The Trump administration is planning a sharp increase in the cost of naturalization this fall. Critics say it is part of a pattern intended to discourage immigration from poor nations.

 

WASHINGTON — When Guadalupe Rubio, 41, contracted the coronavirus in July, she struggled to make the few steps to the bathroom in the mobile home that she shared with her teenage daughter in Kent, Wash.

The pandemic had already shuttered her small construction business, which also provided for her parents and three children in Sinaloa, Mexico. Now, the virus left her struggling to breathe, trapped inside without any means to support the six family members who depended on her.

Around the time the pandemic hit Washington State, Ms. Rubio became eligible to apply for United States citizenship. She made a bit too much money to qualify for a reduction in the application fee, currently $640, and the economic effects of the pandemic and her illness sapped away her savings. She applied for food stamps, a benefit that could also provide a break on the fee, but has so far been unable to reach the overwhelmed social services agency that could help her.

If she cannot save the money or obtain a fee waiver before the fall, Ms. Rubio’s prospects of becoming a citizen will become more remote. The Trump administration moved late last month to raise the cost of naturalization applications by more than 80 percent and to substantially tighten eligibility requirements for a subsidized application.

The price for naturalization will jump to $1,160 or $1,170 for online applications. The rule will also lower the income threshold to qualify for a fee waiver and eliminate the partial subsidy for the application.

Almost all other exceptions that allowed immigrants to waive the fee will be eliminated, including extenuating financial hardship and means-tested public benefits, like food stamps. Only some protected immigrants, including victims of domestic violence and human trafficking, will remain eligible.

Ms. Rubio is one of many who would no longer be eligible for a waiver. Immigration lawyers across the country are rushing to submit their clients’ applications to the already backlogged agency before the fee increases are introduced on Oct. 2.

“It’s a low blow during a pandemic,” Ms. Rubio said through a translator. “I have worked a lot for this country, and if I’m a citizen, I can — not just contribute more — but I can also better reap the benefits of all of my hard work in this country.”

Advocates for immigrants say the fee increase is intended to stymie legal immigration and deprive immigrants of their right to vote before the election in November.

“It’s the first-ever wealth test on citizenship,” said Melissa Rodgers, the director of programs at the Immigrant Legal Resource Center in San Francisco. She called the new rule “the most dramatic change we’ve ever seen to the structure of the immigration system” and its fees.

United States Citizenship and Immigration Services, whose budget is nearly entirely funded by its fees, has fallen into a financial crisis under the Trump administration and become even more strapped for cash as the coronavirus pandemic has sharply reduced applications for visas and other services.

Kenneth T. Cuccinelli II, the acting deputy secretary for the Department of Homeland Security, who oversees U.S.C.I.S., has said that increases are necessary to align the fees with the “true cost” of processing applications in an already overly extended system.

The agency has pleaded with Congress for a $1.2 billion emergency injection as part of a proposed coronavirus relief package that has become mired in a partisan standoff and seems unlikely to pass before next month, if it passes at all. Without the money, the agency plans to furlough nearly 70 percent of its staff on Aug. 30. If Congress appropriates the funds, U.S.C.I.S. has proposed an additional 10 percent surcharge for its services, in addition to the fee increases.

In a statement, Joseph Edlow, the agency’s deputy director for policy, said the immigration service was required by law to modify its fees based on routine analysis of its finances. These “overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans,” he said.

Immigration activists say that U.S.C.I.S.’s financial shortfalls are a result of mismanagement, including bloated staff and administrative inefficiencies that have discouraged new applicants.

Ms. Rodgers said the administration’s policies had “effectively bankrupted U.S.C.I.S.” The agency’s work force has burgeoned by 19 percent under the Trump administration, with many of those positions in fraud detection. Processes have slowed because of new interview requirements, and more applications have been rejected.

“This administration has no one to blame but themselves for driving an entire federal agency to the ground,” said Doug Rand, a former Obama administration official who worked on immigration policy. He questioned whether the new fees would solve the agency’s financial woes or simply reduce applications even further.

The Department of Homeland Security has stated that price changes would have little or no effect on the number of applicants.

Research has found otherwise. A study at Stanford University found that fee waivers granted to immigrants in New York doubled the likelihood that they would apply for naturalization. Duncan Lawrence, the executive director of the Stanford Immigration Policy Lab and an author of the study, called the new fees “a systemic wall for access to citizenship.”

Decades after she emigrated from San Luis Potosí, Mexico, Maria Turrubiartes, 65, became a citizen this year, partly because she wanted to help her husband apply for permanent residency. However, the new rule will increase the fee for his application by 52 percent, to $960.

Ms. Turrubiartes, who has epilepsy, said her husband remained her primary caregiver. Between her disability checks and her husband’s salary, it will be difficult to afford the new cost, she said, speaking through a translator. While they save for the fee, Ms. Turrubiartes and her husband, a cement worker, can no longer afford to send money to his parents in Mexico.

For the time being, they will forego anything that is not a necessity. If you love someone, these are the kinds of sacrifices you have to make, she said.

Some activists say the fee hike is part of a long-running effort by the administration to exploit anti-immigrant sentiment. President Trump promised to restrict immigration early in his campaign in 2016, and he has already made the issue a centerpiece of his bid for re-election.

The Department of Homeland Security issued a policy last year that would deny applicants for permanent residency based on their use of public benefits, including food stamps or Medicaid. A federal appeals court blocked that rule in several states this month.

Marielena Hincapié, the executive director of the National Immigration Law Center, said the new fees would disproportionately target immigrants from the poorest nations, such as those from Africa, South and Southeast Asia, and South and Central America — largely immigrants of color.

“This administration has been slicing and dicing and finding different ways to make it hard for immigrants to be included in this country,” Ms. Hincapié said. “This is about Trump trying to restrict who is considered worthy of being an American, and time and time again, he has sent the message to immigrants, especially low-income immigrants, that if you are not from Norway, you are not wanted in our country.”

To Ms. Rubio, that message is apparent. For now, she remains at home recovering from the coronavirus, with lots of water, fruit and vitamins. Her headaches have subsided and her sense of smell has returned, but she is still without work. Ms. Rubio sighed as she described what the virus had done to her prospects of becoming a citizen. Like many others, she has no idea how she will find the money before October, when those prospects will dwindle even further.

Citizenship would change her life in many ways, Ms. Rubio said through a translator. It would enable her to save for her retirement, visit her family in Mexico for extended periods and bring her parents to the United States. She said she was hopeful that her parents would join her in Washington State some day after she became a citizen.

Among the main reasons for her desire to become a citizen, Ms. Rubio said, was that she wanted to have a say in the political process that had made obtaining her naturalization so difficult.

“First,” she said, “I’m going to vote.”

Source: Looming Fee Increase Could Thwart Many U.S. Citizenship Applications

Under emergency coronavirus orders, the Trump administration is using hotels across the country to hold migrant children and families before expelling them.

The Trump administration has been using major hotel chains to detain children and families taken into custody at the border, creating a largely unregulated shadow system of detention and swift expulsions without the safeguards that are intended to protect the most vulnerable migrants.

