Arlington, VA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Public Charge Rule

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

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

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

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

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

Immigration Fee Increases Enjoined Nationwide

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

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

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

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

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

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

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

Dear ARLnow readers,

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

Therefore:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the Trump Administration, asylum claims at the border are a problem. Title 42 is the new solution.

What’s the problem? When an asylum seeker arrives at the border and claims that she is fleeing persecution, she has the right, under U.S. law, to have her claims heard before a fair and impartial adjudicator. Unfortunately, the United States lacks the ability to house asylum seekers in decent conditions for the amount of time that this adjudication requires.

Therefore, asylum seekers are routinely released into the interior of the United States to have their claims heard at other Immigration Courts — including our own local Immigration Court in Crystal City.

What’s the solution? Title 42, United States Code. Title 42 empowers the President to take actions to protect public health, and, under color of Title 42, U.S. Customs and Border Protection (CBP) is expelling immigrants on the basis of the COVID-19 pandemic. Attorneys like ourselves are calling these proceedings Title 42 proceedings to distinguish them from ordinary immigration proceedings under Title 8.

Beginning on March 21, 2020, the Trump Administration invoked its powers under Title 42 to expel immigrants who arrive at U.S. land borders, arguing that allowing immigrants to enter through the U.S. border increases the risk of introducing more COVID-19 cases into the United States.

According to CBP, “persons subject to the order… will be immediately expelled to their country of last transit. In the event a person cannot be returned to the country of last transit, CBP works with interagency partners to secure expulsion to the person’s country of origin and hold the person for the shortest time possible.” Some sources say that the expulsion procedure takes an average of 96 minutes.

CBP claims that there will be exceptions for humanitarian reasons. However, based on our recent experience with this relatively unknown procedure, we learned firsthand that CBP may not be properly taking humanitarian factors into consideration when determining whether to expel a person at the border.

Just a couple of weeks ago, our office learned that CBP had detained two unaccompanied minors in Texas. These children did everything they were supposed to do — they did not sign any documents allowing for their return to their country, they expressed that they were afraid to return to their country, and asked to speak with an asylum officer.

However, the immigration authorities did not listen and said that unless they got a lawyer, they would be put on a plane and sent back to their country. They were also not allowed to tell their family members where they were.

Our office stepped in to try to save these children from being expelled. Sadly, it took our office’s intervention and insistence that these children feared persecution and torture in their home country to convince CBP to take these children out of Title 42 proceedings and place them into regular immigration proceedings.

Unfortunately, this seems par for the course. Some of our readers may have read about ICE detaining children at a hotel in McAllen, Texas. It took a lawsuit to get these children out of the hotel and into regular immigration proceedings.

Many advocates believe that these Title 42 proceedings are illegal and violate our obligations under international human rights treaties, which Congress and Presidents past also enacted into U.S. law. On August 14, 2020, various nonprofit organizations sued the Trump Administration over these Title 42 proceedings, arguing that these proceedings violate various laws and deny asylum seekers a meaningful opportunity to apply for asylum in the United States.

The legality of these proceedings is in dispute. Our experience suggests that the Trump Administration knows that it is taking an aggressive approach which will be hard to defend in court. It is a bedrock principle of American law that the identity of the speaker does not matter. A pro se litigant’s request for asylum should not be ignored simply because she does not have a lawyer.

Our clients were ignored until we intervened. CBP’s response to unrepresented immigrants violates the right to due process enjoyed by all litigants in our legal system, whether represented or pro se.

This is a topic we will follow closely and we will report back with updates. We welcome your thoughts and comments and will do our best to respond.

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

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

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

First, the highlights (and lowlights):

$50 Fee for Asylum Applications

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

$550 Fee for First Asylum-based Work Permit Application

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

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

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

Green Card Renewal Fees Decrease by $125 

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

Form I-751 Petition Fees Increase by $120  

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

Naturalization Application Fees Increase by 60%

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

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

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

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

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

In the United States, criminal defendants have a right to counsel. By contrast, immigrants facing deportation have a right to counsel if they can afford it. That leaves lots of poor immigrants without a lawyer. This is a big deal, because unrepresented migrants are about five times less likely to win than represented migrants.

The purpose of this short article is to provide a simple, Google-able source for good nonprofit and immigration law practices in Arlington and nearby. It won’t earn us any fees, but our business model relies on the bankability of karma, so we’re glad to do it.

