Statutes of Liberty

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In a tough year, we realize how dependent we are on others. In that spirit, we want to say a few words about some of the people who help us keep pushing forward.

First, we want to salute the U.S. postal workers who deliver the mail, rain or shine. Our mailman — pictured here — is the hardest working guy in Dominion Hills. We’ve seen him working by headlamp after dark, in the cold, to fulfill his duty. Hats off to you, Sir.

Second, we want to thank Good Earth Cleaning not just for cleaning our office, but for taking extra steps to keep our clients safe. Good Earth spends extra money on environmentally-friendly products and treats its employees well. If you need an ethical and communicative partner, get in touch with Sean Juman and his team.

Last, but certainly not least, we tip our hats to the Arlington Community Federal Credit Union. Our favorite banker, Mr. Rocha, remembers James’s name literally every time we hit the drive-through. It’s great to be more than just a number at the window. And the ACFCU staff helped us through the tense times this year with a PPP Loan long before most of our big-bank friends were able to get help.

We’re optimistic about the coming year. We’ve hired a third lawyer (coming soon to an ARLnow masthead near you!) because Arlington is a great place, and we’re here to stay.

Merry Christmas and Happy Hanukkah, to those who celebrate. We’ll be back in the New Year with more plain-English coverage of the world of immigration and are looking forward to your questions and comments.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Trump Administration continues to receive major blows in federal court, both in the election and immigration contexts. On December 4, 2020, Federal District Judge Nicholas Garaufis ordered that the Trump Administration revert the Deferred Action for Childhood Arrivals (DACA) program back to its original incarnation from 2012.

First, we’ll give you the TL;DR on what Judge Garaufis’ decision means for immigrants right now, and then we’ll give you a summary of how we got here.

New DACA Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting new DACA applications. If you qualify for DACA, find a lawyer and apply now. Judge Garaufis’s decision may not last forever, and it’s in your interest to protect your legal rights. If you can’t afford us — and our prices are pretty competitive! — we’ll gladly refer you to a nonprofit that can help you.

To qualify for DACA, you must meet the following criteria:

1. Born on or after June 15, 1981
2. Came to the U.S. before the age of 16
3. Was in the U.S. on June 15, 2012, and is still here
4. No proper immigration status as of June 15, 2012
5. High school graduate, enrolled in high school, recipient of GED, enrolled in GED program or honorably discharged from the U.S. military
6. No significant criminal record

Consult a lawyer for details.

New Travel Permit Applications

As of Monday, December 7, 2020, and until further notice, USCIS is accepting travel permit applications for people who already have DACA. This can be extremely useful both for intrinsic travel purposes — some of our DACA recipients haven’t seen family at home since they were little kids! — and for legal reasons.

To make a long story short, traveling with a permit puts you in a good position to apply for a green card later. So, if you already have DACA, find a lawyer and consider applying for a travel permit now. Again, if you can’t afford us, we’ll gladly refer you to one of the many nonprofits doing great work in our area.

How We Got Here

Our loyal ARLNow readers know there has been a lot of back and forth regarding the Obama Administration’s DACA program. The DACA program allows certain undocumented people who arrived here as children to apply for work permits and avoid deportation, as long as they are in high school or have graduated from high school.

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

It’s Black Friday. We’re online shopping, just like you are! But we’re also here to tell you the immigration news, and this week brings a major personnel shift: President-Elect Biden has announced that Alejandro “Ali” Mayorkas will be nominated to become the new Secretary of the Department of Homeland Security.

Our view is the Mayorkas nomination matters both in terms of the approach he personally is likely to bring to the job and as a signal of the Biden administration’s likely immigration priorities. We’ll take each of those in turn.

Mayorkas is broadly known as a bureaucratic heavyweight with plenty of immigration experience. He was director of U.S. Citizenship and Immigration Services from 2011 to 2014 and Deputy Director of Homeland Security from 2014 to 2016. But Mayorkas’ background is (to us) a bit more interesting than that. He cut his teeth as a federal prosecutor in the Central District of California, rising from frontline prosecution to United States Attorney between 1989 and 2001, then joined the defense bar. He has spent most of his legal career either prosecuting or defending federal criminal cases.

By comparison, current DHS leadership is mostly homegrown: Chad Wolf rose through the ranks at TSA and then as chief of staff for Kirstjen Nielsen; Deputy Director Joe Edlow was an immigration prosecutor and then a Congressional staffer on the Immigration and Border Security subcommittee.

We read the nomination of Mayorkas as a signal that the Biden administration wants to return the immigration system to the normalcy of the Obama years — choosing, one might say, dysfunctional normalcy over dysfunctional abnormalcy.

