Month: July 2021

How do we determine what is law, what is the government’s interpretation or application of a law, or what is just the government’s opinion? Consider the source.

• STATUTES: Laws Passed by a Legislature, Usually by Congress

Statutes are binding law and can create new rights or obligations. The Immigration and Nationality Act is a statute. Statutes may be challenged in court if they are unconstitutional, either as written or as applied by the government.

• REGULATIONS: Rules Setting Forth How the Government Will Apply Relevant Statutes

Regulations have the force of law. The government must follow the Administrative Procedure Act (APA) when making regulations. When a regulation is implemented, it is published in the Federal Register and given a section in the Code of Federal Regulations (CFR). Each federal agency is covered in a different chapter of the CFR. Most immigration regulations are found in chapters 8 (Department of Homeland Security), 20 (Department

of Labor), and 22 (Department of State) of the CFR. Regulations may be challenged if the government did not follow the APA. Regulations also may be challenged if they go beyond the scope of the statute (ultra vires), or if they are unconstitutional, either as written or as applied by the government.

• POLICY MEMOS: Announcements from a Government Agency that Set Its Policies and Provide Guidance as to How the Agency Will Apply Relevant Statutes and Regulations

Policy memos usually are vetted through the agency’s office of legal counsel and go through multiple rounds of review and revision before they are released to the public. Statutes and regulations are the boundaries for the

government’s policies, and the government cannot make new laws or create new rights or obligations through memos. While memos do not have the force of law, a court will give the agency wide deference in setting its policies. Policy memos may be challenged if they go beyond the scope of the relevant statutes and regulations (ultra vires), or if they are unconstitutional, either as written or as applied by the government.

• TWEETS: In Recent Years, the Government Has Made Numerous Policy Announcements on Twitter

Unlike statutes and regulations, Tweets do not have the force of law. Unlike policy memos, government tweets do not appear to go through a vetting process. Government policies announced via Tweet cannot go beyond the scope of the related statutes and regulations, and the government cannot make new laws or create new rights or obligations via Tweet. Policies announced on Twitter may be challenged in court if they go beyond the scope of the relevant

statutes and regulations (ultra vires), or if they are unconstitutional, either as written or as applied by the government. Occasionally, agencies make announcements, such as office closures, via Twitter and do expect these messages to be accepted as official announcements.

What Our Office Is Doing

If you have questions regarding your travel situation or complications, we encourage you to contact our office at US Legal Solutions at 314-729-1049 and make an appointment to speak with any of our attorneys.

After enduring the COVID-19 pandemic for over a year, most U.S. embassies and consulates are not operating at full capacity. Due to limited appointment availability, a significant backlog was created for immigrant (IV) and

nonimmigrant visa (NIV) applicants waiting a visa interview. IVs are for those seeking to come to the United States permanently as a legal permanent resident or green card holder, while NIVs are for those individuals seeking to come to the United States temporarily. The Department of State (DOS) prioritizes serving U.S. citizens abroad, which means that foreign national visa applicants are not a top priority.

Among foreign national applicants, the DOS is prioritizing IV applications. However, as of May 2021, there were more than 500,000 IV applications in DOS’s backlog. The pace at which interviews can be scheduled depends on the volume, type of visa, local conditions, and government restrictions on movement and gathering. A reduced number of applicants are processed each day to abide by social distancing and other preventative measures. Once it is safe, routine visa services will resume.

U.S. embassies and consulates are also prioritizing the processing of immigrant visa cases previously refused under rescinded Presidential Proclamations 9645 and 9983, which suspended entry into the United States of certain nationals from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen.

IV applicants who were previously refused due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, may either (1) reapply for a visa

by submitting a new visa application (DS-260) and paying a new visa application processing fee or (2) request their local embassy or consulate to reconsider their case within one year of the date of their waiver refusal without submitting a new application or paying a new visa application processing fee.

IV applicants who were refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated as of January 20, 2021, will continue to have their applications processed and prioritized.

WHAT OUR OFFICE IS DOING

If you have questions regarding your travel situation or complications, we encourage you to contact our office at US Legal Solutions at 314-729-1049 and make an appointment to speak with any of our attorneys.

DACA (Deferred Action for Childhood Arrivals) is a U.S. immigration policy that provides a quasi-legal status and employment authorization to certain individuals unlawfully present in the United States after being brought to the country as children. Individuals may qualify for DACA if they:

• Were under the age of 31 as of June 15, 2012; Came to the United States under the age of 16;
• Have continuously resided in the United States from June 15, 2007, to the present;
• Entered the United States without inspection before June 15, 2012, or had lawful immigration status expire as of June 15, 2012;
• Were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
• Are currently enrolled in school, or have graduated from high school, obtained a GED, or been honorably discharged from the Coast Guard or armed forces; and
• Have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors, and do not pose a threat to national security or public safety.

WHAT’S NEXT FOR DACA?

Congress has introduced the U.S Citizenship Act of 2021. This act, if passed by Congress and signed into law by the president, would immediately allow DACA recipients to obtain permanent residency. Passage of the act may be difficult as Congress remains very divided over immigration issues.

Congress has introduced the U.S Citizenship Act of 2021. This act, if passed by Congress and signed into law by the president, would immediately allow DACA recipients to obtain permanent residency. Passage of the act may be difficult as Congress remains very divided over immigration issues.

