Search results for: biden executive order

The Department of Labor’s (DOL’s) Proposed Rule to add new occupations to the Schedule A list is “dead,” at least for now. Stakeholders see this as a disappointment and a missed opportunity.

  • The failure to move forward with this rule is a significant disappointment for many high-skilled immigrants and the employers who need them, all of whom would have benefited from the streamlined process for obtaining employment-based green cards.
  • Considering the current processing times for PERM Applications – which have ballooned over the past year and currently sit at around 15 months – expanded access to Schedule A would provide improved certainty regarding job opportunities for employers and foreign-born workers alike.

Schedule A list occupations do not require the employer to conduct a labor market test as part of a green card application process because the government has already determined that there are not enough U.S. workers available for these positions – thus simplifying and speeding up the process. Currently, the Schedule A list only includes physical therapists, professional nurses, and individuals of exceptional ability. The list is clearly outdated because there are many occupations, particularly in STEM fields, experiencing a national labor shortage.

The DOL began its Schedule A initiative with a Request for Information (comments) in December 2023. The goal was to consider how to add more STEM and non-STEM occupations to the list. The comment period was extended, but it seems the rule is not even on the DOL’s list of priorities. Those looking for relief will have to wait and see if the Trump Administration decides to pick up this initiative.

Jackson Lewis attorneys are available to assist with the processing of all types of green card cases, including Schedule A green cards.

USCIS is processing naturalization cases faster than they have in years, and the agency is managing to cut down on its naturalization backlog. Given the current average timing, eligible green card holders who applied early in the summer 2024 might be sworn in in time to vote in the upcoming November elections.

Of course, field offices vary in processing times, but USCIS stated it was effectively eliminating the net backlog of naturalization applications and reducing the median processing time from 10.5 months to as little as five months. This is a 50 percent drop in processing time since 2022, achieving the agency’s longstanding goal and significantly reducing waiting times for most individuals seeking U.S. citizenship. Naturalization has always been a target of note in the agency’s backlog reduction effort. This was achieved by increasing capacity, improving technology, and expanding staffing.   

Naturalization cases often increase ahead of elections. Voting is not the only personal benefit of citizenship. Immigrants who become U.S. citizens may also serve on juries, travel on a U.S. passport, bring family members to the U.S. more easily, apply for certain federal jobs, run for federal office, become eligible for certain federal grants, scholarships and benefits, and, importantly, have the right to remain in the U.S. that cannot be taken away. Beyond that, findings show that naturalized citizens have higher employment rates and earn between 50 and 70 percent more than noncitizens. Increasing the number of citizens also helps the economy in general. It leads to an increase in tax revenue and greater home ownership.

When President Joe Biden came into office, he issued an executive order to reduce naturalization barriers to strengthen the integration of new Americans. About 100,300 naturalization petitions were denied in FY 2023, a 10 percent drop from the 111,600 petitions denied in FY 2022. The Biden Administration also made the naturalization application shorter and, while it raised the naturalization fee, a number of discounts are available.

Eligibility requirements for naturalization include age, continuous residence, physical presence, jurisdiction, knowledge of U.S. history, civics, and English, and good moral character.

Jackson Lewis attorneys are available to assist you in determining whether you meet the requirements for citizenship and can assist in preparing and filing naturalization applications.

President Joe Biden announced protections for undocumented foreign national spouses of U.S. citizens who have lived in the United States for 10 years without a legal immigration status. This will protect approximately 500,000 such spouses from deportation and fear of deportation. The program is expected to launch by summer’s end.

This comes on the 12th anniversary of the Obama Administration’s Deferred Action for Childhood Arrivals, or DACA program, and comes on the heels of President Biden’s new southern border restrictions.

What was the problem?

The law allows a foreign national spouse of a U.S. citizen to apply for lawful permanent residence (a “green card”) and eventual U.S. citizenship through a process that usually does not involve a lengthy separation from the U.S. citizen spouse. But individuals who entered the United States in an unlawful manner accrue “unlawful presence” and are  required to return to their home countries to  receive permanent residence through a process involving the U.S. consulate.  

The law takes a punitive turn here. Once that undocumented person departs the U.S. to process the immigrant visa, they are barred from returning for up to 10 years depending upon the length of their unlawful presence in the United States. The law was designed to discourage people from coming to the United States unlawfully but it had the opposite effect of what was intended: people who were facing a 10-year separation from their families were understandably reluctant to leave even if it meant that they would be able to legalized. Instead, undocumented people with U.S. citizen spouses and children have largely chosen to live in the shadows rather than risk long-term separation from loved ones.

