On June 28, 2018, U.S. Citizenship and Immigration Services issued a policy memo telling adjudicators when they are required to issue Notices To Appear after denying or while processing a petition or application for benefits.  The NTA is the charging document that, once filed with the Executive Office for Immigration Review (a branch of the U.S. Department of Justice), puts an individual into formal removal proceedings before an immigration judge.

Except in certain, very limited circumstances where USCIS is required by statute to issue NTAs, the agency has discretion whether to refer an applicant or petitioner to immigration court or to Immigration & Customs Enforcement (ICE).  USCIS issued its last formal policy on the exercise of this discretion in November 2011, almost seven years ago.

Under the earlier guidance, adjudicators were told they must issue non-statutory NTAs or refer to ICE only if the person posed a serious threat to national security or public safety or if USCIS could formally substantiate that fraud had occurred.  If people were being investigated or had already been arrested or detained for an egregious crime – murder, rape, sexual abuse of a minor, a serious crime of violence, alien smuggling, child pornography, or felony reentry after removal – they should be issued NTAs or referred.  For citizenship applicants, adjudicators were told to consider the “totality of the circumstances” before issuing an NTA, including how long it had been since a crime was committed, whether people had reformed their lives, how long they had been in the country, and what social contributions they had made, such as pursuing an education or serving in the military.

The new policy keeps all of the prior guidance, but expands on the prior grounds and lists completely new grounds, vastly increasing the numbers of people who must be issued NTAs or referred to ICE.  These new categories include Temporary Protected Status applicants whose countries’ TPS designations have been terminated; cases in which not only fraud, but also misrepresentation and public benefits abuse, have been substantiated; aliens who have been convicted of or charged with any criminal offense, or who have simply committed acts that could be charged; and all citizenship applicants who are denied due to a criminal offense, regardless of mitigating circumstances.

Perhaps the most radical departure from prior policy is that the new memo targets for removal simply anyone whose petition or application of any kind is denied, leaving them with no underlying status.  In virtually all cases, these are people who held valid status at the time of filing because those without status are ineligible to file for any but humanitarian benefits, and there are special exceptions for them.  Thousands of those who will be most affected by the new NTA guidance are people whose underlying status – including work-authorized status for US employers – will have expired while they were waiting for a decision from USCIS.  Although the law confers ongoing lawful presence of up to 120 days past an expiration date while awaiting a decision, USCIS now takes far longer than that to process even the most routine requests.  Waits of 6, 10, even 24 months are common.

Previously, USCIS’s practice was to warn failed applicants or petitioners that if they no longer held valid status when their requests were denied, they should leave the country as soon as possible, allowing for orderly and generally reliable departures among those who were here only temporarily in the first place and who maintained strong ties to their home countries and could easily return to pick up the thread of their former lives.  If those same people now leave the United States after an NTA is filed with EOIR, resulting in their not appearing at a court hearing, they will be issued removal orders in absentia and face 5-year bars to returning to the United States in any status.  In addition, those who are in removal proceedings cannot work legally, and many could be detained for weeks pending their bond hearings.

The new NTA memo has been hugely controversial, with many believing it converts USCIS, which was established by Congress as an immigration benefits agency, into largely an enforcement arm of the executive branch, without congressional authority to do so.  On July 30, 2018, USCIS postponed implementation of the policy memo, citing a delay in “operational guidance” from USCIS components.  No specific new implementation date has been provided.  Please subscribe to our blog for updates.

U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2019 H-1B lottery.  Employers who filed petitions should now have received either a Form I-797 receipt notice with assigned receipt number, or the original rejected petition including filing fees.  USCIS will take inquiries if employers believe they filed during the required period – April 2 to April 6, 2018 – and have not received a receipt notice or rejected petition by August 13, 2018.

 

In a closely watched asylum appeal, Attorney General Jeff Sessions has issued a decision that will adversely affect the ability of victims of domestic and gang violence to find protection in the United States.

Matter of A-B- was originally decided, in December 2016, in favor of the asylum seeker by the Board of Immigration Appeals.  The BIA is an administrative branch of the US Department of Justice.  It accepts appeals, filed by either government attorneys or immigrants, of decisions made by civil immigration courts throughout the country.

In late 2016, the BIA overturned the 2015 denial of A-B-‘s asylum claim by a judge in Charlotte, North Carolina, where asylum was denied at a rate of 72 to 84.5 per cent between 2011 and 2016.  Finding the denial was “clearly erreoneous,” the BIA said A-B- had proven she was persecuted based on membership in a “particular social group”; specifically, “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”

In March 2018, Sessions referred the BIA’s decision to himself – a controversial practice that gives a political appointee, and the head of a law enforcement agency, absolute power to overturn the decision of an independent and neutral tribunal of administrative judges.  Sessions’s decision yesterday, which comes as a surprise to no one, vacates the BIA’s grant of asylum as “wrongly decided” and says:  “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Calling it “an affront to the rule of law,” a group of 15 former immigration and BIA judges said Sessions’s finding erased “a 15-year process through the immigration courts and BIA” to develop nuanced and reliable legal standards on the “particular social group” basis for asylum.

On May 18, 2018, after receiving a notice from the Government of Ecuador terminating that country’s bilateral investment treaty with the United States, the U.S. Department of State’s Office of Trade Representative announced the termination in the Federal Register.  The treaty has been in force since 1997.

Continue Reading Termination of U.S.-Ecuador Bilateral Investment Treaty Affects E-2 Visa Eligibility for Ecuadorean Nationals

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

On December 4, 2017, the U.S. Supreme Court issued two orders (available here and here) that allow the Presidential Proclamation of September 24, 2017, otherwise known as the “Travel Ban,” to go into effect while appeals continue in the lower courts.  The practical effect of SCOTUS’s actions is to reinstate this version of the Travel Ban fully.  See our earlier blog entry, New Presidential Proclamation Modifies Travel Ban; SCOTUS Reacts, for a full explanation of which countries are targeted in the revised Ban and which citizens of those countries are subject to U.S. travel restrictions under the Ban.