What is the downside of the Mayorkas nomination? Well, Mayorkas has been accused (by sources left and right) of being a bit of a swamp creature. When Mayorkas was head of USCIS, he was accused of intervening to obtain approvals on several EB-5 cases in response to pressure from important Democrats — Anthony Rodham (brother of Hillary Clinton), Gov. Ed Rendell of Pennsylvania, Majority Leader Harry Reid and Terry McAuliffe. We recommend reviewing the DHS Inspector General’s Report on the subject, as well as Mayorkas’ lengthy statement in his own defense.

What is the upside of the Mayorkas nomination? Our view is that the Biden administration is signaling a shift toward the benefits-granting apparatus of DHS — USCIS, where Mayorkas most experience — and away from the enforcement apparatus of DHS, from which current leadership was drawn.

Mayorkas administered the DACA program, which President-Elect Biden is set to resurrect, and would be a capable bureaucratic operator if President-Elect Biden attempts to use his executive authority — as he well may — to enact further reforms to our country’s immigration system.

As always, we would love to hear your thoughts and we will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Joseph Robinette Biden Jr. will be the 46th President of the United States. What’s next for immigration? We’re here with a few careful, hedging predictions.

There are four major ways a Biden presidency will influence immigration policy: exercising the power of prosecutorial discretion, executive orders, promulgation of regulation through various federal agencies, and supporting (or refusing to support) legislation from Congress.

Prosecutorial Discretion

During the Obama Administration, the Department of Homeland Security concentrated its finite immigration enforcement resources on criminals, recent border crossers and people who posed a threat to public safety. The Trump administration took the opposite approach, by broadening its enforcement focus to embrace nearly all undocumented migrants, and by attempting to add enforcement capacity at the same time.

We predict that the focus will change, but that the increased enforcement capacity remain. This means that even with a narrower prosecutorial target, the deportation numbers are unlikely to decrease in the medium term — whether Biden follows through on his campaign promise of a 100-day moratorium on deportations or not.

Executive Orders

We believe that President Biden is likely to announce the rescission of the travel bans imposed during the Trump administration. The Supreme Court stepped in to stop the rescission of DACA, but we think that the Court is unlikely to act to preserve the Travel Bans, because the Travel Ban orders did not confer any government benefits; in fact, they did the exact opposite. The Supreme Court upheld the latest iteration of the travel ban as a legitimate exercise of Presidential power, and we expect that it would treat a rescission in the same way.

Regulatory Reversals

We also expect the Biden Administration to reverse or refuse to defend various federal regulations imposed during the Trump presidency. As our loyal ARLnow readers know, the Public Charge rule has been hotly contested in federal court. We expect that if litigation is still ongoing when Biden takes office, the Biden administration will refuse to defend new public charge rule, and so the rule will revert to its pre-Trump state.

Another regulation that has been contested and is currently enjoined is the USCIS fee increase. This is an area where we don’t expect a total reversal; we do expect some moderate fee increases to go into effect. Whether those increase will be as huge as those proposed by the Trump Administration is an open question.

We also expect the Biden administration to rescind a proposed rule that would prevent H-4 visa holders from obtaining employment authorization. H-4 visa holders are spouses or dependents of H-1B visa holders. After satisfying some other requirements, H-4 spouses may apply for employment authorization. A Biden administration is likely to rescind this proposed rule, sending things back to the status quo of the Obama administration.

Finally, the Trump Administration has recently proposed that the H-1B lottery be replaced by a strange auction system in which applicants are rank-ordered by salary and then the most lucrative positions are picked first. We expect that proposal to sink without a trace in January.

Legislation

The odds of comprehensive immigration reform remain low. Neither President George W. Bush nor President Obama, despite one-party control of the legislative machinery, was able to accomplish it. What are the odds that Biden and McConnell will do better?

Our prediction for legislative reform is more modest: a legislative effort aimed at the elimination of per-country limits for employment-based visas.

Currently, all employment-based visas have yearly quotas, depending on the category and immigrant’s country of birth. These quotas have been built into our immigration system for decades, and, over time, their effects have become more pronounced. Immigrants from certain countries wait years, and sometimes decades, before they are actually eligible for permanent residency.

For example, visas are available to Indian nationals who hold advanced degrees and got in the visa line in September 2009, meaning there is currently about an 11-year wait time. Eliminating this per-country limit would get rid of the decades-long wait time while pulling talented individuals into the U.S. labor market.

This is not a new idea. Vice-President Elect Kamala Harris proposed a bill that would have eliminated the per-country limit for employment-based visas in 2019. The bill ultimately failed.

