. . . SEPTEMBER 2018 EDITION
Immigrant Rights Organizations File Complaint
With DHS Over Coercive and Illegal Tactics
Of the more than 2,500 children who were separated from their parents due to the Trump Administration's "zero tolerance" policy on border crossers, close to 550 children have yet to be reunified and an estimated 463 of their parents are no longer in the United States. In the wake of this disastrous policy, the American Immigration Lawyers Association (AILA) and the American Immigration Council filed a complaint with the Department of Homeland Security's Office of the Inspector General and Office for Civil Rights and Civil Liberties. The lawsuit details coercive tactics used by government officials, including case examples and original testimony from separated parents that document a pervasive and illegal practice by DHS officials of strong-arming mothers and fathers into signing documents they may not have understood, ostensibly waiving their legal rights, including their right to be reunified with their children. These tactics, according to AILA and the Council, impeded these parents' ability to meaningfully participate in the asylum process.
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USCIS Not Obligated to Issue RFEs
and NOIDs in the Case of a Deficient Filing
At the same time that immigration judges are having their discretion restricted, USCIS adjudicators are having their discretion expanded. The governing regulations explicitly provide an adjudicator the discretion to deny a case outright if the record does not establish eligibility for the immigration benefit, or issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to further develop the record. However, the previous policy directed that an adjudicator should issue an RFE unless there was "no possibility" that the deficiency could be cured by the submission of additional evidence, thereby limiting the discretion of adjudicators to an extent.
The new USCIS policy has abandoned that limitation and restored full discretion to USCIS adjudicators. "This policy is intended to discourage frivolous or substantially incomplete filings used as 'placeholder' filings and encourage [those filing] to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements." The policy memo cites some possibilities for an automatic denial: waiver cases where the qualifying relative is not properly identified, or submitted with little to no evidence; filings for family members that may not fit in a preference category; filings that do not submit all required documents as provided in the statute, regulations, or form instructions (e.g., a green card application with no I-864 included). The instructions that accompany each form usually include a section on required evidence.
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Implementation Issues Cited
USCIS Postpones Launch of
New Notice to Appear Policy
Around the same time that USCIS issued its new policy regarding RFEs and NOIDs, noted above,
USCIS updated its guidance for referring cases to the immigration court through the issuance of a Notice to Appear (NTA), and thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred for proceedings. Service of the NTA provides a foreign national with notice that deportation proceedings are being initiated and that they are now under the jurisdiction of the immigration courts. Shortly after USCIS announced this new policy, however, its component agencies reported that they could not implement the policy because internal operational guidance had not yet been issued. But, make no mistake: the government will be working to make this new policy operational as soon as it can.
What does this mean and who will be affected? While there are instances where USCIS is required by statute or regulation to issue a Notice to Appear, and has done so, NTAs traditionally have not been issued where, for example, an applicant for adjustment of status is denied and no longer has an underlying nonimmigrant visa status — and thus becomes unlawfully present in the United States. The updated guidance makes clear that USCIS will be more vigilant in not just identifying possible inadmissibility issues, but actually following through with these discoveries and referring the individual to immigration court.
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Accrual of Unlawful Presence
Significant Changes to Student Visa Holders'
Maintenance of Status Now in Effect
USCIS's new policy regarding "unlawful presence" for foreign students (academic and vocational) and exchange visitors and their dependents is now in effect. This means that foreign students (F-1, J-1, M-1) will begin accruing unlawful presence on the day after the student violates the terms of his or her status, such as failing to pursue the authorized course of study or practical training or engaging in unauthorized employment.
Why is this such a big deal and the why are the consequences potentially enormous? The consequences can be enormous because immigration law provides that an individual who has accrued 180 days of "unlawful presence" is barred from re-entering the U.S. for three years; for those with 365 days or more of unlawful presence, the bar is 10 years.
You may ask, shouldn't the nonimmigrant know if she has violated the terms of her status. Not always. Most nonimmigrants are admitted to a specific date, and are on notice that they will begin to accrue unlawful presence if they stay beyond that date. But F, J, and M visa holders are not admitted through a date certain, but rather, through the "duration" of their underlying educational or training programs, called "duration of status" or "D/S" — a period of time that may and often does change after arrival. For this reason, USCIS (and the State Department) policy for the last 20 years has been that F, J, and M nonimmigrants begin to accrue unlawful presence the day after a DHS officer or immigration judge makes a finding that the person is out of status — in other words, the day after the person is put on notice that a violation of status has occurred.
Under the new policy, "unlawful presence" will begin the day after a status violation occurs, even if the foreign national has no idea that he or she has violated status. Worse, the policy will be applied retroactively; those who violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.
One can easily imagine the types of minor and technical violations that will render foreign students and scholars subject to the 3- and 10-year bars to admissibility. Here are a few:
- An F-1 student is advised by his on-campus foreign student advisor that his online student record has been extended but it has not been. That student has been accruing unlawful presence since the date that school administrator made the error.
- USCIS determines more than 180 days after a student has commenced practical training employment that the work is somehow not sufficiently related to her degree. That student has been accruing unlawful presence since she began this allegedly "unauthorized employment."
- A student authorized to work 20 hours per week on campus as a graduate research assistant works 22 hours one week to complete a critical project before a lab deadline. That student has been accruing unlawful presence since hour 21.
F, M, and J visa holders are well advised to check in with their Designated School Official (DSO) or program sponsor to make sure that they have not inadvertently violated status.
