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.

 

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the August Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 remains backlogged to January 1, 2012, EB-2 moves forward – advancing two months to March 1, 2015 – and EB-3 leaps ahead eighteen months to July 1, 2014
  • India: EB-1 remains stuck at January 1, 2012, EB-2 freezes at March 15, 2009, and EB-3 advances two months to January 1, 2009
  • Philippines: EB-1 retrogresses to May 1, 2016, EB-2 remains current, and EB-3 springs ahead six months to June 1, 2017
  • All Other Countries: EB-1 retrogresses to May 1, 2016, while EB-2 and EB-3 remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in August based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the July Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 remains backlogged to January 1, 2012, EB-2 jumps ahead four months to January 1, 2015, while EB-3 reverses course and retrogresses to January 1, 2013
  • India: EB-1 remains stalled at January 1, 2012, EB-2 continues to creep forward, moving to March 15, 2009, and EB-3 leaps ahead six months to November 1, 2018
  • Philippines: EB-1 and EB-2 remain current, while EB-3 remains backlogged to January 1, 2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in July based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

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.

The Associated Press is reporting that US embassies and consulates around the globe have been instructed to limit the validity period of F-1 visas issued to Chinese graduate students studying in fields such as robotics, aviation and high-tech manufacturing. The new policy requires that visas issued to such students are only valid for one year, where Chinese students are normally issued visas valid for up to five years. The policy is reportedly taking effect on June 11, 2018. There are more than 300,000 Chinese citizens studying in the United States – nearly one-third of all international students.

According to the report, the policy also requires that some Chinese employees of certain US companies will also be subject to special clearances resulting in visa processing delays of up to several months. The US Department of Commerce maintains the list of targeted companies, which is not available to the public.

Who is affected and what should they do?

This policy affects Chinese citizens who are applying for visas at US embassies and consulates – specifically, graduate students in certain fields, and some employees of companies that have been targeted for scrutiny by the US Department of Commerce. In addition, any Chinese citizen applying for a visa, who studies or works in a field that the US government might consider sensitive to national security or the economy, should be attentive to this policy and its possible expansion in the coming months. These individuals may want to stay in close contact with their school or employer to discuss their concerns and plan accordingly.

Hunton Andrews Kurth typically does not post about topics that are not officially announced, and it is important to note that this information is based on a single news report by the Associated Press. We will continue to monitor this issue and share relevant and credible information as it becomes available.

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

The Department of Homeland Security (DHS) announced that because the conditions in Nepal no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 24, 2018, will now terminate on June 24, 2019.  TPS allows qualifying persons inside the United States to remain and work lawfully in the United States until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final year of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

Continue Reading DHS Announces Final TPS Re-registration for Nepal

The US Citizenship and Immigration Services (USCIS) announced yesterday that it has completed the data entry for all H-1B cap petitions selected in the FY2019 lottery held in April.   Because receipts are mailed on a rolling basis as the data entry for each selected petition is completed, it is still possible that additional receipts for petitions selected in the lottery will arrive later this week.

 The USCIS will now begin the process of returning to the attorneys of record those petitions that were not selected in the lottery.  In past years, the return process lasted into July.

In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but less than 1 year, triggers a 3 year bar of reentry, while unlawful status for more than 1 year triggers a 10 year bar. Waivers of the bars may be available if certain requirements are met, including in some cases extreme hardship to a U.S. or permanent resident spouse or parent.

The new policy specifies that F, M, or J nonimmigrants who failed to maintain their status (for example by no longer pursuing a full-course of study, no longer engaging in an approved training program or activity, or engaging in unauthorized employment) before August 9, 2018, will start accruing unlawful status on August 9, 2018, unless the nonimmigrant already starting accruing unlawful status on the earliest of the following:

  • The day after a Department of Homeland Security (DHS) denial of an immigration benefit, if DHS determines that the nonimmigrant violated his or her nonimmigrant status while adjudicating that immigration benefit;
  • The day after the nonimmigrant’s Form I-94 expires, if the F, M, J nonimmigrant was admitted until a certain date; or
  • The day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

F, M, or J nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The new policy is a dramatic change in how USCIS previously calculated unlawful presence.  Under the prior policy, unlawful presence for those in admitted F, M,  or J status for the duration of their status (D/S) started accruing only on the day after:

  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

F, M, or J nonimmigrants who were admitted until a specific date, instead of D/S, accrued unlawful presence only on the day after:

  • Their Form I-94 expired;
  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This new policy also affects the immigration status of dependent family members as the validity of their status is dependent on the principal maintaining his or her status.

To review the text of USCIS’ new policy memorandum, please click here.