As always, we would love to hear your thoughts and we will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

This fall, many students are not returning to their college campuses as they normally would, due to the coronavirus pandemic.

If the Trump Administration can have its way, many foreign national students also won’t be continuing their education in the United States as easily as they did in the past. If you find discussion of regulation boring, you won’t like this post — our advice to you is to start drinking heavily.* (Sentences with Animal House references are marked with a *).

There is a little-known codicil in the United States Constitution which gives the Secretary of Homeland Security power to issue regulations affecting the administration of the F-1 visa program.* Acting on that authority, the Trump Administration has issued a new proposed regulation that would only allow students to enter the country for a maximum of four years.

Currently, a student who enters the United States with a valid visa is admitted for “duration of status,” which means that as long as the student is properly registered for classes and following all of the rules, the student remains in valid status.  Some students, like Bluto, abuse this privilege by watching — Christ! — seven years of college go down the drain.* But many students have excellent reason to extend their stay — for example, by starting a Ph.D after finishing an undergraduate degree.

The Trump Administration’s four-year limit could be problematic for a few reasons. First, some students do not finish a degree in exactly four years; some programs, like PhD programs, are significantly longer. This means that students would likely have to request an extension in the middle of their academic program in the hopes that they will receive the extension and finish their degree.

To qualify for an extension, the proposed regulation requires “a compelling academic reason, documented illness or medical condition, or circumstances beyond the student’s control.” (Post-traumatic stress from frightening an innocent horse to death presumably does not count.* Whether a simpler reason would count — e.g., changing majors — is unclear.)

This puts a heavier burden on students, and could affect initial enrollment if students are concerned that they will not be permitted to finish their degree program in the first place.

Second, this regulation will put an additional burden on Designated School Officials (DSOs). Under the new rules, the DSO’s recommendation to extend would only be half of the equation; USCIS would take the DSO’s extension recommendation into account, but the DSO’s recommendation is not the end all be all.

Therefore, DSOs may have to provide multiple recommendations just so an international student can finish a single degree program, stretching the DSOs’ resources thin and increasing the administrative cost of education — which is already so high that it resembles extortion.*

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This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Most inspiring comment last week: “This column is nerdy and niche AF.”

Our goal, this week, is to live up to those expectations. Fortunately for us, last week the Trump Administration issued a pair of regulations promulgated by the Department of Labor and the Department of Homeland Security concerning the H-1B visa program — two scoops of nerdy niche ice cream topped with litigation sprinkles. Let’s dive in!

TL/DR: The Trump administration is moving, in the last months of its term, to try to tighten the requirements for H-1B visas. We’ll tell you how the new requirements (might) work, and offer our prediction on whether the new requirements will ever take effect. Our prediction is that the new changes won’t stick.

First, a little lawsplainer. The H-1B visa is a temporary work visa available to foreign nationals who want to work in a “specialty occupation” job for which at least a bachelor’s degree is typically required. The U.S. corporation which hires the foreign worker must promise to pay (and actually pay) the worker a competitive wage, as determined by the Department of Labor or by a private wage survey.

About 85,000 H-1B visas are awarded each year, typically through the H-1B lottery each April. (For more info on that, see our prior column on the nuts and bolts of H-1Bs.) Many H-1B visaholders renew their visas and stay in H-1B status for up to six years; some of them then go on to apply for U.S. lawful permanent residency.

How might the new regulations change the landscape? In three ways:

1. Increase the required wage rate. By making technical changes to the method by which prevailing wages are calculated, the Interim Final Rule increases the required wage rates for all H-1B visaholders. (Unlike the other changes described below, these increases are effective immediately.) The technical changes are complex, but the upshot is that required wages go up across the board — but most especially for entry-level employees.
2. Tighten the definition of “specialty occupation”. The new regulation insists that a worker who wants a job in a specialty occupation must have a bachelor’s degree or higher which is directly related to the occupation in question. (We doubt that this will be a problem for the vast majority of H-1B beneficiaries, who tend to be computer scientists who majored in computer science.)
3. Increase inspections. The new regulation clarifies that USCIS has the authority to conduct site visits before, during and after the approval of an H-1B petition, as well as expanding USCIS’s ability to conduct site visits at outside job placement locations.

Will these regulations take effect? We expect that they won’t survive judicial review, for nerdy and niche reasons. The Trump Administration chose to promulgate these changes as a final rule and as an interim final rule, respectively, rather than via a notice of proposed rulemaking.