Government data obtained by The New York Times, along with court documents, show that hotel detentions overseen by a private security company have ballooned in recent months under an aggressive border closure policy related to the coronavirus pandemic.

More than 100,000 migrants, including children and families, have been summarily expelled from the country under the measure. But rather than deterring additional migration, the policy appears to have caused border crossings to surge, in part because it eliminates some of the legal consequences for repeat attempts at illegal crossings.

The increase in hotel detentions is likely to intensify scrutiny of the policy, which legal advocacy groups have already challenged in court, saying it places children in an opaque system with few protections and violates U.S. asylum laws by returning them to life-threatening situations in their home countries.

Children as young as a year old — often arriving at the border with no adult guardians — are being put in hotels under the supervision of transportation workers who are not licensed to provide child care. Immigration and Customs Enforcement officials say the children are being adequately cared for during the hotel stays and emphasize that their swift expulsion is necessary to protect the country from the spread of the coronavirus.

Federal authorities have resorted to using hotels during previous spikes in immigration and as staging areas for short periods of time ahead of traditional deportations; the conditions are in many ways better than the cold, concrete Border Patrol holdings cells where many migrants have been left to languish in the past.

But because the hotels exist outside the formal detention system, they are not subject to policies designed to prevent abuse in federal custody or those requiring that detainees be provided access to phones, healthy food, medical and mental health care.

Parents and lawyers have no way of finding the children or monitoring their well-being while they are in custody.

The existence of the hotel detentions came to light last month, but documents reviewed by The New York Times reveal the extent to which major hotel chains are participating. The federal Immigration and Customs Enforcement agency has detained at least 860 migrants at a Quality Suites in San Diego, Hampton Inns in Phoenix, McAllen and El Paso, Texas, a Comfort Suites Hotel in Miami, a Best Western in Los Angeles and an Econo Lodge in Seattle.

Hotels Used to House People in ICE Custody

In the 2020 fiscal year, at least 900 people have been held by ICE in hotels, which are not subject to the same health and safety guidelines as federal detention centers.

Though the data does not specify ages, the official who provided it, as well as several former immigration officials who recently left the Trump administration, said it was likely that most or all were either children traveling alone or with their parents, because single adult migrants tend to be housed in Border Patrol holding stations.

The administration’s pandemic-related border closure policy calls for migrants to be expelled from the country, rather than put into traditional, formal deportation proceedings. Parents often send their children to the American border alone because they are more likely to win asylum if they are not traveling with adults.

Under the new policy, most children are instead being put on planes and returned to their home countries, primarily in Central America, though some have been handed over to child welfare authorities in Mexico, leading parents into desperate efforts to track their children down.

Searching for the children has been made nearly impossible because they are not being assigned identification numbers that would normally allow families to track their locations in the highly regulated federal detention system.

Immigration Enforcement at the Southwestern Border

In March, Border Patrol began to expel people apprehended at the border under a federal order known as Title 42.

Only rarely used in the past, the practice of expulsions has surged under the Trump administration’s coronavirus-related border ban. Unlike deportations, expulsions are meant to take place very soon after a migrant is encountered by immigration agents. But delays in securing flights necessary to return the increasing number of migrants now arriving at the border have led the administration to turn to MVM Inc., a private corporation known mostly as a transportation and security company, to detain migrant children and families.

Started in the late 1970s by three former Secret Service agents, MVM has grown substantially.

The company now has contracts worth hundreds of millions of dollars with nearly all of the federal agencies involved in immigration enforcement. It has secured at least $1.9 billion in federal contracts since 2008.

“The reputation was, ‘You ask it, they do it,’” said Claire Trickler-McNulty, a former deputy assistant director of the office of detention planning and policy at ICE. “No task was too big for MVM.”

Before the pandemic hit, MVM was the primary company used to transport migrant families encountered at the border to family detention centers. Its security workers oversee the tent courts that were erected to process cases of asylum seekers who have been made to wait out their cases in Mexico. In 2018, when a federal judge ordered the reunification of families that had been separated by immigration authorities along the border, MVM transported parents to staging facilities near the shelters where their children were being detained.

Despite its substantial transportation portfolio, MVM does not have much experience detaining migrant children. In a previous foray in 2018, the company was criticized for detaining children overnight in a vacant office park in Phoenix.

Two laws weigh heavily on the treatment of detained migrant children. The Prison Rape Elimination Act requires procedures to allow them to independently report physical or sexual abuse by government workers or contractors. To comply with the law, migrant detention centers post phone numbers to abuse hotlines and provide detainees with free access to phones. (Public data show that 105 such reports were made against government immigration contractors in 2018, the most recent year of available data.)

The Trafficking Victims Protection Reauthorization Act provides safeguards to ensure that detained children who could be abused or tortured in their home countries are not sent back into harm’s way.

Neither of these protections appear to apply to the informal hotel stays overseen by MVM.

“A transportation vendor should not be in charge of changing the diaper of a 1-year old, giving bottles to babies or dealing with the traumatic effects they might be dealing with,” said Andrew Lorenzen-Strait, another former deputy assistant director for custody management at Immigration and Customs Enforcement, who worked with MVM during his time at the agency.

“I’m worried kids may be exposed to abuse, neglect, including sexual abuse, and we will have no idea,” he said.

A spokesman for MVM said the company’s contract with ICE bars representatives from responding to media requests.

ICE officials provided a statement explaining that MVM workers are trained in the requirements of the Prison Rape Elimination Act. But the company is not contractually required to follow its rules.

The statement said company employees are instructed “extensively” on how to handle situations where detained migrants would be left particularly vulnerable in their presence, such as when the migrants are bathing or breastfeeding. It says red flags indicating potential torture or abuse could be reported to the guards, who would then share the information with ICE. But there appear to be no mechanisms for detainees to report abuse by guards, except to other guards.

An ICE spokesman said no more than two children could be housed in a hotel room at any given time, but at least one migrant teenager said he was detained overnight in a hotel room in Miami with two other young migrants and three guards.

Expulsions have come to replace formal deportation proceedings as the primary way of processing migrants who try to enter the United States during the pandemic. About 109,621 people have been expelled from the southwest border since the restrictive policy went into effect.

Announced as a policy to prevent the coronavirus from spreading further in the United States, the border directive adopted in March, which relies on the authority available to the surgeon general during public health emergencies, was intended to block the flow of most nonessential travel across the northern and southern borders. Seeking asylum from violence or persecution is not considered essential under the policy.

But even with the restrictions in place, millions of people continue to cross the border each month, calling into question whether the expulsion policy can truly mitigate the spread of the virus.

And the Trump administration has been testing migrant children to confirm that they have not contracted the coronavirus before expelling them, as was first reported by ProPublica. If the children have been confirmed to be virus-free, they are then being expelled. Some children who test positive have remained in the hotels to quarantine, while other have been placed in government shelters for migrant children, as was the practice before the pandemic.

Unlike children, many adults have been deported and expelled despite having tested positive for the coronavirus.

