This was a particularly consequential week for immigration practice, with two new presidential orders, an important USCIS adjudication-policy change, and a new State Department public-charge procedure.
USCIS says cases may be denied without first issuing an RFE or NOID. On August 5, USCIS issued new evidentiary guidance emphasizing that applicants and petitioners must establish eligibility at the time of filing. USCIS says an officer may deny a benefit request without first issuing a Request for Evidence or Notice of Intent to Deny when required initial evidence is missing or the filing does not establish eligibility.
State Department launches a public-charge bond pilot for immigrant visa applicants. On August 5, the U.S. Department of State announced a new procedure allowing consular officers to require certain immigrant visa applicants found inadmissible under INA § 212(a)(4) to obtain a public-charge bond through USCIS. If the bond is approved, the consular officer may issue a visa previously refused on public-charge grounds if the applicant is otherwise eligible. The program currently applies only to selected cases; applicants should not independently file for a bond unless instructed to do so by a consular officer.
President Trump issues a new executive order targeting “birth tourism.” On August 6, President Donald Trump signed an executive order directing State and DHS to take additional action against people who enter or attempt to enter the United States on nonimmigrant visas for the purpose of giving birth here. The order contemplates visa denial or revocation, denial of entry or removal, and potentially permanent entry bars, as well as action against businesses and individuals facilitating such travel.
A second executive order attempts to further restrict birthright citizenship. Also on August 6, the President issued another order directing federal agencies not to recognize citizenship in several specified circumstances when neither parent is a U.S. citizen. Among the categories listed are certain children of foreign-government employees and children whose parents allegedly engaged in commercial transactions intended to obtain birthright citizenship. Agencies have been directed to issue implementation guidance within 30 days.
New lawsuit challenges accelerated removal of unaccompanied children pursuing immigration relief. A federal lawsuit filed on behalf of immigrant children and a legal-services organization alleges that immigration courts are accelerating juvenile cases and ordering some children removed while they are pursuing relief such as Special Immigrant Juvenile classification or T nonimmigrant status. The complaint alleges that some children with viable or already-approved immigration relief have not been given sufficient time for USCIS processing before removal proceedings conclude. These are allegations in pending litigation, not yet judicial findings.
Comment period closes on DHS proposal restricting discretionary EADs. August 4 was the deadline for comments on DHS’s proposed rule that would narrow discretionary employment authorization for certain parolees, deferred-action recipients, and people with final removal orders who have been released under orders of supervision. The proposal would also create a more restrictive discretionary framework for certain applicants with arrests, admissions, or convictions.
