Public Charge Rule & Immigration Updates [Feb 2021]


US Immigration News & Updates

A lot of changes are happening to immigration in the US. In this article, we’ll talk about the appointment of Alejandro Mayorkas as the head of Department of Homeland Security, updates on the processing of immigration applications, and immigration news regarding the Public Charge rule.

Appointment of Alejandro Mayorkas

Alejandro Mayorkas was sworn in as the head of Department of Homeland Security (DHS) on February 2, 2021. This is a big deal, because it is the first time that the DHS has had a Senate-confirmed head of the agency since 2019.

Previously, Chad Wolf was appointed by Trump but never confirmed by the Senate. This led to the Government Accountability Office, and a number of judges, to declare that Wolf was in the office illegally. This means that many of the policies and changes that the former administration tried to put into place were stopped and haven’t been implemented, and probably won’t be. 

Mr. Mayorkas worked at DHS during the Obama administration. He was the director of USCIS from 2009 to 2013, and then became the Deputy Secretary from 2013 to 2016. He’s the first immigrant and Latino to head DHS.

Mayorkas’ Immigration Background

Mr. Mayorkas was born in Cuba, and his family came to the US as refugees after the Cuban revolution. His father was a Cuban Jew with a Turkish and Polish background and his mother was a Romanian Jew whose family fled to Cuba from the Nazis in the 1940s. He originally lived in Miami before his family moved to California where he attended high school in Beverly Hills.

Mayorkas as the Youngest US Attorney

Mayorkas began working as an Assistant United States Attorney in California in 1989, where he established a solid reputation of prosecuting white-collar crime. In 1998, he was appointed by President Clinton as the United States Attorney for the Central District of California, making him the youngest US attorney. 

When President Obama was elected, Mayorkas was selected by the president-elect to help with the transition team for the US Department of Justice’s Criminal Division.

Mayorkas as Head of USCIS

In 2009, Mayorkas became the head of USCIS. While he ran USCIS, he focused heavily on citizenship, management efficiency, fiscal responsibility, and the integrity of the immigration system. 

He helped to implement DACA (Deferred Action for Childhood Arrivals) and helped to advance the crime victims unit so that USCIS awarded the highest number of visas to victims of crimes than it had in its history. 

There was some controversy about Mayorkas helping to fast-track EB-5 applications for businesses/individuals who were friends with Senator Harry Reid. 

Mayorkas as DHS Deputy Secretary

In June 2013, Mayorkas was nominated to be the Deputy Secretary of DHS and confirmed by the Senate on December 20, 2013. While in this position Mayorkas led the DHS response to the ebola and zika epidemics. He also negotiated with China, Israel and Cuba on a variety of topics to improve US security.

Mitch McConnell doesn’t like and didn’t vote for Mayorkas and has said he feels he is an ethically compromised partisan attorney. However, Mayorkas was voted in to be head of DHS by a vote of 56-43 on February 2nd, and sworn in that day by Vice President Harris. 

We believe that Mayorkas is a great choice for this position and we look forward to him bringing positive changes to the immigration process in the US. 

US Immigration Updates 

While Republicans seem to be splitting into two parties with their internal fighting, President Biden is moving ahead quietly implementing policies and procedures to help the US. 

On February 3rd, the Supreme Court granted the administration’s request to drop the oral arguments for two immigration cases from its calendar, and the Supreme Court agreed. These cases are the Mayorkas v Innovative Law Lab, and Biden vs Sierra Club.

Mayorkas v. Innovative Law Lab 

The Migration Protection Protocols, also known as the “Remain in Mexico” policy, meant that people applying for asylum had to remain in the first country they came to that was not their own while their asylum application was pending. The Mayorkas v. Innovative Law Lab case addressed whether the Migrant Protection Protocols were lawful and if it was exempt from the Administrative Procedures Act. 

Biden v. Sierra Club 

This case dealt with appropriating funds from the military to build the border wall. Trump couldn’t get Congress to authorize money for the border wall, so he went around them by appropriating money from the Defense Department. 

Technically, the cases are still in front of the Supreme Court and the court could place them back on the calendar. But since the Court agreed to remove them from the calendar, it is now more likely they will be disposed of without a decision. 

President Biden had issued executive orders on his first day in office pausing construction of the border wall and the “Remain in Mexico” policy. The request to the Supreme Court asked the oral arguments that were scheduled for February on both these cases be postponed while the administration reviews the policies and decides what to do going forward. 

Responding to Agency Requests

There’s one other really important update you should be aware of is something that USCIS recently shared on their website. On January 28th, USCIS announced that they would extend the flexibility for responding to agency requests. This has been happening since March of last year due to COVID. If you’re applying for an immigration benefit, you must have gotten one of the following notices from USCIS between March 1, 2020 and March 31, 2021:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional centers; and
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

USCIS will now accept responses that are received within 60 days of the response date in the notice. This means that you have more time to respond to those requests because getting certain documents might be delayed due to COVID. 

Since they’ve been extending this since it was first put into place, USCIS may update this after March 31st as well, but we will need to wait to see. If you’re not sure when you need to respond to requests about your immigration case, make sure to discuss your case with an experienced immigration lawyer.

