Wrap Up 2020
2020 was a long and difficult year for everybody, especially for the immigrant community, of course. First, we discuss policies that have impacted immigrants and the immigrant community specifically related to your cases in the last year. Then we look at what to expect in 2021 with the new administration.
What was MPP? When was it implemented? What is the status of that?
The Trump administration has been attempting to chip away at the asylum process. Since World War II, we've had a structured system in place for asylum seekers. Trump repeatedly tried to remove eligibility for asylum seekers. In particular, those from El Salvador, Honduras and Guatemala had their eligibility stripped. Such was the case of the family separations that happened in 2018. That was a result of them not processing asylum seekers who were coming to the bridge to ask for asylum, which was the way asylum had been processed in the country for almost 70 years. We've had a real systematic procedure in place since 1980.
In '96 the credible fear interview was implemented. Those decades-long established procedures for how to ask for asylum have been upended by the Trump administration, starting with blocking people at the border from even applying for asylum, then prosecuting people who entered without inspection and using those prosecutions as an excuse to tear apart families. Once that ended, then the administration implemented the MPP, which stands for Migrant Protection Protocol. This program sends asylum seekers to Mexico. They are asylum seekers from countries that are Spanish speaking countries who come and ask for asylum and are sent back to Mexico. Tens of thousands of migrants seeking protection have been living in Mexico. Many of them stay in makeshift refugee tent camps along the border. They're really distressing places to witness.
It is absolutely shocking to see the way that people were living. In refugee camps abroad, there's support from the United Nations and from the Red Cross, there's school available for children, fresh water, housing, food and medical care. At the makeshift refugee camps for the people in the MPP program, there is no NGO or governmental support in the same way that there is in a typical refugee camp. Many amazing volunteers arrive to support the migrants, but not on an institutional level like what we see in the refugee camps.
This program it's still in place, unfortunately. This is one of the things that we hope will change soon, but currently we still have tens of thousands of migrants in the MPP program in Mexico who are waiting for their hearings in these camps and almost all of the hearings have been postponed due to COVID.
We'll see what happens when and if Biden rules back MPP.
Returning to our previous asylum system is an easy thing, but it begs the question, what do we do with the tens of thousands of migrants who weren't allowed to process under our established system? We’ll keep you posted as soon as these changes start.
COVID closures. How did those affect any pending applications, biometrics appointments, interviews, all of that?
COVID closures continue to have an impact. All of the U.S. embassies and consulates abroad shut down on March 18th, 2020 and we're still waiting for them to reopen. Ciudad Juárez just recently reopened, which is the consulate that processes all of the immigrant visas in Mexico. It just now reopened and began rescheduling appointments that were canceled in March. This is a ten month backlog of cases of people who already got their I-130 approval, who already submitted all their documents to the National Visa Center, who are now awaiting their interview. Those cases are just getting started again.
All of the U.S. embassies and consulates abroad are reopening and rescheduling missed appointments, and it remains to be seen how much of a delay on the current cases there will be. The good news is that COVID closures allow USCIS to focus more on the administrative processing of the cases.
Cases that get approved are adjudicated by mail and some cases are sped up, but most did not see a slowdown except for the ones that were impacted by Trump's political opinions of the program, like some of the humanitarian cases.
Work permits will continue to process. Biometrics appointments that were closed are back on track again. For a while we saw a complete closure for interviews related to green cards and citizenship cases. Those have been reopened for a few months on a limited and more cautious basis. Green card interviews have restarted and we've seen lots of our clients get their green cards and many with citizenship cases have been able to attend their oath ceremonies.
Court cases continue to be impacted by COVID closures. The court system has ballooned out of control. It was already overburdened pre COVID with almost one million cases in the system. Now we're over 1.2 million cases. Some courts are still not conducting in-person master calendar hearings. The only cases that are continuing right now are detained cases.
If you are renewing an application and you have had a biometrics interview previously, it will be waived now. Be on the lookout for the biometrics notice that says that you're not required to show up for the biometrics interview.
DACA and TPS. Where do they currently stand and what changes we want to see when Biden takes office?
It's been a roller coaster for the Dreamers and for TPS holders for a long time.
Although TPS and DACA follow a very similar trajectory, DACA is a Deferred Action for Childhood Arrivals. It's the work permit program for the Dreamers. You have to have entered before age 16. Today you have to be less than 39 years of age and you have to either be studying for your GED or have graduated high school in the United States. You must have entered before 2007.
Trump tried to cancel the program, then there was litigation, then there was an injunction on the cancellation. This past summer the Supreme Court ordered that the way in which the Trump administration canceled the program was unlawful. The Trump administration did not follow the court's order. After a subsequent series of federal court orders that became increasingly explicit, DHS finally published a notice on their website that they will accept DACA, including initial applications, advanced parole applications, and all renewals will apply for two years. Hopefully Biden expands DACA to include older people or people who entered post 2007 because those cutoffs exclude a lot of people who would otherwise be eligible as Dreamers.
