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NEW USCIS POLICY: MEDICAL EXAMINATION MUST BE FILED WITH FORM I-485 APPLICATION FOR ADJUSTMENT OF STATUS

Posted on by newyorkvisalawyer_o0id8f

USCIS is now requiring that the Form I-693 Medical Examination & Vaccination Record be submitted with the I-485 Application for Adjustment of Status to Legal Permanent Resident. Rather than issue an RFE for the Form I-693 Medical Examination, USCIS may reject the I-485 Application if it is filed without a medical.

It is important to comply with this new policy to avoid delays in the processing of your Form I-485 Application for Adjustment of Status. You should make sure to check the Checklist of Required Initial Evidence for Immediate Relatives and Family-Based Preference Form I-485 Applicants prior to filing to confirm you have enclosed all of the required initial evidence to avoid delays in the processing of your application.

Additional information on the immigration benefits that require an immigration medical examination and vaccinations, and whether a civil surgeon or panel physician should conduct the immigration medical examination is available in Vol. 8, Part B, Chapter 3 – Applicability of Medical Examination and Vaccination Requirement of the USCIS Policy Manual.

MORE INFORMATION ABOUT FORM I-693, MEDICAL EXAMINATION & VACCINATION RECORD

▶ What information is needed ◀
▶ Who can complete it ◀
▶ How to find a Designated Civil Surgeon in the area ◀
▶ What are the vaccination requirements ◀

Learn More
Don’t trust the squid doctors!

USCIS RELEASES AN UPDATED EDITION OF Form N-648, Medical Certification for Disability Exceptions

Posted on by Joseph Caraccio

Starting January 6, 2025, we will accept only the 09/25/24 edition. Until then, you can also use the 08/19/22 edition.

If you are submitting a Form N-648 to USCIS make sure you provide your doctor with the 9/25/24 edition of the form.

What is the Form N-648 for?

The Form N-648 is a form you have a doctor complete if you are applying for U.S. citizenship and need to request an exception to the English and civics testing requirements because of physical or developmental disability or mental impairment. Read more about this in our article about Naturalization Exam Exemptions.

How do I Determine the Form Edition?

You can find the edition date at the bottom of the page on the form and instructions. Note that, dates are listed in mm/dd/yy format.

You should always get USCIS Forms directly from USCIS so you can be sure you have the most up-to-date edition of the form. You can find all USCIS Forms on their website at uscis.gov.

THE NEW 9/25/24 EDITION

FORM N-648

What Else Should I Know?

If you complete and print this or any other USCIS form to mail it in, make sure that the form edition date and page numbers are visible at the bottom of all pages and that all pages are from the same form edition. If any of the form’s pages are missing or are from a different form edition, USCIS will reject your form.

J.O.P. v. DHS CLASS ACTION LAWSUIT SETTLEMENT

Posted on by newyorkvisalawyer_o0id8f

J.O.P. v. DHS is a class action lawsuit that was filed in federal court in Maryland in July 2019. Can it be helpful for you? I don’t know but you can read the information below and find out for yourself.

How do I know if I am part of the class?

You are part of the Class covered by the Settlement Agreement (“Class Member”) if, on or before February 24, 2025, you 

(1) were determined to be an Unaccompanied Child; 

(2) filed an asylum application that was pending with USCIS; 

(3) on the date you filed your asylum application with USCIS, you were 18 years of age or older, or you had a parent or legal guardian in the United States who is available to provide care and physical custody; and 

(4) have not received an adjudication from USCIS on the merits of your asylum application.

IMPORTANT: Some individuals who were previously determined to be Unaccompanied Children but have not yet filed for asylum with USCIS can become Class Members if they file an asylum application with USCIS on or before February 24, 2025, and meet the other requirements described above.

Where can I get more information? 

