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Last month this blog reported on the Trump Administration’s attempts to stymie family-based migration by introducing a new health insurance mandate. The mandate required visa applicants to identify a specific health-insurance plan they had purchased and would be covered by within thirty days of entering the country.
Under the policy, immigrants were not allowed to use Medicaid, nor were they allowed to use Affordable Care Act subsidies, both of which are considered to be “government funds.”
Recently, US District Judge Michael Simon, a Federal Judge in Oregon, issued a preliminary injunction blocking this policy. This was the result of a law suit filed by the American Immigration Lawyers Association, Innovation Law Lab, and the Justice Action Center, among others, as a class action complaint.
In the complaint, Plaintiffs noted: “The Proclamation seeks to unilaterally rewrite this country’s immigration laws, imposing a new ground of inadmissibility that Congress has expressly rejected, and creating requirements that will be extremely difficult, or impossible, for most otherwise qualified immigrant visa applicants to satisfy. In so doing, the Proclamation contravenes well-established and duly enacted immigration and healthcare laws, exceeds the scope of the President’s statutory authority, and violates Constitutional separation of powers and equal protection principles.”
They also noted that the ruling in fact “undermined its own stated goal of cutting some of the uncompensated care costs from the U.S. health care system.“
A preliminary injunction doesn’t put a permanent end to the policy. It does ensure that the policy can’t be active while it’s moving through the courts.
In his opinion, Simon ruled this was “the sort of decision that fell to Congress to make, not the president, and that the administration’s rule conflicted with the Immigration and Naturalization Act.” Simon also noted that this proclamation would have affected approximately 60% of all visa applicants. Finally, he said, “the president offers no national security or foreign relations justification for this sweeping change in immigration law.”
The law already prevents lawful permanent residents from getting Medicaid for their first five years in the country, though refugees, asylum seekers, and other types of non-citizens may take advantage of Medicaid. The ACA does make subsidies available to non-citizens who are in the country legally.
In the previous blog post we suggested it might be a good idea to reschedule visa interviews in the hopes that something like this would happen. Now that it has, it’s a good time to schedule an appointment with your immigration attorney to try to get your visa application pushed through and completed, before the administration tries anything else.
See also:
Is It A Crime to Encourage Undocumented Immigrants?
Three Legal Wins for Immigration
The Supreme Court made headlines today when it announced it would hear The United States v. Sineneng-Smith.
The Sineneng-Smith case has two parts, one of which is settled and one of which is not. Sineneng-Smith ran an immigration help business out of California. She defrauded immigrants by charging them an excessive amount of money to apply to a program she knew was no longer in effect. That Sineneng-Smith committed fraud is not in dispute.
What is in dispute is a conviction for a violation of Section 1324 of the Immigration and Nationality Act, which makes it a crime to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.”
The 9th Circuit Court of Appeals upheld the fraud conviction but overturned the encouragement conviction. The government responded by filing a writ of certiorari. The Supreme Court granted cert. in early October.
The question presented: “Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(1)(1)(A)(iv) is facially unconstitutional.”
This isn’t the first time this law has been in the news. Last year, the Trump Administration began using these laws against uncooperative officials in sanctuary cities.
Advocates fear upholding this law as unconstitutional could have a chilling effect on the ability of immigration lawyers, advocacy organizations, and others on providing normal services to their clients.
The ACLU filed an amicus brief citing instances of innocent behavior, like Kamala Harris’ tweet which encouraged immigrants to find safety from the California wildfires regardless of immigration status, would be illegal under this broadly written law. So could an immigration lawyer’s routine advice to client.
The brief cites a litany of case law and precedent to uphold its conclusions. It also neatly outlines the problems with using the law in the way it has been used in the Sineneng-Smith case.
“The 1st Amendment does not permit the government to punish advocacy of unlawful acts save in two narrow circumstances. Neither circumstance applies to Section 1324(a)(1)(A)(iv). First, the incitement doctrine permits the government to regulate speech that is intended and likely to elicit imminent violence. But section 1324(a)(1)(A)(iv)’s prohibition on speech involves no violence, and broadly criminalizes all speech regardless of the likelihood and timing of such violation actually occurring. Second, the government may criminalize ‘speech integral to criminal conduct,’ but only when this speech is closely related and necessary to the commission of a crime, such as guiding an individual step-by-step through a false case filing.”
Good arguments, joined by many other voices who are filing briefs of their own.
Now all we have to find out is whether the Supreme Court agrees.
See also:
In The News: Supreme Court to Hear Asylum Case
In The News: The Supreme Court Decision You Need to Know About
What is the Current Law on Claiming Asylum in the United States?