While the practice of detaining migrant children and families in hotels has been previously reported, the fact that so many well-known hotels are part of the program only became apparent with the release of the list. Some of the hotels listed appeared to be unaware of the program.

After facing scrutiny for detaining dozens of migrant children and parents in its hotels in McAllen, Phoenix and El Paso, Hilton, whose participation was previously reported by The Associated Press, said that the decision to do so had been made by franchisees. The corporation said it would stop working with the federal government to detain migrants.

A legal challenge on behalf of the children detained at the hotel in McAllen was settled earlier this month when the government agreed to release them. One unaccompanied child and the few families that remained were transported to a family detention center in Karnes City, Texas.

A spokeswoman for the Choice Hotel chain, which has been used to detain migrants in Miami, Seattle and San Diego, said in response to the data obtained by The Times, “It has been our position that hotels should not be used as detention facilities, and we are not aware that any hotels in our franchise system are being used in this capacity. We ask that ​our franchised hotels, which are independently owned and operated, only be used for their intended purpose.”

Mike Karicher, a spokesman for the Hampton Inn in Phoenix, one hotel franchise that has been used by MVM, said management was not aware of the activity, and does not support or wish to be associated with it. “The hotel has confirmed that they will not accept similar business moving forward,” he said.

The American Hotel and Lodging Association, an industry trade group, said it opposed the use of hotels as detention centers and has sent out guidance to its members on “red flags” that could indicate rooms being used for this purpose.

The expulsion policy is part of a sweeping crackdown by the administration on both legal and illegal immigration that appears to have intensified in recent months. Confidential documents submitted by a court-appointed monitor in a long-running federal case warned that the use of hotels for detaining children had become prevalent.

“Begun as a relatively small, stopgap measure to assist in the transfer of children to ICE flights, the temporary housing program has been transformed by the Title 42 expulsion policies into an integral component of the immigration detention system for U.A.C.s in U.S. custody,” the monitor wrote, using the acronym for unaccompanied alien children.

There have been several legal attempts to challenge the expulsions, especially of children, including one case in which a judge recently appointed by President Trump sided against government lawyers. But the government avoided an injunction blocking the policy in each case by agreeing to release the individual children named as plaintiffs, rendering the challenges moot.

Immigrant advocates say that the government has also agreed to release individual children who have been discovered in the expulsion system.

But there are many others whose locations are unknown.

Lee Gelernt, who is leading the legal challenge against the policy for the A.C.L.U., said the primary problem is that children are not being offered a way to obtain asylum from unsafe conditions in their home countries, as is required by law. “As dangerous as it is for children to be secretly held in hotels,” he said, “the ultimate problem is that they are expelled without a hearing, regardless of where they are held.”

Kitty Bennett contributed research.

By Caitlin Dickerson

Source: A Private Security Company Is Detaining Migrant Children at Hotels

Subject: CLINIC BIA Pro Bono Project Recent Victories Friends,

 

BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly with the purpose of making it more difficult for noncitizens to win their cases.

However, CLINIC’s BIA Pro Bono Project continues to fight back and perform miracles—defeating Goliath—thanks to BIA Pro Bono Project Manager Rachel Naggar, BIA Pro Bono Project Legal Specialist Brenda Hernandez, and our many dedicated attorney volunteers.

Rachel and Brenda shared with me the project’s awe-inspiring stories of success from this summer and the volunteers who made these victories possible. In turn, I share these success stories with you to offer inspiration to keep fighting for your clients while the Trump administration escalates its attacks on immigrant communities.

 

• The BIA remanded the case of a Haitian asylum seeker on numerous grounds, including that the IJ did not apply the proper framework for assessing firm resettlement, the IJ mixed up the respondent’s political party when assessing his claim for withholding of removal, and the IJ did not meaningfully consider the respondent’s risk of future persecution. Thank you to Michael Ward of Alston&Bird!
• The BIA overturned the IJ’s adverse credibility finding against an asylum seeker from Burkina Faso. The BIA also found that the IJ erred in concluding there was no nexus between the harm the respondent suffered and his political opinion, including that the prosecution he endured was actually pretext for persecution. Thank you to Gregory Proctor, Marjorie Sheldon, and Christian Roccotagliata of Kramer, Levin, Naftalis & Frankel!
• The BIA granted asylum to a Cuban refugee. Contrary to the IJ, the BIA found that the harm suffered by the respondent did cumulatively rise to the level of past persecution and he did have a well-founded fear of persecution. Thank you to Austin Manes and Aaron Frankel of Kramer, Levin, Naftalis & Frankel!
• The BIA remanded the case of a Cuban asylum seeker because the IJ failed to consider the evidence of past economic persecution along with the physical harm suffered. The BIA also reminded the IJ that where the persecution is committed by the government, it is presumed that internal relocation is not reasonable, and the burden shifts to DHS to demonstrate that it would be reasonable in this case. Thank you to Dean Galaro of Perkins Coie!
• The BIA reopened the case of a Cuban asylum seeker because he had new evidence of harm and threats against his family that occurred after his final hearing with the immigration judge. Thank you to Astrid Ackerman and Aaron Webman of Kramer, Levin, Naftalis & Frankel!
• The Ninth Circuit granted the petition for review of a Ghanaian asylum seeker, overturning the IJ’s negative credibility finding and concluding that the Board had failed to adequately consider the country conditions evidence when it denied CAT relief. You can read the full decision here. Thank you to Kari Hong of Boston College Law School!
• The Third Circuit, in a published decision, granted a Honduran asylum seeker’s petition for review, finding that the IJ and BIA erred in analyzing whether the respondent had suffered past persecution. The Court also found that the IJ failed to conduct the proper analysis regarding the need for evidence in an application for CAT protection. You can read the full decision here. Thank you to Aaron Rabinowitz and Gary Levin of Baker & Hostetler!
• The Sixth Circuit, in a published decision, granted a Russian asylum seeker’s petition for review, finding that the IJ and BIA erred in concluding that the respondent was not persecuted on account of his political opinions and that his indictment for peacefully protesting under Russian law was a pretext for persecution. You can read the full decision here. Thank you to Brenna Duncan and Andrew Caridas of Perkins Coie!
• DHS withdrew its appeal of a grant of asylum from Mexico to a Cuban national. DHS conceded to the IJ that the respondent was eligible for asylum from Mexico, but not Cuba because of the Third Country Transit Bar. DHS changed its mind and filed an appeal, which was withdrawn after pro bono counsel filed his brief. Thank you to James Montana of The Law Office of James Montana!
• The BIA dismissed an appeal by the Department of Homeland Security and upheld a Cuban woman’s grant of asylum. The Board found that the IJ was correct in deeming the respondent eligible for asylum and not subject to the Third Country Transit Bar. Thank you to Aaron Rabinowitz and Jeffrey Lyons of Baker & Hostetler!
• ICE released a Venezuelan asylum seeker from detention to reunite with her spouse, after tremendous advocacy efforts by her pro bono attorney. Thank you to David Gottlieb!
• The Ninth Circuit remanded the case of a Honduran victim of domestic violence, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had demonstrated that the Honduran government acquiesced in her persecution, whether the respondent is part of a viable particular social group, whether it would have been futile for her to report the harm to local authorities, and whether internal relocation would be reasonable. Thank you to Alicia Chen!
• A victim of human rights violations by the notorious Eritrean military was granted withholding of removal, after the BIA overturned the IJ’s adverse credibility finding and found that the IJ failed to consider that the country conditions evidence corroborated the respondent’s claim. Thank you to Jonaki Singh and Susan Jacquemot of Kramer, Levin, Naftalis & Frankel!
• The Ninth Circuit remanded the case of an asylum seeker from Mexico, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had been persecuted and sexually assaulted on account of her sexual orientation, and whether the government of Mexico could adequately protect her from future harm. Thank you to Tim Patton of the Appellate Immigration Project!
• The Fourth Circuit granted the petition for review holding that a conviction under VA 18.2-280(A) is not a removable firearms offense, a result that would not have been possible had Mr. Gordon not continued to fight his case for so many years even despite being deported. You can read the decision here. Thank you to the CAIR Coalition and Ted Howard at Wiley Rein! Thank you also to the National Immigration Project of the National Lawyers Guild for the amicus support!