Biden’s plan will keep these families together. The program will make certain undocumented foreign national spouses eligible for “parole in place” and work authorization for three years while they may pursue permanent residence (and eventually citizenship) without leaving the United States.

Who is eligible?

The plan will grant parole in place and work authorization to undocumented spouses of  U.S. citizens who have been in the United States for at least 10 years, were married to the U.S. citizen before June 17, 2024, and are not considered a threat to public safety.

The program will also provide similar protection to approximately 50,000 undocumented people under 21 years of age who are the children of eligible spouses.

Previously deported individuals will not be eligible.

The Administration explains that the president has executive authority to grant parole on a case-by-case basis. But, without congressional action, the program could be abandoned by a different administration.

Immigration advocates excited by this program have noted that the new grants of work authorization will also be particularly helpful to the U.S. economy.

And DACA?

President Biden also plans to make some DACA “dreamers” eligible for work visas. As of now, DACA recipients must continually renew their DACA status and work authorization every two years. The new proposal would allow dreamers who have “high-skilled” job offers and U.S. degrees relevant to their proposed employment to have employers apply for work visas on their behalf. This would be first step in regularizing their immigration status.

Jackson Lewis attorney will continue to follow developments.

President Joe Biden’s Executive Order regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” directs departments and agencies throughout the government, including the Department of Homeland Security (DHS) and the Department of State, to develop plans and policies to establish new standards for artificial intelligence (AI) use. In response, DHS has announced new programs to “strengthen national security, improve . . . operations, and provide more efficient services.”

DHS has been using AI to identify patterns in vehicle-crossing histories and to speed security processes by introducing touchless technologies at airports.

The expanded AI roadmap includes three pilot programs:

  • Enhancing Immigration Officer Training by generating dynamic, personalized training materials to meet officers’ specific needs and ensure the dissemination of knowledge on a wide range of relevant current policies and laws. The goal is to help enhance understanding and retention of crucial information and thereby increase the accuracy of the decision-making process and avoid unnecessary retraining.
  • Transforming Security Investigative Processes so that investigators can more effectively and efficiently summarize and search for relevant information in investigative reports. 
  • Improving Disaster Mitigation for all communities by learning how to more effectively identify risks and mitigation strategies and generate draft plans from publicly available sources. This would help communities determine how to apply for grants to become more resilient and reduce disaster risks.

To expedite these programs, in February 2024, DHS announced a “hiring sprint” to recruit 50 AI technology experts to work with its new AI Task Force.

As they introduce more AI technology, DHS wants to ensure that the technology is used mindfully and carefully. DHS Secretary Alejandro N. Mayorkas explained that the results of these pilots will guide the agency’s AI roadmap going forward “while upholding [the Department’s] commitment to protect civil rights, civil liberties, and privacy.”

Jackson Lewis attorneys will continue to follow these developments, particularly regarding more consistent USCIS decision-making and whether there is any significant increase in targeted investigations.

Chinese students make up the majority of international students in the United States. However, the number of Chinese students in U.S. universities has dropped from a high of 370,000 in 2019 to about 290,000 today.

Part of the drop has been attributed to the Trump Administration’s 2020 executive order suspending entry of certain students and researchers from the People’s Republic of China (PRC). That proclamation applies to Chinese nationals in F or J status (other than undergraduates) who were associated with an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy.” The executive order started to chill among Chinese graduate students and researchers who feared discrimination or being denied entry at first or after travel abroad. Then, COVID-19 pandemic restrictions made travel difficult.

Over the last four years, Chinese students – particularly those in STEM fields – have received extra scrutiny. In November 2023, President Joe Biden and President Xi Jinping agreed to promote educational exchanges. Recently, though, a number of these students have been questioned by U.S. officials for hours, banned from entry, and even repatriated. Chinese students in the United States have gathered to discuss their concerns. The Chinese Embassy in the United States made “solemn representations” to the government about this treatment. The Department of State has responded that the detention and inadmissibility rate has been stable over the years and that fewer than 0.1 percent of Chinese students who arrive in the United States have been detained and found to be inadmissible.

 Not only is the number of Chinese students coming to the United States declining, but the number of American students in China is also declining. Before the pandemic, approximately 10,000 American students were in China, compared to fewer than 1,000 today.

