Providing Comprehensive Immigration Services

By James T. Daly

Closures

USCIS: Open and providing limited services

EOIR (immigration court):
Certain immigration courts have resumed non-detained hearings. Hearings in non-detained cases at courts without an announced date are postponed through, and including, August 7, 2020. Check your specific court here: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

US embassies and visa applications:

• The Department of State suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic. As global conditions evolve, U.S. Embassies and Consulates are beginning a phased resumption of routine visa services. Here is the link: https://travel.state.gov/content/travel/en/News/visas-news/phased-resumption-routine-visa-services.html
• This does not affect the Visa Waiver Program but still subject to travel ban.
• Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment. Examples of an urgent matter include air and sea crew, and medical personnel, particularly those working to treat or mitigate the effects of COVID-19.

Travel ban (March 11, 2020 travel ban still in effect)

The President has suspended the entry into the United States, as immigrants or nonimmigrants, of all aliens who were physically present within the following areas during the 14-day period preceding their entry or attempted entry into the United States.

• China
• Iran
• European Schengen area: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
• UK, Ireland.
• Brazil

Most common exceptions to the travel ban:

• Lawful permanent resident of the United States.
• Spouse of a U.S. citizen or lawful permanent resident.
• Parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21.

Interesting exception to the travel ban:

• An alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee.

April 23, 2020 Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

On April 22, President Trump signed a proclamation suspending entry into the United States of certain immigrants who present risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak.  The proclamation will expire on December 31, 2020, unless continued.  U.S. citizens, lawful permanent residents, and those holding valid immigrant visas on the effective date of the Proclamation, are not subject to the proclamation. The Proclamation is not retroactive. No valid visas will be revoked under this Proclamation. The proclamation provides exceptions to its restrictions for certain categories of immigrants, including: certain healthcare professionals, aliens seeking to enter the United States pursuant to an EB-5 investor visa, spouses and children (categories IR2, CR2, IR3, IH3, IR4, IH4) of U.S. citizens, members of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces, and aliens seeking to enter the United States pursuant to an Afghan and Iraqi Special Immigrant Visa. In addition, cases involving a child applicant who may age out may be considered for a national interest exception. Please refer to the proclamation for a full list of exceptions. https://travel.state.gov/content/travel/en/News/visas-news/Proclamation-Suspending-Entry-of-Immigrants-Who-Present-Risk-to-the-US-labor-market.html#ExternalPopup

June 23, 2020 Proclamation Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak

On June 22, 2020, President Trump signed a proclamation suspending entry into the United States of certain immigrants and nonimmigrants who present a risk to the U.S. labor market following the coronavirus outbreak. Effective immediately, the proclamation extends the suspension of entry for certain immigrants (Presidential Proclamation 10014) through December 31, 2020. U.S. citizens, lawful permanent residents, and aliens who are or were inside the United States or those holding valid nonimmigrant or immigrant visas on the effective date are not subject to the proclamation.

The proclamation suspends entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L, along with their spouses and children. No valid visas will be revoked under the proclamation.

Presidential Proclamation 10014 and this proclamation provide exceptions to their restrictions for certain categories of immigrants and nonimmigrants. These exceptions include: certain healthcare professionals, aliens seeking to enter the United States pursuant to an EB-5 investor visa, spouses and children (categories IR1, CR1, IR2, CR2, IR3, IH3, IR4, IH4) of U.S. citizens, members of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces, aliens seeking to enter the United States pursuant to an Afghan and Iraqi Special Immigrant Visa (SQ or SI-SIV), any alien seeking to provide temporary labor services essential the United States food supply chain, and any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees. In addition, the proclamation explicitly states that cases involving a child applicant who may age out may be considered for a national interest exception.

On July 16, 2020, additional exceptions were added including:

1. applicants who are subject to aging out of their current immigrant visa classification before the relevant P.P.s expire or within two weeks thereafter.
2. certain H and J visa applicants who are traveling to work in support of a critical U.S. foreign policy objective (such as COVID-19 response) and/or traveling at the request of the U.S. government.
3. spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to, P.P. 10052.

The Department of State will continue to issue H, L, and J visas to otherwise qualified derivative applicants who are otherwise currently excepted or where the principal applicant is currently in the United States. Applicants for immigrant visas covered by the proclamation, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23 are subject to the proclamation's restrictions unless eligible for an exception. No valid visas will be revoked under this proclamation.

Here is the link to the original proclamation:

https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/

US-Mexico and US-Canada travel ban

• Through July 21st, temporarily allows entry to the United States through land ports of entry along the U.S.-Canada and U.S.-Mexico borders for “essential travel” only.