Jose came to the United States in 1985 to live with his father as a permanent resident. He built a life in the United States, becoming a father himself. After a run in with the law, he was placed in removal proceedings and was detained for 19 months.In a 2-1 decision, the Third Circuit found that under the unique circumstances of this case, Jose’s father was deprived of the equal protection of the laws. Jose is a United States citizen, the court declared, and has been since 1985.In the wake of the Supreme Court’s 2016 decision in Sessions v. Morales-Santana, Jose’s case was the first to benefit from this Supreme Court decision. You can read the full decision here. The government petitioned for rehearing, but the full Third Circuit declined to intervene.

Ultimately, the government declined to ask the Supreme Court to review the case. For the better part of the last decade, Jose’s life has been filled with uncertainty and stress, but not anymore, which is very important as Jose is expecting his first grandchild. A huge thank you to Nick Curcio who has represented Jose for 7 years!

 

In its 19+ years of operation, the Project has reviewed more than 7,200 cases, pairing attorneys and law school clinics with vulnerable asylum seekers and long-time lawful permanent residents. If you are interested in representing a case through CLINIC’s BIA Pro Bono Project, please complete our volunteer form. If you prefer to show your support for the BIA Pro Bono Project via a monetary donation, please designate “BIA Pro Bono Project” in the “In honor of” field of our donations page.

 

Gratefully and in solidarity,

 

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

***************************

Thanks Michelle, my friend, colleague, and courageous leader of the NDPA.  What a timely, wonderful, practical, “real life” illustration of Jason “The Asylumist” Dzubow’s “praise and call to action for pro bono” that I republished earlier this week! https://immigrationcourtside.com/2020/08/11/lifesaving-101-for-the-ndpa-begins-with-pro-bono-never-has-the-need-been-greater-pro-bonos-finest-hour-in-americas-time-of-darkness-cruelty-inhumanity/

Here’s what our colleague Judge Jeffrey Chase has to say about Michelle and CLINIC:

No surprise, Michelle.  CLINIC is responsible for so much good case law.  And the non-CLINIC successful attorneys probably used CLINIC training or practice advisories.  Congrats to you and all of your outstanding attorneys and support staff, and thanks for all you do!

Even in times of our greatest national darkness and misery, there are plenty of lives that can be saved! Contrary to the “Dred Scottification” — dehumanization of persons in our country — unconscionably pushed by the regime and enabled by many public officials and courts that “should know better,” every person’s life is important!

And, despite the conscious misinterpretation and misapplication of the Fifth Amendment by far too many of those charged with upholding it, every person in the U.S., regardless of race or status, is entitled to due process, fundamental fairness, and to be treated with human dignity.

Think of how much progress we could make if we didn’t have to keep re-litigating all the same issues over and over again, often with differing results!

What if the “precedents” concentrated on those cases that could be granted, rather than almost exclusively focusing on “roadmaps to denial?”

What if we promoted and supported great pro bono representation, rather than inhibiting and discouraging it?

What if meritorious cases were moved to the “head of the line” instead of continuously being “shuffled off to Buffalo” by “Aimless Docket Reshuffling” (“ADR”) thereby languishing in the mindlessly expanding backlog?

What if Federal Judges at all levels were the “best and the brightest” — selected from among those with demonstrated expertise in immigration, asylum and human rights and impeccable reputations for due process, fundamental fairness, and humanity, rather than being selected for “go along to get along” reputations or allegiance to perverse political ideologies that undermine equal justice for all?

What if our Immigration Court system were administered independently and professionally, rather than as a biased and weaponized tool of DHS enforcement and White Nationalist politicos?

What if our Justice System worked cooperatively with folks like Michelle, Jason, Judge Ashley Tabaddor, and many others with good, creative, practical ideas for institutionalizing “best practices” leading to to “due process with efficiency?”

What if we fairly implemented our refugee, asylum, and protection legal framework to “protect rather than reject?”

What if we consistently treated our fellow beings as humans, rather than as “less than human?”

What if we viewed immigration for what it really is: the foundation of our nation and a continuing source of great strength, pride, and optimism for our country of immigrants, rather than pretending that we live on an island and must “wall off” the rest of the world?

This November, vote like your life and the future of our nation depend on it! Because they do!

Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc.
(“CLINIC”)

Source: 😇🌞🗽⚖️👍🏼“A LIGHT IN THE FOREST” — Michelle Mendez @ CLINIC Shows How Good Pro Bono Lawyering Saves Lives Even When The System Is Rigged Against Justice For Immigrants!

Dozens of federal agents were deployed in Bend, Ore., late Wednesday after protesters stood for hours to block the path of buses that held two people who had been seized by immigration agents, according to witnesses and videos from the scene.

The federal officers came to the scene of the protest, a hotel parking lot, in helmets and tactical gear, said Barb Campbell, a member of the Bend City Council. Using crowd-control devices such as pepper spray, the officers were able to work their way through the crowd, remove the detainees from one of the buses and take them away, she said.

The effort to block the buses began on Wednesday morning when Luke Richter, president of the activist group Central Oregon Peacekeepers, heard from a friend that officers from U.S. Immigration and Customs Enforcement were operating in the city. He was able to find two unmarked buses and decided to block their path while livestreaming video from the scene.

Others later joined the effort, including Ms. Campbell, who parked her vehicle and set up a lawn chair in front of one of the buses. As the day wore on, hundreds of protesters gathered. Mr. Richter said he was overwhelmed by the response from the community.

“They are not welcome here,” Mr. Richter said of the federal agents.

It was not immediately clear why the men were detained. In a statement,

ICE

accused the men of having a “history of criminal violent behavior.”“While ICE respects the rights of people to voice their opinion peacefully, that does not include interfering with their federal law enforcement duties,” the statement said.

Ms. Campbell said that if the men had committed crimes, the city’s Police Department and district attorney could handle it without the involvement of federal officers.

Lawyers from the Portland-based Innovation Law Lab filed a motion in federal court to block the removal of the detainees.

