With the upcoming change in Presidents, we see that the current administration is doing everything they can to push their zero immigration goals forward in the short time they have left.
Judges and courts around the country are telling them what they have done and are doing is inappropriate, and in some cases illegal, but they don’t seem to care.
We have a new, tougher, exam for citizenship required for applicants after December 1, 2020, we have another DACA decision, and we have a mess in the government as one President doesn’t want to leave, and one wants to get the country back on track.
You may be wondering, how is all of that going to impact you on your immigration journey? You can learn all about that here, along with 7 ways you can do to speed up your immigration journey.
Recent immigration issues
New York DACA case
On Saturday, 11/14/2020, Judge Garafuis from New York said that the Acting Secretary of Department of Homeland Security (DHS), Chad Wolf, was in his position illegally and therefore any policies he signed are invalid. He isn’t saying anything new. We have heard this from courts in California, Illinois, and New York.
This decision was issued because of a lawsuit filed by New York state’s attorney general, Letitia James, who was joined by 17 attorney generals where they asked the court to vacate DHS’ memo trying to cancel DACA.
A short history of Deferred Action for Childhood Arrivals (DACA)
President Obama signed DACA into effect as an executive order before he left office. DACA provides deferred action for childhood arrivals to the US. This means that those who have this will not be deported unless they commit a crime. This group is people who came to the US as children, who have grown up here, and most didn’t even know they weren’t US citizens.
The order signed by Obama also allows them to attend school and to legally work, meaning they pay taxes. President Obama was a constitutional law professor and put DACA in place the right way. He did this because Congress had been trying for years to pass an Act (called the DREAM Act) and had been unable to do so.
Trump and many Republicans disagreed with DACA. He said he would provide an alternate way for these individuals to gain legal status. As with most of his campaign promises, he has not. What he did do was try to end their protection from deportation. After Trump got into office, ICE started rounding up non-criminal DACA holders and deporting them.
In 2017 Trump signed an executive order saying DACA was ended. This started several lawsuits which eventually led to the Supreme Court.
In June 2020 the Supreme Court said that the Trump administration’s way of ending DACA was illegal because it had violated the Administrative Procedures Act (APA). The case was then sent back to Federal Court for further findings.
At the end of July 2020, while the Federal Court judge was reviewing the Supreme Court decision and putting orders in place about it, Chad Wolf wrote, signed, and sent out a memo saying despite what the Supreme Court said United States Citizenship and Immigration Services
(USCIS) was ending DACA.
Under this new policy, no new applications would be accepted or processed, anyone with DACA would only get a year extension and only get employment authorization valid for a year. This, of course, led to more lawsuits. It was in direct contradiction to what the Supreme Court said.
After public outcry and additional lawsuits about this illegal step, Trump said “I’ll do something for DACA holders.” But, as of November 2020, he has done nothing except try to get rid of them.
Keep in mind DACA holders are not bad people. They contribute to society. They are not eligible for DACA if they have committed a crime. They add $42 billion to the GDP in the US every year. If DACA were to be ended it would be a $21 billion loss to the US economy. Over $4 billion in taxes is paid by DACA holders every year.
Back to the New York case.
The parties that filed the suit claimed that Wolf was not in his position legally. He was put in by then acting-secretary McAleenan in November 2019. Courts have found that McAleenan could not appoint Wolf because he, himself, was in the position illegally since April 2019.
Since Wolf is in his position illegally, anything he signed was invalid. (Trump did submit Wolf’s name to the Senate for confirmation in September 2020, but they have not acted on it and Senate Majority Leader McConnell said that he would not confirm Wolf to the position.)
The Judge agreed with this reasoning and issued a summary judgment for the plaintiffs. That means the Judge didn’t see any dispute about the facts and agreed with the Plaintiffs.
Interestingly, Director Krebs, whom Trump fired on Monday via tweet for saying that the election didn’t have any election fraud, was the person who should have legally been in the position under the order of succession.
After this decision on 11/14/20, DHS attempted to remedy Wolf’s position in-house inappropriately.
At a hearing on 11/18/20, Judge Garaufis said this was a “sad and inappropriate use of executive authority to keep DACA recipients & DACA-eligible individuals from accessing protections.” The Judge also said that he thinks this Administration has tried to run out the clock since the Supreme Court decision and he is deeply concerned and disappointed by that.
