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Rescission of Presidential Proclamations 9645 and 9983

1/25/2021

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On January 20, 2021, President Biden signed a Presidential Proclamation titled “Ending Discriminatory Bans on Entry to the United States.”  This proclamation ends the travel restrictions under Presidential Proclamations 9645 and 9983 that had suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
Pursuant to President Biden’s proclamation, the State Department will undertake a review to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by P.P. 9645 or 9983 may have their applications reconsidered. This review will consider whether to reopen immigrant visa applications that were denied due to the suspension and restriction on entry imposed by P.P. 9645 or 9983; whether it is necessary to charge an additional fee to process those visa applications; and development of a plan to expedite consideration of those visa applications.
Pending the Department’s review, under current Department regulations Immigrant visa (IV) applicants who were previously refused) due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, must submit a new visa application (DS-260) and pay a new visa application processing fee.  IV applicants refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated, or who were determined not to qualify for a waiver within one year of January 20, 2021, and who also request their local embassy or consulate to resume processing on their case within one year of January 20, 2021 may be able to resume processing of their case without submitting a new application or paying a new visa application processing fee. Embassies and consulates will prioritize the adjudication of applications for those individuals who remain in the waiver process.
Nonimmigrant visa applicants who were previously refused due to either P.P. 9645 or 9983 and did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application processing fee if they wish to reapply for a visa.  
Pursuant to President Biden’s proclamation, the Department can immediately process visa applications for individuals from the affected countries. Please note that the rescission of P.P.s 9645 and 9983 does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews.  The resumption of routine visa services during the ongoing COVID-19 pandemic, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities.  U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able.  Applicants, including those previously denied due to P.P. 9645 or 9983, should consult the website of their nearest U.S. embassy or consulate to determine if their case qualifies for expedited processing.  As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.  Please see here for more information on the phased resumption of visa services.

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New COVID-19 Ban: South Africa, Brazil, UK, EU

1/25/2021

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​President Joe Biden plans to sign restrictions Monday on travel to the United States to mitigate Covid-19 transmission, two White House officials confirmed today.

The ban would prevent most non-U.S. citizens from entry if they have recently been in South Africa, where a new strain of Covid-19 has been identified. The virus has killed more than 418,000 people and infected upward of 25 million across the U.S., according to an NBC News tracker.

Biden is also expected to reinstate broader restrictions that were in effect much of the past year but were rescinded by President Donald Trump days before his term ended. The limits would affect non-U.S. citizens traveling from the United Kingdom, Ireland and much of Europe in what is known as the Schengen countries, which share a common visa process. Travelers from Brazil would also be affected.

​More here.
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President Biden Sends Immigration Bill U.S. Citizenship Act of 2021 to Congress

1/24/2021

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Jan. 20, 2021: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System.

