Immigration Update: September/October 2021

On August 3, 2021, DHS published a Federal Register notice announcing extensions of the registration periods from 180 days to 18 months for initial (new) applicants for TPS under the designations of Venezuela and Burma, and the redesignation of Syria.

Extending the registration period does not extend or alter the expiration date of an applicant’s TPS, which remains the same regardless of the registration date. In addition, this extended registration period is in keeping with the humanitarian purpose of TPS and advances the actions outlined in President Biden’s Executive Order 14012.

On August 5, 2021, USCIS announced updated policy guidance affecting children born outside the United States and the determination of whether children born through assisted reproductive technology (ART) are considered to have been born “in wedlock.” This will allow a non-genetic, non-gestational legal parent of a child to transmit U.S. citizenship to the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth, and the relevant jurisdiction recognizes both parents as the child’s legal parents. This change matches the May 2021 update issued by the Department of State.

Under the statute, a child born outside the United States to one or both U.S. citizen parents may acquire U.S. citizenship at birth if certain criteria are met. Both the State Department and USCIS play a role in issuing proof of a child’s U.S. citizenship. The State Department can issue to such a child born overseas either or both a U.S. passport or a Consular Report of Birth Abroad. USCIS can issue an N-600, Certificate of Citizenship, as proof that the child is a U.S. citizen. The ability of the U.S. citizen parent or parents to transmit citizenship to their child born overseas depends on various factors, including the parent or parents’ length of residency in the United States, the length and timing of that residency, and whether the child was born in wedlock or out of wedlock.

The newly updated USCIS guidance now explains that a child is considered born in wedlock “when the child’s legal parents are married to one another at the time of birth and at least one of the legal parents has a genetic or gestational relationship with the child. This guidance will also be applied to the family-based petitions for determining whether a child is born in wedlock. Previously, USCIS required that the child’s genetic parents (or the legal gestational parent and one of the genetic parents) be married to one another for a child to be considered born in wedlock.

The Department of Homeland Security (DHS) and Department of Justice (DOJ) published a notice of proposed rulemaking (NPRM) that would amend current regulations to improve the processing of asylum claims.  The proposed rule would allow, U.S. Citizenship and Immigration Services (USCIS) asylum officers to hear and decide applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection for individuals who receive a positive credible fear determination.  These cases are currently assigned to immigration judges within DOJ’s Executive Office for Immigration Review.

Under the proposed process, an individual who establishes a credible fear of removal will be referred to a USCIS asylum officer for a hearing on the protection claims.  The asylum officer will be authorized to adjudicate in the first instance requests for asylum, as well as eligibility for statutory withholding of removal or for withholding or deferral of removal under the Convention Against Torture.  In a denied case, the individual may request de novo administrative review by an immigration judge under a streamlined process, with further administrative appeal available through the Board of Immigration Appeals.

The rule also proposes a revision to the criteria applicable to grants of parole prior to the credible fear determination.  The proposal would allow DHS to grant parole when “detention is unavailable or impracticable,” in addition to the existing criteria involving medical emergencies and law enforcement objectives.

The rule would apply to individuals who are placed into the expedited removal process on or after the effective date of the final rule.  The rule would not apply to unaccompanied children or to individuals already residing in the United States.

U.S. Citizenship and Immigration Services reached a settlement agreement in the case of Vangala et al. v. USCIS et al., No. 4:20-cv-08143(N.D. Cal.) (PDF, 499.84 KB). The agreement allows certain individuals to receive updated receipt dates for resubmitted immigration benefit applications or petitions originally rejected under the former “No Blank Space” rejection policy. Under this former policy, USCIS rejected filings with any blank fields or spaces.

Individuals whose forms were rejected under the former policy may resubmit their request on or before July 20, 2022, to obtain an updated receipt reflecting the date their rejected request was originally filed.

DHS published an Advance Notice of Proposed Rulemaking (ANPRM) to solicit data and information from the public, including from state, territorial, local and tribal agencies that administer public benefits programs, and from nonprofit organizations. The ANPRM identifies key considerations associated with the public charge ground of inadmissibility. These considerations include how DHS should define the term “public charge,” which public benefits DHS should consider relevant to the public charge inadmissibility determination, and how DHS should assess the mandatory statutory factors when determining whether a noncitizen is likely to become a public charge. The public comment period is open for 60 days, beginning Monday, Aug. 23, 2021, and closing Oct. 22, 2021.