The court also allowed a class to be certified. That means that if there is a decision, that decision will apply to everyone eligible to be part of the class action. What is expected is that due to this decision, DACA will be restored to its original 2012 memorandum.
There will be more information regarding this in the coming days and as we find out more, we will let you know.
What’s going on in USCIS?
Frankly, it’s a little shocking to us that USCIS, even after having been told by several courts that they have NO authority to create new policies, keeps creating new policies.
On November 17, 2020, weaken immigration enforcement, but there are many arguments this administration makes that we disagree with. Currently, people who are released to OSUP must check in with DHS, and follow other rules, until their travel papers are available.
DHS is claiming that allowing them to work creates a financial incentive for them to stay in the US. DHS is proposing that releasing immigrants from detention but not giving them the ability to provide for themselves or their families, somehow will help protect US citizens.
On November 17, 2020, USCIS provided a list of positive and negative factors that an officer considers when they are reviewing Adjustment of Status applications for their Green Cards. This change isn’t surprising. The surprise is the fact that the courts are striking down all policy changes and yet they continue to issue new changes.
On November 18, 2020, USCIS issued a new policy update for Lawful Permanent Residents (green card holders) who are applying to become citizens.
We recently did a video about abandoning your green card when you stay outside the US for too long. USCIS said they will review your record to determine if you abandoned your green card when considering your naturalization application. They will not grant citizenship to people who obtained a green card through fraud, error, or are otherwise not complying with the law.
We will continue to review this further, see how it is put into practice, and update you as we find out more.
There’s a new Naturalization Test that USCIS is using, which you can view here. Anyone who applies to become a citizen on or after December 1, 2020, will need to take the new test.
What’s the difference between the new and old tests?
The test you take today is 120 questions. The new one will be 128 questions.
Today if you take the test, you are asked 10 questions and if you get 6 right you don’t need to answer any more questions. After December 1, you will be asked 20 questions and you must get 12 of them right.
The 60% passing rate and the English portion of the test remain the same. You must demonstrate you can read, speak, write, and understand English.
Some people say that the questions are more difficult with the way they are phrased and the terms that are used. As an example, before you were asked to list three rights in the Constitution and now it asks you to share ideas from the Constitution.
There is also concern that the answers are more political. One question asks who Senators represent – the answer changed from the people of their state to the citizens of their state.
Geography questions have been removed from the test.
If you are over age 65 and have been a legal permanent resident for 20 years you do not have to be tested in English and can take the civics test in the language of your choice. This is referred to as the 65/20 rule. You will also only have to answer questions from 20 designated questions. You identify these with the asterisk on them. If you answer 6 correctly, you do not need to be asked more.
You are still allowed two opportunities to take and pass the test.
To be fair, the last time the test was updated was in 2008. Since it is typically updated every 10 years, this administration is 2 years behind in making changes. Hopefully, it won’t slow down the process though many in the immigration community feel that it will.
Immigration impacts of the recent election
USCIS ordered not to work with Biden
Another big news item that is disappointing but perhaps not surprising is that USCIS officials have been ordered by the current administration to not cooperate with President-Elect Biden on a smooth transition of power.
Let’s talk about why this is a problem.
USCIS is run by DHS. That means the Department of Homeland Security is refusing to work with the next President of the United States. The agency responsible for the safety of our country is refusing to protect the citizens because the current President is having a temper tantrum about losing.
Federal employees have been resigning over the underhanded tactics by this administration. Almost daily another one is fired by tweet or resigns due to the instability of the current President, and the refusal of the Republican Senate to enforce the peaceful transition of power and sharing of records.
National security experts have said that this Administration and Senate are exposing the US to danger from foreign powers by their actions or lack of action. Secretary of State Pompeo claims that they are doing everything to keep Americans safe but many, including now, some Republican senators, are saying that is not the case.
Why is the voting process taking so long?
Every state has a different deadline by which they must certify their votes. Any voting disputes must be settled by December 8, 2020. This means that all states must certify their votes by that date. Some experts are worried that the goal of the Trump administration filing lawsuit after lawsuit about the election is to cause some states to miss this deadline. If the votes are certified by December 8th federal law says the result is “conclusive.”