TPS stands for Temporary Protected Status. This program is for people who come from a country that has some sort of infrastructure collapse like a hurricane or a plague like Ebola, for example. People from those countries are already in the United States when disaster occurs in their country, and they cannot return because the infrastructure has collapsed in their home country.
The temporary protected status provides a work permit for them. TPS holders have been renewing their work permits, paying their taxes, raising children in the United States, buying homes, working for U.S. employers, and have really established a long life and roots in the United States. Trump also canceled this program. That cancellation also came under injunction. The courts finally allowed the cancellation, but a new regulation has been issued that automatically extends work permits for people from Honduras, San Salvador, Nicaragua, Nepal and Sudan automatically through October of 2021. Biden has said he will review this program, so we may see an extension beyond October.
What about the applications that are pending with immigration?
Under the Trump administration, processing times doubled or worse. Previously, it took three months to process a work permit. Now it's six months. A green card was processed in six months. Now it's one year. Citizenship cases used to process within six months. Now it's one year. VAWAs, T visas, U visas -- you name it -- any petition filed with immigration has an increasingly longer processing time. This is because it is an executive agency, which means the leader of the U.S. Citizenship and Immigration Services (USCIS) is the president.
Without leadership to pressure the agency and the local field officers to increase their processing times, they slow down, slash the resources, and don't focus on processing times. As a result, the processing times double, and that's been a persistent pain point for our clients throughout the Trump administration.
Lives get put on hold waiting for these immigration benefits. Doubling the processing time has a significant impact on the lives of immigrants and their families. Hopefully, this will change and improve under President Biden, although his administration has made no indication of speeding up processing times thus far.
The public charge
In February of 2020, the Trump administration implemented the public charge rule. The public charge rule is a very limited rule that applies to people who apply for a green card through a family member, where usually they just need a sponsor. The family member must prove they earn over the poverty guidelines. If they do not earn over the poverty guidelines, then they need a joint sponsor.
The Trump administration created the false narrative that immigrants are siphoning public benefits, which isn't actually true because people without green cards don't qualify for federal public benefits anyway.
The public charge rule says that any applicant for a green card has to submit the I-944. They have to show their credit score, other debts, their assets, etc. It's almost as if you're applying for a mortgage.
Think of all the documents and stuff you have to prove when you're buying a house. That is basically the process for a green card application through marriage. It's not part of a humanitarian case like a U-Visa, a T-Visa, a VAWA, SIJ or asylum. It's not part of a citizenship case. It’s only for family-based immigration green card cases.
Public benefits that your child has received do not impact the case. U.S. citizen kids can always and should always get the benefits that they qualify for. This includes food assistance and medical insurance for your children. Do not cancel benefits for your kids because of some amorphous public charge fear. Call us if you are scared about this and you want to be more calm or talk about it. Please don't cancel benefits for your U.S. citizen kids, because they need these benefits, especially during a pandemic when a lot of people are out of work and the kids need food and medical care.
Biden’s First 100 days Plan
This is Joe Biden's immigration plan straight from his website. In his first 100 days, the Biden administration will:
- Immediately reverse the cruel and senseless policies that separate parents from their children at our border, which is not happening on a broad basis like it was in the summer of 2018, but it still happens on a case by case basis.
- End Trump's detrimental asylum policies and restore our asylum laws so that they will do what they should be designed to do, which is to protect people fleeing from persecution.
- End the MPP program. This is about tens of thousands of people who have been kept out of the country. Trump's policy of metering limited the number of asylum applications accepted each day and sent people back to Mexico, which made these migrants vulnerable to cartel violence in Mexico.
The plan is to send humanitarian resources to the border and foster public private initiatives. When all these migrants start their asylum process, they will need shelters and all sorts of assistance. Those needs are best met through a network of organizations, such as faith-based shelters, NGOs, local nonprofits and refugee assistance agencies. All these agencies will be called upon to help the migrants who will be processed in at the border.
- End prolonged detention and re-invest in a case management program. We have a private prison system in the United States where immigrants are held in private prisons that enriches shareholders by the prolonged and indefinite detention of immigrants. It's one of the biggest problems in our immigration system.
The case management program is for migrants who are released from detention. Instead of being in jail, they are assigned a case manager who helps them understand various things, such as: how to update your address with the court, how to show up to your ICE check-ins, what are your duties and responsibilities when you're preparing for your hearing, etc. These are things that people want to comply with; they just don't know how. Approximately 90% plus of immigrants who did not show up for their court hearing didn't know that they had to or didn't know when it was or where it was because the system is really complicated.
- Reverse the public charge rule.