International students overall provide 28 percent of tuition revenue to U.S. colleges and universities. Chinese students still make up the majority of international students in the United States. Interestingly, the decline in students from China has coincided with an increase in students from India.

Jackson Lewis attorneys are available to assist with visa and travel advice for all international students.

Texas did not have standing to challenge the Biden Administration’s policy priorities regarding removal of noncitizens, the U.S. Supreme Court has ruled. United States v. Texas, No. 22-58 (June 23, 2023).

In February 2021, recognizing that, of the more than 11 million removable noncitizens in the United States, the majority have become contributing members of their communities, Secretary of Homeland Security Alejandro Mayorkas issued guidelines prioritizing the apprehension and removal of noncitizens who posed a threat to national security, public security, and border security based on a case-by-case assessment.

Texas, joined by Louisiana and, later, by other states, challenged that policy, alleging it was not in compliance with the law stating that the Department of Homeland Security “shall” take into custody certain noncitizens. Texas claimed it had an interest in this policy because it had an interest in protecting its citizens from the criminal activity of aliens who were subject to mandatory detention. The U.S. District Court for the Southern District of Texas agreed and held the policy guidance had to be vacated.

The Biden Administration appealed to the U.S. Court of Appeals for the Fifth Circuit and, ultimately, to the U.S. Supreme Court seeking a stay of the vacatur. Neither court would issue a stay, but the Supreme Court agreed to hear the case even prior to a Fifth Circuit decision.

The Supreme Court requested briefing on three questions: 1) standing; 2) whether the guidance violated the Immigration and Nationality Act or the Administrative Procedure Act; and 3) whether the remedy of vacatur is barred. The Court reached only the question of standing in its decision.

In an 8-1 vote, the Court wrote that the executive branch had broad discretion in enforcing the laws and that past administrations have all had to prioritize enforcement due to a lack of resources necessary to arrest and deport all noncitizens who are deportable. Justice Brett Kavanaugh, writing for the majority, held that granting standing in this case could open the door to allowing states to challenge any number of enforcement policies. But, he did stress that this ruling was a narrow one. Justices Neil Gorsuch and Amy Coney Barrett wrote concurring opinions. Only Justice Samuel Alito dissented, writing that Texas did have standing.

Secretary Mayorkas has noted that, due to various formalities, it likely will take a month before the guidelines will be reinstituted. In the meantime, individual requests for prosecutorial discretion should continue to be pursued.

Jackson Lewis attorneys are available to assist with questions regarding the the Court’s opinion and the Department of Homeland Security enforcement guidance.

USCIS has changed its mission statement again – this time to adopt a more immigration-friendly stance.

In 2018, USCIS, under the Trump Administration, changed its mission statement to align with President Donald Trump’s focus on enforcement, strict scrutiny, and extreme vetting. The statement did not emphasize customer satisfaction, i.e., the satisfaction of petitioners, applicants, and beneficiaries. The change in emphasis was stark and did not go unnoticed. Instead, the mission statement focused on protecting and serving the American people and ensuring that benefits were not provided to those who did not qualify or those who “would do us harm ….” The 2018 statement did not speak of the United States as a “nation of migrants” and it focused on efficiency while “protecting Americans, securing the homeland, and honoring our values.”

The new 2022 USCIS mission statement reflects President Joe Biden’s belief that “new Americans fuel our economy as innovators and job creators, working in every American industry, and contributing to our arts, culture, and government.” Accordingly, he has issued executive orders directing the various immigration agencies to reduce unnecessary barriers to immigration. The 2022 mission statement also reflects President Biden’s directions and USCIS Director Ur M. Jaddou’s “vision for an inclusive and accessible agency.” Director Jaddou “is committed to ensuring that the immigration system . . . is accessible and humane . . . [serving] the public with respect and fairness, and lead with integrity to reflect America’s promise as a nation of welcome and possibility today and for generations to come.”

According to Director Jaddou, USCIS will strive to achieve the core values of treating applicants with integrity, dignity, and respect and using innovation to provide world-class service while vigilantly strengthening and enhancing security. On February 3, 2022, Director Jaddou, along with her deputies, briefed the nation on the agency’s efforts to improve service at USCIS. The leaders of the agency made clear that USCIS knows it must continue to eliminate backlogs, cut processing times, reduce unneeded Requests for Evidence and interviews, eliminate inequities in processing times across service centers and improve the contact center, among other things, to achieve its goals. Using streamlining and technological innovation, USCIS hopes to make itself much more consumer-oriented.