Individuals who meet these requirements are considered eligible for DACA. Applicants are eligible for an initial period of two years which may then be renewed in two-year increments. To qualify for renewal of DACA, individuals must:

• NothavedepartedtheUnitedStatesonorafterAugust15,2012,withoutadvance parole;
• Have continuously resided in the United States since submitting most recent approved request for renewal of DACA up to the present time; and
• Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

On December 4, 2020, a federal judge ordered DHS to restore DACA to its original state as implemented via President Obama’s Executive Order. Individuals who meet the eligibility requirements may submit an initial or renewal application for DACA. The Biden administration also instructed the Homeland Security Secretary to take action to protect and fortify the DACA program.

What Our Office Is Doing

If you have questions, we encourage you to contact our office at US Legal Solutions at 314-729-1049 and make an appointment to speak to any of our attorneys

During the COVID-19 pandemic, travel restrictions can change quickly for both lawful permanent residents and others seeking to enter or return to the United States. If at all possible, traveling outside the United States should be avoided except in the most urgent situations.

If you are a lawful permanent resident (LPR), you should keep the following concepts in mind when considering travel outside the United States:

• < 180 Days: Absence from the United States of less than 180 days = no presumption of abandonment of permanent residence.

• < 180 Days < 1 Year: Absence from the United States of more than 180 days, but less than one year = there is a rebuttable presumption that you may have abandoned permanent residence (meaning the government presumes you have abandoned your residence and the burden is on you to prove otherwise).

• > 1 Year: Absence from the United States of more than one year = automatic loss of LPR status unless appropriate steps were taken prior to departure to preserve status.

Preserve LPR Status by Applying for a Reentry Permit

If you know or believe you will be outside the United States for more than a year, you should apply for a reentry permit with USCIS BEFORE you leave. Your immigration attorney can help you with this. You will need to be physically present in the United States when the application is filed. You will also need to be in the United States for biometrics processing, which is usually scheduled anywhere from several weeks to several months after USCIS receives the application, so plan ahead as much as possible.

What if you did not obtain a reentry permit before leaving and remain outside the United States for more than one year?

USCIS has not announced any policy exception regarding this issue. LPRs who have stayed outside of the United States for more than one year, or longer than the validity of their reentry permits, are generally considered to have abandoned their LPR status.

If your situation falls within either of these scenarios and you wish to return to the United States, you will need to obtain an SB-1 Returning Resident visa before traveling to the United States from the U.S. embassy or consulate in the country where you are residing.

If You Are Unable to Return to the United States Within One Year Due to Pandemic-Related Travel Restrictions, You Should Be Prepared to Provide Evidence of the Following:

• Timely attempts to travel back to the United States, such as canceled airline travel documents and emails or other correspondence documenting your intent to return to the United States and your inability to travel.
  • If you do not have any of these, be prepared to provide evidence establishing why you could not travel (such as evidence of local lockdowns or government-mandated travel restrictions).
• Continued ties to the United States, such as continued payment of any mortgages or rent as well as any associated housing costs. Also, be prepared to document your temporary housing arrangement (i.e. that you own no property) in the foreign country.
• Evidence that you maintained an employment relationship in the United States, such as an employer letter showing you had a leave of absence or you will be rehired upon your return to the United States. Also, provide evidence that you did not work in the foreign country, except possibly for your U.S. employer.
• If applicable, evidence of illness, either of yourself or a family member, that kept you from traveling.
• If applicable, evidence that other family members stayed behind in the United States while you were abroad and unable to return.
• Financial evidence of continued U.S. ties, such as U.S. tax returns, banking records, etc.

Seeking U.S. Citizenship After Lengthy Travel

To apply for naturalization, an LPR must have been physically present in the United States for at least half of the required period of continuous residence (i.e., 30 months or 18 months depending on the basis for applying), and must have lived for three (3) months in the state or USCIS district of residence.

The effect of absences of over one year due to the pandemic has not yet been determined by USCIS, but at this time, your naturalization may need to be put on hold if you have a lengthy absence that could affect eligibility. Consult your immigration attorney for possible USCIS policy exceptions due to the large number of LPRs who were unable to return to the United States due to the COVID-19 pandemic.

Other Travel Restrictions to Remember

Immigrant and Nonimmigrant Visa Bans Lifted

If you are awaiting entry of a family member, President Biden issued an executive order on February 24, 2021, lifting the immigrant visa ban (Presidential Proclamation 10014), thus allowing family members of U.S. citizens and green card holders to obtain immigrant visas and join their families in the United States. Moreover, on March 31, 2021, the

nonimmigrant visa ban (Presidential Proclamation 10052) restricting the entry of temporary workers into the United States was also lifted.

Travel to Other Countries

If you are contemplating other international travel, you should confirm admission requirements and procedures as most countries have implemented travel restrictions for entry, in the form of either: a) Mandatory quarantines; b) Enhanced health screening upon arrival or return; c) Prohibitions on travel for all non-citizens of those countries; and d) Temporary closure of consulates.

What Our Office Is Doing

If you have questions regarding your travel situation or complications, we encourage you to contact our office at US Legal Solutions at 314-729-1049 and make an appointment to speak with any of our attorneys.