Wednesday, 28 April 2021

Joseph & Hall P.C.

Joseph & Hall P.C.

USCIS to Return to Policy Granting Deference to Previous Adjudications

Posted: 28 Apr 2021 08:50 AM PDT

One of President Biden's first executive orders was issued February 2nd, 2021, entitle "Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans."  Its goals and directives reflected its title – to identify and remove barriers that impede access to immigration benefits.  Beyond requests for comments from the public on what barriers exist and need to be removed, we have not seen too much in the way of sweeping reform as a result of this order – that is until the announcement on April 27, 2021 that USCIS will be rescinding a Trump-era policy in 2017 wherein USCIS announced it would no longer be granting any deference to previously approved petitions.

Specifically, the new policy:

  • Clarifies that USCIS gives deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change in circumstances or in eligibility, or new material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility.
  • Affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies; that officers make determinations on the evidence of record in the petition or application under adjudication.

This new policy would still permit USCIS officers to consider the facts of a new petition, and does not bind them to previous approvals, but it does mean that long time employees are less likely to suddenly be faced with an inscrutable denial, and hopefully means that burdensome requests for evidence on renewals or extensions will be reduced.  It also perhaps signals a shift in priorities in the agency in an attempt to bring it back to a benefit conferring agency after years of USCIS drifting towards becoming another immigration enforcement and fraud detection mechanism for the Department of Homeland Security.

And beyond all else, this policy makes sense.  Processing times have ballooned over the course of the COVID pandemic, with estimated processing times changing seemingly by the day.  As of April 27, at the California Service Center a form I-130 "Petition for Alien Relative," an extremely commonly filed form, is estimated to take between 20.5 to 26.5 months for a U.S. citizen filing on behalf of a spouse, parent, or child, and 103 to 133.5 months for a U.S. citizen filing for their married son or daughter over 21.  While this form was chosen as an example, almost every form currently has estimated processing times months or years longer than historic processing times.  All applicants for immigration benefits are hurt by these delays.

By not requiring officers to completely re-adjudicate petitions filed solely to extend the status of an employee, a business owner, or an executive – with no material changes and no errors in the previous adjudication – perhaps USCIS will be able better allocate its resources and bring these crisis level processing times back down to something resembling normalcy.  Without having to reinvent the wheel on each filing, we can hope to see families reunited, businesses filling essential roles, and investments in the U.S. economy flourish.

ICE Rescinds Existing Fines for Failure to Depart, Will Not Issue Further Fines

Posted: 27 Apr 2021 09:44 AM PDT

 On April 23, the Department of Homeland Security announced the recission of civil penalties for noncitizens who had failed to depart the United States under an order of removal.

Beginning in 2018, ICE had issued fines, sometimes for hundreds of thousands of dollars, to certain noncitizens in the United States with active orders of removal.  While ICE stated that the fines were being assessed on a case-by-case basis, they seemed to be largely targeted at individuals who had sought protection in sanctuary churches.

ICE stated that it intended to work with the Department of Treasury to cancel outstanding debts of those who had been fined.  It has not issued any fines since President Biden's inauguration and does not intend it issue fines going forward.

In announcing the decision. DHS Secretary Alejandro Mayorkas stated, "We can enforce our immigration laws without resorting to ineffective and unnecessary punitive measures."

Further Reading:

New U Visa Bill Passes in Colorado

Posted: 26 Apr 2021 09:13 AM PDT

On March 17th, 2021, the Colorado House of Representatives passed HB21-1060, a bill which revised the requirements for the U Visa certification process and made it easier for U Visa petitioners to move forward with the process.

U Visas were created in October 2000 as part of the Victims of Trafficking and Violence Protection Act with the purpose of providing victims of crimes in the United States a pathway to lawful permanent residency. When an individual, regardless of their immigration status, was the victim of a qualifying crime and assisted law enforcement or government officials in the investigation or prosecution, USCIS would be able to grant them a U Visa. This process required the petitioner to attain certification from law enforcement regarding the crime and attesting to the petitioner's helpfulness and cooperation. However, this certification had no standard processing guidelines which meant that some petitioners could be waiting for years before receiving their certification.

HB21-1060 resolved this issue by requiring a statewide standard of approving or rejecting U Visa certification requests within 90 days. If a petitioner is in removal proceedings, the certification must be approved or rejected within 30 days. If the certification request is rejected, the petitioner must be notified of the reasons why. These new requirements greatly cut down on the wait times for petitioners across the state.

In addition to the processing deadlines, HB21-1060 contains a few more additions to the Colorado U Visa process. One requires law enforcement officials to inform victims of crimes about the availability of U Visas, as many eligible victims are completely unaware of this possible benefit. Additionally, HB21-1060 restricts the disclosure of the petitioner's immigration status to immigration authorities.

With faster processing times for U Visas, it will be more possible for the residents of Colorado to turn bad experiences into great opportunities. If you think you or a loved one may be eligible for a U Visa, please contact our office to schedule a consultation.

DACA: By the Numbers

Posted: 20 Apr 2021 09:33 AM PDT

A new report released by the Congressional Research Service cites estimates that as of December 2020, over 1.7 million undocumented individuals may be eligible now or in the near future for protection from removal and work authorization under the Deferred Action for Childhood Arrivals (DACA) initiative. According to these estimates, approximately 1.3 million are immediately eligible, another 384,000 are eligible except for the education requirements, and roughly 14,000 will be eligible soon due to age requirements.

Additional data in the report on DACA applications and recipient demographics provides interesting information about this program:

  • Between the beginning of the program in 2012 through the end of FY2020, USCIS accepted 914,640 initial requests and approved 827,119 of them (90% approval rate)
  • During that same time period, USCIS accepted 2,046,922 renewal requests and approved 1,976,108 of them (97% approval rate)
  • Persons who had DACA on December 31, 2020, were nationals of more than 195 different countries
  • The top ten countries of birth for DACA recipients ins 2020 are (in descending order): Mexico, El Salvador, Guatemala, Honduras, Peru, South Korea, Brazil, Ecuador, Colombia, and Argentina
  • DACA recipients live in all 50 states, with nearly of all recipients living in California and Texas.

If you are interested in learning more about the eligibility requirements for DACA, please contact our office.
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