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Biden Administration Ends Policy of Deporting Migrant Child Caregivers

The Biden Administration is ending a 2018 policy which let DHS deport caregivers for migrant children. This policy, in practice, discouraged caregivers from picking up migrant children in custody at the border or HHS facilities. Under this policy, the Department of Homeland Security collected information about the immigration status of caregivers who came forward to care for unaccompanied migrant children.

Rescinding this policy may alleviate overcrowding at Health and Human Services Department (HHS) facilities. This also means that HHS will no longer check the immigration status of parents or sponsors. Despite this policy change by the Biden administration, many facilities remain overcrowded. This is a result of a recent surge in unaccompanied migrant children coming to the United States.

As of Friday, March 12, 2021, parents and caregivers can now come forward to care for migrant children without fear of immigration consequences. The change in policy hopes to promote the safe and timely transfer of migrant children from detention facilities to sponsors and parents. This is a welcome change from the previously disorganized process, which put many families under emotional duress.

Officials stated that the new agreement would not change safeguards. These safeguards are designed to ensure that migrant children are unified with properly vetted sponsors. These sponsors must be able to safely care for the children while they await the resolution of their immigration proceedings. The hope is that this policy change can encourage family members and sponsors to come forward. Now that there is no negative immigration consequence for doing so, an uptick in claiming migrant children is expected.

Increased Fees to Go Into Effect

New fees will go into effect on 1/19/21. The biggest impact are the increased fees for BIA appeals and MTRs with the BIA. The new fee for an appeal will be $975. If we have any appeal deadlines coming up we should file before 1/19/21.

EOIR final rule increasing the filing fees for applications, appeals, and motions that are subject to an EOIR-determined fee. The final rule adopts the fee amounts proposed in the noticed of proposed rulemaking published on 2/28/20 without change. The rule is effective 1/19/21. (85 FR 82750, 12/18/20)

Fee increases are as follows:

  1. Fee for Form EOIR-26 increased from $110 to $975.
  2. Fee for Form EOIR-29 increased from $110 to $705.
  3. Fee for Form EOIR-40 increased from $100 to $305.
  4. Fee for Form EOIR-42A increased from $100 to $305.
  5. Fee for Form EOIR-42B increased from $100 to $360.
  6. Fee for Form EOIR-45 increased from $110 to $675.
  7. Fee for filing a motion to reopen or reconsider before the OCIJ increased from $110 to $145.
  8. Fee for filing a motion to reopen or reconsider before the BIA increased from $110 to $895.

US Consulates Remain Closed Until At Least April

U.S. Consulates and Embassies Began Phased Reopening 

Consulates worldwide were closed in March 2020 due to the COVID-19 pandemic. As a result, all routine visa services were suspended. U.S. Embassies and Consulates began a phased reopening in July 2020; however, many consulates remain closed for routine services. Consulates and Embassies remain open for emergency and mission-critical visa services and will continue to provide these emergency based services. 

The National Visa Center is working with reduced staff during this time. As such, NVC will not answer any general questions about case status and is focusing on urgent medical or humanitarian inquiries. More information about the NVC status is available here.

 

Reopening will be determined based on location specific conditions for each post. As conditions improve in each location, additional services will be made available. At this time, the U.S. Department of State is unable to provide a specific date for when each Embassy or Consulate will resume routine services. Consulate closures will continue until at least April 2021, if not beyond. Please click on this link to determine if your consulate is open to apply for an immigrant or non-immigrant visa.

Additional information about a particular U.S. Embassy operational status can be found here.

Biden’s 100 Days

President-elect Joe Biden plans to use his first 100 days in office to take action on immigration. Trump has made more than 400 changes to immigration policy in the last four years. President-elect Biden may be able to rescind some of the Trump-era policies through executive orders, other actions, however, will take time and cooperation from both sides of the aisle. 

  • End Detrimental Asylum Policies 

    • Migration Protection Protocols Program (MPP)

      • Under the MPP or Remain in Mexico program, individuals who wish to apply for asylum in the United States must remain in Mexico to wait for their hearing dates. The Biden Administration plans to end the MPP program and allow individuals to wait for their asylum hearing in the United States. 

