"Public Charge" Rule Headed to the U.S. Supreme Court

On Monday February 22, 2021, the U.S. Supreme Court granted certiorari to hear Dept. Of Homeland Sec., et al. v. New York. This means the Supreme Court will review the lower court’s decision in order to determine whether or not the “Public Charge” rule violates the law. An injunction was granted on July 29, 2020 during the COVID-19 pandemic, preventing DHS from enforcing the rule because of the national health emergency. However, the U.S. Court of Appeals for the Second Circuit issued a decision allowing DHS to resume implementation of the rule nationwide on September 11, 2020. 

Former President Donald Trump’s expansion of the rule currently bars immigrants from obtaining legal permanent resident status if the government deems them likely to become a “public charge,” meaning likely to use government benefits. Described as a “wealth test,” Form I-944, Declaration of Self-Sufficiency, is the form used to make this determination. An applicant seeking legal permanent resident status must complete the form and provide comprehensive documentation of their entire household’s income, assets, and resources – including family members outside of the U.S. if they provide financial support to the applicant or vice versa. The applicant is further required to disclose all liabilities and debts such as mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt. The applicant must provide documents attesting to their level of education and must disclose whether or not they have ever used public benefits in the past. Essentially, everything other than an applicant’s first-born must be turned over to USCIS for scrutiny. Trump’s “Public Charge” rule has been nothing but a headache and a roadblock for immigrants and immigration lawyers alike.

The granted writ of certiorari hopefully marks a turn for the better, as the Supreme Court awards certiorari in a very limited number of cases each year. If the challengers, the State of New York, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, Archdiocese of New York, and the Catholic Legal Immigration Network, Inc., can successfully argue the illegality of the “public charge” rule, it will mean significantly less invasiveness and scrutiny for immigrants seeking permanent resident status. We remain hopeful that this significant impediment will finally be removed soon and that the prior standard for public charge will be reinstated.

Serotte Reich will continue to provide updates, as the status of Form I-944 and its implementation continue to shift frequently. If you need assistance or advisement regarding an immigration matter that has been affected by the “Public Charge” rule, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

Masks Required at All Ports of Entry

In accordance with President Biden’s Executive Order issued on January 21 regarding COVID-19 safety, Customs and Border Protection (CBP) has issued new guidance. Effective February 2, CBP is enforcing the requirement that travelers wear face masks at all air, land and sea ports of entry in the U.S. CBP Officers will require travelers to temporarily lower their mask during the inspection process to verify their identity. Individuals on private transportation such as personal vehicles are not required to wear a mask while driving, but must use a mask once they enter an air, land, or sea port facility.

The Centers for Disease Control and Prevention (CDC) has also issued an Order entitled “Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs.” According to these new requirements, everyone over the age of 2 must wear a mask that completely covers the nose and mouth of the wearer while on public conveyances (e.g., airplanes, ships, ferries, trains, subways, buses, taxis, ride-shares) traveling into, within, or out of the United States. People must wear properly fitted masks when awaiting, boarding, traveling on, or disembarking public conveyances or transportation hubs.

According to the CDC guidelines, cloth masks should be made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source). Masks should be secured to the head with ties, ear loops, or elastic bands that go behind the head and should fit snugly but comfortably against the side of the face. Masks should be a solid piece of material without slits, exhalation valves, or punctures.

The mask requirement does not apply to persons with disabilities, who cannot safely wear a mask due to a disability as defined by the Americans with Disabilities Act, or to individuals for whom wearing a mask would create a risk to workplace health, safety, or job duty.

The mask requirement will remain in effect until further notice. Failure to comply with the mask requirement can result in denial of transport or other civil/criminal penalties under 18 U.S.C. 3559, 3571.

Serotte Reich will continue to provide updates as new developments affecting immigration continue to occur frequently during the COVID-19 pandemic. Please contact our office via our website or by phone at (716) 854-7525 to schedule a consultation if you have an immigration matter that has been affected by the pandemic and have questions or require assistance.

Biden Issues Proclamation Ending Discriminatory Muslim Travel Bans

On his first day in office, January 20, President Biden signed into effect a Presidential Proclamation ending the discriminatory travel bans issued by former President Trump. President Biden’s proclamation, entitled “Ending Discriminatory Bans on Entry to the United States,” repeals Trump’s Presidential Proclamations 9645, 9723, and 9983, as well as his Executive Order 13780. Trump’s proclamations and executive order had restricted entry into the U.S. by certain nonimmigrants and immigrants from Arab, Muslim-majority and African-majority countries, including Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

President Biden’s proclamation stresses the centrality of religious freedom and tolerance as the foundation upon which the United States was built. In the proclamation he calls President Trump’s proclamations and executive order “a stain on our national conscience…inconsistent with our long history of welcoming people of all faiths and no faith at all. [The proclamations] have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.” As of January 2019, the Cato Institute reports that over 9,000 spouses and minor children of U.S. Citizens have been barred as a result of Trump’s bans.

Along with repealing Trump’s travel bans, President Biden’s proclamation directs that all embassies and consulates cease applying Trump’s bans and resume processing of all visas immediately. Additionally, the Department of State (DOS) must undertake a review and provide a proposal to ensure that individuals whose immigrant visa applications were denied because of Trump’s bans have a pathway to reconsideration of their applications. President Biden’s proclamation requires that the DOS develop a plan to expedite consideration of those visa applications. At the same time, Covid-19 continues to affect U.S. visa processing at consulates and embassies all over the world.

President Biden’s proclamation is the first of many to come under the new administration that will hopefully impact immigration for the better.

If you need assistance or advisement regarding an immigration matter that will be affected by this new proclamation, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

USCIS Announces Return of Premium Processing

After more than two months, USCIS will begin resuming premium processing for certain petitions. According to an announcement made on May 29, 2020, it will be done in phases during the month of June. USCIS will resume accepting Form I-907, Request for Premium Processing Service, on the following dates as included in the agency’s newly-issued guidance:

Starting June 1: USCIS will first begin accepting requests for premium processing for all eligible Form I-140 petitions.

Starting June 8:

• H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt.

• All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication.

Starting June 15:

• H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because: 

• The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization (such as an institution of higher education, a nonprofit research organization or a governmental research organization); or 

• The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

Starting June 22: All other Form I-129 petitions, which include:

• All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s. 

• All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing.

For I-129 and I-140 petitions filed using premium processing prior to the March 20, 2020 suspension due to COVID-19 that did not receive action (and were refunded), petitioners may refile according to the timeline issued above. USCIS does note that the dates are subject to change and that any amendments to the timeline will be announced.

For those who require assistance with a petition that needs to be filed – or refiled – using premium processing, please contact Serotte Reich.