Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new federal court order that reinstates the DACA program (Deferred Action for Childhood Arrivals) and invalidates the Wolf Memorandum which previously posed an obstacle to initial requests for DACA.
Want to know more? Keep on watching for more information.
On December 4, 2020, U.S. District Judge Nicholas G. Garaufis of the Eastern District of New York made history when he signed a court ruling that will force the government to accept new initial requests for DACA within 3 calendar days.
This legal challenge was brought before the court after the government’s publication of the controversial “Wolf Memorandum” on July 28, 2020, in which the acting Secretary of Homeland Chad Wolf unlawfully directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.
DACA applicants who had an application for deferred action through DACA pending between June 30, 2020 and July 28, 2020 (the date the Wolf Memorandum was issued) brought sought alleging that the Wolf Memorandum was a violation of the Administrative Procedure Act.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers your frequently asked questions relating to K-1 visas, the National Visa Center, and consular visa processing during the ongoing Coronavirus pandemic.
Want to know more? Keep on watching for more information.
Your Frequently Asked Questions
Q: How can I contact the National Visa Center?
A: Once your Form I-130 Petition for Alien Relative has been approved, your case will be transferred to the National Visa Center for further processing. Once pre-processing has been completed, your case will be forwarded to the U.S. Consulate or Embassy near you. At the NVC stage, you will be asked to provide additional supporting documentation including the affidavit of support, Form DS-260 Immigrant Visa Electronic Application, and other important documents.
To ensure all of your supporting documentation has been received it is very important to maintain contact with the National Visa Center.
Q: Will immigration consider my priority date or approval date for interview?
A: For family-sponsored immigrants, the priority date is the date that the Form I-130, Petition for Alien Relative, or in certain instances the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, is properly filed with USCIS.
Depending on the type of relationship you have to the U.S. petitioner, you may need to reference your priority date to determine when an immigrant visa (or green card) will become available to you.
Immigrant visas for immediate relatives of U.S. citizens are unlimited, so they are always available. Immediate relatives include:
The spouses of U.S. citizens;
The children (unmarried and under 21 years of age) of U.S. citizens;
The parents of U.S. citizens at least 21 years old; and
Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before they died, or if the widow(er) files a petition within two years of the citizen’s death.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new and exciting court ruling decided this morning, November 2, 2020, that sets aside the public charge rule, known as the Inadmissibility on Public Charge rule effective immediately.
Want to know more? Keep on watching for more information
Today, November 2, 2020, federal judge Gary Feinerman of the United States District Court for the Northern District of Illinois, issued a ruling in the case, Cook County Illinois et al. v. Chad Wolf et al., immediately setting aside the public charge rule on a nationwide basis.
The plaintiffs in the lawsuit brought a motion to vacate the final rule arguing that the rule should be stricken because (1) it exceeds the government’s authority under the public charge provision of the INA (2) is not in accordance with the law (3) is arbitrary and capricious and (4) violates the equal protection clause of the fifth amendment.
The judge agreed with the plaintiffs based on a previous ruling issued by the Seventh Circuit court which found that the public charge rule was substantively and procedurally defective under the APA, and was likely to fail the arbitrary and capricious standard under the law based on the government’s failure to adequately consider the interests of state and local governments.
In support of his decision to set aside the public charge rule, Feinerman stated “the Seventh Circuit has held that continued operation of the Final Rule [the public charge rule] will inflict ongoing harms on Cook County and on immigrants, and this court has held that the same is true of ICIRR [the other named plaintiff].”
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick updates you regarding the status of K-1 visa interview scheduling at U.S. Consulates and Embassies worldwide, as well as the status of a new lawsuit that seeks to push K-1 visa cases through the pipeline.
Want to know more? Keep on watching for more information.