Each organization has a different way of accepting new clients. We’ve listed the most updated information we have for COVID 19-era practices. If you’re reading this months from now, we encourage you to call the main number.

Catholic Charities, Diocese of Arlington, Hogar Immigrant Services, (703) 534-9805, [email protected]. Hogar Immigrant Services provides full-spectrum immigration services, including green card applications and court defense. Fees are low-bono.

Catholic Charities, Archdiocese of Washington, Immigration Legal Services, (Hi, guys!) (202) 772-4300. Full-spectrum immigration services, including green card applications and court defense.

To schedule an intake, call 202-772-4352 on Tuesdays and Thursdays from 10 a.m. to 12 p.m. Four locations across Washington, D.C. and Southern Maryland. In our opinion, the best nonprofit immigration organization in our area — but, of course, we’re biased. Fees are low-bono.

Ayuda, (703) 444-7009. Full-spectrum immigration services. To make an appointment, call at 8:30 a.m. on the 15th of the month (or on the next business day if the 15th falls on a weekend or a holiday). Fees are low-bono.

Tahirih Justice Center, (571) 282-6161, [email protected]. Specializes in services for women and girls who are previous or current victims of gender-based violence.

Just Neighbors, (703) 979-1240. Full-spectrum immigration services. In order to qualify for services with Just Neighbors, you must be a resident of the Commonwealth of Virginia and earn 200% or less of the federal poverty guidelines. Fees are low-bono.

Northern Virginia Family Service, (571) 748-2800. Not accepting new cases until January 2021. Full-spectrum immigration services.

We’re glad to answer any questions that you have about obtaining counsel or about the nonprofit landscape in our area. As always, we welcome any comments and will do our best to respond.

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

Immigration law and policy depend heavily on who occupies the White House. With that in mind, we think it’s important for our fellow citizens to know what the major candidates propose to do about an important issue. In this column, we’ll discuss President Trump’s immigration platform. (We previously discussed former Vice President Joe Biden’s immigration platform, which differs greatly.)

Unlike former Vice President Joe Biden, President Trump’s campaign has not — as far as we can tell — published a platform on immigration. But President Trump’s future policies are likely to be largely a continuation of his current approach, with possible inflections based on the balance of power in the Senate and the differing political environment of a second-term President.

President Trump has changed U.S. immigration policy in deep and consequential ways throughout his first term. It’s worth recalling the full set of his major moves:

  1. The Administration imposed, and then defended with increasing success, a series of Travel Bans on countries which do not, in the opinion of the Administration, meet appropriate screening and security requirements. The most recent Travel Ban is still in effect.
  2. The so-called Family Separation policy at the U.S.-Mexico border, designed to discourage family group migration from Central America.
  3. Tightening the rules for asylum applications, both by additional evidentiary burdens on victims of gang violence and domestic violence seeking asylum and — in a recent move — by increasing the wait time for asylum-based work permits.
  4. The “Remain in Mexico” policy for Central American asylum seekers, which prevents many asylum applicants from applying for asylum in the United States.
  5. The addition of the new Public Charge Rule, which prevents potential green card holders from immigrating to the United States unless they can provide a great deal of evidence of future financial self-sufficiency.
  6. Border wall construction. As immigration restrictionists have noted, border wall construction has been… unimpressive in the terms that matter, namely new physical walls. Pre-pandemic, about one mile of new wall had been built, with just under a hundred miles of wall rebuilt. Those rebuilt walls are much more robust than the chain-link fencing that they replaced, so this is an impressive piece of construction.

So, what could we expect from a second term? The conventional wisdom is more of the same, and, as usual, the conventional wisdom is probably right. But there are a few things that we think would differ about a second Trump term.

  1. We believe that the asylum system is likely to become more bifurcated, between ‘ordinary’ claims (say, a Cameroonian political dissent who flies into JFK and applies for asylum in New York) and border claims. The Administration has begun two pilot programs, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP), which have the goal of adjudicating asylum claims at the border within ten days. These programs are under legal challenge now, but, if President Trump is reelected, you can expect them to have a chance of survival.
  2. We believe that prospects of comprehensive immigration legislation would be more or less nil. All projections show that Democrats will continue to control the House of Representatives, and it is unlikely that a Democratic House would be able to work with the Trump Administration to pass a mutually agreeable bill. Trust between the parties is at a low ebb, and on no issue as much as immigration. (Trump skeptics should note that the Administration did propose a limited deal in 2018; its failure suggests, a forteriori, that a more comprehensive deal would fail in a second term.)
  3. We believe that the Administration will move to rescind DACA, again, but this time successfully. Our recent article on DACA rescission described how the Trump Administration failed — in the opinion of the Supreme Court — to comply with the requirements of the Administrative Procedure Act. The decision lays out a road map for the Administration to succeed a second time.