The U.S. Citizenship Act of 2021 establishes a new system to responsibly manage and secure our border, keep our families and communities safe, and better manage migration across the Hemisphere
President Biden is sending a bill to Congress on day one to restore humanity and American values to our immigration system. The bill provides hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship. The legislation modernizes our immigration system, and prioritizes keeping families together, growing our economy, responsibly managing the border with smart investments, addressing the root causes of migration from Central America, and ensuring that the United States remains a refuge for those fleeing persecution. The bill will stimulate our economy while ensuring that every worker is protected. The bill creates an earned path to citizenship for our immigrant neighbors, colleagues, parishioners, community leaders, friends, and loved ones—including Dreamers and the essential workers who have risked their lives to serve and protect American communities.
The U.S. Citizenship Act will:
PROVIDE PATHWAYS TO CITIZENSHIP & STRENGTHEN LABOR PROTECTIONS
Create an earned roadmap to citizenship for undocumented individuals. The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes. Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.
Keep families together. The bill reforms the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.  It also eliminates the so-called “3 and 10-year bars,” and other provisions that keep families apart. The bill further supports familes by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families. It also provides protections for orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II. Lastly, the bill allows immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.
Embrace diversity.  The bill includes the NO BAN Act that prohibits discrimination based on religion and limits presidential authority to issue future bans. The bill also increases Diversity Visas to 80,000 from 55,000.
Promote immigrant and refugee integration and citizenship. The bill provides new funding to state and local governments, private organizations, educational institutions, community-based organizations, and not-for-profit organizations to expand programs to promote integration and inclusion, increase English-language instruction, and provide assistance to individuals seeking to become citizens.
Grow our economy. This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors; and eliminates other unnecessary hurdles for employment-based green cards. The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system. The bill also creates a pilot program to stimulate regional economic development, gives DHS the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.
Protect workers from exploitation and improve the employment verification process. The bill requires that DHS and the Department of Labor establish a commission involving labor, employer, and civil rights organizations to make recommendations for improving the employment verification process. Workers who suffer serious labor violations and cooperate with worker protection agencies will be granted greater access to U visa relief. The bill protects workers who are victims of workplace retaliation from deportation in order to allow labor agencies to interview these workers. It also protects migrant and seasonal workers, and increases penalties for employers who violate labor laws.
PRIORITIZE SMART BORDER CONTROLS
Supplement existing border resources with technology and infrastructure. The legislation builds on record budget allocations for immigration enforcement by authorizing additional funding for the Secretary of DHS to develop and implement a plan to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry.  This includes high-throughput scanning technologies to ensure that all commercial and passenger vehicles and freight rail traffic entering the United States at land ports of entry and rail-border crossings along the border undergo pre-primary scanning. It also authorizes and provides funding for plans to improve infrastructure at ports of entry to enhance the ability to process asylum seekers and detect, interdict, disrupt and prevent narcotics from entering the United States. It authorizes the DHS Secretary to develop and implement a strategy to manage and secure the southern border between ports of entry that focuses on flexible solutions and technologies that expand the ability to detect illicit activity, evaluate the effectiveness of border security operations, and be easily relocated and broken out by Border Patrol Sector. To protect privacy, the DHS Inspector General is authorized to conduct oversight to ensure that employed technology effectively serves legitimate agency purposes.
Manage the border and protect border communities.  The bill provides funding for training and continuing education to promote agent and officer safety and professionalism. It also creates a Border Community Stakeholder Advisory Committee, provides more special agents at the DHS Office of Professional Responsibility to investigate criminal and administrative misconduct, and requires the issuance of department-wide policies governing the use of force. The bill directs the Government Accountability Office (GAO) to study the impact of DHS’s authority to waive environmental and state and federal laws to expedite the construction of barriers and roads near U.S. borders and provides for additional rescue beacons to prevent needless deaths along the border. The bill authorizes and provides funding for DHS, in coordination with the Department of Health and Human Services (HHS) and nongovernmental experts, to develop guidelines and protocols for standards of care for individuals, families, and children in CBP custody.
Crack down on criminal organizations. The bill enhances the ability to prosecute individuals involved in smuggling and trafficking networks who are responsible for the exploitation of migrants. It also expands investigations, intelligence collection and analysis pursuant to the Foreign Narcotics Kingpin Designation Act to increase sanctions against foreign narcotics traffickers, their organizations and networks. The bill also requires the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA) and DHS, in coordination with the Secretary of State, to improve and expand transnational anti-gang task forces in Central America.
ADDRESS ROOT CAUSES OF MIGRATION
Start from the source. The bill codifies and funds the President’s $4 billion four-year inter-agency plan to address the underlying causes of migration in the region, including by increasing assistance to El Salvador, Guatemala, and Honduras, conditioned on their ability to reduce the endemic corruption, violence, and poverty that causes people to flee their home countries. It also creates safe and legal channels for people to seek protection, including by establishing Designated Processing Centers throughout Central America to register and process displaced persons for refugee resettlement and other lawful migration avenues—either to the United States or other partner countries. The bill also re-institutes the Central American Minors program to reunite children with U.S. relatives and creates a Central American Family Reunification Parole Program to more quickly unite families with approved family sponsorship petitions.
Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals. Funding is authorized for legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims. The bill also provides funding for school districts educating unaccompanied children, while clarifying sponsor responsibilities for such children.
Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.
Biden's bill, dubbed the U.S. Citizenship Act of 2021, is more progressive than the 2013 measure, which included strong border security measures. 

​More here. 
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Travel to USA from European Union Under Visa Waiver During COVID-19

1/13/2021

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The Visa Waiver Program (VWP) enables most citizens or nationals of participating countries* to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel and meet all requirements explained below. If you prefer to have a visa in your passport, you may still apply for a visitor (B) visa.
Requirements for Using the Visa Waiver Program (VWP)
You must meet all of the following requirements to travel to the United States on the VWP:
Must Be a Citizen or National of a VWP Designated Country*

