Providing Comprehensive Immigration Services

08/22/20 Travel Ban and Closure Update

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, September 4, 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.

On July 22, 2020, the US State Department issued the following update:

National Interest Exceptions for Certain Travelers from the Schengen Area, United Kingdom, and Ireland: Certain business travelers, investors, treaty traders, academics, and students may qualify for national interest exceptions under Presidential Proclamations (PPs) 9993 (Schengen Area) and 9996 (United Kingdom and Ireland). Qualified business and student travelers who are applying for or have valid visas or ESTA authorization may travel to the United States even as PPs 9993 and 9996 remain in effect following the procedures below.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.

Business travelers, investors, academics, J-1 students, and treaty traders who have a valid visa or ESTA authorization that was issued prior to PP 9993 or 9996’s effective date or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate. The Department of State also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship.

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 September 21, 2020, 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 Iran and Brazil

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!!

Case Analysis

City and County of San Francisco v. Barr

By, James T. Daly

In City and County of San Francisco v. Barr, No. 18-17308 (9th Cir. 2020), the 9th Circuit Court of Appeals held that governmental entities that refuse to cooperate with US Customs and Immigration Enforcement may still receive federal funding to support a wide variety of criminal justice programs.

The federal funding program that is the subject of this lawsuit is the Edward Byrne Memorial Justice Assistance Grants program (“JAG”). This federal program provides funding for state and local criminal justice programs including law enforcement, crime prevention and education, drug treatment and enforcement, technology improvements, mental health programs and crisis intervention teams.

The JAG program was named after Edward Byrne, a New York City police officer. In the early morning hours of February 26, 1988, Officer Byrne was on detail protecting a witness who had agreed to testify in court against local drug dealers. Two armed gunmen crept up to his car and shot him five times in the head. Officer Byrne, who was only 22 years old, died of his wounds. The criminals were captured and sentenced to 25 years to life. They were members of a gang who had been instructed by a jailed drug kingpin to kill a police officer. A truly horrific crime that should have carried the death penalty.

Anyway, agencies that wish to apply for the JAG funds must complete an application and agree to certain conditions. In 2017, the JAG registration program included 2 new conditions that had to be met in order to receive funding. In addition, applicants must certify that their laws and policies comply with 8 U.S.C. § 1373, a federal statute prohibiting states and localities from restricting the flow of information regarding an individual’s citizenship or immigration status between state and local officials and the Department of Homeland Security (“DHS”).

Here are the 2 new conditions:

1. The applicant must permit personnel of DHS to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and

2. Provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.

The City and County of San Francisco and the State of California use JAG funds and they do not want to comply with the 2 new conditions. They also argue that the certification requirement does not apply They are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws and therefore cannot certify that they will cooperate with DHS.

For instance, a section of San Francisco’s Administrative Code prohibits the use of any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any such personal information except as required by Federal or State statute, regulation, or court decision.

California law (1) prohibits enforcement agencies from providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities under certain circumstances and (2) prohibits the agencies from providing personal information about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public.

In August 2017, San Francisco and California filed lawsuits in the Northern District of California seeking to enjoin the Department of Justice (“DOJ”) from implementing the 2 new conditions and the required certification. As Plaintiffs, they asserted that the new conditions are not authorized by the JAG program and violate constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”). San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds and California claimed it was at risk of “losing $31.1 million” in program funds.

The DOJ contends that Congress granted it independent authority to establish the conditions for receiving JAG funds, including placing special conditions on all grants, and determining priority purposes for formula grants. Other circuits have reached differing conclusions regarding this authority and to date, only the Second Circuit has held that the placing of certain conditions is allowed.

In October 2018, the district court decided the case in Plaintiffs’ favor. The court held that the 2 new conditions were unenforceable against Plaintiffs and any other jurisdiction in the United States. The district court also declared that Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373, which it narrowly construed, and that DOJ cannot withhold JAG funds.

The district court stayed the effect of the injunction’s nationwide scope pending appellate review. The district court held that they exceed DOJ’s statutory authority, violate constitutional separation of powers, violate the Spending Clause, and are arbitrary and capricious under the APA.

The 9th Circuit affirmed the district court’s order declaring the 2 new questions unlawful and enjoining DOJ from enforcing them against Plaintiffs and that Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373, which it narrowly construed, and that the DOJ cannot withhold JAG fiunds.

On August 12, 2020, the 2nd Circuit Court of Appeals limited a lower court nationwide injunction on the Department of Homeland Security (“DHS”) public charge rule only to Vermont, Connecticut, and New York. As of August 14, 2020, USCIS has not provided updated guidance on the impact of the modified injunction on its public charge injunction page which continues to discuss only the July 29th decision (establishing a nationwide injunction).

USCIS has not added the Form I-944 back to its Forms page and we are unsure if applicants in States other than Vermont, Connecticut and New York will be required to file the Form I-944 (assuming it gets put back on the website).

Stay tuned.