A. By visiting this web page: https://nipnlg.org/work/litigation/jop-v-dhs or here.

B. By accessing the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.mdd.uscourts.gov/cgi-bin/iquery.pl; 

C. By visiting the Clerk’s Office of either the Baltimore or Greenbelt federal courthouses during business hours; or 

D. By contacting Class Counsel at the following mail or email addresses: DG-JOPClassCounsel@goodwinlaw.com.
 

More Info

SEEKING ASYLUM BASED ON MEMBERSHIP IN A PARTICULAR SOCIAL GROUP

Posted on by Joseph Caraccio

Seeking Asylum in the US Based on Membership in a Particular Social Group

The United States offers asylum to individuals who have suffered persecution or have a well-founded fear of persecution in their home country only if the past persecution or future persecution that they fear is based on their race, religion, nationality, political opinion, or membership in a particular social group. While the first four categories are defined terms most people are familiar with, particular social group is less so. Here we will discuss seeking asylum based on that final category, membership in a particular social group, a complex and often misunderstood aspect of asylum law.  

Defining “Particular Social Group”

The term “particular social group” (PSG) is not explicitly defined in U.S. immigration law, leading to varied interpretations by asylum officers and immigration judges. However, a PSG is generally understood as a group of people who share a common immutable characteristic that is so fundamental to their identities that they cannot or should not be expected to change it. This characteristic might be something innate, like gender or sexual orientation, or it could be based on a shared past experience, such as former gang membership or military service.  

The Board of Immigration Appeals (BIA) has further refined the definition of a PSG by adding the requirements of “social visibility” and “particularity.” Social visibility means that the PSG is perceived as a group within society, while particularity requires that the group has distinct boundaries, making it possible to determine who is a member. These additions are relevant to asylum seekers as they provide a clearer framework for establishing a cognizable social group.  

A landmark case in defining particular social groups is Matter of Acosta. In this case, the BIA held that a PSG must share common immutable and/or fundamental traits, such as sex, color, kinship ties, or shared past experiences like former military leadership or land ownership. This case set a precedent for asylum claims based on PSG and established the importance of immutability and social distinction in defining a PSG.  

A PSG must also be:

  • Socially distinct: The group must be perceived as a distinct group within the society in question.  
  • Defined with particularity: The group must have clear boundaries so that decision-makers can determine who is a member.  

It’s important to highlight that membership in a PSG does not need to be voluntary, and members of the group do not need to know each other. This clarifies a common misconception about PSGs and broadens the scope of who might be eligible for asylum based on this ground.  

Broadly speaking, a PSG is typically composed of people who share similar backgrounds, social status, lineage, experiences, or habits. There is no size requirement for a PSG, but extremely small or large groups may face challenges in meeting the criteria.  

Recognized Social Groups

To qualify for asylum, applicants must establish that they fear persecution based on one of five enumerated grounds, including membership in a “particular social group.” A social group is broadly based on similar backgrounds, social statuses, lineages, habits, and experiences. While the definition of a PSG is subject to interpretation, the U.S. government has recognized various social groups as potential grounds for asylum. These include:  

  • Tribes or ethnic groups
  • Social classes (e.g., educated elites)
  • Family members of dissidents
  • Occupational groups
  • LGBTI persons or those perceived as such
  • Child soldiers
  • Members or former members of the police or military
  • Disabled persons
  • Women facing gender-based persecution  

It’s important to note that even if an individual is mistakenly perceived as a member of a PSG and persecuted because of that, they may still be eligible to claim asylum.  

Process for Applying for Asylum

There are three ways a person may apply for asylum in the United States: affirmatively, defensively, and through a new process established in 2022 known as the Asylum Processing Rule.  

Affirmative Asylum: This process is for individuals who are not in removal proceedings. To apply, you must be physically present in the United States and file Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival. There are some exceptions to the one-year filing deadline.  

Defensive Asylum: This process is for individuals who are in removal proceedings. You would apply for asylum as a defense against deportation.