Most common types of essential travel include:

1. U.S. citizens and lawful permanent residents returning to the United States;
2. Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
3. Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work).

This action does not apply to air, rail, or sea travel at this time, but does apply to commuter rail and ferry travel. This action does not prevent U.S. citizens from returning home.

US Citizens returning from travel abroad

• U.S. Citizens Returning from Europe

U.S. citizens and legal permanent residents will be permitted to return from the United Kingdom, Ireland, and the European Schengen area. The Department of Homeland Security has issued instructions requiring U.S. passengers that have been in the United Kingdom, Ireland and the Schengen area to travel through select airports where the U.S. Government has implemented enhanced screening procedures.

• U.S. Citizens Returning from China and Iran

Any U.S. citizen returning to the United States who has been in China and/or Iran in the previous 14 days may be subject to up to 14 days of quarantine.

To accommodate the inclusion of Brazil, are being added to the existing list of airports currently receiving flights from travel-restricted nations, bringing the total to the below 15 airports:

• Select airports for reentering the US

Boston-Logan International Airport (BOS), Massachusetts
Chicago O’Hare International Airport (ORD), Illinois
Dallas/Fort Worth International Airport (DFW), Texas
Detroit Metropolitan Airport (DTW), Michigan
Daniel K. Inouye International Airport (HNL), Hawaii
Fort Lauderdale-Hollywood International Airport (FLL), Florida
George Bush Intercontinental Airport (IAH), Texas
Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
John F. Kennedy International Airport (JFK), New York
Los Angeles International Airport, (LAX), California
Miami International Airport (MIA), Florida
Newark Liberty International Airport (EWR), New Jersey
San Francisco International Airport (SFO), California
Seattle-Tacoma International Airport (SEA), Washington
Washington-Dulles International Airport (IAD), Virginia
and Fort Lauderdale-Hollywood International Airport

By James T. Daly

Deferred Action for Childhood Arrivals (“DACA”) was an executive order issued by President Barack Obama on June 15, 2012. This order provided eligible people, who were unlawfully brought to the US as children, with temporary legal status and employment authorization.

On September 5, 2017, then Attorney General Sessions announced that DACA would be terminated. Several groups challenged the termination in the courts and three cases eventually found their way to the US Supreme Court.

On June 18, 2020, the Supreme Court held 5-4 that the decision to terminate DACA was reviewable in federal court and was also “arbitrary and capricious” under the Administrative Procedure Act (“APA”).  The Court stated that the “agency must defend its actions based on the reasons it gave when it acted” and further that the government failed to consider “reliance” interests such as a broader renewal period for DACA recipients or a more accommodating termination date. The Court remanded all three cases for further proceedings.

It appears that the government will try and end DACA by providing a reasonable explanation for its termination. Until then, there is a possibility that the government will allow first time DACA applicants to apply. It is also possible that Advance Parole may become available again. This would allow people with DACA to leave the country and reenter legally. A legal entry would allow many people to obtain a green card in the US based on a petition filed by a US citizen spouse or a US citizen child over 21.

As a reminder, here are the criteria to qualify for DACA:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to the present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Had no lawful status on June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

I do not believe that USCIS is accepting new DACA applications and Advance Prole requests at this time (although they should). If you have a had an application accepted, please contact me.

A District Court in Maryland just ruled that the United States Citizenship and Immigration Service (“USCIS”) must accept new DACA applications and Advance Parole applications. A copy of the court order is attached.

Once a person has DACA, the person can file for Advance Parole (“AP”). AP is a travel document issued by USCIS and it allows a person to leave the US and re-enter the US legally. The person must convince USCIS to approve the AP application for humanitarian reasons. We filed AP for a person with DACA who wanted to see his grandmother who was sick. We got a letter from the grandmother’s doctor and included it with our application. The application was approved.

Once the person re-enters legally, the person may file for a green card in the US if the person is:

1. The spouse of a U.S. citizen;
2. The unmarried child under 21 years of age of a U.S. citizen
3. The parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older).

Better file sooner rather than later! In fact, I hope this information is still correct by the time you read it!!

The Administration agreed to rescind a directive that would have barred F1 and M1 international college students from the U.S. if their colleges offered classes entirely online in the fall semester.

F-1 students pursue academic coursework and M-1 students pursue vocational coursework while studying in the United States.

The Administration’s initial position was that nonimmigrant students within the United States were not permitted to take a full course of study through online classes. If students found themselves in this situation, they were required to leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.