December 14, 2020, is when the electoral college members cast their votes. Their votes are supposed to be based on the votes of the citizens of their states. They could ignore what their citizens have said but experts say this is highly unlikely. And if they do ignore them, the governors in the states have the authority to replace the electors.
All electoral ballots must be received by congress by December 23, 2020. Congress meets on January 6, 2020, and the ballots are counted. There is some discussion that if the votes are not certified by December 8th (remember how I mentioned if they are all in on the 8th the count is conclusive – can’t be changed), Congress could change the electoral votes, but many say this is highly unlikely
The president-elect is sworn in on January 20, 2020. If by some strange set of circumstances, the election is not decided by this date at noon, Nancy Pelosi would become the acting president of the United States.
Can Trump and his flunkies continue to refuse to work with President Elect Biden?
Yes, they can. Trump never needs to concede the election. Many of his aides are saying he will not. As of noon, on January 20, 2020, if the vote counts, and the lawsuits, and the Twitter tantrums keep going the way they are, nothing will change that. Biden will be President and Trump will be a disgruntled US Citizen who is a former President.
There, have been four administrations that have had a difficult transition of power, most recently Clinton/Bush. History has shown this failure of the administrations to cooperate did damage the US and exposed all residents to unnecessary danger. We hope that this refusal to cooperate doesn’t continue but we have no faith that Trump will change in the next two months.
7 ways to speed up immigration
As we’ve mentioned in the past, we are all frustrated with how slow immigration applications are processed. With Covid and the Trump administration, things have slowed down even more. But there are 7 ways that you can make the process go a little faster.
One way our office does that is by doing a background check with the FBI and 7 immigration agencies in the US.
This helps things to go faster because we know what you have or don’t have in your background and we know there are no surprises that can slow your process down. If there is something that could slow the process, we deal with it BEFORE it becomes an issue.
Change preference category
Another way to speed up your process is you could change your preference category.
What does that mean? Let’s say that you’re 22 years old, not married, and have a lawful permanent resident parent who wants to sponsor you. This means you would fall into the 2B category. This category has per-country limits on the number of visas issued per year. Someone in this category might have to wait decades before a visa is available.
That doesn’t mean you shouldn’t apply. Get yourself on the waiting list. While you are waiting, one of your parents might become a citizen. That would change the category and may move you up the line faster.
You might get married to a Green Card holder or a citizen – that would also change your status. Because now you would not be eligible for a green card from your lawful permanent resident parent.
Country of Chargeability
It’s also important to look at the “Country of Chargeability.” That means the country you were born in.
If you immigrate with a spouse or parent who’s “country of chargeability” is a different country, you may be able to use their country as yours and the wait times may be much shorter.
Check under the CSPA (Child Status Protection Act). It may be faster to get a green card if your parent is a Green Card holder rather than a citizen. This is sometimes true for people from the Philippines or Mexico.
File for premium processing
For some employment-based immigration cases, you can file for premium processing. Our office handles mostly family-based petitions which, unfortunately, don’t have premium processing available.
If it is available for your type of application, you send in the fee and USCIS guarantees they will process your application in 15 days. If they can’t do it, they will send the premium processing fee back to you. The government rarely agrees to return the money so this is a great option because you aren’t out anything if it doesn’t work.
Hire an immigration lawyer
While we have often said that you can file your paperwork yourself, a way to make the process go faster is to hire a competent, qualified immigration attorney. They can ensure that you answer every line correctly and that you include all the necessary evidence to get your application processed as quickly as possible.
Be completely honest
If you do hire an attorney, your case will go faster and have a higher chance of success only if you are 100% honest with your attorney. If they know your situation, they can deal with any issues that might slow down processing or cause you to be denied. But, if you don’t tell them, they can’t help you and you’ve wasted your money and time.
I hope you found these 7 tips helpful to make sure your application processes as quickly as possible.
If you need an immigration lawyer, call our office. If we can’t help you, we won’t take your money. We can’t help you if you don’t call us. Contact us today through Andres Mejer Law or call us at 888-421-9942.