The Trump-era proclamation that would have kept immigrants who could not provide evidence of health insurance within 30 days of coming to the United States has been revoked by President Joe Biden. The move is in accordance with his prior executive order directed at “restoring faith” in the immigration system and to emphasize his administration’s commitment to expanding access to healthcare.

The proclamation was meant to go into effect on November 3, 2019, but was blocked by an injunction issued by the U.S. District Court in Portland, Oregon in Doe v. Trump. Thus, the policy was never implemented but was not rescinded until now. Advocates argued that the policy would have affected approximately two-thirds of intending immigrants.

In issuing the healthcare proclamation, the Trump administration reasoned that new immigrants without health insurance would create a financial burden on the U.S. healthcare system. However, a Tufts University School of Medicine study found that most immigrants arriving in the United States are healthier than most U.S. citizens and do not access as much healthcare as native-born Americans. The study also showed that immigrants who do eventually obtain health insurance, in effect, subsidize healthcare costs for U.S. citizens because they pay premiums but do not draw as much out of the system.

President Biden’s new proclamation is just one in a series of proclamations undoing Trump-era policies, intending to restore faith in and fairness of the U.S. immigration system. Others include the elimination of the public charge rule and the elimination of a rule that prevented undocumented college students from receiving federal pandemic relief for food and housing.

Jackson Lewis attorneys are available to provide information and assistance regarding all the new Biden Administration proclamations affecting immigration.

Deference is back! USCIS announced that, effective immediately, it will reinstate its 2004 policy of deferring to prior determinations of eligibility.

Rescinded by the Trump administration, this policy directed officers to “generally defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.” This means that prior determinations made by USCIS will receive deference unless “there was a material error, material change in circumstances or in eligibility, or new material information” that would have an adverse impact on eligibility.

This change is a result of President Joe Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The order was meant to break down barriers to fair and efficient USCIS adjudications, among other things.

The Trump administration’s rescission of USCIS deference policy has been identified as one of the factors that created processing delays and substantial backlogs at USCIS. Officers have been forced to unnecessarily re-adjudicate cases that previously would have been approved quickly and efficiently. Beyond processing delays, the rescission of the deference policy led to uncertainty for both foreign national employees and their employers. Even when circumstances were unchanged, employees and employers who may have worked together for years were suddenly confronted with the possibility that the rug might be pulled out from under their feet. Requests for evidence (RFEs) and even denials loomed. The return of the deference policy, though not a complete safeguard against a denial, would restore a degree of predictability and consistency that is necessary for family security, the smooth flow of business, and continuing economic growth.

Under the reinstated policy, if an officer does not defer to a prior approval, the officer must:

  • Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
  • Articulate the reason for the lack of deference;
  • Provide the petitioner or applicant an opportunity to respond to any new information; and;
  • Importantly, obtain supervisory approval before deviating from a prior approval.

If the problem is one of inadmissibility or of failure to maintain status, a “split decision” may be rendered – approving the petition classification, but not the extension. In such a case, it will be up to a consulate to make the final determination.

For any questions about the reinstated policy, please reach out to your Jackson Lewis attorney.

Secretary of the Department of Homeland Security (DHS) Alejandro Mayorkas has announced that the public charge rule, put in place by the Trump administration in 2019, is no longer in effect. Instead, DHS will return to its previous policy, which had been in effect for 20 years, since 1999.

In his announcement, Secretary Mayorkas specifically stated that DHS will no longer consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) benefits as part of the public charge inadmissibility determination.

This signals the end of close to two years of confusion over the Trump public charge rule. That rule, criticized as a “wealth test,” made it harder for low-income immigrants and non-immigrants, who might use even non-cash welfare benefits, to obtain admission to the United States. The rule was subject to litigation in various jurisdictions. There were injunctions and stays of injunctions. One month the rule was in effect in some jurisdictions, the next it was not, and then the next, it was in effect again. Applicants for adjustment of status or nonimmigrants were never quite sure if the rule would apply to their applications. The Trump administration public charge policy went twice to the U.S. Supreme Court, which is where it sat until March 9, 2021, when the Biden administration decided to stop defending the policy and asked the Supreme Court to dismiss the case – which it did.

This followed President Joe Biden’s executive order, in February 2021, directing a complete review of immigration policies, particularly the Trump public charge rule, in an effort to restore faith in the legal immigration system and reduce barriers to immigration. Once the review is completed, more changes may be forthcoming.

Jackson Lewis attorneys are available to assist you with any questions regarding the status of the public charge rule.