This Week In Immigration – Week of June 7, 2021

This Week In Immigration

June 7, 2021 – Venezuelan migrants are crossing the southern border along the Rio Grande into Texas in record numbers as they look to escape the political, social and economic crisis in their home country, AP reports. By the numbers: A total of 7,484 Venezuelans were approached by U.S. Border Patrol agents in May at the southern border — “more than all 14 years for which records exist,” AP writes. This represents a major increase from the 295 Venezuelan migrants who crossed the U.S.-Mexico border in January of this year. The number of migrants has increased since March, when President Biden granted temporary protected status to Venezuelans living in the U.S. — while there were 913 total Venezuelan migrants crossing in February, there were 2,566 in March. Supreme Court Rules Against Immigrants Seeking Green Cards The justices said immigrants with “temporary protected status” who entered the country without authorization may not apply for lawful permanent residency. 

June 7, 2021 – WASHINGTON — The Supreme Court ruled unanimously on Monday that immigrants allowed to stay in the United States temporarily for humanitarian reasons may not apply for green cards if they had entered the country unlawfully. The case, Sanchez v. Mayorkas, No. 20-315, could affect tens of thousands of immigrants. It was brought by Jose Sanchez and Sonia Gonzalez, natives of El Salvador who entered the United States unlawfully in the late 1990s. In 2001, after earthquakes devastated El Salvador, the United States made that country’s nationals eligible for the “temporary protected status” program. The program shields immigrants from parts of the world undergoing armed conflicts and natural disasters from deportation and allows them to work in the United States. Mr. Sanchez and Ms. Gonzalez, a married couple, were granted protection under the program. In 2014, they applied for lawful permanent residency, commonly known as a green card. After their application was denied, they sued. The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against them, saying they were ineligible under a part of the immigration laws that require applicants to have been “inspected and admitted” into the United States. Temporary protected status, Judge Thomas M. Hardiman wrote for the unanimous three-judge panel, “does not constitute an admission.” “As its name suggests,” he wrote, “this protection is meant to be temporary.”

Justice Elena Kagan, writing for the Supreme Court on Monday, agreed, saying that two parts of the immigration laws operate on separate tracks. One part allows some people who have entered the country lawfully to apply for green cards. That first part “imposes an admission requirement twice over,” she wrote. It says that applicants for green cards must have been “inspected and admitted or paroled into the United States.” And it adds that people who had worked in the United States without authorization, as Mr. Sanchez had before he was granted temporary protected status, are eligible only if their presence in the United States was “pursuant to a lawful admission.” The other relevant part of the immigration laws, Justice Kagan wrote, allows immigrants, whether they entered the country lawfully or not, to apply for temporary protected status, or T.P.S. “The government may designate a country for the program when it is beset by especially bad or dangerous conditions, such as arise from natural disasters or armed conflicts,” she wrote. “The country’s citizens, if already present in the United States, may then obtain T.P.S. That status protects them from removal and authorizes them to work here for as long as the T.P.S. designation lasts.” The two tracks can sometimes merge, Justice Kagan wrote, if the recipient of temporary protected status entered the country lawfully.

June 11, 2021 – USCIS Erects Barrier to Immigration Benefits“ USCIS published its Updates Policies to Improve Immigration Services”, which informed the public of three policy changes. Relevant here is the change under the header “Requests for Evidence and Notices of Intent to Deny”, where the agency announces it is rescinding a July 2018 memo and reverting to the 2013 policy that requires adjudicators to issue a request for evidence (RFE) or a notice of intent to deny (NOID) where the application, petition, or benefit request fails to establish eligibility. While the associated policy alert does not explicitly cite E.O. 14012, it contains all the predictable buzzwords: “In order to reduce barriers that may impede access to immigration benefits and ensure the agency is fairly and efficiently adjudicating immigration benefit requests …” As framed by Biden’s USCIS, this policy change “will ensure that benefit requestors are given an opportunity to correct innocent mistakes and unintentional omissions and will help protect both benefit requestors and the agency from expending additional resources unnecessarily.” This announcement came with a statement from Alejandro Mayorkas, the Secretary of Homeland Security. Secretary Mayorkas confirmed that “[w]e are taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship, and that modernize our immigration system.” USCIS Director Tracy Renaud echoed this sentiment stating that “[t]hese policy measures are consistent with the Biden-Harris administration’s priorities to eliminate unnecessary barriers to our nation’s legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits.” The specific policy updates are below:

Expedited Processing

Expedited processing for pending immigration benefits, with this updated policy, applicants for immigration benefits and USCIS adjudicating officers now have further guidance as to when expedited processing may be warranted. Expedite criteria now listed in the Policy Manual include the following:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
  • Emergencies and urgent humanitarian reasons;
  • Requests from nonprofit organization (as designated by the Internal Revenue Service (IRS)) in furtherance of the cultural and social interests of the United States;
  • U.S. government interests (including urgent cases for federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, DHS or other public safety or national security interests); or
  • Clear USCIS error.

With the exception of requests from nonprofit organizations, this updated guidance also confirms that expedite requests will not be considered for cases where premium processing is available, which is unfortunate since the premium processing fee is $2,500.

Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

USCIS is returning to adjudication standards of a previous June 2013 memo instructing officers to issue a request for evidence (RFE) or notice of intent to deny (NOID) when additional evidence could potentially demonstrate eligibility for an immigration benefit. By taking this action, USCIS is also rescinding a July 2018 memo that officers the authority to deny outright certain immigration petitions or applications without first issuing an RFE or NOID.

Employment Authorization Documents (EAD)

Finally, this new policy guidance increases the validity period of employment authorization documents (EADs) for adjustment of status applicants to two years — an increase from the prior one-year validity period. This two-year validity applies to both initial and renewal EAD applications. This additional year of validity will help applicants in reducing or possibly eliminating the need to file for EAD extensions. It also helps the agency by allowing it to shift resources to other areas.

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