- End the so-called national emergency that siphons federal dollars from the department of defense to build a wall.
- Protect Dreamers and their families. Remove the uncertainty for Dreamers by reinstating the program and explore all legal options to protect their families. Ensure that they're eligible for federal student loans.
- Resind the un-American travel and refugee ban also known as the Muslim ban, which was done on Biden’s first day on the job!
- Order an immediate review of the temporary protected status program.
- Restore sensible enforcement priorities. During Trump’s administration every undocumented immigrant was a priority for deportation. These are people who don't have criminal histories, and they've lived in the U.S. for a long time. They have established jobs, employers who rely on them and U.S. citizen kids. Under Obama, someone who fit that category of a person who was apprehended for some non-violent criminal incident, was not placed into removal proceedings. There were ways that we could request prosecutorial discretion, administratively close their case and not move forward with the deportation. This is what has led to overburden the court system more than anything else: the failure to exercise prosecutorial discretion by the Department of Homeland Security under Trump.
- Ensure that ICE and CBP abide by professional standards and are held accountable for inhumane treatment. The stories we have heard about border patrol agents and the way that they treat migrants, as if they just don't view them as humans, must stop.
- Protect and expand opportunities for people who are in military service.
- Restore and defend the naturalization process for green card holders.
- Revitalize the task force on new Americans.
- Boost our economy by prioritizing immigrant entrepreneurship, increasing access to language instruction.
- Convene a regional meeting of leaders including from El Salvador, Guatemala, Honduras, Mexico, and Canada, to address the factors driving migration and to propose regional settlements with them. It's no secret that people flee the Northern triangle of Central America because of gang violence. Most of these migrants don't actually want to leave all their lives and their homes and their families behind. The plan is to go to the source of the problem and help figure out what we can do to help our neighboring countries stabilize so that the migrants don't have to flee.
All of this is executive action, which is what a president can do on his own.
However there is all sorts of immigration reform that is going to require action from Congress:
- Create a roadmap to citizenship for the 11 million undocumented people who have lived here for decades.
- Reform the temporary visa program
- Reform the visa system - H-1B, H-2B, etc.
Many positive changes are coming our way!
It's going to be up to the advocacy community and the immigrant community jointly to hold the Biden administration accountable for what they've put on their website.
We want to see these changes happen. We want to see expansion for the Dreamers. We want to see something for the parents of the Dreamers. We want to see the TPS expansion, the revocation of the MPP program, the revocation of public charge, and a decrease in processing times. We want to see our new and existing immigrants treated with the respect and the dignity that they deserve. We want to acknowledge that this nation, unlike any other country in the whole globe, is a nation of immigrants.
A lot of people worked very hard to get Biden into office. Now we have to hold him accountable to what he promised us, especially if it's in writing.
Documentation for immigrants
What type of documentation does an immigrant need when they’re ready to apply for adjustment of status after being in the country for decades? What documents do you need to enter?
If you came to the country legally with a visa, you need proof of that entry to later adjust your status. If you don't have a copy, do a FOIA to get a copy of your entry documents so that you have that at the ready, because that's almost always going to be necessary.
If you do have a copy of your passport or your visa, take a picture of everything, so you have it saved digitally in case you lose it. Original documents are rarely necessary. Anytime you have an important document, take a picture of it and save it for your files.
Another requirement is proof of physical presence documents that are always useful for DACA cases or for cancellation of cases that show that you're in the U.S.. Official documentation or receipts like lease contracts, mortgage, bank statements, medical treatment, vaccinations, dental treatment, credit card payments, cell phone payments, tax returns, 1099s, W-2s can all be used as proof of physical presence. Keep any official documentation that shows a date and your name in a folder. Other useful documents include: Identity documents, birth certificates, passport, etc.
Make sure that they are valid and up to date. Check in with your consulate and renew those documents if needed.
Anyone who's been in the U.S. for longer than two years has the absolute right to go before an immigration judge and defend yourself against deportation, to ask for release from detention on bond and to defend your deportation under a number of different defenses like cancellation of removal or asylum or VAWA or certain waivers.
Deportation defense is a large and complex world, and only the judge can order you deported if you've been here longer than two years. I.C.E. officers tend to threaten and force people to sign a deportation, but you can still defend yourself against the deportation. Remember that I.C.E. officers are not your attorney or your friend.
Remember to stay strong. Don't talk about your case. Don't sign anything! Call us, call your consulate, and let us help you decide what your best options are. Don't decide at the moment when the I.C.E. officer is there telling you that a deportation is the best thing for you.
Hopefully, under the Biden administration, we’ll see a return to sensible enforcement priorities. This will protect people who don't have criminal histories and have been here for a long time from the deportation process under the new enforcement priority memo.
For any questions regarding the information in this article, please call or text 512-599-8500.