By Mike Baker

Source: Protesters Blocked ICE Buses in Oregon. Federal Agents Responded in Force.

Her parents’ arrival to Berkeley as young graduate students was the beginning of a historic wave of immigration from outside Europe that would change the United States in ways its leaders never imagined.

When Kamala Harris’s mother left India for California in 1958, the percentage of Americans who were immigrants was at its lowest point in over a century.

That was about to change.

Her arrival at Berkeley as a young graduate student — and that of another student, an immigrant from Jamaica whom she would marry — was the beginning of a historic wave of immigration from outside Europe that would transform the United States in ways its leaders never imagined. Now, the American-born children of these immigrants — people like Ms. Harris — are the face of this country’s demographic future.

Joseph R. Biden Jr.’s choice of Ms. Harris as his running mate has been celebrated as a milestone because she is the first Black woman and the first of Indian descent in American history to be on a major party’s presidential ticket. But her selection also highlights a remarkable shift in this country: the rise of a new wave of children of immigrants, or second-generation Americans, as a growing political and cultural force, different from any that has come before.

The last major influx of immigrants, in the late 19th and early 20th centuries, came primarily from Eastern and Southern Europe. This time the surge comes from around the world, from India and Jamaica to China and Mexico and beyond.

In California, the state where Ms. Harris grew up and which she now represents in the Senate, about half of all children come from immigrant homes. Nationwide, for the first time in this country’s history, whites make up less than half of the population under the age of 16, the Brookings Institution has found; the trend is driven by larger numbers of Asians, Hispanics and people who are multiracial.

Today, more than a quarter of American adults are immigrants or the American-born children of immigrants. About 25 million adults are American-born children of immigrants, representing about 10 percent of the adult population, according to Jeffrey Passel, senior demographer at the Pew Research Center. By comparison the foreign-born portion of the population is still much larger — about 42 million adults, or roughly one in six of the country’s 250 million adults, Mr. Passel noted.

At 55, Ms. Harris is on the older side of this second generation of Americans whose parents came in those early years. But her family is part of a larger trend that has broad implications for the country’s identity, transforming a mostly white baby-boomer society into a multiethnic and racial patchwork.

Because of the influx of immigrants from outside Europe and their children, every successive generation in America in the past half-century has been less white than the one before: Boomers are 71.6 percent white, Millennials are 55 percent white, and post-Gen Z, those born after 2012, are 49.6 percent white, according William Frey, a demographer at the Brookings Institution.

“The demography is moving forward,” said Marcelo Suarez-Orozco, chancellor at the University of Massachusetts, Boston, who has studied these modern children of immigrants from the Caribbean, China, Central America, and Mexico. “This is the future in the U.S.”

The immigrants who arrived about fifty years ago — people from countries like India, China and Korea — often had higher education, but rarely went into politics. Their children, now middle-aged adults, are the ones moving into American public life.

“When my parents came, it was like, ‘we just want to make it,’” said Suhas Subramanyam, who was born to Indian parents in Houston in the 1980s and in 2019 became the first Indian-American to be elected to the Virginia House of Delegates. “But the second generation, we want to make our mark on the world. I wanted to do more than just work at a law firm and make money. I feel very patriotic about America.”

There were only about 12,000 Indian immigrants in the United States around the time Ms. Harris’s mother, Shyamala Gopalan, arrived. Satish Korpe, an engineer who moved to Virginia in 1975, said there were so few Indian immigrants in the state when he got there that there was not a single Indian food store, and people drove to New Jersey to buy groceries.

“In the mid-1970s, if you ran into someone who was American, you might have been the first Indian person they’d ever seen,” he said. “Then in the 1980s, maybe you would be the fifth. And in the 1990s, the tenth.”

These changes trace back the passage of the landmark 1965 Immigration and Nationality Act, which abolished the quotas that were established in the 1920s to keep America white and Protestant. The 1965 law banned discrimination based on ethnicity in the immigration system and prioritized entry for people with relatives already in the United States and those with special skills.

In addition to opening the door to many more immigrants from India, the law also ended a strict quota on the number of immigrants from the British West Indies.

Previously about only 100 Jamaican immigrants a year were allowed into the country. And in 1960, around the time when Ms. Harris’s father Donald Harris began to settle in the United States, there were fewer than 25,000 Jamaican immigrants in the United States, according to the Migration Policy Institute. But by 2018, that number had increased to more than 733,000.

Amber Simon’s Jamaican mother came to the United States in 1984 at the invitation of an aunt. She eventually married a Black man from Alabama, and Ms. Simon, now 24, remembers growing up in Tampa, Fla. and feeling that her friends’ houses were different. They did not take off their shoes or have the same kind of respect for their parents that was the rule in her Jamaican household.

Donald Harris holds his daughter, Kamala, in 1965. Credit…Kamala Harris campaign, via Associated Press.
Her father taught her to conform to society, and to try not to stand out, and he talked to her about the dangers of the police. But her mother, who lived in Jamaica until she was 15, had none of those views.
“Half of me grew up oblivious to the fact that I was a minority, and half of me was really conscious of it,” said Ms. Simon, who began to write online about her thinking on race after the killing of George Floyd.
She visited Jamaica for the first time last year, and said she was stunned at how much it resembled her father’s living circumstances growing up: deeply poor. But she also gained an even greater respect for her mother, who, through force of will, completed her education and is now a project analyst for the federal government.

“I always say, if my Mom can overcome the obstacles she’s faced as an immigrant, there’s absolutely no reason I can’t have the success that I dream of,” said Ms. Simon, who is beginning an M.B.A. program next month. “There’s no excuse for me to not be exactly where I want to be in life.”

In 1970, when Ms. Harris was growing up and the effects of the 1965 law were not felt fully yet, America was still mostly a country of Black and white. Immigrants were less than 5 percent of the population. Ms. Harris’ parents divorced when she was 5, and her mother raised Ms. Harris and her sister as Black girls, because she knew American society would see them that way.

“My mother understood very well that she was raising two Black daughters,” Ms. Harris wrote in her book, “The Truths We Hold.”

Navigating the divide between Black and white can be difficult for the children of immigrants who are neither. Ghazala Hashmi grew up in southern Georgia, in the only Indian family in her small town. Her father had brought the family there after finishing his doctorate in the late 1960s.

“We were a minority of one in our school, always,” said Ms. Hashmi, 56, who is now a state senator in Virginia. “I never knew anybody who was like me. It was extremely isolating.”

Ms. Hashmi was in second grade when her school began to be integrated. She has clear memories of the awkward feeling of not fitting into a neat racial category, in a country where people clearly wanted to put her in one.

“I was very conscious as a child of being neither Black nor white,” she said. “The white children would not play with the Black children, and apparently I could play with either. Sometimes I could mediate. It was very formative to be part of that as an immigrant and a child of the South.”

Eventually more families came, and by the time her sister was born eight years later, there were more South Asian children to play with.

Last fall, Ms. Hashmi, a former literature professor and a Democrat, flipped a State Senate seat in central Virginia. The tagline for her campaign, she said, was “Ghazala Hashmi is an American name.”