On October 4, 2019, the Trump administration enacted a policy requiring all prospective immigrants to prove they’ll have U.S.-based health insurance within 30 days of arrival, or will have enough money to pay for “reasonably foreseeable medical costs.”
On November 3rd, that bill will go into effect.
The bill, aimed squarely at family-based migrants, could stop 375,000 people from entering the country.
The bill will require visa applicants to identify a specific health insurance plan that they have purchased, and the date coverage begins. Consular officers may also ask for additional information.
“Reasonably foreseeable” has not, to date, been defined.
The health plan may not be subsidized, and if you have a temporary health plan it must last for 364 days. Under the new rules, Medicaid is also ineligible. An employer-based health plan does count, which may allow some family members to gain insurance through loved ones who are already in the United States legally.
Finding an insurer who will help is difficult. Many won’t insure someone who doesn’t have a social security number. Costs are exorbitant, and the system is difficult to navigate.
The bill doesn’t cover certain immigration classes. These are:
If you have a visa that was issued prior to November 3rd you won’t have to meet these requirements, but you may have to keep them in mind when your visa is up for renewal.
If you are trying to join family members in the United States you may wish to reschedule your visa interview. This may buy you some time, either for clarifications to the monetary requirement, or for legal challenges to get through the courts.
The policy is already facing challenges in the courts and pushback from advocacy groups. Seven U.S. citizens and a non-profit organization have already filed suit in the United States District Court, District of Oregon.
This may also buy you time to find suitable health insurance which meets the requirements, which may be possible with a little bit of digging.
Finally, this may allow you to work with your attorney to see if you can accomplish immigration through a different status, one that remains unburdened by this health insurance issue.
See also:
Three Legal Wins for Immigration
In the News: Alarming Changes to Medical Deferred Action Program
What Happens When You Lose Your Job on an H1-B Visa?
The Supreme Court will hear whether asylum seekers have the legal right to challenge their expedited removal proceedings in federal courts. Expedited removal proceedings allow immigration authorities to remove someone without any immigration hearing before any judge. The hearings will be scheduled early next year, and we can expect to see a ruling by July.
The case is a Trump Administration appeal case. In the case Thuraissigiam v. USDHS, The 9th U.S. Court of Circuit Appeals has already ruled that the Constitution guarantees asylum seekers a “meaningful opportunity” to show the criteria are met. Thuraissigiam was seeking asylum from racial persecution in Sri Lanka. According to the asylum officer and a federal judge, he did not meet asylum criteria. He was subject to expedited removal, which he challenged with a petition of habeas corpus.
Habeas corpus means “you have the body.” It is used to challenge any unlawful detainment or restriction. A habeas petition alleges the filer was subject to detainment or restriction in violation of Constitutional law, rather than state law or even federal criminal or immigration statutes.
A lower court dismissed Thuraissigiam’s habeas petition.
Expedited removal orders typically come after an immigration judge has determined an asylum-seeker does not qualify for asylum. They can also happen if you’re caught within 100 miles of a land border within 14 days of arrival.
Last month, the Trump Administration did its best to expand when and how expedited removal orders may be used. The Trump Administration wished to include undocumented immigrants anywhere in the US who can’t prove they’ve lived in the US continuously for two years or more. That particular case is unrelated to the current matter under appeal.
It seems unlikely that this administration will stop looking for ways to get more immigrants out of the country faster.
The Human Rights Watch notes the US Government passed the Refugee Act of 1980 in order to bring the nation into compliance with the Refugee Convention and Protocol, and that the US is obligated not to return someone to a country where there are substantial grounds for believing they would not be subjected to torture as a signatorty to the Convention Against Torture.
“Human Rights Watch has found that under expedited removal, as previously applied at the border, US immigration officials have failed to properly identify asylum seekers and have therefore violated its international human rights obligations.” –HRW.Org
Many asylum speakers report they’re never referred for a credible fear interview.
See also:
Three Legal Wins for Immigration
Supreme Court Temporarily Upholds New Asylum Rule
What are the Grounds for Cancellation of Renewal?
It’s hard to be an immigration attorney without noticing all the bad news. It’s been a tough series of years for immigrants, with a current administration who seems intent on making it even tougher.
Nevertheless, there is reason to take heart.
Three separate pieces of Trump Administration immigration policy were blocked by significant legal challenges this week.
The Trump Administration wanted to give ICE the authority to simply deport anyone who is in the country illegally and who has been here for less than two years. A federal judge blocked this effort.
Thus, you are still entitled to a full deportation hearing in front of a judge if you are eligible for removal. Just remember a hearing before a judge is generally minimally effective if you don’t have a qualified immigration attorney on your side.