Asylum Processing Rule: This new rule provides an expedited process for some individuals arriving at the border. It combines elements of both affirmative and defensive asylum processes.

To be eligible for asylum, you must meet the definition of a refugee under the Immigration and Naturalization Act. This means having a fear of persecution due to your race, religion, nationality, political opinion, or membership in a particular social group.  

In all three processes, you will need to prove that you meet the definition of a refugee, meaning you have suffered past persecution or have a well-founded fear of future persecution based on one of the five protected grounds, including membership in a PSG. According to the U.S. Code, a refugee is someone who has suffered persecution in the past or has a well-founded fear of persecution in the future on account of race, religion, nationality, membership in a particular social group, or political opinion.  

To establish a well-founded fear of persecution, you must demonstrate that:

  • You have a fear of persecution in your home country on account of one of the five protected grounds.
  • There is a reasonable possibility of suffering such persecution if you were to return to that country.  

Evidence Required to Support an Asylum Claim

The burden of proof is on the applicant to establish that they are a refugee. This means asylum seekers must provide sufficient evidence to support their claim and demonstrate the legitimacy of their fear of persecution. To support your asylum claim based on membership in a PSG, you will need to provide evidence demonstrating that:  

  1. You are a member of a PSG: This involves providing evidence that you share a common immutable characteristic with others in the group, that the group is socially distinct within your society, and that the group is defined with particularity. You may need to provide evidence of your membership in the group, such as identity documents, testimonies from other members, or expert opinions.
  2. You have suffered persecution or have a well-founded fear of persecution: Persecution is defined as serious harm or the threat of serious harm, which can include physical violence, torture, imprisonment, or severe economic deprivation. You can provide evidence of past persecution through personal testimony, medical records, police reports, or country condition reports documenting a pattern of persecution against your social group. To demonstrate a well-founded fear of future persecution, you need to show that there is a reasonable possibility of suffering persecution if you were to return to your home country. This can be supported by evidence of ongoing persecution against your social group, threats you have received, or your personal circumstances that make you particularly vulnerable to persecution.
  3. The persecution was “on account of” your membership in the PSG: This means establishing a causal link between your membership in the PSG and the persecution you suffered or fear. You need to demonstrate that the persecutor was motivated to harm you because of your membership in the social group. This can be challenging to prove, but evidence such as the persecutor’s statements, discriminatory laws or policies targeting your group, or a pattern of persecution against members of your group can help establish this connection.

This evidence may include:

  • Your personal testimony
  • Affidavits from witnesses or experts
  • Country condition reports
  • Medical records
  • Police reports
  • News articles
  • Other documentation that supports your claim  

It’s crucial to gather as much evidence as possible to corroborate your claim and demonstrate the legitimacy of your fear of persecution.

Legal Resources and Organizations

Several organizations provide legal assistance and resources to asylum seekers in the United States. These include:

  • Refugee Council USA (RCUSA): A coalition of nonprofit organizations that advocate for refugee rights.  
  • UNHCR: The UN Refugee Agency provides resources and guidance on asylum claims.  
  • Asylum Advocacy: Offers resources and a community for asylum seekers.  
  • HIAS: Provides legal and humanitarian assistance to refugees and asylum seekers.  
  • International Rescue Committee (IRC): Offers support to refugees in the U.S., including resettlement assistance.  
  • Office of Refugee Resettlement (ORR): This office within the U.S. Department of Health and Human Services provides benefits and services to asylees, such as cash assistance, health insurance, and food assistance.  

These organizations can provide valuable information, legal representation, and support throughout the asylum process.

Conclusion

Seeking asylum in the United States based on membership in a particular social group can be a complex and challenging process, especially in light of recent rulings and changes in asylum law that have made it more difficult for some applicants to qualify. This is why you absolutely shouldn’t try to apply on your own without consulting a qualified immigration lawyer.

