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It has been reported that President-Elect Joe Biden will unveil a comprehensive immigration plan on his first day in office.  The plan, which would provide a multi-year pathway to citizenship for the millions of undocumented immigrants currently in the United States, is expected to be sent to Congress on Wednesday, shortly after the inauguration.

The central tenet of Biden’s plan is the pathway to citizenship, which would allow certain undocumented immigrants to achieve citizenship within eight years. The plan, as reported, would give certain immigrants temporary status for five years, allow them to apply for green cards after that time and once they have met certain criteria, then allow them to apply for citizenship three years later.

For recipients of Deferred Action for Childhood Arrivals — so-called Dreamers who were protected under a program first started by President Barack Obama — the pathway would be streamlined, allowing them to apply for a green card immediately.

President-elect Joe Biden’s plans for immigration are expected to be a stark contrast to the Trump administration agenda.  Some of President-elect Biden’s stated priorities are:

  1. Reinstating the Deferred Action for Childhood Arrivals (DACA and Temporary Protected Status (TPS)

The Trump administration has relentlessly attached the DACA program.  President-elect Biden has promised to fully reinstate DACA and will seek to make its protections permanent.  President-elect Biden has also stated that he intends to review TPS designations to ensure people are not returned to unsafe countries.

On July 31, 2020, the U.S. Department of Homeland Security (DHS) announced a final rule that will adjust fees for specific immigration and naturalization benefit requests to “ensure U.S. Citizenship and Immigration Services [USCIS] recovers its costs of services.” Unlike most government agencies, USCIS is fee funded and the announcement comes amid concerns about potential furloughs at USCIS due to a budgetary shortfall.

While filing fees for most applications will be increasing, the most notable increase is for naturalization (citizenship) applications.  The current USCIS filing fee for filing an N-400 Application for Naturalization is $640 (plus $85 for biometrics).  As of October 2, 2020, the USCIS filing fee will be increasing to $1,170 for paper filings (on-line filings are $10 less) – an increase of 83% !

If you have had your green card for at least five years, you may be eligible to naturalize if you have physically resided in the U.S. for at least half (2.5 years) of the preceding 5 years. Any trips outside of the U.S. for more than 6 consecutive months may break the continuous residency requirement unless you can prove that you were domiciled in the U.S. Any trips outside the U.S. for more than 12 consecutive months will definitely break the requirement.

On June 18, 2020, the U.S. Supreme Court held that the Trump Administration failed to provide an adequate justification for terminating the Deferred Action for Childhood Arrivals (DACA) program, thus violating the Administrative Procedure Act (APA). DACA remains in place for now, but the Trump Administration could renew its efforts to terminate the program.

In today’s decision, the Court did not rule on the legality of the DACA program as a whole, only on the manner in which the Administration tried to dismantle it. Though the Court held that the Department of Homeland Security’s decision to terminate DACA was arbitrary and capricious, the decision makes clear that the Department of Homeland Security has the authority to rescind the program, provided it follows proper administrative procedure.

Created in 2012, the Deferred Action for Childhood Arrivals program offered deportation relief and employment authorization to certain undocumented immigrants brought to the country as children, also known as Dreamers.

On June 22, 2020 President Trump issued a proclamation continuing his previous proclamation of April 22, 2020, which suspended the entry of individuals on immigrant visas for 60 days. The new proclamation continues the suspension of entry of individuals on immigrant visas, and limits the entry of any individual seeking entry pursuant to any of the following nonimmigrant visas:

(a) an H-1B or H-2B visa, and any individual accompanying or following to join such individual;

(b) a J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and

The New Jersey Municipal Court will start to slowly reopen for business on May 11, 2020. The Courts will be conducting a limited amount of appearances for those matters that can potentially be resolved via phone and video conference. The amount and types of cases that the courts will hear will be determined by the individuals court’s technological abilities. This means that some courts may resolve many cases and some may resolve none.

Regardless, over the course of the last few weeks, in anticipation of this, I have received calls from several prosecutors from several different municipal courts, including Union, East Brunswick, Palisades Interstate Court, and Elizabeth, to name a few. These negotiations over the phone have really paid off and I was able to negotiate some very good plea agreements for my clients. The charges included traffic matters, such as driving without insurance, speeding, driving while suspended or revoked, careless driving with an accident and without and leaving the scene of an accident. Additionally, I was able to resolve a few criminal cases too involving possession of marijuana under 50 grams of and possession of CDS in a motor vehicle.

Superior Courts have been ahead of the municipal courts in having virtual court sessions. The more serious drug cases and crimes are at the Superior Court level and I have been doing a good amount of virtual court appearances over the last month.

President Trump signed an Executive Order on April 22, 2020 suspending the entry of individuals on an immigrant visa for 60 days.  “Immigrant visa” refers to an application for permanent residency (i.e., green card) obtained at a U.S. consulate or embassy abroad. The Order provides exceptions for  certain lawful permanent residents, holders of existing, valid immigrant visas and similar U.S. travel documents, the spouses and minor children of U.S. citizens, and EB-5 immigrants among others.  The order takes effect on April 23, 2020.

The Order does not affect the processing or filing of applications for adjustment of status in the United States.  Further, H-1B, L-1 and other nonimmigrant programs are not immediately affected, but the Order directs DHS and DOL to make a study of the impact of temporary foreign workers on U.S. workers.  The results of the study could prompt future restrictions on these nonimmigrant programs.

The suspension will initially last for 60 days, but may be continued “as necessary.”

I was contacted by several municipal prosecutors this work asking if we could work out some of my existing client’s cases by something called a plea by affidavit. This mechanism is typically only used for out of state residents or those who do not have the ability to come to court. As part of a plea by affidavit, there would typically be a requirements that the defendant provide reasons in a certification about why it would be a hardship for that person to come to court.

Obviously, given the covid 19 outbreak, Courts are not requiring such a thing for some matters. Most of the calls that I received were for traffic related offenses other than DWI. However, I suspect that in the coming weeks there will a push to resolve existing municipal court matters, including disorderly persons offenses (simple assault, marijuana possession, shoplifting,etc.) through a plea by affidavit. Otherwise the backlog of cases could get out of hand for the municipal court.

That being said, I think that there is a great opportunity for many of these cases to resolve very favorably for my clients and I will continue to push for this sort of resolution. In addition, just because the courts are closed does not mead that the police have stopped working. Over the course of the last few weeks, I have seen many DWI, domestic violence, shoplifting, harassment and drug arrest, just to name a few. I have been consulting with new and existing clients. I have been communicating with police records on my new cases and police records in many jurisdictions is providing discovery which give me the ability to work towards a resolution of the case.

On April 1, 2020, USCIS extended the temporary suspension of all routine face-to-face services with applicants at all USCIS offices, including all interviews, naturalization ceremonies, and biometric collection appointments through May 3, 2020.  USCIS offices will re-open on May 4 unless the public closures are extended further.

USCIS will reschedule all appointments when normal operations resume.

The immigration lawyers at Lubiner, Schmidt & Palumbo are accepting new clients and we are available to consult via video chat, including iphone, android and all other video conferencing services. We are also available for by appointment office consults. If you have any questions about your ability to file an immigration applications currently and how these closures would affect that, please do not hesitate to contact us.

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