the Principal Legal Advisor) attorneys entitled “Interim Guidance to OPLA Attorneys regarding Civil Immigration Enforcement and Removal Policies and Priorities” laying out the priority cases for enforcement as those affecting national security, border security against those unlawfully entering the US on or after 11/1/20, and aggravated felons or gang members determined to pose a threat to public security. It also listed all factors for prosecutorial discretion and encouraged that it be exercised at all stages of the enforcement process – and that “it may be appropriate for the Chief Counsel to conclude that a legally sufficient, appropriately documented administrative immigration case warrants non-filing of an NTA.” In light of the lack of administrative closure, it encouraged the use of continuances for “good cause shown” and seeking, opposing, or joining in motions for dismissal of proceedings. In the latter regard, the memo stated that it may be appropriate where the noncitizen has an approved I-130 and appears prima facie eligible for either adjustment of status “or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence.”

Further news on Castro-Tum is encouraging as another dagger to the decision was struck recently by the Sixth Circuit in Garcia-de Leon v. Garland, No 20-3957 (6^th Cir. 6/4/21), the court saying that immigration judges have the authority to administratively close cases for purposes of I-601A’s. Previously the Sixth Circuit had held in Hernandez-Serrano v. Barr, 981 F.3d 459 (6^th Cir. 2020) that the regulations did not give IJ’s or the BIA general authority to administratively close immigration cases. So now, for purposes of I-601A cases, all four circuits that have decided on the matter have gone against Castro-Tum – the Third in Sanchez v. Atty. Gen., No. 20-1843 (3d Cir. 1/26/21), Fourth in Romero v. Barr, 937 F.3d 382 (4^th Cir. 2019), Seventh in Meza-Morales v. Barr, 973 F.3d 656 (7^th Cir. 2020), and now the Sixth.

Note:  Following the writing of the above, Atty. Gen. Merrick Garland overruled Castro-Tum a few days later on July 15, 2021, in its entirety in Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021). This case dealt with an I-601A situation in which the immigration judge and the Board of Immigration Appeals had denied the motion for administrative closure as being foreclosed by Castro Tum. Atty. Gen. Garland determined that it was appropriate to overrule former AG Sessions’ opinion in Castro-Tum and to vacate the decision as well. The move by the Atty. Gen. will now revive the I-601A provisional waiver as an effective avenue of relief for those under immigration proceedings who cannot adjust status in the US.

 

As published in the Immigration Daily on June 1, 2021

New students from China to be admitted, and guidance for distance learning:

Under the regional COVID ban on China, foreign students from China have been generally barred unless able to show that they have been in a non-banned country for 14 days before entry into the US. That policy changed on  April 26, 2021, with the Department of State announcement that National Interest Exceptions (NIE’s) would be given to all students including those from China with valid F-1 and M-1 visas intending to begin or continue an academic program starting August 1, 2021 or later, and that they would not need to contact an embassy or consulate to seek an individual NIE to travel; that they may enter the US no earlier than 30 days before the start of their academic studies. Students seeking to apply for new visas who are found to be otherwise qualified will automatically be considered for an NIE to travel. In other related news, Immigration and Customs Enforcement (ICE) sent a message to all SEVIS users on 4/26/21 that it is extending the guidance in March 2020 for the 2021-22 academic year. That guidance allowed schools and students to engage in distance learning in excess of regulatory limits and applied to nonimmigrant students actively enrolled at a US school on March 9, 2020, who were otherwise complying with the terms of their nonimmigrant status. They can count online classes toward a full course of study in excess of regulatory limits.

EOIR re-openings:

News from The Executive Office for Immigration Review (EOIR) that non-detained cases will begin to be heard in a number of immigration courts that were previously closed including New York City on July 6, which is a Tuesday since July 5 is the official day for holiday as Independence Day falls on Sunday. The notice says that all immigration courts will be holding limited hearings, applying relevant federal best practices relating to communicable disease. In the recent past, hearing notices for non-detained in closed courts could generally be put aside as EOIR announced postponement dates past the calendar dates for hearings. Now affected attorneys and respondents must pay more attention to the notices of hearing.