Trump’s immigration policies in a second term are likely to be quite expansive, and we were only able to hit the highlights in this space. We’re glad to answer any questions that you have about these proposals. As always, we welcome any comments and will do our best to respond.

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

It was a big week at the Supreme Court for hundreds of thousands of immigrants who currently hold Deferred Action for Childhood Arrivals (DACA) work permits.

In Department of Homeland Security v. Regents of the University of California, et. al, the Court ruled that the Trump Administration’s efforts to rescind the DACA program did not satisfy the requirements of the Administrative Procedure Act, and hence were not lawful.

In our column this week, we’re going to explain two things: first, how the Court reached this highly technical decision; and second, how we expect the decision to play out practically for DACA recipients. This column will be a bit longer than usual, but we know that ARLnow readers love the details, so we’ll indulge ourselves — and, hopefully, you too.

To understand the Regents decision, you have to understand a bit of legal history. During the New Deal, the Roosevelt administration created a swarm of new agencies under the sole control of the executive branch. These agencies — many of which are still with us to this day, like the FDIC, the Federal Housing Administration and the Social Security Administration — set about implementing the New Deal in their areas of specialization.

Implementation requires the setting of standards and the adjudication of disputes, so, rather quickly, these new agencies found themselves trying to set rules and make precedential decisions in accordance with those rules. But there was no overarching legal framework to determine the manner and method of that work until the passage of the Administrative Procedure Act of 1946.

The Administrative Procedure Act (APA) defines how government agencies promulgate regulations and adjudicate disputes. The APA also defines the scope of judicial review of administrative decisions. Since the passage of the APA, the square footage of American life subject to federal agency oversight has grown enormously. Americans who are dissatisfied with an agency decision have to follow the procedures of the APA in order to hold the government accountable through the judicial system.

Our immigration system is a fine example of the APA’s massive influence on American public life. The Immigration Courts are administrative courts. USCIS, the immigration benefits agency, drafts its own regulations under the Administrative Procedures Act. And, finally, the Department of Homeland Security itself is both a source of regulation and the interpreter of its own regulatory action.

In 2012, the Obama Administration promulgated, via Executive Action — the famous ‘pen and a phone’ — the DACA program. The DACA program had and has two main parts: the grant of ‘deferred action’ to recipients, which effectively protects them from deportation, and the grant of a work permit as long as the deferred action remains valid. DACA was legally controversial from the beginning, and conservatives — both immigration restrictionists and skeptics of administrative action – sought, unsuccessfully, to overturn it through the courts.

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

Immigration law and policy depend heavily on who occupies the White House.

With that in mind, we think it’s important for our fellow citizens to know what the major candidates propose to do about an important issue. In this column, we’ll discuss former Vice President Joe Biden’s platform. In our next column, we’ll discuss President Trump’s platform.

Biden’s proposals can be divided into two main categories: rollback and reform. The rollback policies simply reverse moves by the Trump Administration, and the reform policies move American immigration policy beyond the status quo ante.

Here are the rollback provisions, which provide a useful precis of how remarkably vigorous and variegated the Trump Administration’s immigration policies have been:

  1. End the Family Separation policy at the U.S. border for migrants seeking asylum.
  2. Reverse Attorney General rulings which impose additional evidentiary burdens on victims of gang violence and domestic violence seeking asylum.
  3. End the Migrant Protection Protocols — the “Remain in Mexico” policy for Central American asylum seekers.
  4. Abolish the new Public Charge Rule, which prevents potential green card holders from immigrating to the United States unless they can provide a great deal of evidence of future financial self-sufficiency.
  5. End the Travel Bans, which prevent all travel to the United States from certain countries which the Trump administration regards as a security threat to the United States.
  6. End the “National Emergency” which permits the Administration to transfer funds initially allocated to the Department of Defense for construction of a border wall.