U.S. District Court Judge Andre Birrote Jr. issued a permanent injunction against this practice. ICE may no longer rely on databases alone to issue detainers, requests made to police agencies meant to keep people who have been arrested in custody for two days beyond the time they normally could have been held.
These detainers made it easier for ICE to launch and conduct the deportation process. The Hon. Birrote found massive flaws in the databases and in the process. Officers will now have to provide justifications other than the information in the database.
There are exceptions. In states where state law authorizes civil immigration arrests on detainers ICE will be able to proceed as before. In Pennsylvania, ICE requests for detainer are treated more like requests, not demands, and many counties have stopped using them altogether. In some cases, law enforcement may be held liable for honoring ICE requests; most choose not to take the risk.
Under the 1997 Flores agreement, the government is obligated to release detained children as quickly as possible. They are barred from holding children more than 20 days, regardless of who they traveled with.
The agreement also requires the government to provide immigrant children with a minimum standard of care. This includes edible food, clean water, soap, and toothpaste.
The Trump Administration wished to remove these protections, a move a federal judge blocked.
Don’t let a little good news make you complacent.
You need expert immigration help to stay in this country, and sometimes even to avoid criminal prosecution.
Hykel Law can help. Contact us today for a thorough case review.
Things have gotten harder for immigrants who wish to claim asylum in the United States. While the Supreme Court’s action is a provisional one, it has nevertheless ensured that thousands of desperate migrants will find it all but impossible to move forward.
The rule prevents migrants who have resided in or traveled through third countries from seeking asylum in the United States. The only exception is for individuals who applied for and were denied asylum in these other countries.
The Trump Administration claims they are doing this to prevent “forum shopping.” They want migrants to seek asylum in the countries they pass through, rather than in the United States.
They have made their provisional action without allowing the entire matter to move through lower courts. This means the Supreme Court could hear the case again. The “queue jumping” itself is a matter for some concern.
The rule isn’t the only challenge asylum seekers are facing.
For example, the Migration Protection Protocols are creating more hurdles than ever. These protocols force people to wait in Mexico for their asylum court dates. This means they must cross over the border before going to their hearings. Often, these border towns leave them at the mercy of local drug cartels.
At times, border agents will detain them and force them to miss said hearings. Unless they have a lawyer who can fight to keep the case open again, these individuals are then deported for missing their court date, through no fault of their own. The courts themselves can hardly tell the difference between migrants who are detained through no fault of their own, and migrants who have simply given up and returned home.
Migrants are also being presented with a great deal of misinformation. Sometimes, they aren’t getting vital documents at all.
“Some migrants have turned up in court to find that their cases are not in the system or that the information on them is wrong…others have received conflicting instructions…In open court, judges have raised concerns that migrants in Mexico, often with no permanent addresses, cannot be properly notified of their hearings. On many documents the address listed is simply the city and state in Mexico to which the migrant has been returned.” –NBC News
If you have friends or relatives who plan to ask for asylum it’s a good idea to make them aware of these rules. You should also encourage them to approach legal ports of entry to ask, rather than crossing the border illegally and surrendering to border patrol agents.
If a migrant enters legally they have a much better chance of passing their “credible fear” interview.
You also should see about getting them help from a qualified immigration attorney before they begin their journey.
See also:
Avoid These 3 Green Card Sponsorship Mistakes
What Are the Grounds for Cancellation of Removal?
Alarming Changes to Medical Deferred Action Program
The medical deferred action program is a program which allows immigrants with severe medical conditions like cancer or cystic fibrosis to remain in the United States for two year grace-periods. It was never an easy program to gain protection under, but it has been a life-saver for some thousand immigrants who have needed it.
And while it has not formally ended, new policies have vastly complicated the receipt of this kind of relief because USCIS is no longer processing the applications. ICE is.
USCIS alarmed hundreds of immigrants by sending out letters denying their medical deferred action requests. The letters failed to notify immigrants that ICE now handles these requests.
They threatened immigrants with legal consequences if they did not leave the country in 33 days.
The Trump administration did nothing to announce this change. The media recently got wind of it and investigated.
The change affects all applications, including pending applications and new ones.
This change is alarming for several reasons. First, ICE is tasked with removing immigrants, not with helping them. Second, there have been no announcements pertaining to the procedure ICE wants immigrants to use, which opens the door for them to deny applications on obscure procedural grounds.
This is why some activists have suggested that the real purpose of the shift is to end the program. ICE claims they will, “review each case on its own merits and will exercise appropriate discretion after reviewing all the facts involved.”
This shift doesn’t affect DACA deferrals or other deferred action requests.
Even if you’ve received one of these denial letters, there are still cancellation of removal defenses you can take advantage of. You’ll need an experienced immigration attorney to help.
