Legal Blog Archives

President Biden and his administration is working on providing a more stable and secure position to those children brought to the United States before their 15^th birthday who lived their childhood and adolescent lives in the United States, went to school in the United States, finished Highschool or achieved a GED certification, and do not have any criminal record.

These children are called a lot as DREAMERS.  And many of them are also now protected from deportation by Obama’s executive action Deferred Action for Childhood Arrivals (DACA).  Deferred action is an immigration status which the executive branch can grant to undocumented immigrants. This action does not give them legal status, but can delay their deportation (in some cases indefinitely).

It also gave DACA recipients ability to receive work authorization, driver licenses or driver permits (in some status), and ability to apply for and receive Social Security Number so they can work officially and receive salaries.  This also allowed some of them to even leave the United States to see their families abroad (sometimes grandparents, parents, and even siblings) they have not seen for many many years or not at all.

The DACA program was put in place by Obama administration in 2012 and allowed those who entered the United States before their 16^th birthday and were younger than 31 on the day the program went in effect on June 15, 2012, to be eligible for a deferred action and a work authorization.  The deferred action is a discretionary, limited immigration benefit by the Department of Home Land Security (DHS).

Individuals who have deferred action are in the U.S. under color of law. However, there is no direct path from deferred action to lawful permanent residence or to citizenship. And, it can be revoked at any time. When the program first started, the individuals must have met the following criteria to apply for DACA:

• Are under 31 years of age as of June 15, 2012;
• Came to the U.S. while under the age of 16;
• Have continuously resided in the U.S. from June 15, 2007 to the present. (For purposes of calculating this five-year period, brief absences from the United States for humanitarian reasons was not included);
• Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
• Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
• Were currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
• Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors of any kind; and
• Did not pose a threat to national security or public safety.

Applicants were required to provide substantial documentary evidence of the above criteria. In addition, every applicant were required to complete and pass a biographic and biometric background check. When the original DACA was granted,  to individuals who have never been in removal proceedings, are currently in removal proceedings, or who have final orders of removal.  But later, people who were in removal proceedings were allowed to apply if they first can close their immigration court proceedings and then they would apply for DACA as well.

However, in 2017, under the Trump Administration, the program was rescinded, which led to a number of lawsuits across the country challenging the rescission. The Fourth and the Ninth Circuit Courts of Appeal, along with a number of district courts, ruled that the decision to rescind DACA was “arbitrary and capricious,” and therefore unlawful. The Ninth Circuit also upheld a nationwide preliminary injunction halting the repeal of DACA. The government petitioned the Supreme Court, which granted certiorari to hear the case. Oral arguments were heard by the Court on November 12, 2019.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California, the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program. Just as the lower courts, the Supreme Court held that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). Notably, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. This decision was enforced a month later in Casa de Maryland v. U.S. Department of Homeland Security, in which a federal judge in the U.S. District Court of Maryland ordered DHS to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

Yet, on July 16, 2021, the U.S. District Court for the Southern District of Texas held that the DACA policy “is illegal.” The Court granted summary judgment on former President Trump’s (plaintiffs’) Administrative Procedure Act (APA) claims; vacated the June 15, 2012 DACA memorandum issued by former Secretary of Homeland Security Napolitano; remanded the memorandum to DHS  for further consideration; and issued a permanent injunction prohibiting the government’s continued administration of DACA and the reimplementation of DACA without compliance with the APA. The Court, however, temporarily stayed its order vacating the DACA memorandum and its injunction with regard to individuals who obtained DACA on or before July 16, 2021, including those with renewal requests.

Consistent with this, DHS stated that it will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. However, pursuant to the July 16, 2021 order from the Southern District of Texas, DHS is prohibited from granting any initial DACA requests and accompanying requests for employment authorization. But DHS stated that pursuant to the court order, it will continue to grant or deny renewal DACA requests, according to existing policy and will hold all the initial applications until such time when a final decision is made on the litigation.

Today, September 27, 2021, DHS announced a notice of proposed rulemaking (NPRM) that would preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy.  DHS will open a 60-day public comment period for the public to submit comments relevant to the proposed rule.

“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” said Secretary Mayorkas today in his announcement.  “This notice of proposed rulemaking is an important step to achieve that goal.  However, only Congress can provide permanent protection.  I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve. Secretary Mayorkas continued to say.

It is important that anyone who is in support of DACA and wants to see the children who were educated on US taxpayer dollars, brought up with U.S. values, and have been working and assisting the U.S. economy during the COVID Pandemic, speak up and comment on this policy stating their support for it.  Also, contact your Congressperson and stating your support for allowing DREAMER a safe and consistent pass to legal permanent residency now.  The wait should be over and all of those eligible DACA recipients should be allowed to remain in the United States and obtain legal status.

On August 24, a budget resolution was passed by the U.S. House that allocated nearly $107 billion for immigration reform and similar laws.

The bill was initially passed by the U.S. Senate in early August before being taken to the House. Now that both sides of Congress have passed the bill, it will be signed by President Biden and become law.