In plain English, this is a regulatory rush job, designed to go into effect before January. The federal courts generally dislike this sort of move. Remember DHS v. Regents of University of California, in which Justice Roberts overturned the rescission of DACA because DHS didn’t do the regulatory work properly? We do. DHS does. Our prediction is that the federal judiciary will too, and both of these regulations will be quickly enjoined.

As always, we welcome your thoughts and comments and will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Trump Administration moved in February to apply extensive additional requirements to the Public Charge Rule. We told you all about it. The Administration also moved in August to raise fees for most immigration cases. We told you all about that, too.

In the past fortnight, both of those reforms have been the subject of federal court action, with major implications for people with pending green card applications or thoughts of applying for a green card in the coming months. We will summarize the latest developments here, prioritizing “what to do” over “esoterica only a lawyer would care about.”

The Public Charge Rule

The new Public Charge Rule imposed a huge administrative burden on green card applicants. The new Rule was, accordingly, attacked in federal court by impact litigators in the immigration bar.

This effort met with initial success; Federal District Judge George Daniels enjoined enforcement of the new Public Charge Rule nationwide in July 2020. On September 11, 2020, the Court of Appeals for the Second Circuit lifted that nationwide injunction and allowed DHS to proceed with enforcement of the new Public Charge Rule. Here is a detailed, fair summary of the litigation from DHS.

What does all of that mean, practically speaking, for green card applicants? The answer depends on when your green application was filed.

1. If your green card application was filed before or on February 24, 2020, you will not need to file the new Public Charge form (Form I-944) and supporting documents.
2. If your green card application was filed on or after February 25, 2020, you will probably need to file the new Public Charge Form and supporting documents even if the injunction was in place at the time you filed. You should expect a big, fat Request for Evidence in the next few months.
3. If you haven’t filed yet, but manage to file your green card application before October 13, 2020 without the new Form I-944, USCIS will send you a big, fat Request for Evidence but will not reject the application.
4. If you file your green card application on or after October 13, 2020 without the new Form I-944, USCIS will simply reject your filing.

Our expectation is that lots of folks in #2, above, are going to get hit with Requests for Evidence and are going to need help in responding to them. Obviously, we’re here to help.

Immigration Fee Increases Enjoined Nationwide

USCIS fee increases were scheduled to go into effect on October 2, 2020. On September 29, just three days before the scheduled fee increases, Federal District Court Judge Jeffrey S. White enjoined the proposed fee increases in their entirety, thereby releasing — to borrow a metaphor from Dahlia Lithwick — a live ferret into the staid halls of immigration procedure.

USCIS managed to put out a press release yesterday bemoaning the decision, but has not otherwise updated its website to inform citizens and non-citizen applicants for immigration benefits about what will happen to the fees on October 2.

Here’s the straight dope: the fee increases will not happen on October 2. The fee increases will eventually happen, but not quickly. A Federal Court of Appeals (in this case, for the 9th Circuit) may lift the injunction and allow the increases to proceed, or the Department of Homeland Security may redo its rulemaking process in order to address Judge White’s concerns.

If you file an immigration application on or after October 2, do not send the higher fee. USCIS reacts to excess payments by rejecting the application in full, and application rejections can delay or even prevent you from obtaining immigration benefits.

On a more theoretical level, one might wonder whether these nationwide injunctions (and stays of injunctions, and reimpositions of stays) are a healthy way to make immigration policy. Justice Thomas has raised such concerns in a broad way in his concurring opinion in Trump v. Hawaii. It’s an interesting question — tell us what you think in the comments — but we won’t address it here. Our focus is on getting the word out about these practical changes to our immigration system.

As always, we welcome your thoughts and comments and will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Dear ARLnow readers,

• James just returned from his vacation, during which he hiked a 290-mile stretch of the Appalachian Trail, sleeping in a camping hammock all the way. He also snagged this shot with the wild ponies of the Grayson Highlands.
• Doran is too busy winning cases to write an article this week. She had to cover the whole docket while her self-indulgent boss was hanging out with wild ponies.
• We paid for the advertising space, didn’t we?

Therefore:

• Enjoy the silly photo.
• Get outside. This wonderful weather won’t last.
• Long live the free press!

As always, we welcome your thoughts and comments. If you have any requests for our next immigration column, let us know! We’d love to address issues of concern to ARLnow readers.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The COVID-19 pandemic has changed the way we do many things in our everyday life.

We are encouraged to do video calls with doctors, wear masks to go grocery shopping and stay six feet apart from others, especially indoors. United States Citizenship and Immigration Services (USCIS) has also implemented new measures to ensure the safety of immigrants and USCIS employees alike during interviews for immigration benefits.

