Immigration News and Updates: November 20, 2020

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Peri B. Edelman | November 20, 2020

A Note of Thanks

On November 15, 1996, twenty-four (24) years ago, I was first admitted to practice law in the State of Connecticut which meant I could practice Immigration Law in any state since it is federal domain. Soon thereafter, I was admitted to practice in New York State, U.S. Eastern District Court of New York, U.S. Southern District Court of New York, and United States Court of Appeals for the 2nd Circuit.

For the past 24 years, I have obtained green cards, foreign work visas (H-1B, O-1, L-1, E-1, E-2 etc), relief from deportation/removal, and humanitarian paroles for thousands of clients. I am very thankful for your continued support throughout all of these years.

The Department of State Provides Update Related to Resumption of Routine Visa Services

The Department of State (DOS) has posted a notice regarding the resumption of routine visa services. The DOS noted that it suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic. In July 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services.

According to the update, the resumption of routine visa services, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with DOS guidance for safely returning its workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, DOS missions will begin providing additional services, culminating eventually in a complete resumption of routine visa service. Some of my clients have received immigrant visas in Consulates abroad.

Every consulate has a different service procedure, and Consular information is updated constantly.

Federal Judge ruled Trump’s New DACA Rules are Invalid

A federal judge in New York ruled Saturday, November 14, that Acting Department of Homeland Security Secretary Chad Wolf assumed his position unlawfully, a determination that invalidated Wolf’s suspension of the Deferred Action for Childhood Arrivals program, which shields young people from deportation.Wolf issued a memorandum in July effectively suspending DACA, pending review by DHS.

In Judge Garaufis’ ruling Saturday, the judge wrote that DHS didn’t follow an order of succession established when then-Secretary Kirstjen Nielsen resigned in April 2019. Kevin McAleenan, who succeeded Nielsen until he resigned in October 2019, also didn’t have statutory authority to hold the position, Garaufis wrote.As a result, the court held, Acting Secretary Chad Wolf did not have authority to issue the July memorandum announcing that DHS would continue to reject all initial requests for DACA status and employment authorization documents, reject most requests for advance parole, and limit DACA renewals to one-year periods

This is great news for DACA holders, and individuals who want to apply for DACA.

Public Charge Rule Back in Effect

Despite recently being blocked by a Chicago federal judge, Trump’s controversial US immigration public charge rule is back in effect. The controversial rule has been relaunched as the US appeals court considers a case to suspend it amid the ongoing coronavirus pandemic. Biden has indicated that he would attempt to roll this order back.

New Naturalization Civics Test

On November 13, 2020, U.S. Citizenship and Immigration Services announced that it plans to implement a revised version of the naturalization civics test.

USCIS revised the civics test as part of a decennial update to ensure that it remains an instrument that comprehensively assesses applicants’ knowledge of American history, government and civic values. Applicants who apply for naturalization on or after Dec. 1, 2020, will take the updated version of the test. Those who apply before Dec. 1, 2020, will take the current version of the test.

DHS Proposes to Limit Work permit for Aliens with Final Orders of Removal Under an Order of Supervision

The Department of Homeland Security (DHS) announced Tuesday a proposed rule that would limit discretionary work authorization for aliens who have final orders of removal and who have been temporarily released from DHS custody on an order of supervision (OSUP). The rule would align the issuance of discretionary employment authorization with the administration’s priorities to protect U.S. workers and allegedly strengthen immigration enforcement.

Under current regulations, an alien who has a final order of removal and who is temporarily released from DHS custody on an OSUP is generally eligible for an employment authorization document (EAD). Under the proposed rule, only a small subset of these aliens who can demonstrate that DHS has determined that their removal from the United States is impracticable would remain eligible for discretionary employment authorization. DHS will require such aliens to establish economic necessity to work, consistent with other discretionary EAD categories, and USCIS will assess whether they warrant a favorable exercise of discretion for a grant of employment authorization. In addition, aliens who qualify for discretionary employment authorization under the proposed rule and subsequently seek to renew their work authorization would also be required to establish that their employer participates in E-Verify and is in good standing in the program. The proposed rule also would limit the validity period of the employment authorization for aliens released on an OSUP to one year, regardless of whether it is an initial or a renewal employment authorization.

Many individuals have had a change in circumstances since they were issued an order of removal and may be eligible for a Joint Motion to Reopen and eventually a green card.

Please contact my office for further clarification.

USCIS Use of Discretion for Adjustment of Status (Green Card)

On November 17, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert updating existing policy guidance in the USCIS Policy Manual regarding the discretionary factors to consider in adjudications of adjustment of status applications.

According to the memorandum, an applicant who meets the other eligibility requirements contained in the law is not automatically entitled to adjustment of status. The applicant still has the burden of proving that he or she warrants a favorable exercise of discretion. To determine whether adjustment is warranted, an applicant should supply information that is relevant and material. If the officer finds that the applicant otherwise meets the eligibility requirements, the officer then determines whether the application should be approved as a matter of discretion. Given the significant privileges, rights, and responsibilities granted to LPRs, an officer must consider and weigh all relevant evidence in the record, taking into account the totality of the circumstances to determine whether or not an approval of an applicant’s adjustment of status application is in the best interest of the United States.

If you are someone you know, wants to file for adjustment of status, please contact my office.

Peri B. Edelman is an experienced attorney who practices Immigration Law in New York City. She provides immigration legal services, legal counsel on immigration matters, and legal support for court cases related to Immigration. A graduate of Brooklyn Law School, Peri B. Edelman is admitted to the New York and Connecticut Bars, U.S. Eastern District Court of New York, U.S. Southern District Court of New York, and United States Court of Appeals for the 2nd Circuit.