Since the beginning of the Coronavirus pandemic, U.S. Consulates and Embassies abroad have refused to schedule K-1 visa applicants for interviews and have instead opted to prioritize interview scheduling for certain spouses of U.S. Citizens. As a result, thousands of couples have remained separated for months on end with virtually no end in sight. This has been a very puzzling phenomenon given that foreign fiancés should be given priority for visa issuance based on their qualifying relationship to a U.S. Citizen. In some cases, K-1 visa applicants have had their interviews cancelled with no follow-up from the Consulate or Embassy regarding future rescheduling, while in others K-1 visa applications have not moved past the NVC stage for interview scheduling.
In our own experience very few K-1 visa applicants have received visa interviews and the cases that have been prioritized are because of serious medical emergencies or other urgent needs. We have been successful in receiving interviews only where the applicant has received approval for expedited processing.
In an unexpected turn of events on August 30, 2020, the Department of State released a cable stating that effective August 28th K-1 visa cases would receive “high priority.” The cable directed K-1 visa applications to check the website of their nearest U.S. Embassy or Consulate for updates on the services offered by the post.
Unfortunately, this cable did not provide applicants with any relief because it was largely ignored by U.S. Consulates and Embassies. Many applicants contacted their posts directly and were given generic messages stating that the post was not able to provide services for K-1 visa applicants until further notice. These new revelations ultimately forced K-1 applicants to seek relief from the courts.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new court order that prohibits the government from enforcing a final rule that sought to increase filing fees for certain applications and petitions filed with the United States Citizenship and Immigration Services (USCIS). For more information keep on watching.
As many of you know on August 3, 2020, the Department of Homeland Security published a final rule in the Federal Register which sought to increase filing fees for most applications and petitions for immigration benefits payable to the United States Citizenship and Immigration Services (USCIS). These filing fee increases were made by USCIS in order to help the agency meet its operational costs and ensure adequate resources to cover services provided by USCIS to applicants and petitioners.
Just days before the filing fee increase was scheduled to go into effect, a federal judge from the U.S. District Court for the Northern District of California issued a nationwide temporary injunction blocking the government from implementing the final rule. The court order essentially stops the government from enforcing the fee increases as the government had originally planned beginning October 2, 2020.
Several nonprofit organizations including the immigrant Legal Resource Center came together to file a lawsuit in the U.S. District Court for the Northern District of California challenging the government’s planned enforcement of the final rule increasing USCIS filing fees. In their lawsuit, these organizations asked the court to grant a nationwide injunction to block the government from enforcing the rule to applications and petitions postmarked on or after October 2, 2020.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides some exciting news regarding a recent federal court order. The new order grants relief to diversity visa applicants selected in the DV lottery for fiscal year 2020 against Presidential Proclamations 10014 and 10052. As many of you are aware, on April 22nd the President issued Proclamation 10014, which temporarily suspended the entry of all immigrants into the U.S. for a period of two months, including that of diversity visa lottery winners. Two months later, the President issued Proclamation 10052, which extended the suspension until December 31, 2020, with limited exceptions that did not apply to diversity visa winners. In response to these Proclamations, a class action lawsuit was brought in federal court challenging its application. For purposes of this post, we discuss what this lawsuit means for DV-2020 selected applicants.
For more information on this important ruling please keep on watching.
Proclamations 10014 and 10052 imposed an unfortunate ban on the adjudication and issuance of immigrant visas for certain classes of immigrants, including winners of the DV-2020 lottery.
Following the issuance of Proclamations 10014 and 10052 – which did not exempt DV-2020 lottery winners from the ban – diversity visa lottery winners were left in limbo. The issuance of the Proclamation created a dilemma for winners because following their selection in the DV lottery, winners must apply for and receive a diversity visa by the deadline imposed for that fiscal year. For DV-2020 the deadline to receive a permanent visa was September 30, 2020. The ban on visa issuance for DV-lottery winners meant that applicants would not be able to meet the deadline to apply for a permanent visa, and as a result would forfeit their opportunity to immigrate to the United States.
Seeking relief from the ban, over one thousand plaintiffs joined together to file the lawsuit Gomez, et al. v. Trump, et al. in the United States District Court for the District of Columbia. The judge presiding over the case, Amit Mehta, concluded that DV-2020 lottery winners qualified for relief, but that non-DV applicants failed to demonstrate that they were entitled to relief.