Ghazala Hashmi delivers her victory speech after winning a seat in the Virginia Senate in November. CBS News

“I really needed people to understand that there was a more complex America that was growing,” she said, “that my name was part of a new American identity that had been emerging for 40 years, and we just hadn’t been conscious of it.”

These children of immigrants are mostly better off economically than immigrants. They earn more, are more educated, and are more likely to own a home, according to a 2013 Pew report. And they are more likely to marry a person of another race: Interracial marriage rates are especially high for second-generation Hispanics, at 26 percent, and among Asians, 23 percent, Pew found.

The cultural clout of immigrant families is set to grow even more given that America’s population is now growing at its lowest rate since 1919, because of a drop in births and an acceleration in deaths. If current trends continue, 93 percent of the growth of the nation’s working-age population between now and 2050 will be accounted for by immigrants and their U.S.-born children, Pew projected.

They are also a growing political force: More than 23 million immigrants will be eligible to vote in the 2020 presidential election, Pew has found. That is roughly 10 percent of the nation’s overall electorate, a record high. And because they and their children have tended to vote for Democrats, the political winds are shifting in states like Arizona, Nevada, Virginia, Georgia and Texas.

Ashu Rai grew up in the 1970s about 70 miles east of where Ms. Harris was born. Her town had a Sikh temple that was a gathering place for South Asians from miles around. As a child, she played on the grass outside and went to potluck suppers at people’s houses after worship. But South Asians were still rare in her suburban life, and for a while as a teenager, Ms. Rai pretended to be Hispanic.

“It was just easier to assimilate, rather than trying to explain what being from India meant,” said Ms. Rai, whose Indian parents went to Wyoming in 1969 to earn postgraduate degrees before moving to California.

Today Ms. Rai, a Democrat, feels proud of her Indian roots. She works in health care marketing, and organizes dance parties for L.G.B.T.Q. South Asians. She badly wanted Ms. Harris to win the presidential primary. So when the senator was picked for the ticket this week, Ms. Rai was elated.

“My first word when I found out? I think it was a swear word,” she said. “I was like, ‘she’s got it.’”

By Sabrina Tavernise

 

Source: Kamala Harris, Daughter of Immigrants, Is the Face of America’s Demographic Shift

USCIS has raised its immigration filing fees effective October 2, 2020. Applications and petitions postmarked or filed on or after October 2, 2020, must include these new fees. Please note that USCIS will reject your submission if the fees are not correct!

New USCIS’ fees effective October 2, 2020:

Immigration Benefit Request	Current Fee	Final Fee	Change ($)	Change (%)
I-90 Application to Replace Permanent Resident Card (online filing)	$455	$405	($50)	-11
I-90 Application to Replace Permanent Resident Card (paper filing)	$455	$415	($40)	-9
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document	$445	$485	$40	9
I-129 Petition for a Nonimmigrant worker	$460	N/A	N/A	N/A
I-129CW, I-129E&TN, and I-129MISC	$460	$695	$235	51
I-129H1	$460	$555	$95	21
I-129H2A – Named Beneficiaries	$460	$850	$390	85
I-129H2B – Named Beneficiaries	$460	$715	$255	55
I-129L	$460	$805	$345	75
I-129O	$460	$705	$245	53
I-129H2A – Unnamed Beneficiaries	$460	$415	($45)	-10
I-129H2B – Unnamed Beneficiaries	$460	$385	($75)	-16
I-129F Petition for Alien Fiancé(e)	$535	$510	($25)	-5
I-130 Petition for Alien Relative (online filing)	$535	$550	$15	3
I-130 Petition for Alien Relative (paper filing)	$535	$560	$25	5
I-131 Application for Travel Document	$575	$590	$15	3
I-131 Refugee Travel Document for an individual age 16 or older	$135	$145	$10	7
I-131 Refugee Travel Document for a child under the age of 16	$105	$115	$10	10
I-131A Application for Travel Document (Carrier Documentation)	$575	$1,010	$435	76
I-140 Immigrant Petition for Alien Worker	$700	$555	($145)	-21
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)	$930	$790	($140)	-15
I-192 Application for Advance Permission to Enter as Nonimmigrant (CBP)	$585	$1,400	$815	139
I-192 Application for Advance Permission to Enter as Nonimmigrant (USCIS)	$930	$1,400	$470	51
I-193 Application for Waiver of Passport and/or Visa	$585	$2,790	$2,205	377
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal	$930	$1,050	$120	13
I-290B Notice of Appeal or Motion	$675	$700	$25	4
I-360 Petition for Amerasian, Widow(er), or Special Immigrant	$435	$450	$15	3
I-485 Application to Register Permanent Residence	$1,140	$1,130	($10)	-1
I-485 Application to Adjust Status	$750	$1,130	$380	51
I-526 Immigrant Petition by Alien Investor	$3,675	$4,010	$335	9
I-539 Application to Extend/Change Nonimmigrant Status (online filing)	$370	$390	$20	5
I-539 Application to Extend/Change Nonimmigrant Status (paper filing)	$370	$400	$30	8
I-589 Application for Asylum and for Withholding of Removal	$0	$50	$50	N/A
I-600/600A Adoption Petitions and Applications	$775	$805	$30	4
I-600A Supplement 3 Request for Action on Approved Form I-600A	N/A	$400	N/A	N/A
I-601 Application for Waiver of Ground of Excludability	$930	$1,010	$80	9
I-601A Provisional Unlawful Presence Waiver	$630	$960	$330	52
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)	$930	$515	($415)	-45
I-687 Application for Status as a Temporary Resident	$1,130	$1,130	$0	0
I-690 Application for Waiver of Grounds of Inadmissibility	$715	$765	$50	7
I-694 Notice of Appeal of Decision	$890	$715	($175)	-20
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA)	$1,670	$1,615	($55)	-3
I-751 Petition to Remove Conditions on Residence	$595	$760	$165	28
I-765 Application for Employment Authorization (Non-DACA)	$410	$550	$140	34
I-765 Application for Employment Authorization (DACA only)	$410	$410	$0	0
I-800/800A Adoption Petitions and Applications	$775	$805	$30	4
I-800A Supplement 3 Request for Action on Approved Form I-800A	$385	$400	$15	4
I-817 Application for Family Unity Benefits	$600	$590	($10)	-2
I-824 Application for Action on an Approved Application or Petition	$465	$495	$30	6
I-829 Petition by Investor to Remove Conditions	$3,750	$3,900	$150	4
I-881 Application for Suspension of Deportation	$285	$1,810	$1,525	535
I-881 Application for Special Rule Cancellation of Removal	$570	$1,810	$1,240	218
I-910 Application for Civil Surgeon Designation	$785	$635	($150)	-19
I-924 Application For Regional Center Designation Under the Immigrant Investor Program	$17,795	$17,795	$0	0
I-924A Annual Certification of Regional Center	$3,035	$4,465	$1,430	47
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigran	$230	$1,485	$1,255	546
N-300 Application to File Declaration of Intention	$270	$1,305	$1,035	383
N-336 Request for Hearing on a Decision in Naturalization Proceedings (online filing)	$700	$1,725	$1,025	146
N-336 Request for Hearing on a Decision in Naturalization Proceedings (paper filing)	$700	$1,735	$1,035	148
N-400 Application for Naturalization (online filing)	$640	$1,160	$520	81
N-400 Application for Naturalization (paper filing)	$640	$1,170	$530	83
N-400 Application for Naturalization (paper filing)	$320	$1,170	$850	266
N-470 Application to Preserve Residence for Naturalization Purposes	$355	$1,585	$1,230	346
N-565 Application for Replacement Naturalization/Citizenship Document (online filing)	$555	$535	($20)	-4
N-565 Application for Replacement Naturalization/Citizenship Document (paper filing)	$555	$545	($10)	-2
N-600 Application for Certificate of Citizenship (online filing)	$1,170	$990	($180)	-15
N-600 Application for Certificate of Citizenship (paper filing)	$1,170	$1,000	($170)	-15
N-600K Application for Citizenship and Issuance of Certificate (online filing)	$1,170	$935	($235)	-20
N-600K Application for Citizenship and Issuance of Certificate (paper filing)	$1,170	$945	($225)	-19
USCIS Immigrant Fee	$220	$190	($30)	-14
Biometric Services (Non-DACA)	$85	$30	($55)	-65
Biometric Services (DACA only)	$85	$85	$0	0
G-1041 Genealogy Index Search Request (online filing)	$65	$160	$95	146
G-1041 Genealogy Index Search Request (paper filing)	$65	$170	$105	162
G-1041A Genealogy Records Request (online filing)	$65	$255	$190	292
G-1041A Genealogy Records Request (paper filing)	$65	$265	$200	308

