On October 4, 2019, President Trump issued a Presidential Proclamation that purports to prevent the entry of immigrants “who will financially burden the United States healthcare system.” The President has unilaterally decided, without Congressional approval, that an immigrant will financially burden the United States healthcare system “unless the alien will be covered by approved health insurance . . . within 30 days of the alien’s entry into the United States, or unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs.”
“Approved health insurance” includes coverage under employer-sponsored plans, unsubsidized State-level health plans, short-term health policies, catastrophic plans, a family member’s plan, TRICARE, Medicare, or several other specific types of plans. Exceptions exist for certain categories of immigrants.
Trump’s proclamation adds yet another layer of discretion to the immigration system, granting consular officers broad authority to deny otherwise qualified intending immigrants from entering the United States. It remains to be seen if this proclamation will face legal challenges, but one would think it likely. If not legally prevented, the Proclamation will go into effect on November 3, 2019.
On Friday, October 11, 2019, a Federal judge for the Southern District of New York granted a request for a nationwide preliminary injunction of the new Public Charge Rule set to go into effect on Tuesday, October 15, 2019. In short, this injunction is temporary in nature and prevents the Public Charge Rule from being implemented until either the case is tried on its merits or the preliminary injunction is appealed and reversed. In either event, it is a temporary win for immigrants seeking to adjust status in the United States to that of lawful permanent residents.
USCIS released new editions of the forms required to be submitted by adjustment applicants only this last Wednesday evening, less than a week before their usage would have been required. The new rule is set to shift the public charge analysis to the immigrant’s financial profile rather than that of the sponsor. In addition to a new, onerous form (Form I-944), USCIS was set to place heavy documentation burdens on the financial affairs of immigrants and sponsors.
There are six couples involved in a class action lawsuit accusing Federal agents of luring families to marriage interviews in Baltimore, Maryland, only to detain the immigrant spouse and place him or her in removal proceedings. Historical practice has been for USCIS to permit these interviews to occur without fear of arrest because there is an understanding that the immigrants are attempting to follow the law and qualify for available, legal relief. Unfortunately, it appears that USCIS is no longer honoring this practice.
Federal regulations allow U.S. citizens to try to legalize the status of spouses who have been living in the country without authorization, usually through a waiver process that involves detailing how removal of the immigrant will result in extreme hardship to a qualifying relative (e.g., a U.S. citizen spouse). Records show that USCIS has approved 23,253 provisional unlawful presence waivers (Form I-601A)
But, the American Civil Liberties Union says a growing number of immigration officers have “cruelly twisted” the rules by detaining immigrant spouses following interviews for marriage-based visas. The ACLU is pursuing a similar complaint in Massachusetts and says dozens of detentions also have happened at field offices in New York, Virginia, Florida, Illinois, and California.
After earlier stating that it would close all international field offices, USCIS has announced that it will maintain operations in Beijing, Guangzhou, Nairobi, New Delhi, Guatemala City, Mexico City, and San Salvador. The thirteen (13) remaining international field offices will still close by August 2020. The first planned closures will begin at the end of September 2019.
On September 4, 2019, USCIS published a Notice of Proposed Rulemaking that requires employers submitting cap-subject H-1B visa applications to register in advance and pay a $10.00 fee for each such registration. The Notice also included screenshots that seem to indicate USCIS will accept debit, credit, or ACH. The public may comment on the proposed rule for 30 days.
This rule is a follow-up to the January 31, 2019 final rule amending H-1B regulations to require employers to electronically register with USCIS in advance of the H-1B selection process. If an employer’s registration is selected, only then can it submit a full H-1B application.
At this time, USCIS has not yet announced whether the electronic filing system will be utilized for the upcoming H-1B filing season in April 2020.
On August 1, 2019, Acting Secretary of the Department of Homeland Security Kevin McAleenan announced the extension of the Temporary Protected Status (TPS) designation for Syria for an additional eighteen (18) months. Current TPS beneficiaries should re-register for TPS, and work authorization will be extended through March 31, 2021.