Alarming Changes in the Affidavit of Support Process
On October 1, 2020 USCIS published a notice of proposed rulemaking regarding the affidavit of support process. The affidavit of support aims to do the following:
- make it easier to hold immigrant spouses accountable if the partner they sponsor receives government benefits.
- require sponsors to provide credit reports, credit scores, certified copies of tax returns for the last three years, and bank account information to verify their financial circumstances.
- Supporting spouses with public benefits received in the last 36 months need to have a joint sponsor
- limit the number of people who could provide an affidavit of support.
- require a subpoena to gather information from government agencies by other government agencies about the person filing the affidavit of support.
What do we think about this proposed rule? It is alarming. When you are a green card holder or US Citizen and you file an Affidavit of Support you are required to include tax returns, a W2, and proof of your legal status. This new rule would change that substantially. It would require much more documentation, at substantial cost and, even harder, would probably take you more time to gather the information.
Another Immigrant Scare?
However, several judges have said that any policies put into place by Chad Wolf, who is currently the acting head of DHS, are invalid because he is in his position illegally. So…even IF this policy is put in place, it may not be enforceable. But it looks like another backhanded way for this Administration to frighten immigrants, penalize their loved ones, and reduce family based immigration while keeping families apart.
Temporary Protected Status (TPS) Concerns
One of the benefits of TPS is the ability to request a travel permit to leave the US and legally re-enter, it’s called Advance Parole. DACA used to have the same benefit. Advance Parole means a Customs and Border Patrol agent, usually at an airport, allows you to legally enter the US. With the legal entry your U.S. citizen spouse or child over 21 can file for your Green Card inside the US.
Due to Trump’s move to end TPS for many people from several countries in January, . some people who have lived in the US for decades may have to return to a home country that is war-torn, unsafe, and unfamiliar to them now.
It used to be that if you didn’t use Advance Parole you can still use consular processing but you may need a waiver for being in the US without permission before you applied for TPS. However, USCIS has recently interpreted the law to say that TPS holders cannot gain a legal entry through this route. This means advance parole does not equal lawful entry for purposes of adjustment of status. According to this policy only immigrants in the Sixth (includes cases from Kentucky, Michigan, Ohio and Tennessee) and Ninth Circuit (most of the Western US) can use Advance Parole but not but not anywhere else in the US.
Increase in Immigration Fees
The biggest change is that the USCIS fee increase that was supposed to become effective on October 2, 2020, was put on hold by a judge through an injunction. An injunction is a temporary stay. That means that the fee changes could happen at any time. This decision came from an even bigger decision that could have a far reaching impact on US immigration.
Another lawsuit in California about the USCIS fee increases was filed at the end of August. In that lawsuit one of the plaintiff’s arguments said that neither Wolf or his predecessor, McAleenan, were lawfully serving in their positions under the HSA (Homeland Security Act). At a hearing where the Judge heard each party’s arguments, the government attorney admitted that if the Court agrees with the people who started the lawsuit that these two weren’t lawfully in their positions then the policies they have put in place were done so without legal authority. The Judge agreed with the plaintiffs.
In the lawsuit in California, the plaintiffs also argued that DHS violated the APA (Administrative Procedures Act) with their fee increases. The Judge agreed they did because they didn’t provide adequate data as required under the APA. The Judge also said that the Trump administration failed to justify the change in policy/increase in fees.
After the Judge issued the injunction, USCIS issued a statement saying that while the injunction is in place even though they disagree with it, they will continue to accept the older forms, and the old fees, with any applications.
Officials Appointed With No Legal Authority
You’ve probably already heard that President Trump doesn’t like to appoint people to their position. One reason he does this, he has said, is that it gives him power over the temporary appointees and forces them to act the way HE wants. If he doesn’t like what they are doing he can get rid of them more easily. The other reason he does this is because many of the people he would like to appoint would not meet the qualifications necessary to be confirmed by Congress. In fact, Mitch McConnell, the Republican Senate Majority Leader, told the President of his own party that he would not confirm Wolf to head DHS. Trump decided, well, I won’t even ask Congress, then.
To be clear – It is a constitutional mandate that Congress confirm top officials for their roles in the government. Trump gets around that, and around the checks and balances system designed by the founders of the nation, by not having any type of nomination, appointment review or hearings through Congress and keeps his appointees in line by keeping their position as “acting.”
This means that the people running some of the most important offices within the government have been “acting” for over a year now. This included Mr. McAleenan who was the acting secretary of DHS (Department of Homeland Security), Mr. Wolf the current acting secretary of DHS, and Ken Cuccinelli the acting deputy of USCIS.
In March, a Judge had ruled that Cuccinelli was illegally appointed to his position. The Trump administration appealed this decision and then quietly dropped that appeal in August. That means that since June 2019, Cuccinelli, who was initially appointed by Trump and then moved by Wolf to the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security, has been acting illegally and any policies he has put into place are null and void.
In August the GOA or Government Accountability Office (an independent government watchdog group) said that Mr. Wolf and Mr. Cuccinelli were working in their positions under an invalid order of succession. Once that happened, even though the Trump administration disagreed with it, lawsuits were filed against DHS arguing that the policies put into place by these men (and McAleenan) were invalid.
