All posts by Cheng, Cho, & Yee, Immigration Lawyers

Improving Transparency in the US Immigration System

Advocates of immigrants in the U.S. are arguing that there needs to be more transparency in the country’s immigration system. The current system offers limited transparency that doesn’t enable everyone to access crucial information when they need it.

The Importance of Transparency in Immigration

Today, the Freedom of Information Act (FOIA) allows any individual to access any type of non-exempt record from the federal government. This act is vital for maintaining government accountability, but it’s currently imperfect and doesn’t offer the highest level of transparency needed in immigration processes.

Immigration agencies, including immigration enforcement agencies such as U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), have impacted immigrants and their families in many ways. However, the extent of their operations is still unclear because of the limited access to these agencies’ records. 

The insufficient transparency has also allowed for the extent of certain changes under the Trump administration to remain opaque. Under the previous administration, attacks on the asylum system and the deconstruction of immigration courts took place, both of which were veiled in secrecy. 

Violating the FOIA When Attempting to Access Information

The secrecy of immigration agencies doesn’t fall under the responsibility of any presidential administration. Instead, it is the result of agencies’ repeated violations of the FOIA.

Specifically, agencies have arguably violated the FOIA by failing to respond in a timely manner to requests for records. This has, in turn, resulted in violations of individuals’ rights under the act, oftentimes leading these individuals to turn to the federal court system to avoid deportation.

A growing number of agencies, including the Department of Homeland Security (DHS), are seeing legal repercussions because of their FOIA violations. They’re also failing to provide information that should be readily available to the public under the FOIA, in some cases even destroying certain records.

How Transparency Could Be Improved

There are several ways in which officials could improve the transparency of immigration agencies and compliance with the FOIA. 

One step could entail developing a system that allows for first-person requests, which would enable immigrants to access personal records pertaining to them without the need to go through the FOIA process. Additionally, resources should be available to help agencies meet certain obligations under the FOIA, such as government funds that could support various FOIA programs.

Taking these and other steps would help make sure that agencies remain more transparent and provide additional protections for immigrants.

Was Your H-1B Petition Denied Based on Unlawful Policies?

H1B visa page on passport

If an H-1B petition was denied because of unlawful policies, it may be possible to resubmit it for consideration as policies are updated.

H1B visa page on passport sitting on a calendar denied because of unlawful policies.

In 2020 and 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded three written policies following the federal courts finding that they were unlawful. The following are some details about the courts’ findings and USCIS’s decision to rescind the unlawful memoranda.

Challenging the USCIS’s Decisions

The USCIS may have denied certain H-1B visas based on unlawful policies that have since been rescinded. In the H-1B visa category, noncitizens are required to have highly specialized knowledge, which they could have obtained either through a bachelor’s degree or a higher degree within a “specific specialty” or equivalent.

Within the last year, USCIS has rescinded three unlawful memoranda, rescinding the first two in June 2020 and another in February 2021. Then, on March 12, 2021, USCIS put a procedure into place that would enable some people whose H-1B visas were previously denied to resubmit them for review and approval.

In addition to the federal courts’ determination, an appellate court also rejected USCIS’s refusal to consider the position of “computer programmer” a specialty occupation in December 2020. The case involved a computer programmer whose H-1B petition was denied, which the Ninth Circuit U.S. Court of Appeals overturned.

The appellate court discovered that while USCIS claimed that computer programmers are capable of entering the occupation with an associate or a bachelor’s degree, the Department of Labor’s Occupational Outlook Handbook (OOH) stated that “most computer programmers have a bachelor’s degree in computer science or a related field.” Ultimately, the OOH argued that a majority of computer programmers require a bachelor’s degree to gain employment.

The case pertaining to the computer programmer occupation resulted in the February rescinding of the USCIS’s 2017 computer programmers policy memo.

Requirements for Getting an H-1B Visa Denial Reversed

Although USCIS announced in March that it would enable companies to reverse H-1B petition denials based on unlawful policies, there are certain steps that these companies will need to take. They will first need to file a motion that costs $675 in filing fees. The denied petition is also required to have sufficient time to allow the noncitizen employee to work for the company if approved. If companies meet these requirements, they may be able to have their previously denied business visas reviewed and approved.