Accordingly, federal judge Mehta issued the following orders:
As a preliminary matter, the court “stayed” (halted) the No-Visa Policy as applied to DV-2020 selectees and derivative beneficiaries, meaning that the government is prohibited from interpreting or applying the Proclamation in any way that forecloses or prohibits embassy personnel, consular officers, or any administrative processing center (such as the Kentucky Consular Center) from processing, reviewing, or adjudicating a 2020 diversity visa or derivative beneficiary application, or issuing or reissuing a 2020 diversity or beneficiary visa based on the entry restrictions contained in the Proclamations. Except as provided in 2 and 3 below, the order does not prevent any embassy personnel, consular officer, or administrative processing center from prioritizing the processing, adjudication, or issuance of visas based on resource constraints, limitations due to the COVID-19 pandemic or country conditions;
The government as defendants are ordered to undertake good-faith efforts, to expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications, and issue or reissue diversity and derivative beneficiary visas to eligible applicants by September 30, 2020, giving priority to the named diversity visa plaintiffs in the lawsuit and their derivative beneficiaries;
The court enjoins (stops) the government from interpreting and applying the COVID Guidance to DV-2020 selectees and derivative beneficiaries in any way that requires embassy personnel, consular officers, or administrative processing centers (such as the Kentucky Consular Center) to refuse processing, reviewing, adjudicating 2020 diversity visa applications, or issuing or reissuing diversity visas on the ground that the DV-2020 selectee or derivative beneficiary does not qualify under the “emergency” or “mission critical” exceptions to the COVID Guidance;
The court declines the requests of DV-2020 plaintiffs to order the government to reserve unprocessed DV-2020 visas past the September 30 deadline or until a final adjudication on the merits, however the court will revisit the issue closer to the deadline. The court ordered the State Department to report, no later than September 25, 2020, which of the named DV-2020 Plaintiffs in the lawsuit have received diversity visas, the status of processing of the named DV-2020 plaintiffs’ applications who have not yet received visas, and the number of unprocessed DV-2020 visa applications and unused diversity visas remaining for FY 2020;
Class recertification was denied for non-DV plaintiffs since they failed to demonstrate that they were entitled to preliminary injunctive relief; and
Finally, the court denied the request of non-DV plaintiffs to preliminary enjoin (stop) the government from implementing or enforcing Proclamations 10014 and 10052.
What happens next?
The court has required the parties to the lawsuit to meet and confer by September 25, 2020 for a Joint Status Report. At that time, the court will set the schedule to hear arguments from the parties and come to a final resolution of the lawsuit on the merits.
We hope that this information will help DV-2020 lottery winners breathe a sigh of relief. If you were selected in the DV-2020 lottery it is very important to proceed with your immigrant visa process as soon as possible. Applicants should consider applying with the assistance of an attorney to ensure the application process goes smoothly.
Where can I read more about this court order?
To read judge Mehta’s complete decision please click here.
Questions? If you would like to schedule a consultation, please text or call 619-569-1768.
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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides an important update regarding a recent ruling that brings back the “public charge,” rule. On August 12, a panel of three judges from the U.S. Court of Appeals for the Second Circuit issued a ruling invalidating a previous nationwide injunction issued by a lower court judge that temporarily blocked the government from enforcing the “public charge” rule nationwide for as long as the Coronavirus remained a public health emergency.
The lower court’s injunction was issued on July 29th out of the U.S. District Court for the Southern District of New York by Judge Daniels. In his decision, Judge Daniels had ordered the government to immediately stop “enforcing, applying, implementing, or treating,” as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.
What is this all about?
Since the issuance of the lower court’s injunction on July 29th, the Trump administration immediately appealed the ruling to the U.S. Court of Appeals for the Second Circuit. A decision was expected to be handed down in a matter of weeks.
On August 12th the decision finally came, and it was very unexpected. The Court of Appeals decided that the issuance of a nationwide injunction was inappropriate and instead narrowed the scope of the injunction to apply only to the three states that filed the lawsuit (New York, Connecticut, and Vermont). The Court of Appeals stated that the injunction was warranted only with respect to these states because only these states were able to demonstrate standing, irreparable harm, and a likelihood of succeeding on the merits of the underlying case.