    • Safe Third Country 

      • The Biden Administration plans to withdraw from the “safe third country” agreements with Guatemala, El Salvador, and Honduras. This means that individuals who seek asylum in the United States will not be deported back to these countries under the theory that they should have applied for asylum there first. 

  • End Prolonged Detention and Reinvest in Case Management Programs

    • The Biden Administration will end indefinite detention of children and invest in community-based case management programs so that children can live in safe environments while awaiting their court hearings. 

  • Protection for Dreamers and their families 

    • The Biden Administration will reinstate DACA and ensure that Dreamers are eligible for federal student aid programs. The Administration plans to pursue legislative reform so that Dreamers and their families have a roadmap to citizenship. 

  • Rescind the Travel Bans

    • The travel and refugee bans implemented by the Trump Administration hurt the economy. The Biden Administration plans to rescind these bans.

  • TPS for vulnerable populations

    • Biden will protect TPS holders by preserving the program. There may be legislative reform for a path to citizenship for TPS holders. 

  • Halt Deportations

    • President-elect Joe Biden endorsed a moratorium on deportations for the first 100 days of his presidency and promises to restore “sensible enforcement priorities,” to removals, a shift that will focus on people who pose a national security risk. He will also stop workplace raids. 

USCIS to Administer New Citizenship Test

The new citizenship test has two components: an English and a civics test. A new civics test went into effect on December 1, 2020. The new citizenship test draws from 128 potential civics questions. All applicants for naturalization will have to answer 20 of those questions chosen at random. To pass, applicants must answer 12 of those questions correctly. The new citizenship test has already faced criticism as it may be intended to create an additional barrier to naturalization. 

For a certain time period, USCIS will administer both the 128 question and the 100 question version of the test. Applicants will take one test or the other depending on when they filed their application. All applicants who have a filing date of December 1, 2020 or later must know the answers to the new test. For those who have a filing date prior to December 1, 2020, they will take the 100 question version. Applicants who qualify for certain exemptions based on age and time as lawful permanent residents will still only be responsible for the questions indicated on the test. 

Processing times for N-400 can range from 10-22 months depending on the office. So, it is possible that the new test will be rescinded between now and a potential interview date. Until any further changes in the civics test take effect, it is best to be prepared and to attend your citizenship interview with a representative.

DACA has been reinstated by a Federal Judge

DACA has been reinstated by a Federal Judge. New applications will be received.
The requirements to apply are:
  • Have resided continuously in the U.S. since June 15, 2007;
  • Had come to the United States before your 16th birthday.
  • Were physically present in the United States; and.
  • Are in school, have graduated from high school in the United States, or have a GED; or enroll in school now.

If you think you are eligible or had DACA before and allowed it to lapse we can help you.

DACA Guidelines Invalid Due to Unlawful Appointment of Chad Wolf as DHS Secretary

A federal judge in the Eastern District of New York ruled on Saturday, November 14, 2020, that the new DACA guidelines set forth by acting Homeland Security Secretary Chad Wolf are invalid. The federal judge found that Mr. Wolf was not lawfully appointed as acting Homeland Security Secretary and therefore did not have authorization when he issued the DACA program’s restrictive guidelines.

Wolf’s July 2020 guidelines for DACA required that USCIS reject all first-time DACA applications, reject applications for advance parole from DACA recipients unless under exceptional circumstances and reduce the renewal period from 2 years to 1 year for DACA renewal applicants.

As a result of the recent ruling, we could see DACA return to its initial 2012 form. However, we are still awaiting further information on how this new ruling will definitively affect the DACA program.  We will provide further information on the pending litigation as we receive the same.  

COVID-19 and the Immigration Courts 

Immigration courts have had to adjust their protocols due to the COVID-19 pandemic in order to reopen safely. Individuals in the following categories are now allowed into the immigration courts within 14 days: 

  • A positive test for COVID-19;
  • A diagnosis of COVID-19 by a medical provider; 
  • The presence of one or more established symptoms of COVID-19; 
  • A request to self-quarantine by local health authorities or a medical provider related to COVID-19; or, 
  • Close contact with someone who has an active positive diagnosis of COVID-19 or who is exhibiting one or more symptoms of COVID-19. 