Harvard University and the Massachusetts Institute of Technology sued the U.S. government in federal court two days later calling the directive "arbitrary and capricious" and seeking to have it reversed and declared unlawful. US District Court Judge Allison Burroughs stated announced that the parties came to an agreement and that the government will rescind this policy.

The administration took an unfair position which was to ban foreign students from taking online courses during the Pandemic. It is great news that the policy was rescinded.

ORDER

This case regarding the U.S. Department of Homeland Security’s rescission of the
Deferred Action for Childhood Arrivals (“DACA”) policy is on remand from the Fourth Circuit Court of Appeals. On March 12, 2018, Judge Titus granted in part and denied in part Defendants’ motion to dismiss or, in the alternative, for summary judgment. Memorandum Order, ECF No. 46, amended by ECF No. 49 (Mar. 15, 2018). On appeal, the Fourth Circuit affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded. Judgment, ECF No. 83, published at Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d 684 (4th Cir. 2019).

The Fourth Circuit held that “the Department’s decision to rescind DACA was arbitrary
and capricious and must be set aside.” Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 705. Therefore, the Fourth Circuit “reverse[d] the district court’s ruling sustaining the rescission of the policy as valid under 5 U.S.C. § 706(2)(A)” and “vacated [DACA’s rescission] as arbitrary and capricious.” Id. at 706. Likewise, in separate challenges to the DACA rescission, on June 18, 2020, the Supreme Court held that the rescission of DACA “was arbitrary and capricious in violation of the APA.” Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915 (2020). The DACA rescission occurred on September 5, 2017. See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 693–94. Therefore, the Fourth Circuit explained that its Judgment vacating the DACA rescission “restores DACA to its pre-September 5, 2017, status . . . .” Id. at 706.

Plaintiffs also challenged the September 5, 2017 changes to DACA’s information-sharing policy and requested an injunction based on equitable estoppel. Judge Titus granted the injunction, but the Fourth Circuit held that “Plaintiffs could not reasonably believe that the information they provided as part of their DACA application would never be used for immigration enforcement purposes” and “Plaintiffs’ equitable estoppel claim thus necessarily fails.” Id. at 705–06. Accordingly, the Fourth Circuit “reverse[d] the district court’s ruling finding Plaintiffs entitled to injunctive relief on equitable estoppel grounds, reverse[d] the grant of summary judgment in Plaintiffs’ favor, and vacate[d] the injunction.” Id. at 706. Nonetheless, the Fourth Circuit explained that its decision “restor[ing] DACA to its pre September 5, 2017, status, render[ed] a nullity the information-sharing policies announced on September 5.” Id. at 706.

Finally, the Fourth Circuit dismissed Plaintiffs’ constitutional claims. The Fourth Circuit
“decline[d] to decide whether DACA’s rescission violates the Fifth Amendment’s due process and equal protection guarantees under the ‘well established principle governing the prudent exercise of this [c]ourt’s jurisdiction that normally the [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.’” Id. (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)) (alterations in original). The Fourth Circuit “also decline[d] to decide whether Plaintiffs’ Fifth Amendment rights were violated by the policies announced on September 5, 2017, regarding the sharing of personal information from DACA applicants” given that its decision “render[ed] a nullity the information-sharing policies announced on September 5.” Id. Therefore, the Fourth Circuit “vacate[d] the district court’s judgment on these issues and dismiss[ed] those claims.” Id. at 706–07.

The Fourth Circuit remanded this case to this Court for further proceedings consistent
with its Judgment. Id. Based on the foregoing, all of the issues in this case have been
determined. Therefore, in accordance with the Judgment of the Fourth Circuit Court of Appeals, ECF No. 83, and the Supreme Court’s decision in Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020), it is this 17th day of July, 2020, by the United States District Court for the District of Maryland, hereby ORDERED that:

1. The Court ADJUDGES AND DECLARES that the DACA rescission and actions taken by Defendants to rescind the DACA policy are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A);1

2. The rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status;2

3. Defendants and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law;3

4. Plaintiff’s estoppel claim and request for an injunction as it pertains to DACA’s information-sharing policies are DENIED;4

5. Nonetheless, because this Order restores the DACA policy to its pre-September 5, 2017 status, the information-sharing polices announced on September 5, 2017 are VOID;5

6. Under the doctrine of constitutional avoidance, and given that the informationsharing policies announced on September 5, 2017 are void, this Court does not address Plaintiffs’ constitutional claims and those claims are DISMISSED;6

7. The Clerk SHALL CLOSE this case.