USCIS began interviewing applicants again in June. Now, interview notices include safety precautions regarding COVID-19.

Applicants are instructed not to arrive more than 15 minutes before their interview so USCIS can maintain social distancing measures in the waiting room. All USCIS employees and security wear masks, and applicants are also required to use a mask to enter the building.

If the applicant does not have a mask, USCIS may decline to do the interview and will reschedule the interview for another day. USCIS even requests that applicants bring their own black or blue pen so applicants and USCIS employees do not have to share pens during the interview.

USCIS has also restricted the number of people who can attend appointments. Normally, the applicant, attorney and interpreter, when necessary, were all permitted to enter the office for the interview. However, during the pandemic, applicants are only allowed to bring an attorney to the interview unless the applicant has a disability and requires assistance from another person. Attorneys are also permitted to appear telephonically.

If the applicant needs an interpreter, the interpreter must be available by phone unless told otherwise. During a recent visit to the field office, a USCIS employee respectfully asked an interpreter to leave the waiting room and wait outside for a call to participate in the interview.

We noted various bottles of hand sanitizer throughout the office and staff cleaning frequently-touched objects as well.  USCIS also installed glass partitions at the reception desk and in individual offices. USCIS officers keep their office doors open to keep air circulating.

Otherwise, everything seems to be functioning normally at the Washington Field Office in Fairfax. The officers began the appointments in a timely manner and apart from the partitions and face coverings, it felt like any other pre-pandemic interview.

We appreciate that USCIS has taken appropriate measures to maintain everyone’s safety while ensuring that the officers can still conduct these important and frequently life-changing, interviews.

As always welcome your thoughts and comments and will do our best to respond.

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

We warned you that USCIS fees were skyrocketing. We were right.

Now, thanks to the publication of a new Final Rule in the Federal Register, we can give you the details. We’re hoping that this article will prevent someone, somewhere, from having a benefit application rejected due to an improper fee. So please read this carefully, and then pay a lawyer to do it for you anyway.

First, the highlights (and lowlights):

$50 Fee for Asylum Applications

For the first time in memory, asylum applicants will be charged a fee to apply for asylum. This fee applies to every asylum applicant. It applies to asylum applicants who are sitting in detention facilities without the ability to work and earn money; it applies to asylum applicants who are five years old. This fee is not waivable.

$550 Fee for First Asylum-based Work Permit Application

For the first time in memory, asylum applicants will be charged a fee to apply for their first work permit. (The logic was: if you aren’t allowed to work legally, it would be immoral to charge you a fee to apply to work.)

Green Card Application Fees Technically Decrease by $95 but Effectively Increase by About $1,000

This is extremely unwelcome news. The application for a green card formerly cost $1,225; now it costs $1,130. However, as a matter of ordinary, prudent practice, most immigration attorneys file work permit and travel permit applications with the green card application. These applications were formerly ‘bundled’ with the I-485 fee, and included at no additional cost. That is no longer true. Now, to apply for a green card, a work permit and a travel permit, the total cost is $2,270. In addition, if USCIS fails to adjudicate the application within a year — as it frequently does — the applicant will have to pay a further $1,040 to renew his work and travel privileges.

Green Card Renewal Fees Decrease by $125 

This is welcome news. The current fee for a green card renewal is $540; the new fee is $415. USCIS will also discount the renewal fee by a further $10, to $405, if you file online. Caution: the online system is as useless as a bag of hammers. We recommend filing on paper.

Form I-751 Petition Fees Increase by $120  

If you have your green card via a relatively new marriage to a U.S. citizen, the green card is only valid for two years. After one year and nine months, you generally have to apply to make your green card ‘permanent’ and valid for ten years. The fee for that was $680; now it is $760.

Naturalization Application Fees Increase by 60%

This is a huge deal. Right now, it costs $725 to apply for naturalization, which is already a heavy burden for poorer folks. The new fee will be $1,160. Ordinary economic incentives matter. This will mean fewer immigrants naturalizing, and therefore fewer naturalized voters. (Side note: We work pro bono with a nonprofit that helps low-income Arlingtonians naturalize for free: PM us if you have a referral.)

There are lots of other adjustments to the fees; read here for the details. The new fees go into effect on October 2, 2020. If you apply before then with the higher fee, your application will be rejected; if you apply later with the lower fee, your application will be rejected.

Now as ever, we suggest hiring competent counsel. Having a work permit application rejected delays starting your job for six weeks — in our experience, that’s how long it takes USCIS to open an envelope, see the check, and spin it around.

Our fees aren’t going up, and we don’t charge to answer questions on ARLnow. As always, we welcome any comments and will do our best to respond.