On September 15, 2020, Maryland Judge Paula Xinis said that Wolf was most likely not in his position legitimately. Therefore, the new asylum restrictions that Wolf put into place were illegitimate and could not be enforced.
Understand that many people, including Republican leadership, seem to be choosing to ignore. There are temporary appointments and vacant spots in many positions throughout DHS. DHS, stands for The Department of Homeland Security. That is the agency that is supposed to protect the US from terrorists and other attacks. It is currently being led by a person that has been found to be in their position illegitimately by at least two judges and an independent government watchdog group.
No Senate Confirmed Leader in Immigration Agencies
The three agencies that run immigration for the US – US Customs and Border Patrol (CBP), US Immigration and Customs Enforcement (ICE), and US Citizenship and Immigration Services (USCIS) are all without a senate confirmed leader.
We should all be very concerned about this. The current President and the Republican led Senate have put this nation in danger by failing to nominate and confirm adequate people to these positions. Particularly, during this time of the election when many high placed intelligence officials (who are in their positions legitimately and don’t have a political party they are loyal to but are acting out of loyalty to the US) have said that Russia is actively trying to infiltrate US elections.
You can form your own opinions about why they have done that, but I think we can all agree that it is very concerning, to say the least.
COVID Impacts on Immigration
Travel Ban. We know since March, due to COVID, there have been impacts on US citizens being able to travel to other countries as well as people being allowed to travel into the US. Land crossings at the borders of Canada and Mexico have been closed to non-essential crossings. This was recently extended to November 21, 2020.
K1 Visas. Many people have noted that K1 visa processing has been impacted especially by COVID. The reason for this is that these visas are processed by consulates and embassies throughout the world. At the end of August, the DOS (Department of State) said that they would expedite processing for K visas. However, if the local consulate or embassy isn’t open, there is no processing being done. DOS merely told everyone to “check with your local office” and won’t provide any information about which are open or when they will be open. You can imagine this has led to great frustration for many people.
On September 18, over 300 people (about 150 US citizens and their fiancés) filed a class action lawsuit about this in DC – Milligan v. Pompeo. The biggest reason for this filing is not only because of the delay in processing the applications, but the interviews that were scheduled when COVID hit were cancelled and have not been rescheduled. In addition, many applications are sitting with NVC and haven’t been passed along to the consulates to schedule interviews.
On October 22, 2020, there was a hearing with the Judge on this case asking for a preliminary injunction where the plaintiffs asked for the visas to be issued and the interviews to take place asap. Obviously, the Judge can’t order foreign consulates to open. The plaintiffs are asking for the cases, especially those already approved, to be expedited. At the hearing the Judge told both parties he wants to know stats about how many haven’t been processed before deciding. They have two weeks to get the information to the Judge, so no decision was made at this time.
Other Immigration News
Expedited Processing of Deportations. ICE said they are moving forward with expedited processing for deportations. This is applicable to people who have been in the US for less than two years. Previously, it was used against people who were caught within two weeks (14 days) of entering the US and within 100 miles of the border. Now, they can be anywhere in the US. ICE has said that if they find someone who cannot prove they have been in the country for more than two years, and they do not have a legal status or authority to be here, they will put them in expedited removal proceedings. They won’t deport you if you have some kind of legal status pending, so if you qualify for something make sure to apply asap. Speak to a qualified immigration attorney today.
These hearings will not be in front of a judge and, many in immigration are concerned, will have no due process for that individual. ICE is targeting people under “Operation Broken Promise.” What they have said in a recent memo, discovered by CNN, is that if there are people who have previously agreed to leave the US and have not done so, ICE is making a strong effort to find them and deport them. If you agreed to leave the US under a “voluntary departure” and have not, speak to a qualified immigration lawyer as soon as possible.
If you haven’t yet gotten a copy of my “red card” which tells you what to do if ICE stops you or comes to your home or work, please reach out to New Jersey Green Card Doctor Andres Mejer who can mail or email this to you free of charge.
Optional Practical Training (OPT). This is an optional program that allows international students the chance to work while in the US. The government recently announced that they will be stopping students from being able to participate in this program. There are more than 220,000 international students in OPT programs. DHS claims that 1,100 committed fraud such as not working in their field or working for a fraudulent company.
Diversity Visa Lottery. We know that Trump has said he wants to get rid of this program. Trump issued a proclamation about it, and this administration has refused to release visas to those who won the lottery this year. A Judge has ruled in a class action suit brought because of this, that after September 30, 2020 (the end of the fiscal year) 9,095 visas are to be reserved for DV lottery winners. However, the processing of these visas will not start until the lawsuit regarding this ends and it is favorable for the plaintiffs. The law firm that is handling this suit thinks that it will not end for another several months.
Are You An Immigrant? We Can Help With Your Immigration Problem!
Well, this was a lot of information. We expect that even though the election is only a week away there may be more changes by this administration, so that Trump can show he is anti-immigrant to get more votes. The immigration Office of Andres Mejer is ready to help out thousands of Immigrants who are full of worries and fears today because of the changes happening. Contact an immigration attorney today!