Understanding the definition of a PSG, the required evidence, and the available resources is crucial for a successful claim. The burden of proof rests on the applicant, meaning asylum seekers must provide sufficient evidence to support their claim and demonstrate a well-founded fear of persecution. Given the complexities and evolving legal landscape surrounding asylum claims based on membership in a particular social group, it is highly recommended to seek legal assistance from an experienced immigration attorney to navigate this process effectively.

The statistics show that applicants who have a lawyer are significantly more likely to be granted asylum than those who attempt pro se (without legal representation).

USCIS UPDATES POLICY MANUAL GUIDANCE FOR T VISAS

Posted on by Joseph Caraccio

USCIS UPDATES POLICY MANUAL GUIDANCE FOR T VISAS

USCIS has revised its guidance in the USCIS Policy Manual to align with the Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status Final Rule.

This rule was published in the Federal Register on April 30, 2024. USCIS’ updated policy guidance is effective immediately and applies generally to all applications pending or applications filed after August 28, 2024 (The bona fide determination process generally applies to applications filed on or after August 28, 2024 only). No provision of the rule applies to an applicant who filed before Aug. 28, 2024, if it would make an applicant who was eligible under the previous regulations, ineligible.

About T Nonimmigrant Status

T nonimmigrant status (commonly referred to as a T visa) allows certain victims of “a severe form of trafficking in persons” to remain in the United States temporarily f they complied with any reasonable request for assistance from law enforcement in connection to the investigation and prosecution of the trafficking. Under federal law, a “severe form of trafficking in persons” is considered to be sex trafficking or labor trafficking where someone recruits or harbors a person for labor or services using force, fraud, or coercion for the purposes of involuntary servitude.

Congress created T status in October 2000 as part of the Victims of Trafficking and Violence Protection Act. Victims must show they assisted law enforcement, that they are physically present in the US, and that they would suffer extreme hardship involving unusual and severe harm if they were to be removed from the US. It is not an immigration benefit that is commonly utilized. In 2023 USCIS received a total of 8,598 applications and approved only 2,181 (denying 635 and the rest remaining unadjudicated)1. This is the most T Visa applications ever received and most approved in a single year.

By statute, no more than 5,000 principal T visas may be
granted in any fiscal year. See INA § 214(o)(2); 8 U.S.C. 1184(o)(2)

T nonimmigrant status affords victims of a severe form of trafficking in persons the ability to remain in the United States for an initial period of up to 4 years if they complied with law enforcement. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (get a Green Card) after a period of time.

More information about what qualifies as severe trafficking in persons is available on the USCIS website. A T Visa Law Enforcement Resource Guide is available as a PDF from the USCIS as well as more information about the benefits of T nonimmigrant status.

Bona Fide Determinations

The bona fide determination is something that USCIS had already been doing in similar U Nonimmigrant Status (U Visa) cases. USCIS issues a notice stating that although they are unable to adjudicate the application at present time due to limitations on the number of visas that may be issued each year, the Service will acknowledge that the application filed and supporting documents show that the applicant has a bona fide case (it appears to be valid under the law or it is in accordance with legal regulations).

Once deemed bona fide, the applicant may obtain an employment authorization document (EAD or work permit) under category (c)(40) and USCIS will consider whether to grant the applicant deferred action and an employment authorization document while the T nonimmigrant status application is pending. A Form I-765 Application for Employment Authorization can be submitted with a Form I-914 Application for T Nonimmigrant Status. USCIS recommends that Applicants submit the Form I-765 with the Form I-914 in the new policy guidance.