While changes have now been made to US immigration laws, it’s important to look at what these changes mean for anyone who wants to gain entry to the US.

Overview of Current Immigration Laws

To fully comprehend what the budget bill’s immigration reform means, you should first understand what the current immigration laws are and what the path to citizenship is.

First of all, you should know that there isn’t a single path to citizenship for immigrants who are entering the U.S. Before someone can become a U.S. citizen, they are first required to become a legal permanent resident, which can be accomplished in a number of ways. Once an individual has become a legal permanent resident, they can obtain a permanent resident card, which is referred to as a green card.

Foreign nationals who live outside of the U.S. can seek a green card through:

• Employment
• Family
• Asylum or refugee status
• Diversity visa lottery

Keep in mind that these green cards have numerical limits to them. In accordance with the Immigration and Nationality Act, 675,000 worldwide LPRs are allowed on an annual basis. When you want to apply for LPR status, it’s important to understand that this process can take decades depending on the path that you take. The basic requirements that immigrants must meet before receiving permanent residence include:

• Have an immigrant visa
• Qualify as being admissible to the U.S.
• Make sure that you file a qualifying immigrant petition, which must be approved
• Obtain eligibility for one of the numerous immigrant categories

If you’re seeking permanent residence in the U.S., there are four separate immigration status categories that you could fall into, which include undocumented immigrants, non-immigrants, residents, and citizens. If you have any questions about your immigrant status and what your path to citizenship is, it’s highly recommended that you contact USCIS.

Immigration Reform from Recent Budget Bill

Before a bill can become a law, it must be passed separately by each house of Congress, which includes the U.S. Senate and the U.S. House. On August 24, the U.S. House officially passed the budget bill, which contained a path to citizenship for individuals who want to become permanent residents of the U.S. While full details of the pathway to citizenship aren’t yet known, it applies to people with Temporary Protected Status, farmworkers, and undocumented children.

While some of the $107 billion that was included in this bill is set to be allocated to border security, the rest will be used to establish a path to citizenship. The bill did not state the number of people who would be eligible for this route to citizenship. President Biden put forward another bill some time ago that included a path to citizenship for as many as 11 million undocumented immigrants. However, this bill is stalled in Congress at the moment because of the slim margins in both Congress chambers.

What Is Temporary Protected Status?

As mentioned previously, one type of immigrant who may have a pathway to citizenship because of the budget bill involves any individual with Temporary Protected Status. TPS is a designation that the Secretary of Homeland Security can place on foreign countries because of conditions within those countries that prevent nationals from returning home safely. If nationals of these countries are currently in the U.S., it’s possible for the USCIS to grant them TPS status.

The temporary conditions that could cause the Secretary of Homeland Security to use the TPS designation on a country include:

• An ongoing armed conflict, which could be a civil war
• An epidemic or environmental disaster
• Other temporary or extraordinary conditions

If someone becomes eligible to be a TPS beneficiary, they receive certain protections while their country falls under the TPS designation. These protections include:

• Can receive travel authorization
• Cannot be removed from the U.S.
• Can receive an EAD, which is an employment authorization document

The reality of the COVID-19 pandemic has caused a whirlwind of changes to everyday life globally. Arguably, the most notable lifestyle change has been the rise of remote work. Whereas in the past remote work was generally frowned upon by employers, recent studies have shown benefits of this paradigm for employers and employees alike. What is more, the reality of remote work has given rise to a new kind of visa program: the Digital Nomad Visa.

Digital Nomads are defined as “those who use telecommunications technology to work remotely outside of their country of permanent residence.”[1] That being said, countries can have various terminology for this denomination of visa holders. For instance, the Cayman Islands refer to these visas as a “Global Citizen Concierge Program” while others may even refer to them as “residence permits.” These visas are available for both working professionals and students alike, although costs and requirements may differ in each case. Later in this article, we will be discussing the different costs and requirements that each country has for the program.

The digital nomad visa is symbiotic in its nature for both the participating countries and the businesses/professionals who are granted this visa. From the employer’s perspective, they are awarded with employees who are less likely to endure burnout—a sure detriment to their bottom line. From the employee’s perspective, this is a unique opportunity to travel amidst a pandemic. Not only is there ample time to sightsee, but fewer other tourists will yield a calmer and fulfilling trip. Moreover, for participating countries that mainly relied on tourism as their main source of income, this visa comes as a blessing for their economies.

The implications of the digital nomad visa are vast, both for the employer’s and employee’s perspectives. Specifically, from the employee’s perspective, the pandemic has opened the avenue towards more flexibility at work if not a permanent remote work setting altogether. What is more, the decades long call for more flexible work schedules for childcare purposes has been a resonating theme in the past few decades—and as it seems, this call has finally been answered. Even without the pressures of childcare, the digital nomad visa has even more implications for the millennial generation. In fact, the millennial trend of high spending and value placement on experiences further glorifies the opportunity that the digital nomad visa offers its applicants.