H-1B registrations for 2021 an all-time high:

News from the DealBook newsletter in The New York Times on May 10, 2021, revealed that H-1B registrations for this year reached approximately 308,000 applicants for the 85,000 allotted slots. This is a record high as 2019 produced approximately 201,000 applicants and 2020 275,000. It also means that organizations had about a 1 in 4 chance of having their candidates selected. So if you as the lawyer or petitioning organization were puzzled as to why more of your applicants were not selected, that is the reason. The remedy would apparently be to allocate more H-1B numbers, especially as it has been shown that most H-1B beneficiaries do not take away available jobs from US workers (see Innova Solutions v. Baran, No. 19-16849 (9^th Cir. 2020)), but such will not likely be happening in a Biden administration attuned to the cries of labor unions and the general lack of sympathy in Congress. The best solution for organizations not interested in off-shoring professional type H-IB work would probably be to not rely on getting new blood every year and to incentivize their current H-1B staff to remain through such means as sponsoring them for permanent residence and giving occasional raises consistent with performance along with other perks and accommodations.

SSA no match letters nixed:

Good news is that the Social Security Administration (SSA) will no longer be sending out no match letters to employers which caused them to be the subject of investigation and to fire employees who could not quickly document their immigration status. In a recent notice, SSA laid out the history that it began mailing no match letters in March 2019 to employers identified as having at least one name and combination submitted on W-2s that did not match SSA records, and that “At present, we are discontinuing EDCOR [Educational Correspondence to Employers] letters to focus on making it a better, easier, more convenient experience for employers to report wages electronically.” To ICE, receipt of the notification created an affirmative duty to investigate the discrepancy and that failure to act was constructive knowledge of unauthorized employment. The no match letter policy was further criticized for the inaccuracy of SSA records.

Entrepreneur parole program returns:

More good news that Biden is bringing back the entrepreneur parole program – what some people mistakenly called the EB-6 program and that the past USCIS head L. Francis Cissna boasted to Sen. Charles Grassley of Iowa in April 2018 that USCIS had not approved any parole requests by that time. The program was first introduced in January 2017 in regulatory form to take effect in July 2017, but disfavored by the Trump Administration and DHS moved in a 2018 notice of proposed rulemaking to remove it entirely, yet the removal was never completed. Current Acting USCIS Director Tracy Renaud said that “Immigrants in the United States have a long history of entrepreneurship, hard work, and creativity, and their contributions to this nation are incredibly valuable. The international entrepreneur parole program goes hand-in-hand with our nation’s spirit of welcoming entrepreneurship and USCIS encourages those who are eligible to take advantage of the program.” Under the rule, DHS may use its parole authority to grant a period of authorized stay to foreign entrepreneurs who demonstrate that their presence in the US would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. Entrepreneurs granted parole would be eligible to work only for their start-up businesses. Dependent family members would also be eligible for parole, but not work privileges. The parole can be granted for up to three entrepreneurs per startup entity.

Applicants would have to demonstrate that they possess a substantial ownership interest in a startup entity created within the past five years in the US that has substantial potential for rapid growth and job creation; have a central and active role in the start of entities such that they are well-positioned to substantially assist with the growth and success of the business; and that they will provide a significant public benefit in the US based on their role as an entrepreneur of the start-up entity by showing either that the start-up entity has received a significant investment of capital from certain qualified US investors with established records of successful investments; or the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants rewards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. An entrepreneur qualifying through investment by qualified US investors must have received $250,000 within the 18 month period prior to filing the application for parole; if through government entities $100,000 in grants or awards; and if only partially satisfying one of the two above conditions, can provide other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Expanded biometric rule nixed:

There was an announcement on Friday, May 7, 2021, that USCIS is withdrawing the proposed rule that would have everybody take biometrics and even enhanced biometrics including eye scans and some DNA tests for not only applicants, but for petitioners and those who are providing affidavits of support. The notice from USCIS said that the rule “would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waives or exempts the biometrics requirement…”

Biden backup plan for legalization:

It appears that the Democrats are considering pushing through a revised immigration package through budget reconciliation if they cannot get the 60 votes in the Senate. Created by the Congressional Budget Act of 1974, reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. In the Senate, reconciliation bills are not subject to filibuster and the scope of amendments is limited, giving this process real advantages for enacting controversial budget and tax measures. The Congressional Budget Act permits using reconciliation for legislation that changes spending, revenues, and the federal debt limit. This backup plan would legalize about 8 million or fewer undocumented immigrants according to The New York Times reporting on May 4, 2021. They would include legal status to Dreamers, those granted TPS, and close to 1 million farmworkers. Nancy Pelosi last month endorsed the idea of using reconciliation citing the “budget impacts of immigration in our country”, and Sen. Patty Murphy of Washington, the number three Democrat came out in favor of this approach. Reconciliation requires agreement by the parliamentarian, Elizabeth McDonough, that the policy change would have a budgetary impact that is more than merely incidental. Researchers have found past precedents in which changes to immigration policy were allowed as part of a budget reconciliation package, and they are tallying up the budgetary effects of the immigration proposals which total in the tens of billions. Republicans are of course not agreeing to anything on immigration saying that Biden needs to fix what is happening at the border before anyone can do anything meaningful on immigration. The contemplated moved by Democrats is dicey, but if successful would accomplish many of Mr. Biden’s immigration goals.

Tips in dealing with the NVC:

The below are a couple of pointers from the Department of State from the AILA Virtual Spring Conference on 4/16/21.

• To expedite interviews for emergency cases, make the request through the nvcexpedite@state.gov. When NVC receives the request, it will reach out to the post where consular officers will determine if the case qualifies. The cases must be current, at the NVC, and the case parties must have good articulated reasons for the request. Requesters should receive an automated request answer and timeframe for response. Repeated inquiry can slow down the process.
• What do you do when documents are not available or unobtainable? At the NVC, click “document unavailable” with an explanation in the upload space provided to send the case to the documentarily completed stage. The party should be able to later upload the document to CEAC.

As published in the Immigration Daily on April 26, 2021

Change in case flow processing before the immigration courts

The new revised EOIR policy memorandum, “Case Flow Processing before the Immigration Courts,” on April 2, 2021, represents a vast improvement over the predecessor memo of November 30, 2020, which forced affected attorneys between December 1, 2020 –April 1, 2021 to lump in applications for immigration relief with their initial pleadings even if they contested removability. The new trend in case flow processing is to do away with most master calendar hearings (where attorneys in non-detained cases put in their representation at least 15 days ahead of the date of hearing) by the immigration court vacating the date and sending a scheduling order for the parties to present further papers. The difference between the two memoranda was the November version setting deadlines for the filing of written pleadings, any evidence related to the charges of removability, and any applications for relief. That forced attorneys not only to do much more work, but to be very mindful of what was put down in relief applications to ensure that they did not in any way contradict written pleadings that the respondent was not removable. The new policy makes it fairer by first deciding the question of removability. After vacating the master calendar, the court now sends a scheduling order for 30 days for written pleadings and any evidence related to the charges of removability. By motion, parties can request a master calendar hearing or an extension of the filing deadlines. Once written pleadings and evidence on removability have been received, the parties have 20 days to file a response with the court. The immigration court then first decides the issue of removability, issuing a scheduling order for submission of additional supplementary briefing or evidence regarding removability, or scheduling a hearing on removability. Where removability is established, the court sends the parties the written removability determination and a scheduling order with deadlines for applications for relief along with supporting documents, and usually the deadline is 60 days from the date of the order sustaining the removability charge.

The April policy memorandum allows attorneys contesting removability to feel that they are not being squeezed into a box in which they wind up doing much work in a short amount of time which may be totally unnecessary if their clients are not removable, and work that in some cases may cast doubt on the attorneys’ arguments that their clients are not removable.

Sworn statement sample without notary in the time of pandemic

It is a truism that sworn statements are given more weight than unsworn statements in any proceeding. But in the pandemic, there is a true hesitancy in going into a building and meeting with someone just to have a paper or papers notarized. What can be done in an immigration context? We do not know the practice of other firms, but have taken to advising our clients that notarization may not be strictly necessary, and encourage in situations of hesitancy that they use the language, “I certify, swear, or affirm, under penalty of perjury under the laws of the United States of America, that the information in this affidavit is complete, true, and correct.” I note that the language is taken from the USCIS G-639 Freedom of Information/Privacy Act Request form.