You must be a citizen or national of the following countries* to be eligible to travel to the United States under the VWP.
  • Andorra
  • Australia
  • Austria
  • Belgium
  • Brunei
  • Chile
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Iceland
  • Ireland
  • Italy
  • Japan
  • Latvia
  • Liechtenstein
  • Lithuania
  • Luxembourg
  • Malta
  • Monaco
  • Netherlands
  • New Zealand
  • Norway
  • Poland
  • Portugal
  • San Marino
  • Singapore
  • Slovakia
  • Slovenia
  • South Korea
  • Spain
  • Sweden
  • Switzerland
  • Taiwan*
  • United Kingdom**
**To be eligible to travel under the VWP, British citizens must have the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man.
Each Traveler Must Have a Valid ESTA
In order to travel without a visa on the VWP, you must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier. ESTA is a web-based system operated by U.S. Customs and Border Protection (CBP) to determine eligibility to travel under the VWP to the United States for tourism or business. Visit the ESTA webpage on the CBP website for more information.
Updating Your ESTA
In most cases, your ESTA will be valid for two years.  You also must obtain a new ESTA if you: (1) receive a new passport, including an emergency or temporary passport; (2) change your name; (3) change your gender; (4) change your country of citizenship; or (5) need to change your responses to any of the “yes” or “no” questions on the ESTA application.
Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015
Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, travelers in the following categories must obtain a visa prior to traveling to the United States as they are no longer eligible to travel under the Visa Waiver Program (VWP):
  • Nationals of VWP countries who have traveled to or been present in Democratic People's Republic of Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Democratic People's Republic of Korea, Iran, Iraq, Sudan, or Syria.

  • These individuals can apply for visas using regular appointment processes at a U.S. Embassy or Consulate.  For those who require a visa for urgent travel to the United States, U.S. Embassies and Consulates stand ready to handle applications on an expedited basis.
If an individual who is exempt from the Act because of his or her diplomatic or military presence in one of the seven countries has his or her ESTA denied, he or she may go to the CBP website, or contact the CBP information Center. The traveler may also apply for a nonimmigrant visa at a U.S. Embassy or Consulate.
U.S. Customs and Border Protection strongly recommends that any traveler to the United States check his or her ESTA status prior to making any travel reservations or travelling to the United States. More information is available on the Department of Homeland Security (DHS) website. 
Have the Correct Type of Passport
You must have a passport that is valid for at least 6 months after your planned departure from the United States (unless exempted by country-specific agreements). For families, each member of your family, including infants and children, must have his/her own passport. 
In addition, you must have an e-passport to use the VWP. An e-passport is an enhanced secure passport with an embedded electronic chip. The chip can be scanned to match the identity of the traveler to the passport. E-Passports must be in compliance with standards set by the International Civil Aviation Organization (ICAO). You can readily identify an e-passport, by a symbol on the cover. See the example below. More information about e-passports is available on the DHS website.

​More information here and here.



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Green Card Renewal Form I-90 New Rules

1/12/2021

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Starting in January 2021, USCIS will replace the sticker that is currently issued to lawful permanent residents (LPRs) to extend the validity of their Form I-551, Permanent Resident Card (PRC or “Green Card”) with a revised Form I-797, Notice of Action for Form I-90, Application to Replace Permanent Resident Card. LPRs file Form I-90, when their Green Card expires or is about to expire.

The revised I-797 receipt notice, together with an applicant’s green card, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the face of the Green Card.

This change ensures that certain LPRs with a pending Form I-90 to replace an expiring Green Card have documentation of identity, employment authorization and authorization to return to the United States following temporary foreign travel. Applicants who have already been scheduled for a biometrics appointment will not receive a revised notice and will receive an extension sticker at their biometrics appointment.

Starting in January, applicants who file Form I-90 to replace an expiring Green Card will receive the revised receipt notice in the mail approximately 7-10 days after USCIS accepts their application.

This notice will be printed on secure paper and will serve as evidence of identity, employment authorization and authorization to return to the United States following temporary foreign travel when presented with an expired Green Card.

For More Information
Please see our Replace Your Green Card page for more information.

Briefly in Russian: 

Начиная с января 2021, вместо штампика на истекшую гринкарту, USCIS будет выдавать новый Receipt Notice I-90, продляющий срок действия гринкарты на 12 месяцев. С истекшей грин картой плюс это письмо можно будет путешествовать за пределы США и использовать его для продления водительских прав и как доказательство того, что вам разрешено работать в США.

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Routine Visa Services Will Resume on a Post-by-Post Basis

