News

The Biden administration’s appeal of a lower court order to continue accepting new Deferred Action for Childhood Arrivals (DACA) applications has been refused. The lower court order stopped the government from accepting new applications for DACA while a replacement rule is put in place.

The administration claims a stay is needed in order to finalize the details of a new program that will supersede the original DACA program, first introduced in 2012. The replacement program, the administration claims, will affect how the appeal is resolved in the future and as such, the stay is required. A circuit judge declined the request, with no explanation.

Over 9,000 additional diversity visas must be issued by the State Department prior to October 2022. A federal judge set the date as a fair balance between the dates requested by the 2020 diversity visa lottery winners and the State Department’s requested timeline. With the October 2022 deadline, the State Department will need to process just under 1,000 additional 202 diversity visas per day.

An August ruling from the same federal judge stated the State Department illegally used a Trump administration policy to stop processing diversity visas in 2020. At that time, the judge did not set a deadline for the State Department. Rather, he urged the parties to work together to come to a mutual agreement. However, when the parties could not reach a date, the judge stepped back in and set the date. 

Restrictions limiting entry to the U.S. via land borders to the north and south, specifically Canada and Mexico, will be lifted for fully vaccinated foreign nationals in early November 2021. The restrictions have been in place since March 2020 to limit the spread of COVID-19. In an announcement from the U.S. Department of Homeland Security (DHS), travelers from Mexico and Canada who are fully vaccinated will be allowed to enter the U.S. for non-essential purposes, including tourism, via both land and sea.

The bill introduces legislation that may require law enforcement officials to obtain a search warrant prior to device search at the border. The bill, called ‘Protecting Data at the Border Act’ is meant to limit authorities from searching phones, laptops, and any other device without a proper legal basis.

The bill requires officials to have a warrant based on probable cause before accessing a personal device. It also limits the detention of individuals at the border if they don’t share their passwords, PINs, or other device information. Emergency situations are exempt, of course, and allow for warrantless search if the threat of serious injury or acts that threaten national security are present.

DHS announced new guidelines in the enforcement of immigration priorities for removable noncitizens. Officers must take into account the full facts about an individual before deciding if removal is the best course of action. This guidance helps to focus DHS limited resources on those removable noncitizens who pose a potential threat to the U.S.

DACA, or Deferred Action for Childhood Arrivals, has faced countless challenges since its initial passage in 2012. After a decade of uncertainty for DACA recipients, the Biden Administration appears to be following through on its promise to provide more stability for these Dreamers.

In July, a Texas district court judge ruled that DACA is illegal and ordered USCIS to halt processing new DACA applications; the Biden Administration appealed the ruling to the Fifth Circuit.

This week, the Biden Administration filed a motion for the Fifth Circuit Court of Appeals to suspend the appeal in light of the new Notice of Public Rulemaking (NPRM) published in September. The motion argues that the NPRM when completed, would result in a final rule largely eliminating the underlying concerns of the Texas court’s determination. As such, proceeding with the appeal now would be a waste of time and resources, and it would render the Texas ruling moot.  

A federal judge agreed with a lawsuit claiming it is illegal of stopping issuing visas due to travel bans. The ruling states it is unlawful for the State Department to use travel bans as the basis for not processing visas for travelers who are otherwise eligible.

Travel bans have been in place, and are ongoing for most of the world, for travel to the U.S. due to the Covid pandemic. These bans limit solely non-citizens from entering the U.S., with some exceptions like the National Interest Exemption (NIE) and a few others. Those with lawful permanent residence status have travel capabilities.

The Biden administration has been ordered to save 7,395 diversity visas past their original expiration date with instructions to hold them for a specific group of lottery winners. These diversity visa winners have been awaiting processing.

The Washington D.C. federal judge stated the Covid-19 pandemic was only partly to blame for visa processing delays. As such, the judge stated court intervention was required. Diversity visas were not processed for approximately five months and the ‘unlawful deprioritizing’ of processing after adjudications resumed is grounds for the court action.

The reserved visas can only be issued to any of the 24,000 lottery winners and their families who filed lawsuits against the White House for eliminating their ability to be processed. Originally, there were four separate lawsuits, which were consolidated.

Today, the House voted to approve a stopgap funding measure, with hours to spare before federal agencies would be affected. The resolution is expected to be signed by President Biden before the midnight deadline. The stopgap efforts fund the government and its agencies through December 3, 2021. The bill also includes $28.6 billion for those affected by natural disasters over the past year and a half and $6.3 billion for Afghan refugees, to support their resettlement. Another $2.5 billion is for the care and shelter of undocumented migrant children who crossed the border alone, while the U.S. government considers their status.

FY2022 budgets have not been approved. More than a dozen fiscal 2022 appropriation bills will need to be addressed prior to December 3, 2021, to avoid another potential shutdown. Republicans oppose funding increases that are weighted to nondefense programs. Wrapped up in these budgets are potential updates to the immigration system.

Nearly 200 Indian and Chinese nonimmigrant workers filed a lawsuit in August 2021 seeking a preliminary injunction to force USCIS to take action on their pending I-485 applications by September 30, the end of the government’s fiscal year. As of October 1, the unused green cards from the 2021 fiscal year will expire, unless USCIS approves the pending I-485 applications before that time or takes action to roll over this year’s unused green cards into the 2022 fiscal year. The pending lawsuit seeks to compel agency action to resolve this issue.

However, on Monday, USCIS argued that it is not the court’s place to resolve the processing delays, but rather Congress’ responsibility.  USCIS explained that only Congress can reserve the available employment-based green cards and roll them over into the next fiscal year.