Keeping F-2B categorization when petitioner naturalizes – please identify a central location.

People naturalize, but maybe not to the benefit of an adult child waiting for US immigration. In former times where they submitted F-2B petitions for unmarried children over the age of 21, the children could lose a year or years when the petitioners naturalized, automatically moving the petitions from F-2B to the F-1 category of adult children of US citizens. Currently under the May 2021 visa chart, immigrant visas are available for natives of most countries of the world (except Mexico and the Philippines) where F-2B petitions were filed prior to 8/15/15 while F-1 availability is only for petitions filed before 10/22/14. Fortunately, there is the opt-out provision for the adult children under Section 6 of the Child Status Protection Act which allows them to opt out and remain in the F-2B category. The opt-out requires the son or daughter to file a written statement with the “Attorney General” that he or she elects not to have such a conversion occur (or if it has occurred, to have such conversion revoked). The question remains in many cases – who do you notify? The “Attorney General” in immigration parlance generally refers to DHS and in this case to its USCIS component, but the difficulty is that there is no central location where the notification is to be made. So here is a suggestion to the agency – identify a central location. For most paper filed I-130 petitions, getting a message to the appropriate hands on a pending case is next to impossible. For approved petitions, the approving Service Center wants nothing more to do with the case since it already approved the petition. For cases that have been transferred overseas, USCIS overseas offices have largely closed. So most requests to USCIS at any location go unanswered. People to our understanding have brought proof of having sent the statement to either USCIS or the National Visa Center or the US consulates and embassies themselves to the immigrant visa interviews in the hope that such would suffice. It would be helpful for USCIS have a set procedure that people could follow.

H-1B computer case treatment this year

This is the year that H-1B computer cases should be easier for practitioners to handle and not be the magnet of as many RFE’s (Requests for Evidence) and denials as in the past. The confluence of the policy memorandum of USCIS on June 17, 2020, rescinding two prior policy memoranda relating to the employer-employee relationship and the requirement for contracts and itineraries involving third-party websites, and the winning of Innova Solutions v. Baran, No. 19-16849 (9^th Cir. 2020), a case on what constitutes a specialized occupation, has brought about the following:

• PM 602-0114, “Rescission of Policy Memorandum,” the policy memorandum, rescinded the 1/8/10 memo, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference to AFM chapter 31.3 (g)(16)), page 270/6.2.8 (AD 10-24),” and 2/22/18 memo “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157.” Under the 2020 memo –
  
  
• In adjudicating whether an employer-employee relationship exists, an officer should consider whether a petitioner has met at least one of the factors under 8 CFR 214.2(h)(4)(ii) of “hire, pay, fire, supervise, or otherwise control the work of.” The memo says that H-1B petitioners are required to submit the LCA and a copy of any written contract between the petitioner and beneficiary or a summary of the terms of the oral agreement if a written contract does not exist, and that depending upon the content of such documentation, it may establish the employer-employee relationship.
  
  
• The petitioner has the burden of proof to establish that a bona fide job offer exists at the time of filing and that the petitioner will employ the beneficiary in a specialty occupation. If the petitioner’s attestations and supporting documentation meet the standard, then the officer should not request additional evidence and should approve the petition provided that all other eligibility requirements are met by a preponderance of the evidence.
  
  
• H-1B petitioners are not required to submit contracts and legal agreements between the petitioner and third parties.
  
  
• Evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation although the petitioner may choose to provide such evidence.
  
  
• An officer may limit the validity of an approved H-1B petition to a shorter period of time, but the decision must be accompanied by a brief explanation as to why the validity period has been limited.
  
  
• In Innova Solutions v. Baran, the issue was whether a computer programmer position constituted a specialty occupation. The authoritative source cited by USCIS in denying the petition, the Occupational Outlook Handbook (OOH), stated that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject.” The OOH also listed a bachelor’s degree as the “[t]ypical level of education that most workers need to enter” the computer programmer occupation. USCIS seized upon the following OOH passage “however, some employers hire workers with an associate’s degree” in saying that “The OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation,” and that “the OOH also indicates that employers value computer programmers who have experience, which can be obtained through internships.” The H-1B statute and regulations recognize a specialty occupation as one in which the position requires “theoretical and practical application of a body of highly specialized knowledge” and that “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” The Ninth Circuit flatly rejected the government’s argument in the first circuit court case on specialized occupation supporting the fact that “normal” does not mean “always” – that words like “typical” and “most” cannot be separated from the word “normal.” The court said, “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms.” Also “While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.”
  