What the Dream Act of 2021 Could Mean for You

The Dream Act of 2021 is intended to provide protections for immigrants who arrived in the U.S. as children and still risk deportation. 20 years after the inception of the first Dream Act, this newer version would further support younger immigrants still trying to gain a stronger foothold in the country.

The Progression of the Dream Act

In 2001, the initial Development, Relief, and Education for Alien Minors (DREAM) Act came to pass. Following the introduction of the Dream Act, many younger undocumented immigrants became known as “Dreamers,” who faced deportation despite entering the country as children. Since then, the bill has undergone certain changes with new versions introduced over the last 20 years. Specifically, since the start of the Dream Act, 11 new versions have been drafted.

The primary goal of every version of the Dream Act has been to provide Dreamers with a chance to gain legal status as citizens of the U.S. Even though every version of the bill has seen bipartisan support, with up to 152 co-sponsors in the House and 48 in the Senate, the bill has yet to become law. 

The last time the bill nearly became law was when it passed the House in 2010, but the Senate support was 60 votes below the amount needed to pass it into law. However, the latest versions could travel farther.

What the New Versions Aim to Achieve

As of 2021, there are a couple of new iterations of the Dream Act undergoing review. These include the Dream and Promise Act of 2021 (H.R. 6), which includes a version of the Dream Act among other legislation, and the Dream Act of 2021, referred to as S. 264. Both bills intend to provide a clear path to citizenship for aspiring Dreamers. Additionally, H.. 6 would provide a path to citizenship for people on the Deferred Enforced Departure (DED) and Temporary Protected Status (TPS) programs.

Representative Lucille Roybal-Allard introduced the Dream and Promise Act of 2021 to the House on March 3, while Senators Lindsey Graham and Dick Durbin introduced the Dream Act of 2021 to the Senate on February 4.

How the Dream Act of 2021 Would Work

Both H.R. 6 and S. 264 versions of the Dream Act of 2021 would give younger undocumented immigrants the chance to gain citizenship in the U.S., including current, future, and former undocumented GED recipients and high school graduates.

To achieve this, the Dream Act of 2021 would use a process consisting of three main steps, including:

1. Conditional Permanent Residence

Under the Dream Act, Dreamers would be able to achieve conditional permanent resident (CPR) status. This includes the ability to legally work in the country.

To qualify, individuals will need to have Deferred Action for Childhood Arrivals (DACA) or meet other requirements. These requirements include having entered the country as a child, not having a criminal history with convictions for certain crimes, not having participated in persecuting another person, and having gained entry into a higher education institution or received a high school diploma or GED. Regarding the last requirement, individuals may also qualify for CPR if they are currently enrolled in a program or secondary school with the goal of obtaining a diploma or GED.

The Secretary of the Department of Homeland Security also has the ability to waiver specific types of criminal offenses for either family unity, humanitarian purposes, or another reason that serves the public’s best interests.

2. Lawful Permanent Residence

After obtaining CPR status, individuals may be able to qualify for lawful permanent residence (LPR) if they receive a degree from a higher education institution, complete a minimum of two years of military service without dishonorable discharge, or work for a minimum of three years with employment authorization for 75% of the time. Individuals with disabilities or who face serious hardships if deported may qualify for a “hardship waiver” if they don’t meet those requirements.

3. Naturalization

If an individual can retain LPR status for five years, he or she may be able to officially gain citizenship via naturalization.

Helping Millions of Undocumented Immigrants

If the new Dream Act of 2021 comes to pass, it could help millions of younger immigrants who would otherwise remain at risk of deportation. A total of around two million Dreamers may qualify for CPR with the help of S. 264, with approximately 1.7 million of them able to maintain this status and gain LPR status. Around one million additional Dreamers may qualify for CPR status with enrollment in an educational institution.