Under the Immigration and Nationality Act, a noncitizen who is likely to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. The ANPRM does not change how USCIS makes public charge inadmissibility determinations. Until DHS completes the rulemaking process and implements new regulations, USCIS will continue to apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. Under this guidance, USCIS does not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program benefits and other nutrition assistance as part of the public charge inadmissibility determination. Vaccinations or medical treatment for COVID-19 also are not considered for public charge purposes.

On September 9, 2021, DHS announced the automatic extension of TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. TPS beneficiaries from these six countries will retain their status, provided they continue to meet all the individual requirements for TPS eligibility. The automatic extension of TPS-related documentation includes Employment Authorization Documents (EADs) through Dec. 31, 2022.

Eligible individuals whose TPS under the Haiti designation is presently continued by court orders and this notice are strongly encouraged to apply for Haiti TPS under the recently announced new designation. This will ensure their TPS will continue if the courts end their injunctions. In addition, eligible individuals who do not apply for the new Haiti TPS designation during the initial registration period may be prohibited from filing a late initial registration during any subsequent extension of the designation if they do not meet certain conditions.This extension ensures continued compliance with various court orders issued by federal district courts in the Ramos, Bhattarai, and Saget lawsuits.

In July 2021, U.S. District Court Judge Andrew Hanen in State of Texas et al. v. U.S. et al. ruled that DACA was illegal. Judge Hanen, recognizing the substantial reliance interests involved, allowed current DACA beneficiaries to continue to review their statuses (at least while appeals were pending), but has prevented the approval of any new DACA applications.

To overcome the argument that DACA was illegal because it was created by President Barack Obama by a memorandum, the Biden Administration proposed a new DACA rule whereby recreating the program through the rulemaking process, including a 60-day comment period. The proposed rules do not change the eligibility criteria for the DACA program or make major substantive changes. If enacted, the rules would decouple work authorization for individuals from protection against deportation so applicants could choose to seek one without also having to apply for the other. This change would ensure that even if future legal action strikes down the work authorization component of the program, recipients still could benefit from deferred deportation protections.

On September 24, 2021, Biden Administration announced that International travelers subject to the CDC travel restrictions will soon be able to resume travel to the U.S. without applying for an exemption. The current travel restrictions apply to certain travelers from China, Iran, the European Schengen Area (most of the EU), the United Kingdom, Republic of Ireland, Brazil, South Africa, and India, and prohibit a foreign national who does not qualify for an exemption from traveling to the U.S. if they have been physically present in one of the designated countries 14 days in advance of their arrival to the U.S.. These restrictions will be rescinded and replaced by new travel restrictions based on individual vaccination status.

As of October 4, 2021, the White House has not released an official policy document regarding the new vaccination policy.

On September 14, 2021, USCIS announced that effective October 1, 2021, applicants subject to the immigration medical examination must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record.

In general, individuals applying to become a lawful permanent resident, and other applicants as deemed necessary, must undergo an immigration medical examination to show they are free from any conditions that would render them inadmissible under the health-related grounds. USCIS designates eligible physicians as civil surgeons to perform this immigration medical examination for applicants within the United States and to document the results of the immigration medical examination on Form I-693.

DHS and the U.S. Immigration and Customs Enforcement (ICE) announced they have again extended flexibility relating to in-person Form I-9 compliance. This flexibility allows employers whose workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. The policy applies only to employers and workplaces that are working remotely. If there are employees physically present at the work location, no exceptions are being made for the in-person verification process.

On September 30, 2021, DHS Secretary Alejandro N. Mayorkas issued a  permanent immigration enforcement priorities memo that will supersede the interim priorities memo from earlier this year.  The memo does, at least make clear that “the fact that an individual is a removal noncitizen….. should not alone be the basis of an enforcement action” to better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat. Note that, although the new memo does say it abrogates the interim memo, it does not abrogate ICE’s “victim-centered approach” memo.  The new memo takes effect on November 29. 

On September 9, 2021, a federal judge in Huisha-Huisha v. Mayorkas, DC issued a preliminary injunction against Title 42 as applied to family units. Under the accompanying order the government may not apply Title 42 to “noncitizens” who (i) are or will be in the U.S,” and “(ii) come to the US as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian”.  

The policy, often referred to as the “Title 42 Policy,” expels adults, children, and families seeking U.S. protection en masse, denying them any chance to present their case to an immigration judge. While the Trump administration insisted that closing the borders to asylum seekers is necessary to control the COVID-19 pandemic, medical and public health experts have repeatedly debunked such claims as baseless. 

The government appealed the initial injunction, and  on September 30, 2021, the DC Circuit ordered a stay of the preliminary injunction pending appeal, which will allow the government to continue to enforce Title 42 against families with children.