These proposals are unsurprising. The rest of Biden’s platform is more interesting:

  1. Reinstate the Deferred Action for Childhood Arrivals (DACA) program and ensure that DACA recipients are eligible for federal student loan assistance.
  2. Offer a path to citizenship for TPS (Temporary Protected Status) recipients.
  3. “Aggressively advocate for legislation” to pass comprehensive immigration reform.
  4. Decouple temporary workers (e.g., H-1B employees) from employers. This would have the salutary effect of decreasing employer power over temporary immigrant workers.
  5. Prioritize high-wage temporary workers over low-wage temporary workers. Here, I think it’s worth quoting the platform in full, because the proposal isn’t quite clear. “Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages.”
  6. Add a location-based system for encouraging immigration to economically depressed parts of the United States, by allowing cities and counties to act as petitioners. Immigrants would be bound to work and reside in the city or county that petitioned for them, which would create interesting issues both for municipalities and immigrants themselves. This proposal is in tension with the ‘decoupling’ proposal for private employers detailed above.
  7. Double the number of Immigration Judges, court staff and interpreters. On that point, at least, Biden and Trump are completely in agreement. With a backlog of over one million cases, the Immigration Courts desperately need the help.

Biden’s platform is long and ambitious, and we were only able to hit the highlights in this space. We’re glad to answer any questions that you have about these proposals. As always, we welcome any comments and will do our best to respond.

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

Immigrating to the United States is expensive.

A company petitioning for a worker or a U.S. citizen petitioning for a spouse will spend thousands of dollars on processing fees alone. United States Citizenship and Immigration Services (USCIS) is responsible for accepting and processing all immigration applications, along with the checks that come with them.

Historically, USCIS has supported itself using the filing fees people pay to have their applications processed. According to the USCIS website, 97% of USCIS’s Fiscal Year 2021 budget stems from those filing fees. But recently, USCIS announced that it is on the brink of running out of money. The agency is now seeking a bailout from Congress.

Why does this (heretofore) financially independent government agency suddenly need a bailout? We’d posit a couple of reasons.

The first reason is that the Trump Administration has increased the adjudicative burden on USCIS. In-person interviews are now required in almost all green card applications. Requests for evidence are now sent routinely, for even the most trivial errors or omissions. Demanding that USCIS put every application under a microscope increases the cost, as measured in staff time and resource demand, of doing business. That isn’t the agency’s fault.

The second reason is incompetence. The majority of USCIS applications are filed on paper by mail. Many attorneys are reporting that USCIS is improperly rejecting applications, and when USCIS rejects an application, they return the filing fee check back as well. We have seen it all: USCIS rejects applications stating that the fee amount is incorrect, despite the inclusion of the correct fee. USCIS rejects applications saying the application was incomplete, when in fact, it was complete.

Sometimes they say “You forgot the other form that goes along with your green card application,” and — you guessed it — that “other form” was submitted. Pro tip from a local small business: If you want the money, accept payments. Many applicants, understandably, choose not to refile.

The third reason is ballooning expenditures. USCIS’s annual budget has increased from $3.3B in FY2016 to just over $4.8B in FY2020. This is a generous rate of growth. Advocates are understandably focused on what USCIS is charging immigrants. As citizens, though, we’d also like to know why USCIS can’t both adjudicate applications at a reasonable speed and prevent fraud at the same time, given the resources at its disposal.

The fourth reason — which USCIS, understandably, leans on in its bailout request — is plummeting application numbers. USCIS says that numbers are down thanks to COVID19, which we believe is likely to be only a small part of the story. (Remember: the checks come in the mail.)

The real story, in our view, is that legal immigration to the United States is a less attractive proposition than it used to be. Between travel bans and the new public charge rule, immigration to the United States has become more difficult and complex. If you increase the price, you’ll sell fewer widgets.

We believe that these policies have stymied potential immigrants from filing benefit applications in the first place, perhaps because they think it unlikely that USCIS will approve the application, or maybe they cannot afford to hire an attorney.   These policy changes and their effects are decreasing USCIS’s incoming funds.

USCIS now requires that many immigrants show that they will not become reliant on government benefits. But now, USCIS is running to Congress asking for heaps of taxpayer money it never needed before. USCIS is on the verge of becoming a public charge itself. The irony is regrettable.

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

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