H.R. 6 would help an additional three million qualifying Dreamers who may be able to obtain CPR status.

While it’s unclear whether the new Dream Act of 2021 will become law, it’s another progressive step in immigration reform that could help many immigrants and their families.

President Biden Lifts Green Card Freeze

President Joe Biden recently lifted a green card freeze in February that carried over from the Trump administration. The ban affected thousands of immigrants and was responsible for blocking most legal immigration to the U.S.

Preventing Immigrants from Entering Throughout the Pandemic

Last spring, the Trump administration put a freeze on green card issuance, which would continue through to the end of the year. The objective was to help preserve American jobs that would otherwise struggle during the pandemic, a similar reason to those that the administration previously discussed as a pretext for other policies blocking immigration.

By the end of the year, the administration put an extension on the ban to keep it in place until March 2021. Prior to the scheduled end of the freeze, Biden announced that the ban went against the interests of the country and moved to lift it.

The freeze affected many immigrants in different situations. Not only did U.S. businesses suffer from the inability to bring in immigrant workers, but many immigrant families were unable to reunite, and thousands of immigrants who won the visa lottery out of 14 million applicants were also unable to enter the country. If immigrants wished to bring their families to the U.S., the only way they could do so would be to have already gained citizenship and either sponsored children under the age of 21 or sponsored their spouses.

Lifting the Ban

Despite the ability for temporary foreign workers to enter the country when a federal judge permitted their entry, Proclamation 10014 still kept many immigrants from gaining entry. While Biden had quickly lifted the travel ban that the Trump administration had put in place in 2020, many immigrants in the affected countries were still unable to enter despite possessing valid green cards. However, several days after a court order issued a hold for thousands of visa-holders who had won the visa lottery, the Biden administration lifted the ban to allow those individuals to gain entry.

Working to Avoid Future Freezes

Following the recent release of the green card freeze, Biden has proposed legislation that would help prevent similar presidential bans in the future. The legislation, if put into action, would help ensure that immigrants wouldn’t have to experience the same issues under other administrations.

Amendments to Welcoming City Ordinance Add Protections for Chicago Immigrants

The new Chicago Welcoming City Ordinance adds certain amendments to further protect Chicago immigrants’ due-process rights. Mayor Lori Lightfoot recently signed the new ordinance, which will provide immigrants with further protection. The amendments come following controversies surrounding Trump-era policies that immigrant advocates hope to phase out.

The Risks of ICE Raids

Chicago has garnered a reputation in recent years as a “Sanctuary City.” Despite this, Federal Immigration and Customs Enforcement (ICE) agents have conducted raids throughout the city, which have negatively affected many immigrant residents in Chicago. The Trump administration was largely responsible for the policies leading up to ICE raids.

ICE raids have impacted immigrants in many cities across the country, along with “zero-tolerance” border enforcement policies that have led to the separation of families at the border. Many of these raids have also contributed to the problem of family separations in cities like Chicago, largely because undocumented immigrants are subject to deportation before being able to prove their innocence.

How the Changes to the Ordinance Will Help Protect Against Deportation

Mayor Lightfoot officially signed the new ordinance in February, providing immigrants with the protection of their due-process rights along with other added legal protections. According to the Chicago Welcoming City Ordinance, police forces are not permitted to arrest residents based solely on immigrant status. The ordinance also dictates that the Chicago Police Department cannot aid in ICE raids or other types of federal immigration enforcement. Additionally, city agencies are no longer able to request, share, or maintain information about an individual’s immigration status.

Human rights groups and immigrants alike have championed the new “Welcoming City” ordinance as a victory for immigrant communities, following the Trump administration’s controversial policies. While the new amendments to the ordinance are intended to protect immigrants, they can also help Chicago police by encouraging immigrant residents to fear the police less, which may lead them to provide police with information regarding other investigations.

Through the implementation of the updated ordinance, both immigrants and local law enforcement will benefit. In the process, immigrants and their families may be able to avert some of the issues resulting from ICE raids and other enforcement policies, while Chicago police benefit from improved relationships with the city’s immigrant communities.