Specific Policy Guidance

Specific Policy Guidance Updates:

  • Emphasizes and expands on the “any credible evidence” provision and its applicability to applications for T nonimmigrant status;
  • Emphasizes a victim-centered and trauma-informed approach to adjudicating applications for T nonimmigrant status;
  • Explains the bona fide determination process for applicants for T nonimmigrant status;
  • Provides additional exceptions to the general rule that departures from the United States after trafficking render an applicant unable to establish physical presence on account of their trafficking;
  • Clarifies the requirement that an applicant must establish that a perpetrator engaged in a specific prohibited action “for the purpose of” inducing a commercial sex act or subjecting the applicant to involuntary servitude, peonage, debt bondage, or slavery;
  • Revises the definition of “law enforcement agency”; and
  • Explains that an applicant generally must report their trafficking to law enforcement authorities with jurisdiction to investigate their trafficking to satisfy the reporting requirement.

In addition, when an individual whose application is deemed bona fide files Form I-765, Application for Employment Authorization, under category (c)(40), we will consider whether to grant them deferred action and an Employment Authorization Document while we adjudicate their application for T nonimmigrant status. We recommend that applicants submit Form I-765 with their Form I-914, Application for T Nonimmigrant Status. Applicants for T nonimmigrant status do not need to pay a fee to file Form I-765.

  1. According to the Department of Homeland Security, Fiscal Year 2023: Immigration Applications and Petitions Made by Victims of Abuse Annual Report to Congress, April 16, 2024. Available at : https://www.uscis.gov/sites/default/files/document/reports/fy23_immigration_applications_made_by_victims_of_abuse.pdf ↩︎

DHS Conducts Second Charter Removal Flight to China Since 2018

Posted on by newyorkvisalawyer_o0id8f

Several media outlets have been reporting the October 15, 2024 charter flight to the People’s Republic of China (PRC) as being the first large charter flight since 2018 but the official statement from the US Department of Homeland Security states that this was the second flight to the PRC this year and there was another flight in June 2024, which was the first since 2018.

News DHS Removal

DHS Conducts Second Charter Removal Flight to China Since 2018

On October 15, 2024, the U.S. Department of Homeland Security (DHS) conducted its second charter removal flight to the People’s Republic of China (PRC). This was the second large charter removal flight to the PRC since 2018.

According to Secretary Alejandro Mayorkas, this week’s flight demonstrates “the Department’s continued commitment to pursuing sustained cooperation with the PRC and other international partners to reduce and deter irregular migration.” He further stated, “Intending migrants should not believe the lies of smugglers – Chinese nationals without a legal basis to remain in the United States are subject to swift removal.”

Criticisms of the Biden Administration’s Immigration Enforcement

Many have been critical of the Biden administration and by extension Vice President Harris for being weak on border security and not enforcing US immigration laws. The media has been running with the narrative that the Biden administration has been allowing millions of immigrants to enter the US illegally and remain in the country.

“The Department of Homeland Security will continue to strengthen consequences for individuals unlawfully entering our country and enforce our nation’s laws.” Secretary of Homeland Security Alejandro N. Mayorkas

More Deportations in 2024 Than Any Year Since 2010

From May 2023 to January 2024, the latest available data, there have been 520,000 returns and removals. The data shows that the Biden administration has been apprehending and prosecuting millions of immigrants for being in the country unlawfully. The criticisms of the Biden administration do not align with the available data as the number of immigrants being deported from the US are largely unchanged from from when Trump was in office and depending on how one interprets the data, Biden has deported more immigrants during certain time periods.

Looking at encounters at the border in particular, where Biden has received the most criticism especially from Trump and the neo-conservative media, the numbers are clear. For Trump in 2017-526k, 2018-638k, 2019-1.1M, 2020-646k. For Biden 2021-1.9M, 2022-2.7M, 2023-3.2M, 2024 (as of June) 2.2M.

DHS highlighted this in their press release about the more than 100 Chinese nationals that were returned to the PRC. The press release on the DHS website reads, “Over the last year, DHS has removed individuals to a range of countries around the world, including Colombia, Ecuador, Peru, Egypt, Mauritania, Senegal, Uzbekistan, India, and the PRC. As a result of these efforts, DHS removed or returned more individuals in FY2024 than any year since FY2010. Efforts to expand removal flights continue.”

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