Getting approval under this program was always difficult. It may even be wiser to switch your focus, attempting to get your status settled under a program that’s a little more stable.
The one thing you don’t want to do is ignore the problem, or panic.
Activists are already fighting the change. 19 states are already suing the administration over this move, and federal judges have certainly blocked many of Trump’s other immigration moves. There is reason for hope.
But it’s important to make sure you’re personally taken care of in the short term while the legal battle plays out in the long term.
See also:
What Are the Grounds For Cancellation of Removal?
H-1B visas require sponsorship from a company with whom you share a verifiable employer-employee relationship. And while you do not immediately pass out of status when that relationship ends, things can get a little complicated.
Here’s what you need to know.
If an American employee is entitled to severance pay after being laid off or fired, then you are, too. Understanding what your American colleagues should receive after losing their job may give you vital resources to manage while you’re trying to navigate both your status and your finances.
Just keep in mind that all H-1B employment is “at-will,” and certain employers don’t provide benefits to any employee in the event of a layoff or termination, regardless of that employee’s country of origin.
Meanwhile, your former employer must immediately notify USCIS that you’re no longer working for them.
If they can’t find an employer, many H1-B holders choose to pursue student visas. However, it may not be necessary.
If you’re here on one of the more than 70% of all H-1B visas going to the tech sector, then you may find plenty of employers hungry to snap you up. And while they must file a form, you can usually start working for them before USCIS approves the transfer. Which is good, because delays are exceedingly common.
Waiting to leave could be a bad idea if you don’t have a game plan. While you’re still in status, you can get your employer to pay the costs of your plane ticket.
And since accruing up to 180 days of illegal residency can bar you from re-entering the states for 3 years, or 365 for ten, it may be a good idea to head home while you continue to wrestle with your status.
The actions of temporary companies are fueling a great deal of the pushback surrounding H-1B visas. Often, they bring workers in and then don’t place them on job sites for weeks.
As a result, requests for evidence making it clear that a job is waiting every day that the visa is valid are piling up. And if you’ve been working for one of these companies, you’re out of status every day that they don’t put you on a job site. This can cause problems when it’s time to renew. You may want to seek legal help now.
Even practically perfect applications are seeing lots of denials. Employers who try to fill out their own forms exacerbate the problem.
Whether you’re acting as a sponsor or the sponsored, it is not a good idea to go it alone. Transfer, new application, or renewal, it hardly matters: USCIS officials are looking for any reason to deny your application. Working with a good immigration lawyer can help tip the odds back in your favor.
See also:
The Line for Immigration Grows Longer, and Longer
Avoid These 3 Green Card Sponsorship Mistakes
If you’re not a legal permanent resident (LPR) of the United States, and you’ve been served with a Notice to Appear at a deportation hearing, then cancellation of removal is one of the avenues you and your immigration lawyer might be able to use to keep you in the country.
It is not a defense that applies to everyone. You must meet some fairly stringent requirements.
First, let’s talk about the most common form, known as a Non-LPR Cancellation of Removal.
This defense could work for you if:
See also: What You Need to Know About Good Moral Character in Your Immigration Case.
It can’t work for you if:
You will need to provide evidence that you meet all the criteria. For example, you’ll need to bring things like leases, medical records, and affidavits from friends and family members to show that you’ve been in the country for the requisite ten years.
Usually proving continuous presence isn’t the hard part, though. It can take a very skilled attorney to demonstrate undue hardship. There are pitfalls worked into the application process itself, such as answering the question of whether your loved one would come with you if you are deported. Sometimes there is no good answer to this question, as it could hurt you either way. You need someone who can help you develop a strategy, and who can help you make a good case for the answer you choose.
Gaining protection under the Violence Against Women Act (VAWA) is a little easier, if you qualify. If you have been the victim of domestic violence, you could be eligible if:
To use this defense, you will first have to prove that you were a victim of domestic violence. Then, you’ll have to establish that you’ve met all the other requirements. As with standard LPR cancellation of removal defenses, you’ll need expert help to do this, especially as this form of relief is discretionary, which means a judge does not have to grant the cancellation of removal even if you do meet the requirements.
If you don’t qualify for either form of cancellation take heart; there may still be things we can do to keep you in the country. For example, victims of domestic violence may be able to qualify for other forms of relief which would allow them to apply for a VAWA visa.
See also: What to Do if DACA Ends.
If you do qualify for one of these two forms of relief, you’ll be allowed to stay in the country…and you’ll receive a green card of your own, transforming you into an LPR.
We look forward to helping you with your immigration case. We have the experience, knowledge and staff to handle your matter swiftly. Reach out today to discuss your needs for representation.