Source of Information:

USCIS, 7/31/20, News Release:

USCIS Adjusts Fees to Help Meet Operational Needs

 

DHS Final Rule (PDF)

Source: Update – USCIS Immigration Filing Fees to Increase – Table

Source: Federal Court Greenlights New DACA Challenge

FOR IMMEDIATE RELEASE
August 13, 2020

CONTACT
– Juan Gastelum, National Immigration Law Center (NILC), 213-375-3149, media@nilc.org
– Yatziri Tovar, Make the Road New York (MRNY), 917-771-2818, yatziri.tovar@maketheroadny.org
– Ramis Wadood, Worker and Immigrant Rights Advocacy Clinic (WIRAC) at Yale Law School, 203-432-4800, ramis.wadood@ylsclinics.org

No, ’tis not so deep as a well nor so wide as a church-door, but ’tis enough, ’twill serve.

— Romeo and Juliet

Like the wound suffered by Shakespeare’s Mercutio, the State Department’s August 12 ruling regarding exceptions to the recently announced ban on foreign worker admissions will be a fatal one (except in a handful of cases). For an account of the earlier order, dated June 22, see here.

By my count, the newly announced exceptions will cover eight different classes of foreign workers under a myriad of different kinds of exceptions (or excuses) listed in seven pages of single-line text, which is 3,101 words long.

According to an immigration lawyer, quoted by Law 360:

[T]he new exemptions will likely still keep entry-level hires blocked from entering the U.S. on new visas, but will allow more essential and experienced employees to take jobs in the U.S.

“It feels like a real unraveling of the proclamation,” she said. “I think this looks like the government bending to pressure from the private sector.”

My colleague John Miano, also a lawyer, makes a broader statement: “If you go through them you will find that everyone is exempted.”

The classes of foreign workers excepted, under a variety of different circumstances, include H-1B (“highly skilled” workers), H-2B (non skilled, non-ag workers), H-4 (spouses, usually, of H-1Bs), J-1 (exchange students and scholars), J-2 (the latter’s spouses and children), L-1A and L-1B (employees of multi-national corporations), and L-2 (their spouses and children). H-2A farmworkers were exempted under earlier rulings.

Every one of these aliens is entitled to work in the United States once they secure the needed visa.

The circumstances under which a waiver can be granted (by a U.S. consular officers) include:

• Those “seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification”;
• Individuals “whose travel would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”; and
• “National interest exceptions … for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception to P.P. 10052.”

None of these exceptions are needed by foreign workers already in the country, just those on the outside seeking to return or to take up new jobs.

So what do we have left of the earlier order? It would appear that some new hires among foreign workers who are currently outside of the nation will not get visas. Those returning from abroad will have to get permission from our already overworked consular officers, which will mean delayed returns for some to many. Then there is an anomaly in the State Department’s new policy statement — I did not see any provision for granting renewed visas to F visa holders who have those subsidized Optional Practical Training jobs. Most probably are not out of the country and do not need them.

And, of course, this is another indication that the Trump administration seems not to want to inconvenience the private sector by seriously reducing the foreign worker population.

Source: State Department Rule All But Kills Ban on Foreign-Worker Admissions

State Department, Aug. 12, 2020

“On June 22, the President signed Presidential Proclamation (P.P.) 10052, which extends P.P. 10014, which suspended the entry to the United States of certain immigrant visa applicants, through December 31, 2020. P.P. 10052 also suspends the entry to the United States of certain additional foreign nationals who present a risk to the U.S. labor market during the economic recovery following the 2019 novel coronavirus outbreak.  Specifically, the suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

The Proclamation does not apply to applicants who were in the United States on the effective date of the Proclamation (June 24), or who had a valid visa in the classifications mentioned above (and plans to enter the United States on that visa), or who had another official travel document valid on the effective date of the Proclamation. If an H-1B, H-2B, L-1, or J-1 non-immigrant is not subject to the Proclamation, then neither that individual nor the individual’s spouse or children will be prevented from obtaining a visa due to the Proclamation.  The Department of State is committed to implementing this Proclamation in an orderly fashion in conjunction with the Department of Homeland Security and interagency partners and in accordance with all applicable laws and regulations.

Both P.P. 10014 and 10052 include exceptions, including an exception for individuals whose travel would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.  The list below is a non-exclusive list of the types of travel that may be considered to be in the national interest, based on determinations made by the Assistant Secretary of State for Consular Affairs, exercising the authority delegated to him by the Secretary of State under Section 2(b)(iv) of P.P. 10014 and 3(b)(iv) of P.P. 10052.

Until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions under P.P. 10014, P.P. 10052, and/or regional-focused Presidential Proclamations related to COVID-19 (P.P. 9984, 9992, 9993, 9996, and/ or 10041) might not be processed for a visa interview appointment unless the applicant also appears to be eligible for an exception under the applicable Proclamation(s).  Applicants who are subject to any of these Proclamations, but who believe they may qualify for a national interest exception or other exception, should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception.  While a visa applicant subject to one or more Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request and a final determination regarding visa eligibility will be made at the time of visa interview.  Please note that U.S. Embassies and Consulates may only be able to offer limited visa services due to the COVID-19 pandemic, in which case they may not be able to accommodate your request unless the proposed travel is deemed emergency or mission critical.  Prospective visa applicants should visit the website for Embassy or Consulate where they intend to apply for a visa to get updates on current operating status.  Travelers who are subject to a regional COVID-19 Proclamation but who do not require a visa, such as ESTA travelers (i.e., those traveling on the Visa Waiver Program), should also follow the guidance on the nearest Embassy or Consulate’s website for how to request consideration for a national interest exception.