In October, a federal judge in Maryland granted a temporary injunction preventing the revised Ban from going into effect against those who have a bona fide relationship with a U.S. person or entity.  Another federal court, in Hawaii, also blocked implementation of the Ban.  However, the government appealed those rulings to the federal appellate courts for the Fourth and Ninth Circuits, respectively, where the issues remain pending.  In November, the government went higher still, asking the Supreme Court to allow full enforcement of the Ban while the Fourth and Ninth Circuits consider the government’s appeals of the lower courts’ injunctions.  SCOTUS has now granted that request, although, as each order specifies, Justices Ginsburg and Sotomayor were not in favor of granting.  Both federal appellate courts will hold oral arguments this week, and both have agreed to expedite their decisions so that the Maryland and Hawaii cases may move forward quickly.

If either or both Circuits eventually rule against the government, thereby leaving the lower courts’ injunction in place, the government could ask the Supreme Court to review those rulings.  If that happens and SCOTUS refuses to hear the government’s request for review, then SCOTUS’s orders will automatically terminate, thereby putting the Travel Ban on hold yet again, until final decisions are made in the Maryland and Hawaii federal courts.

On Sunday, September 24, 2017, the White House identified eight countries as inadequately managing identity and security risk information for their citizens who seek admission to the United States or other U.S. immigration benefits and established the following restrictions for those countries:

  • North Korea / Syria:  All immigrant and nonimmigrant visas are suspended.
  • Chad / Libya / Yemen:  All immigrant visas and all B-1 business and B-2 tourist visas are suspended.
  • Iran:  All immigrant visas are suspended, as well as all nonimmigrant visas except F and M student visas and J exchange visitor visas, for which additional screening is required.
  • Venezuela:  All official and B-1/B-2 visas for employees of certain government agencies and their dependents are suspended.  These agencies include the Ministry of the Popular Power for Interior, Justice and Peace; Administrative Service of Identification, Migration and Immigration; Scientific, Penal and Criminal Investigation Service Corps; Bolivarian National Intelligence Service; and Ministry of the Popular Power for Foreign Relations.  Additional screening is required for all other types of visas.
  • Somalia:  All immigrant visas are suspended.  Additional screening is required for all other types of visas.
  • Iraq:  No suspensions, but additional screening is required for all visas and entries.

The proclamation exempts the following classes of individuals, among others, from the above restrictions:

  • Those who seek, or have already been granted, asylum or withholding of removal
  • Those who seek admission, or have already been admitted, as refugees
  • Those who already held valid visas on September 24
  • Those who hold other travel documents – such as transportation letters, boarding foils, or advance parole documents – that were valid on September 24 or are issued after that date
  • Those whose visas were marked canceled or revoked under the initial Travel Ban (January 27, 2017)
  • Nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a U.S. person or entity, but only until October 18, 2017
  • Dual nationals who are traveling on a passport from a non-designated country

Individual waivers are available if the restrictions cause “undue hardship,” if the waiver is in the national interest, and if the iindividual poses no national security or public safety risk.  Subject to those criteria, the proclamation lists examples of potential waiver-worthy cases, including individuals who happened to be outside the United States on September 24, but had previously been admitted on long-term work or study visas and seek reentry to resume those activities; individuals who seek entry to visit or reside with an immediate relative who is a U.S. citizen, lawful permanent resident, or lawful nonimmigrant; infants, young children, adoptees, or individuals who need urgent medical care; dual nationals who hold Canadian permanent residence and apply for admission or visas inside Canada; and others.

Reacting to the proclamation on September 24, the Supreme Court announced that oral arguments on the Travel Ban cases, scheduled for October 10, 2017, were canceled.  SCOTUS also set a deadline of October 5 for the parties in those cases (primarily the state of Hawaii and the International Refugee Assistance Project) to file legal briefs addressing the question of whether their challenges are now moot because of (a) the new travel ban; and (b) the upcoming expiration, on October 24, of the total refugee ban.  SCOTUS could hear oral arguments at a later date or could decide the case on briefs only.

Despite earlier hints that the “Dreamers” – undocumented youth who were brought to the United States illegally or lost their status while they were underage – might be allowed to retain their work permits and reprieve from deportation, Attorney General Sessions announced today that the Obama-era Deferred Action for Childhood Arrivals (DACA) program will end on March 5, 2018.  The six-month lag time is intended to allow Congress to codify DACA-like provisions into law.

Continue Reading DACA Dreamers on Life Support

U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2018 H-1B lottery.  Employers who filed petitions should now have received either a Form I-797 receipt notice indicating the petition was assigned a receipt number, or the original rejected petition including filing fees.  USCIS will take inquiries if employers believe they filed during the required period – April 3 to April 7, 2017 – and have not received either the receipt notice or the rejected petition by July 31, 2017.

 

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment Eligibility:

  1. The Consular Report of Birth Abroad (Form FS-240) is now acceptable and is included on the drop-down menus in “smart” Form I-9 and in E-Verify.
  2. All certifications of report of birth that are issued by the U.S. Department of State (Forms FS-545, DS-1350 and FS-240) are now listed at #2 of List C.
  3. List C documents are now renumbered, except the Social Security card; for example, the EAD is now at #7 instead of #8

USCIS plans to update its “Handbook for Employers: Guidance for Completing Form I-9” (Form M-274) to include these revisions in the near future.  Additional information is available at What’s New | USCIS.