Therefore, the injunction preventing enforcement of the “public charge” rule no longer applies on a nationwide basis, and instead only prevents enforcement of the “public charge” rule against residents of New York, Connecticut, and Vermont.
In response to a lawsuit filed by the states of New York, Connecticut, and Vermont, challenging the “public charge” rule, federal judge George Daniels approved a nationwide injunction, which temporarily blocks the government from “enforcing, applying, implementing, or treating,” as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak.
The judge in this case ultimately sided with the states recognizing that the public charge rule ultimately discourages non-citizens nationwide from obtaining the necessary treatment and care they would need during the Coronavirus pandemic. In his opinion, the judge stated that in consideration of the “substantial harm” that the public would suffer from application and enforcement of the public charge rule, it was necessary to issue a temporary injunction to preserve the status quo and allow non-citizens to seek public benefits necessary for their health and well-being. The judge stated, “no person should hesitate to seek medical care, nor should they endure punishment or penalty if they seek temporary financial aid as a result of the pandemic’s impact.”
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the dilemma that Diversity Visa applicants are currently facing. What will happen to those who won the diversity visa lottery but are unable to apply for an immigrant visa because of the new proclamation? We answer your questions here and provide other helpful immigration tips. Stay tuned for more information on this topic.
As many of you know the executive order, “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” signed by the President on June 22nd suspends the entry of certain H, J, and L non-immigrants until December 31, 2020 and also extends the previous presidential proclamation signed on April 22nd which barred DV lottery winners from applying for an immigrant visa. Those affected by the April order include diversity visa applicants selected in the DV lottery, who are outside the United States as of the date of the proclamation, and otherwise have no immigrant visa or official travel document allowing them to enter the United States.
Q: What is the impact of this proclamation on DV lottery winners outside the country?
Unfortunately, this proclamation has devastating consequences on DV lottery winners currently residing outside the country. The order could potentially eliminate the possibility of applying for a visa based on diversity visa lottery selection, because DV applicants must be approved for a visa before the September 30, 2020 deadline.
Q. Is there any relief for DV lottery winners?
Potentially. On April 27th a class action lawsuit by multiple plaintiffs was filed President Donald Trump, DHS, Acting DHS Secretary Chad Wolf, DOS, and DOS Secretary Michael Pompeo, in the U.S. District Court for the District of Columbia challenging the April 22nd Presidential Proclamation arguing that the proclamation interferes with family reunification, violates the INA, the Administrative Procedure Act (APA), and the Fifth Amendment’s Due Process Clause.
The plaintiffs in the lawsuit asked for a preliminary and permanent injunction (a court order) to block the government from implementing or enforcing the Proclamation on those impacted the April 22nd proclamation including FY 2020 diversity visa lottery winners.
Unfortunately, on May 18, 2020, the district court denied the Temporary Restraining order, which means the government can continue to enforce the April 22nd proclamation until further notice.
In this post, attorney Jacob Sapochnick discusses what the President’s March 5th deadline means for DACA recipients and what DACA holders should expect within the coming months. The President while rescinding the DACA program, had given Congress until March 5 to pass legislation creating a path to citizenship for Dreamers. Congress however failed to deliver on their promise, and Senators are continuing their negotiations to reach a bipartisan deal on immigration that would allow Dreamers to apply for permanent residency after fulfilling several criteria.
By court order, individuals whose DACA benefits expire on or after September 5, 2016 may apply for a renewal of their status. In addition, individuals whose DACA benefits expired before September 5, 2016 or whose DACA benefits were previously terminated at any time, may file a new initial DACA request following the Form I-821D and Form I-765 instructions.
It is estimated that approximately 668,000 immigrants have been issued work permits under DACA that will expire March 5th or later, however these individuals may seek a renewal of their status as previously mentioned, and continue working and remaining in the United States for an additional 2 years without fear of deportation.
For more information on the future of DACA please click here.