Exceptions under P.P. 10052 for certain travel in the national interest by nonimmigrants may include the following:

H-1B applicants:

• For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).

• Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
• Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:

1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.  Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:a.)    Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; ORb.)    The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.
3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

H-2B applicants

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or to satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction (e.g. associated with the National Defense Authorization Act) or IT infrastructure.
• Travel necessary to facilitate the immediate and continued economic recovery of the United States (e.g. those working in forestry and conservation, nonfarm animal caretakers, etc).  Consular officers may determine that an H-2B applicant falls into this category when at least two of the following three indicators are present:

1. The applicant was previously employed and trained by the petitioning U.S. employer.  The applicant must have previously worked for the petitioning U.S. employer under two or more H-2B (named or unnamed) petitions.  U.S. employers dedicate substantial time and resources to training seasonal/temporary staff, and denying visas to the most experienced returning workers may cause financial hardship to the U.S. business.
2. The applicant is traveling based on a temporary labor certification (TLC) that reflects continued need for the worker.  TLCs approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business, and therefore this indicator is only present for cases with a TLC approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-2B worker.  For TLCs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.
3. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

J-1 applicants

• Travel to provide care for a minor U.S. citizen, LPR, or nonimmigrant in lawful status by an au pair possessing special skills required for a child with particular needs (e.g., medical, special education, or sign language).  Childcare services provided for a child with medical issues diagnosed by a qualified medical professional by an individual who possesses skills to care for such child will be considered to be in the national interest.

• Travel by an au pair that prevents a U.S. citizen, lawful permanent resident, or other nonimmigrant in lawful status from becoming a public health charge or ward of the state of a medical or other public funded institution.
• Childcare services provided for a child whose parents are involved with the provision of medical care to individuals who have contracted COVID-19 or medical research at United States facilities to help the United States combat COVID-19.
• An exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to the effective date of the Presidential Proclamation.
• Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.
• Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States.  A “specialized teacher” applicant must demonstrate native or near-native foreign language proficiency and the ability to teach his/her assigned subject(s) in that language.
• Critical foreign policy objectives: This only includes programs where an exchange visitor participating in an exchange program that fulfills critical and time sensitive foreign policy objectives.

L-1A applicants

• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit.  This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.
• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations.  An example of this would be supporting U.S. military base construction or IT infrastructure.

• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.   Forcing employers to replace employees in this situation may cause undue financial hardship.

• Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:

1. Will be a senior-level executive or manager;
2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
3. Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

L-1B applicants

• Travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit. This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic.

• Travel based on a request from a U.S. government agency or entity to meet critical foreign policy objectives or satisfy treaty or contractual obligations. An example of this would be supporting U.S. military base construction or IT infrastructure.

• Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause undue financial hardship.

• Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:

1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

H-4, L-2, and J-2 applicants

• National interest exceptions are available for those who will accompany or follow to join a principal applicant who is a spouse or parent and who has been granted a national interest exception to P.P. 10052. Note, a national interest exception is not required if the principal applicant is not subject to P.P. 10052 (e.g. if the principal was in the United States on the effective date, June 24, or has a valid visa that the principal will use to seek entry to the United States).  In the case of a principal visa applicant who is not subject to P.P. 10052, the derivative will not be subject to the proclamation either.

Exceptions under P.P. 10014 for certain travel in the national interest by immigrants may include the following:

• Applicants who are subject to aging out of their current immigrant visa classification before P.P. 10014 expires or within two weeks thereafter.

Travelers who believe their travel falls into one of these categories or is otherwise in the national interest may request a visa application appointment at the closest Embassy or Consulate and a decision will be made at the time of interview as to whether the traveler has established that they are eligible for a visa pursuant to an exception. Travelers are encouraged to refer to the Embassy/Consulate website for detailed instructions on what services are currently available and how to request an appointment.

Applicants for immigrant visas covered by Presidential Proclamation 10014, as extended by P.P. 10052, including Diversity Visa 2020 (DV-2020) applicants, who have not been issued an immigrant visa as of April 23, are subject to the proclamation’s restrictions unless they can establish that they are eligible for an exception.  No valid visas will be revoked under this proclamation.”

Source: Blog Post: Aug. 12, 2020 DOS Update to National Interest Exceptions to Presidential Proclamations 10014 & 10052

 

Asylum seekers got a major win in a lawsuit challenging the Department of Homeland Security’s (DHS) illegal policy of turning back asylum seekers at ports of entry. In Al Otro Lado v. Wolf, a federal judge decided that the case may proceed as a class action.

This decision means that the named plaintiffs—14 individuals and an organization that assists asylum seekers—can seek relief for both themselves and the thousands of asylum seekers that have been turned away since 2016 or will be turned away in the future. In two ports of entry alone, over 57,640 asylum seekers were turned back in 2018 and 2019.

Asylum seekers’ victory in this case is a welcome development in the face of an otherwise grim situation at the U.S.-Mexico border.

Expelling Asylum Seekers From the Border

The Trump administration has used the COVID-19 pandemic as an excuse to impose a near-complete shutdown of the U.S.-Mexico border. At the same time, the administration has rapidly “expelled” thousands of unaccompanied minors in the name of public health, even when they test negative for COVID-19.

Over 105,000 adults and children have been expelled through July. Hundreds of those who were not expelled have been sent back to Mexico to wait an unknown period of time for their U.S. immigration court hearings under the indefinitely-suspended “Migrant Protection Protocols.”

Metering Asylum Seekers in Mexico

Since 2016, U.S. Customs and Border Protection (CBP) has turned back asylum seekers at ports of entry along the U.S.-Mexico border with a combination of lies, coercion, physical force, and obstruction, and its “metering” policy.

Under the metering policy, CBP officers claim that ports are “full,” forcing asylum seekers to put their names on waitlists and spend months in dangerous conditions in Mexico.

Metering is one of several current policies that collectively make it nearly impossible to access the asylum process and place people’s lives in danger.

Unlike asylum seekers subject to other policies, CBP officers do not acknowledge asylum seekers’ claims for protection at all under metering. This leaves them in legal limbo and puts them in physical, financial, and emotional distress in Mexico.

Where the Al Otro Lado v. Wolf Case Leaves Asylum Seekers

In the recent decision in Al Otro Lado v. Wolf, the federal judge recognized that plaintiffs’ evidence demonstrates that CBP’s different methods of turning back asylum seekers were all part of an “overarching policy” that furthers the “administration’s objection of restricting asylum access.”

Notably, this decision will not affect those individuals who are being rapidly “expelled” at the border. When the expulsion policy ends, either by court order or a new administration, asylum seekers who get turned away will be for the first time part of a class action lawsuit seeking to ensure their right to seek protection.

Last week’s order is an important step forward in the fight to ensure that the United States continues to be a nation that welcomes asylum seekers.

Source: Legal Victory Brings Hope to Asylum Seekers Turned Away at the Border