The Return of Domestic Violence Asylum

In 2014, the Board of Immigration Appeals (BIA) issued the decision Matter of A-R-C-G-, which opened a new avenue for asylum seekers. Specifically, the BIA held that, depending on the facts of a case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for purposes of asylum. The reasoning in this case also allowed women from other countries in abusive relationships to apply for asylum as long as they met the standards set in Matter of A-R-C-G- and its subsequent cases. 

In 2018, former Attorney General Jeff Sessions overruled Matter of A-R-C-G- and its subsequent cases in a decision called Matter of A-B-. In this case, the former Attorney General did not just overrule Matter of A-R-C-G-, which allowed domestic violence survivors from certain societies to apply for asylum, he made it more difficult for anyone being persecuted by a private actor to have a successful claim of asylum. 

In June of 2021, current Attorney General, Merrick Garland, overruled Matter of A-B- and restored an applicant’s ability to pursue asylum based on domestic violence in certain circumstances. The government is currently in the process of formulating official rules regarding domestic violence asylum. However, until those rules are drafted, published, and adopted, domestic violence asylum cases will be decided under the framework in Matter of A-R-C-G- and its subsequent cases. This is a win for asylum seekers and survivors of domestic violence that hopefully represents what will be a continued stark departure from the former administration’s relentless assault on the asylum process. 

**This article is meant for general informational purposes only. Asylum is a complicated area of immigration law and we highly recommend seeking legal counsel to evaluate your asylum claim.**

What is Happening with DACA?

If you are confused as to the state of the DACA program, you are not alone. It feels like there are never ending court decisions and headlines and they are all contradictory. Recently, the Supreme Court held that the Trump Administration’s termination of the DACA program was not lawful. However, the Supreme Court did not rule on the legality of the program. 

On July 16, 2021, a federal judge in Texas ruled that the DACA program is unlawful and ordered U.S. Citizenship and Immigration Services (USCIS) to stop granting initial DACA applications. The order does not impact renewal applications. That leaves the question, what is the current state of the DACA program? 

As of the date of this article, USCIS is accepting initial and renewal applications. However, USCIS can only grant renewal applications. USCIS will also continue to accept and, in some cases, grant applications for advance parole for people who have been granted DACA. The Biden Administration issued a statement confirming they will appeal the ruling of the District Court in Texas.  

Important Updates to USCIS Policy

USCIS recently announced several policy updates aimed at improving immigration services. These changes impact requests for expedited processing, the validity period for certain employment authorization documents, also known as “work permits,” and the issuance of Requests for Evidence and Notices of Intent to Deny. 

Requests for Expedited Processing

USCIS reinstated its policy of allowing nonprofits whose request is in furtherance of cultural and social interests of the U.S. to request expedited processing for benefits even if the application is eligible for premium processing. USCIS also clarified the circumstances under which work permits can be expedited based on severe financial loss to a person or company. USCIS clarified that job loss can be sufficient to show severe financial loss to an applicant or company based on the individual circumstances. 

Validity Period for Certain Work Permits

Certain applicants for adjustment of status are eligible to receive a work permit while applications to adjust status are pending. Prior to the new policy guidance, the work permit would be valid for only one year. USCIS will now issue those work permits with a validity period of two years. 

Requests for Evidence and Notices of Intent to Deny

USCIS announced that they are once again following the policy guidance from their June of 2013 memo when adjudicating applications for benefits. Under this memo, if an application is submitted that is missing evidence that could demonstrate eligibility, the proper course of action is for USCIS to issue a Request for Evidence or Notice of Intent to Deny and give the applicant time to submit the requested evidence or correct a deficiency in the application. In July of 2018, the Trump Administration rescinded the June 2013 memo and empowered officers to simply deny applications instead of issuing a Request for Evidence or Notice of Intent to Deny. This caused harm to applicants who submitted applications that omitted documentation or information through an innocent mistake. USCIS rescinded the July 2018 memo and will, once again, be following the June 2013 memo. 

New COVID-19 Testing Requirement For All Travelers Returning from Abroad

As of January 26, 2021, all travelers, including U.S. citizens and lawful permanent residents, will be required to get tested for COVID-19 no more than three days before entering the U.S. from a  foreign country and show a negative test result. Alternatively, if a passenger has been infected with and recovered from COVID-19, that passenger must show documentation confirming a positive test result and a letter from a health care provider confirming recovery and fitness to fly. This documentation is referred to as “Documentation of Recovery.” 

With limited exemptions, this new requirement applies to all passengers, regardless of immigration status, who are entering the U.S. after travel to any foreign country. If you are traveling using a negative test result taken within three days preceding your departure, the test result must read as follow: “NEGATIVE,” “SARS-CoV 2 RNA NOT DETECTED,” “SARS-CoV-2 ANTIGEN NOT DETECTED,” or “COVID-19 NOT DETECTED.” A test marked as “invalid” will not be acceptable. 