  
• In the aftermath of the decision, USCIS issued a policy memorandum on 2/3/21, PM-602-0142.1 “Rescission of 2017 Policy Memorandum PM-602-0142” repudiating and rescinding the 2017 guidance, “Rescission of the December 22, 2000 Guidance Memo on H-1B Computer Related Positions” in which it had said that the presumption of computer related cases being professional was no longer valid.

Petitioners in this H-1B cap season with March selectees have until June 30, 2021, to submit petitions, and the following months will tell whether the USCIS RFE/denial spotlight will finally move away from the computer sector.

As published in the Immigration Daily on March 24, 2021

As we notice that many readers would like to know about immigration developments in small bites rather than large articles, we will begin to write a series of shorter summaries of what we hope to be useful developments in the field:

1. Public charge – The law has now officially reverted to 1999 and the rules in place until the Trump Administration. The old guidelines as to what were considered means tested public charge benefits only included SSI, Temporary Assistance For Needy Families (TANF), state and local cash assistance programs providing benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting persons institutionalized for long-term care, e.g. nursing homes or mental health institutions. The Trump administration added food stamp program participation (SNAP), Section 8 housing assistance under the housing choice voucher program, Section 8 project-based rental assistance, including moderate rehabilitation, public housing (under the Housing Act of 1937), and federally funded Medicaid (with certain exceptions). All of the Trump add-ons are now out. Readers should also remember that DHS has never considered as public charge benefits the receipt of emergency medical assistance, disaster relief, participation in the national school lunch programs, special supplemental nutrition program for women, infants, and children, the children’s health insurance program, subsidies for foster care and adoption, government-subsidized student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.

2. Public charge – Financial joint sponsors have much less to fear from intrusions or attempts by city, state or federal governments to intimidate them and to claw back monies that the entities have expended on means tested public benefits for persons being sponsored. Before the Trump administration, the issue of claw back had been largely settled on the side of joint sponsors as it was unpopular the few times that it was tried when claw back suits were filed. The Trump administration on the other hand made fierce attacks on family-based financial sponsorship. It first announced in a May 23, 2019 “Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens,” that it would go after sponsors, and if a sponsor did not reimburse an agency upon request, the agency could then seek a court order for reimbursement. It next launched a new Systematic Alien Verification for Entitlements (SAVE) initiative in September 2020 encouraging all agencies administering federal means tested public benefits to use the new SAVE sponsorship initiative functionality to manage and report their sponsorship and agency reimbursement decisions. In the same month, the administration placed even more pressure on joint sponsors in a proposed rule, “Collection and Use of Biometrics by US Citizenship and Immigration Services,” that it could collect the biometrics of any sponsor associated with an immigration benefit or request including US citizens. Finally, it published a notice of proposed rulemaking, “Affidavit of Support on Behalf of Immigrants,” on October 2, 2020, to further intimidate potential joint sponsors by requiring them to submit three years tax returns, banking information, credit scores, credit reports, and information on their receipt of public benefits, and past failure to meet support obligations in other cases. The Biden administration issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” on February 2, 2021, revoking the 2019 Trump presidential memorandum, and DHS withdrew the affidavit of support notice of proposed rulemaking on March 19, 2021. In its withdrawal, DHS stated that it was aiming to reduce barriers and alleviate burdens on American families who wished to sponsor individuals immigrating to the US within the legal immigration system.