Naturally, the digital nomad lifestyle will be better suited for some types of job positions more than others. For instance, a professional working in essential business such as hospitals or construction may not be able to take advantage of this visa program. However, for professionals who are already working fully remote, or are permanently working fully remote: this is a once in a lifetime opportunity!

With the experience economy continuously growing, some can’t help but to ask: why does the United States not have a Digital Nomad visa of its own? The benefits of having such a program for the US would be plentiful. Not only would the US tourism industry benefit deeply, but US spending would notably increase. What is more, tourism in the US accounts for 2.9% of GVA (gross value added). With the global pandemic deterring tourists from traveling frequently, a Digital Nomad visa would surely aid businesses that fall within that 2.9%.

If you are professional who is currently working remotely, looking into the Digital Nomad visa is a must for anyone seeking a memorable experience. Listed below is a chart of participating countries and their respective requirements/deadlines.

1. Antigua and Barbuda
2. Bali
3. Barbados
4. Bermuda
5. Cayman Islands
6. Costa Rica
7. Croatia
8. Czech Republic
9. Dubai
10. Estonia
11. Georgia
12. Germany
13. Greece
14. Iceland
15. Malta
16. Mauritius
17. Mexico
18. Norway
19. Portugal
20. Spain
21. Anguilla

https://expertvagabond.com/digital-nomad-work-visas/

[1] Employers “Countries Offering Digital Nomad Visas.” 15 Jul. 2021, https://www.investopedia.com/countries-offering-digital-nomad-visas-5190861.

Per the recent announcement made on September 4, 2021, USCIS will be extending the time that receipt notices can be used to show evidence of status from 18 months to 24 months for those individuals who timely filed their Forms I-751 and Form I-829.

At the face of it, this announcement sounds like it could be a relief for these applicants. Yet, further look into the implications of this decision reveals a host of more disconcerting consequences.

The I-751 form is the Petition to Remove Conditions on Residence. In this instance, the petitioner is an individual who is married to a US citizen for less than 2 years when they obtain their original Green Card.

When the original Green Card is granted,  it is only valid for two years and the condition must be removed in 2 years’ time by filing form I-751.

In light of the pandemic, petitions’ payment processing issues within USCIS, as well as the freeze on federal hiring mandate by the previous Administration, processing time for these applications is realistically much longer than 18 months. Thus, in actuality, today’s decision by the USCIS to extend the status of legal permanent residents waiting for removal of their conditions to 24 months is great.

But it is also a bittersweet reminder of how long the process is taking. The negative reception of this delay is complicated by the fact that scores of applicants have been placed in a limbo—an uncertainty stage concerning one of the most important decisions in their lives—approval of their permanent residency in the United States. What is more, this decision also robs applicants of the opportunity to become US citizens within statutorily allowable time – 3 years from the time they received their original green card.

Given the above facts, the notion that USCIS’s delays in adjudicating these cases is harming U,S, citizen families. For instance, spouses of US citizens with till pending I-751s could be faced with the major inconveniences such as not qualifying for well-paid government jobs, or other jobs that require US citizenship, that they would have already qualified for if their I-751 was approved.

Furthermore, the Real ID cannot be received unless legal permanent status is up to date. For those individuals whose 18-month notice has already passed, they would be unable to renew their driver licenses, obtain a Real ID, or even keep their jobs if they cannot show active green card.

Moreover, these individuals would be unable to receive unemployment benefits or child assistance payments. In the face of an ongoing pandemic, this surely qualifies as cruel and unusual punishment for such individuals and their U.S. citizen spouses.

It should be noted that while these individuals are not technically out of status in this time, they will be unable to prove their status if the extension expires. This does not necessarily put them at risk of deportation, but this does imply that they will be denied benefits and peaceful enjoyment of their lives—a promise that the US constitution makes to its residents.

The negative effects of the USCIS delays in adjudication are also effecting  international investors who filed I-829 applications and domestic economy. The I-829 form is the Petition by International Investors looking to move to the United States to Remove Condition on their Permanent Resident Status.

More specifically, I-829 applicants who already invested $1,000,000 and created 10 full-time, U.S. jobs must show that their investment is still supporting the U.S. businesses and the 10 U.S. jobs existed for a minimum of 2 years to qualify. Prolonging the approval process for these cases is not only inconvenient for the applicants but also detrimental for the US economy.

Many countries have recently implemented robust reduced-cost investor visas leading to permanent residency with much shorter wait for the benefit than that of the United States.

The fact that it takes over 7 years to obtain a permanent residency in the U.S. through investment, deters many investors from applying for these visas in the U.S.  As a result, the U.S. economy loses the opportunity to employ more of its citizens, and more than likely deters more international investors to apply due to prolonged delays in processing I-829 applicants.

The announcement by USCIS to extend the validity of the I-751 and I-829 receipt expention is a welcomed news to allow the applicants ability to show valid status in the U.S. but the delay is detrimental to the U.S. families and the U.S. economy as a whole!