1/7/2021

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The Department of State suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic. In July 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services.
The resumption of routine visa services, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.
We are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels. See each U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.
Our missions overseas continue to provide all possible services to U.S. citizens. More information is available on each post’s website.
This does not affect travel under the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.
Applicants with an urgent matter who need to travel immediately should contact the nearest embassy or consulate to request an emergency appointment. Contact information is on the embassy or consulate’s website.
FAQ
Q. Which additional visa services are embassies/consulates beginning to provide?
All of our missions are continuing to provide emergency and mission-critical visa services. As post-specific conditions permit, and after meeting demand for services to U.S. citizens, our missions will phase in processing some routine immigrant and nonimmigrant visa cases. Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions (consistent with Presidential Proclamation 10014) fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications. Posts processing non-immigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and temporary employment visas (consistent with Presidential Proclamation 10052). We expect the volume and type of visa cases each post will process to depend on local circumstances. An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.
Q. What criteria are missions using to determine when to resume routine services?
We are closely monitoring local conditions in each country where we have a U.S. presence. Local conditions that may affect when we can begin providing various public services include medical infrastructure, COVID-19 cases, emergency response capabilities, and restrictions on leaving home.
Q. What steps are being taken to protect customers from the spread of COVID-19?
The health and safety of our workforce and customers will remain paramount. Our embassies and consulates are implementing safeguards to keep staff and customers safe, including implementing physical distancing in our waiting rooms, scheduling fewer interviews at a time, frequent disinfection of high touch areas, and following local health and safety regulations.
Q. Do the various Presidential Proclamations/travel restrictions still apply, or are those lifting with the resumption of visa services?
The five geographical COVID-19 Proclamations (P.P. 9984, 9992, 9993, 9996, 10041) and the two COVID-19 Labor Market Proclamations suspending the entry of certain aliens (P.P. 10014 and 10052) remain in effect.
Q: Is my situation an emergency? I need to go the United States immediately for X.
Applicants can find instructions on how to request an emergency visa appointment at the Embassy or Consulate’s website.
Q. What about my application fee that expired while routine services were suspended?
The Machine Readable Visa (MRV) fee is valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased. However, the Department understands that as a result of the pandemic, many visa applicants have paid the visa application processing fee and are still waiting to schedule a visa appointment. We are working diligently to restore all routine visa operations as quickly and safely as possible. In the meantime, the Department extended the validity of MRV fees until September 30, 2022, to allow all applicants who were unable to schedule a visa appointment due to the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.

Read here.
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Green Card Denied Because a Spouse of a Permanent Resident Worked Without Authorization

1/6/2021

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Q: Green card application, Form I-485, of a spouse of a lawful permanent resident was denied because she worked in the USA without a work permit.

Q/ ВОПРОС: ОТКАЗАЛИ В ГРИН КАРТЕ ПО ПРИЧИНЕ РАБОТЫ БЕЗ РАЗРЕШЕНИЯ
Добрый день! Получили отказ в Грин карте 30-го декабря 2020 по причине того, что я нелегально работала в течение года. Муж – Грин кард холдер. Какими могут быть дальнейшие действия: motion to reopen, motion to reconsider or appealing? Или что-то другое? Муж уже подался на гражданство, ждём. Но хотелось бы получить положительный ответ по моему кейсу раньше,чем через 1-2 года. Спасибо!

A / ОТВЕТ: Добрый день, Я понимаю, что вы подавали на adjustment of status как жена постоянного жителя США, и вы подавали сами без адвоката. После отказа Вам стоит проконсультироваться у адвоката.

Ваше дело могут передать из USCIS в иммиграционный суд на депортацию после отказа если у вас нет другого действительного и не истекшего неиммиграционного статуса.

Как супруга постоянного жителя США, которая подает на гринкарту в США по форме I-485, adjustment of status, ваша ситуация отличается от супруги американского гражданина. В частности тем, что вам нужно было доказать, что вы находились в легальном статусе на момент подачи и у вас не было никаких иммиграционных нарушений. Вам отказали USCIS по причине иммиграционных нарушений.

Всего доброго,

Мой ответ опубликован тут.

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Court Authorized Ban for Immigrants Without Health Insurance

1/6/2021

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12/31/2020: The Ninth Circuit Court of Appeals lifted a ban on President Donald Trump’s proclamation that bars entry to immigrants without health insurance or the means to pay for hospital bills. *** Therefore, the ban is in effect now. A visa can be denied for lack of an appropriate health insurance.
In a 2-1 decision the appellate court ruled that the proclamation was within the president’s authority and reversed a federal court decision to block implementation of the order.
U.S. Circuit Judge A. Wallace Tashima, a Bill Clinton appointee authored a 15-page dissent. Judge Tashima, who was imprisoned as a child in a WWII-era Japanese internment camp, said he agreed with the district court ruling.
“The Proclamation overrides both the Affordable Care Act (“ACA”), which makes recently arrived lawful immigrants eligible for subsidized health insurance plans… and the public charge rule of the Immigration and Nationality Act (“INA”), which comprehensively addresses the circumstances under which individuals may be excluded from this country due to their limited financial means or the financial burdens they will place on others,” he wrote.
Tashima wrote that the proclamation “has no nexus to national security, addresses a purely domestic concern (uncompensated health care costs), lacks any conceivable temporal limit, and works a major overhaul of this nation’s immigration laws without the input of Congress — a sweeping and unprecedented exercise of unilateral Executive power.”
“It strains credulity to suggest that Congress intended to authorize the President to undermine its own policy judgments,” he wrote.

​Read more here.
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    Luba Smal is an attorney exclusively practicing USA federal immigration law since 2004.  She speaks English and Russian. 

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