3. Public charge – Cancellation of the Trump administration’s public charge rules means wholesale changes to the relevant immigration forms, and readers should not be caught short in using the pre-March 10, 2021, forms on or after April 19, 2021. The 3/10/21 edition of the forms must be used on that date barring an extension in the use of the older forms by DHS. Otherwise, usage of old forms brings the penalty of automatic rejection of applications and petitions. Those forms are I-485, I-485 supplements A & J for adjustment of status to permanent residence, I-864, I-864A, I-864W & EZ affidavits of support, I-129 CW and CWR relating to the Commonwealth of the Northern Mariana Islands and both I-539 & I-539A for change/extension of nonimmigrant status. Form I-129 petition for nonimmigrant worker, will also change, but the effective date was changed on March 25, 2021, from 4/19/21 to July 1, 2021.

4. Public charge – Forms I-944 Declaration of Self-Sufficiency for adjustment of status to permanent residence and DS-5540 Public Charge Questionnaire for immigrant visa processing are both canceled. The I-944 was the more important as use of the DS-5540 had been enjoined by the US District Court for the Southern District of New York on July 29, 2020. With their demise goes the need to provide evidence of health insurance or ability to obtain such upon immigrating along with the torturous putting together of asset items with expert appraisals of worth and documents of education including expert evaluations in some cases.

5. Public charge – Gone also are forms I-945 Public Charge Bond and I-356 Request for Cancellation of Public Charge Bond which USCIS could impose in questionable cases to require applicants to post bonds beginning at $8100 adjusted for inflation annually to ensure that they would not become public charges.

6. Public charge – Altogether, good riddance to the above rules, and financial sponsors should no longer be as afraid to guarantee the support of family-based immigrants.

7. Venezuelan/Burma (Myanmar) TPS – Temporary protected status will be given to all eligible nationals of Venezuela and Burma in the country since at least March 9, 2021 and March 11, 2021 respectively because of the present crises in their countries. Applicants for Venezuelan TPS have already begun to apply as the procedure was set out by a Federal Register notice on March 9, 2021, allowing applications to be submitted from that date until September 5, 2021, while the same cannot be said for Burmese as there has not yet been a corresponding FR notice for Burma. The Venezuelan notice defines eligible individuals as nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela. Both designations of TPS are for 18 months, with the one for Venezuelans through September 9, 2022. The rules for Burmese will likely be the same as those outlined for Venezuelans that applications for TPS and employment authorization can be filed concurrently. (Advance parole can also be requested, but the notice does not say it can be filed concurrently). Fees are variable dependent upon age and benefits sought. For those 14-65 years of age requesting employment authorization, the fee is $545. Most grounds of ineligibility can be waived, but not those relating to convictions for crimes involving moral turpitude, multiple criminal convictions for which the aggregate sentences to confinement were five years or more, convictions for drug offenses except as related to a single offense of simple possession of 30 g or less of marijuana, for those who engaged in genocide, participated in Nazi persecutions, or are national security threats, were convicted of any felony or two or more misdemeanors committed in the United States, or those that the Attorney General determines took part in persecuting others, where there are serious reasons for believing that the person committed a serious nonpolitical crime outside the United States, where the person is believed to be a member or participant in terrorist activity, or where the person was firmly resettled in another country prior to arriving in the United States.

8. Venezuelan/Burma (Myanmar) TPS – The Federal Register notice for Venezuela notes that those who already applied for Deferred Enforced Departure may also apply for TPS if eligible and that “USCIS encourages individuals who believe they are eligible for TPS to file for the benefit during the initial registration period announced in this Notice, even if they are also covered by DED, in case they cannot qualify for TPS late initial filing under 8 CFR 244.2 (f) (2) after DD has expired.”

9. Interpreters at USCIS affirmative asylum interviews – In light of the COVID-19 pandemic and other stated reasons, USCIS on March 22, 2021, extended a temporary final rule that affirmative asylum-seekers having interviews at asylum offices will not be required to bring their own interpreters, and that USCIS will use contract interpreters for the interviews. Previously the practice had been for applicants to bring interpreters and USCIS would have a contract interpreter only monitor the interpretation of questions and answers. Now USCIS will only allow for applicants’ interpreters to be used in situations where the applicant does not speak English or any of the 47 languages for which contract interpreters are available. The 47 languages are: Akan, Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese, Cantonese, Creole/Haitian Creole, Farsi Afghani/Dari, Farsi-Iranian, Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian, Indonesian/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin, Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K’iche, Romanian, Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Kamil, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, and Vietnamese.