If you have any questions about these new travel requirements, please contact us. 

Social Security Number No Longer Required to Obtain an Oregon Driver License

The Oregon Legislature recently passed House Bill 2015, which went into effect on January 1, 2021. This is the bill that allows Oregonians to obtain a valid license without showing proof of lawful status in the U.S. The biggest benefit of this bill is that now Oregonians will be able to obtain a license without presenting a social security number. 

If you do not have a social security number, you can now apply for a license by making an appointment with the DMV and presenting the following: 

1. Your application; 

2. Proof of your full, legal name and identity; 

3. Proof of your date of birth; 

4. Proof of Oregon residency; and 

5. A signed statement confirming that you have not been assigned a social security number. 

For a complete list of required documents, please visit the Oregon DMV’s website at www.oregon.gov/odot/dmv. Some applicants have reported that the DMV is requiring a statement from the Social Security Administration that they have not been assigned a social security number. This requirement does not appear in the requirements listed on the DMV’s website, which provide that, if an applicant does not have a social security number, they must sign a statement confirming that they have not been assigned a number. However, if you would like an official statement that you have not been assigned a social security number, you can contact the social security administration. We can also provide you with a letter outlining the requirements of HB 2015 that you can present to the DMV when you apply for a license.  

Keep in mind that if you obtain a license under HB 2015, this will not be a REAL ID Act compliant license. This means that beginning on October 1, 2021, you will not be able to use this license to enter a secure federal building or board a domestic flight. 

If you have any questions about obtaining an Oregon license, please contact us.

Proposed Affidavit of Support Rule Places Heavy Burden on Sponsors

On October 3, 2020, USCIS announced its intention to amend the rules relating to the I-864, Affidavit of Support. This new rule would make it more difficult for petitioning sponsors to establish they meet the requirements to serve as what is commonly referred to as a “financial sponsor.” It will also make it more difficult for petitioning sponsors to locate eligible joint sponsors. Under the current rules, a financial sponsor must meet meet the following requirements and submit the following documents: 

1. The sponsor’s income must be at or above 125% of the federal poverty guidelines; 

2. The sponsor must submit their Federal Form 1040 (Tax Return), along with W-2s and 1099s, for the most recent tax year and disclose their adjusted gross income from the prior two tax years; 

3. Pay stubs from the most recent six months or bank accounts showing income from the most six months if self-employed; and

4. Proof of status in the U.S.

The new proposed rules will impose heavy documentary requirements on sponsors. Under the new rule, sponsors would have to submit extensive documentation, including credit reports, credit scores, tax returns for three years, and extensive banking records. New requirements include, but are not limited to, the following: 

1. Requiring a joint sponsor if the petitioning sponsor received any kind of means tested benefit with the 36 months preceding the application. This would apply even if the petitioning sponsor now makes well over the federal poverty guidelines. For example, if someone received means tested benefits three years before petitioning for a relative but then had two steady years of income well above the federal poverty guidelines, the petitioner would still need a joint sponsor. In this scenario, a joint sponsor would be required even if a petitioning sponsor made over one million dollars a year for the two years preceding the application; 

2. All sponsors would be required to submit a full three years of tax returns or tax transcripts and W-2s and 1099s; 

3. The new rule would limit who can serve as a “household member” for purposes of establishing total household income. DHS is proposing limiting who can be a household member for purposes of total income to spouses of sponsors and, in certain circumstances, the intending immigration. For example, if a mother petitioned for a child and the the petitioning mother and sponsored child also live with an adult sibling, the sibling would no longer be able to serve as a household member for purposes of total income; 

4. Requiring sponsors and household members to submit credit scores and reports; 

5. Require banking information for sponsors and household members; and 

6. DHS would like to lift the requirement that USCIS would need to receive a subpoena from an outside agency before providing an outside agency with a certified copy of the Affidavit of Support. Under the new rule, DHS could provide an outside agency with a full copy of the affidavit and all supporting documents upon a “formal request.” 

In the proposed rule, the government claims that, currently very little is currently required for a sponsor or joint sponsor to show their income is sufficient to sponsor an immigrant. However, as you can see by the requirements listed above in the first enumerated list, this is not correct. Under the current rules, a sponsor must submit a complete copy of their most recent Federal Form 1040 and all supporting schedules, all W-2s and W-9s for the most recent tax year, and six months worth of pay stubs. In situations where applicants need a joint sponsor, the primary complaint we hear is that the potential joint sponsor does not want to disclose so much financial information to the government. By imposing requirements that sponsors submit banking records, credit reports, etc., the administration will make it even more difficult to find a qualified joint sponsor. 

This rule appears to be another attempt to quell lawful immigration without going through Congress for comprehensive immigration reform. If you have questions about how these new rules could impact your case, please contact us.