If you fall into one of these categories, contact Aparisi Law to discuss your options. We may be able to ask the court to postpone your hearing date to ensure that you and others in the court remain safe during the pandemic. 

Public charge rule now in effect

Litigation regarding the public charge rule continues. The Department of Homeland Security appealed a federal judge’s decision which vacated the public charge regulation nationwide. On November 2, 2020, DHS asked that the lower court decision be halted while the appeal continues. The Seventh Circuit Court of Appeals granted the government’s request. This means that that USCIS may implement the public charge rule until further notice. Public charge forms and documentation must be submitted with adjustment of status applications and nonimmigrant extension and change of status applications. 

There may be additional changes forthcoming as the public charge rule is being challenged in several separate lawsuits. 

The public charge rule is still not being enforced by the State Department in applications for visas filed by foreign nationals.

Public Charge Rule

What is the public charge rule and do receipt of public benefits disqualify someone from permanent residence?

While the public charge rule has been around for a long time, the Trump administration is using interpreting the public charge rule broadly to reduce the number of people who are eligible for legal permanent residence and other visas. Under this new interpretation of the rule, the administration expanded on what makes someone dependent on government benefits or likely to be dependent on government benefits in the future. Under the new final rule, the government defines public charge as someone who receives one or more benefits for more than 12 months total during a 36 month-period.

Who is subject to the public charge rule?

•
• • •

Who is NOT subject to the rule?

• • • • • • • •

What does the public charge rule require?

The public charge rule requires individuals to report certain information related to public benefits. Individuals have to report any benefits they have received since February 24, 2020. Applicants for adjustment of status do not need to report non-cash benefits they received prior to February 24, 2020. Individuals who seek to extend a nonimmigrant visa or change a nonimmigrant visa category need not report benefits they received prior to February 24, 2020.

How is a public charge determined?

The officer will look at multiple factors and will make the decision based on all of the factors and the person’s circumstances at the time. The officer will look at both positive and negative factors. Some factors that officers will consider include age, education, history of employment, health, family status, assess, financial status, resources, prospective immigration status, and if there is a sufficient affidavit of support.

Which public benefits are considered as part of the public charge determination?

Applicants for adjustment of status or admission as a Legal Permanent Resident
Applicants for an immigrant visa
Applicants for a nonimmigrant visa
Returning permanent residents
Refugees;
Asylees;
Cubans;
Special Immigrant Juveniles; NACARA;
TPS applicants;
T and U visa nonimmigrant applicants; and, VAWA recipients.
 The following factors are considered:
• • • • • • •

Which benefits are NOT considered?

 

DHS does not consider the following benefits in its determination:
• •
• • • • • • • • •
Benefits received by U.S. military service members will not be considered.

What happens if I am determined to be inadmissible as a public charge?

The applicant can overcome a public charge finding by posting a public charge bond. The bond is available at USCIS discretion. While the public charge rule is now being interpreted more broadly, there are many factors that the government will consider when determining if someone is likely to become a public charge in the future.
Please note this blog post does not constitute legal advice. Please schedule a consultation with Aparisi Law to discuss your case.
Supplemental Security Income (SSI)
Temporary Assistance for Need Families (TANF)
Any federal, state, local, or tribal cash benefit programs for income maintenance Section 8 Housing Assistance
Section 8 Project-Based Rental Assistance
Public Housing; and,
Federally funded Medicaid.
Emergency medical assistance;
Medicaid benefits received for emergency medical conditions, by children under 21 years of age, or by pregnant women;
Disaster relief;
National school lunch programs;
The Special Supplemental Nutrition Program for Women, Infants, and Children; The Children’s Heath Insurance Program;
Subsidies for foster care and adoption;
Government-subsidized student and mortgage loans;
Energy assistance;
Food pantries and homeless shelters; and,
Head Start.
Benefits received by U.S. military service members will not be considered.

What happens if I am determined to be inadmissible as a public charge?

The applicant can overcome a public charge finding by posting a public charge bond. The bond is available at USCIS discretion.
While the public charge rule is now being interpreted more broadly, there are many factors that the government will consider when determining if someone is likely to become a public charge in the future.

*Please note this blog post does not constitute legal advice. Please schedule a consultation with Aparisi Law to discuss your case.