Student Visa Updates

There’s also good news for student visa holders. The Optional Practical Training (OPT) program – which lets international students remain in the US for up to three years after they graduate – survived a legal challenge to its extension. 

US District Court Judge for the District of Columbia Reggie B. Walton ruled that the Department of Homeland Security (DHS) had not overstepped its authority by expanding the OPT program, despite a labor union who sued them (the Washington Alliance of Technology Workers or WashTech) claiming that it had. 

We’ve had several people ask us if President Biden is going to be giving international students a path to citizenship. As we’ve replied to those questions, we haven’t seen or heard any evidence of this. It’s good news that the administration has dissolved the organization within ICE that was reviewing the OPT program. However, this doesn’t entail that granting green cards and citizenship to international students. 

Public Charge Rule & Green Card Applications

Now that the courts have already stopped the Public Charge rule, many people are wondering if this means that green card applications don’t need to include the I-944 forms when submitting Form I-485 “Application to Register Permanent Residence.”

Before we answer this question, it’s important to understand that Public Charge is one ground of inadmissibility. That means if you don’t meet certain criteria, you would not be admitted (because you are not admissible) to the US or you won’t be approved for a green card, or citizenship. 

The Trump administration tried to put Public Charge into effect. This rule requires you to prove you were able to take care of yourself financially before being able to come to the US. This isn’t a new rule. This has been required of any immigrants to the US since the late 1800s. 

The Public Charge policy put many more restrictions on people and we, as well as others in the immigration community, felt like it was a back-door way for the previous administration to end legal immigration. 

Timeline of Public Charge in the US

In January 2018, the US Department of State (DOS) updated their foreign affairs manual (FAM) on Public Charge. 

In October 2018, DHS published a proposed change to the Public Charge rule in the Federal Register. 

On December 10, 2018, with over 260,000 comments submitted on the proposed changes, the public comment period was closed. 

On August 14, 2019, DHS published the final public charge rule with an effective date of 10/15/2019.

Between October 11 to 14, several courts issued preliminary injunctions, which stopped the rule from taking effect, at least temporarily.

On January 27, 2020, the Supreme Court lifted the final injunction against the Public Charge rule taking effect.

DHS said that the rule would go into practice on February 24, 2020, except in Illinois. On February 21, 2020, the Supreme Court lifts the injunction in Illinois, too.

USCIS starts implementing the Public Charge rule on February 24, 2020, and those who are required to must file an I-944 with their application. Then, on July 29, 2020, the Public Charge rule and FAM enjoined nationwide due to COVID pandemic. The Second Circuit limited the injunction to New York, Connecticut, and Vermont on August 12, 2020, then lifted the nationwide conjunction on September 11, 2020.

On November 2, 2020, the Federal District Court vacated the Public Charge rule and said that DHS cannot use the new rule in any cases, nationwide. The Seventh Circuit then stays the order on November 3rd, and says DHS can implement the new rule nationwide during the appeal of the decision. 

On December 2, 2020, the Ninth Circuit stops DHS from implementing the rule in many jurisdictions – California, Colorado, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, Washington D.C., and Washington State but the injunction is not in effect until the mandate passes.

Add in the confusion from USCIS saying they would not enforce the Public Charge rule, then saying they would, and then saying it was now retroactive to anyone who applied since February 2020, and people are understandably confused and concerned. 

Where We Are In February 2021

Remember that Public Charge does not apply to all immigrants, nor does it apply to those who are filing for naturalization. It also doesn’t apply to those who have had to get treatment for COVID. 

The DOS is not able to and has not been able to enforce the new policy since July 2020. That means if you are applying for a status and you are outside the US, public charge does not apply to you.

In December 2020, the DOJ withdrew its public charge rule, “Inadmissibility and Deportability on Public Charge Grounds” from the Office of Information and Regulatory Affairs (OIRA). 

President Biden signed an executive order saying that Public Charge should be reviewed, but he has not ended it yet. If you are applying for an adjustment of status, or other immigrant benefits, that require the I-944, you should file one unless you are in the states that were enjoined from enforcement by the 9th circuit in December.

Should You File Form I-944?

What many people fail to ask but is really important to determine is: Will it hurt your immigration case if you file one when you don’t need to?

The answer is that it depends. The fact is, some of the policies set in place by the last presidential administration gave more discretion to USCIS officers. Therefore, they may consider what you have submitted and use that against you. As our client, we would tell you to not file it if you’re not required to, because you don’t want to give USCIS any reason to deny your application. 

Consult an NJ Immigration Attorney Today!

If you’re filing for an immigration benefit, it’s important that you speak with an experienced immigration attorney who can explain the immigration process clearly and help you understand how the recent immigration changes can affect your application.

At Andres Mejer Law, we are immigrants for immigrants. We want you to have an easier immigration journey than we did. If we can help you, you can be sure that we will do everything we can to ensure that your application gets approved. Call us today at 888-695-6169 to schedule a consultation with our experienced New Jersey immigration attorney!

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