USCIS has also updated its STEM OPT reporting requirements. Students and employers must notify the DSO of any material changes in the OPT program by submitting a new Form I-983 at the earliest opportunity. Cessation of employment must be reported within five business days.
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New De-Naturalization Unit Investigating
Previously Approved N-400 Applications
While U.S. citizens by birth can never be stripped of their citizenship, naturalized citizens do not enjoy that same security if their citizenship was obtained by fraud or misrepresentation. Sometimes this revocation is warranted. This past January, ICE filed a civil denaturalization complaint against a former Bosnian paramilitary member who engaged in extrajudicial killings during the conflict there. In years past, the uncovering of a former Nazi party member or sympathizer and subsequent denaturalization proceedings typically received positive headlines in the media, as the United States has no desire to become the safe haven for the world's human rights abusers.
The Trump Administration has taken denaturalization efforts a step further. A new office in Southern California has been tasked with reviewing and referring cases for prosecution and denaturalization. The targets are people who have previously had naturalization applications denied but subsequently create a false identity to obtain citizenship. Concern about this type of fraud preceded the Trump Administration. President Obama oversaw Operation Janus, which exposed the fraud in citizenship applications; in 2016 the Inspector General found that at least 858 people had been awarded citizenship despite having been deported under a different identity. Now, USCIS believes the qualifying cases in the denaturalization unit could reach up to a few thousand.
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EB-1 Retrogression —
And Not Likely to Become Current in October
Historically, at the end of the fiscal year, visa preference categories further retrogress or become backlogged for the first time, only to become current again on October 1. This has been the pattern for the employment-based first preference (extraordinary ability, outstanding professors/ researchers, and multinational executives and managers) for years. This year, however, the EB-1 category has retrogressed for September to June 1, 2016 for visas worldwide and January 1, 2012 for visas for India and China, and, perhaps more importantly, the Visa Office does not expect the category to become current in October. In fact, only limited forward movement is expected prior to December.
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Receipt of Public Benefits
May Hinder Admissibility to U.S.
The Department of State (DOS) has been scrutinizing individuals applying for green cards under the public-charge bar. Some of these non–U.S. citizens must show that they are not likely to become dependent on the government for cash assistance or long-term care. In making a public-charge determination, the government must look at a person's age, health, family situation, income, resources, education, and skills, and may also consider an affidavit of support or contract signed by a sponsor promising to support the immigrant. The determination requires a complete consideration of the totality of the circumstances.
Almost two decades ago, the government clarified that the use of services such as health coverage or nutrition assistance would not be considered in the public charge determination — only the receipt of cash assistance for monthly income maintenance or government-funded long-term care could be considered. However, new DOS instructions now include the use of noncash benefits by applicants, sponsors, and family members as a valid consideration in making a public-charge determination. Individuals who have used these benefits should be cautious when applying for immigrant visas at a consulate.
USCIS has not yet taken a similar stance for green card applications filed domestically, and the factors affecting their public-charge determinations remain unchanged. At this point, it is unclear whether USCIS will follow suit.
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Unmarried A & G Domestic Partners May No Longer
Be Eligible for Visas as 'Immediate Family Members'
In recent communication, it appears that the Department of State will only accept the accreditation of spouses of newly arrived officers and employees of international organizations and embassy staff, both same-sex and opposite-sex, as members of the immediate family of the principal A or G visa holder, as of October 1, 2018. Domestic partners accompanying them or seeking to join them must be married in order to be eligible for a derivative nonimmigrant visa. Moreover, effective October 1, 2018, domestic partners who need to renew their visa must be married in order to do so. In communication circulating within this international community, the State Department reiterated that the spouse must not be a member of some other household and must reside regularly in the household of the principal. Currently accredited same-sex domestic partners — who do not need to renew their visas now — have until December 31, 2018 to marry. While an official announcement has not yet been published on the DOS website, the prospect of this change is certainly troubling.
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Morale at ICE
Reaches New Low
As criticism of the agency increases, dissent is forming with Immigration and Customs Enforcement (ICE). In a letter addressed to the Secretary of Homeland Security, Homeland Security Investigations (HSI) proposed a deconstruction of ICE into its two main but independent components, HSI and Enforcement and Removal Operations (ERO). The latter is managed by a union and focuses on civil immigration violations, removal efficiencies, and developed detention. HSI, on the other hand, is a non-bargaining-unit workforce that counters the exploitation of international trade, travel, and finance by terrorists and international criminals.
In light of these divergent roles, HSI is advocating for separating the two into their own independent agencies, noting that ICE is the only federal law enforcement agency that has two completely different missions. Separation would improve focus and efficiency, and could also improve morale for both institutions as the ICE brand has consistently deteriorated. Competition for funding would be reduced, and efficiency may increase. This request by HSI is not surprising given the increasingly negative portrayal and public dissatisfaction with ICE.
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DHS Sued Over Silent Approach to
Third-Party Worksite Placements for OPT
A lawsuit filed in the Northern District of Texas is alleging that DHS violated the Administrative Procedure Act (APA) by publishing a rule affecting the F-1 Optional Practical Training (OPT) program for STEM students. The original rule DHS published extending OPT employment for STEM students was properly implemented through the notice-and-comment procedure. However, the new rule did not undergo the same process even though DHS was making major changes to the program. The rule requires that all OPT work be performed physically at the physical location of the employer. The rule also prohibits these STEM students from receiving training or education from anyone not employed with the same employer. The practical effect of this rule is to prevent third-party placement through staffing and consulting companies, particularly in the tech sector. Even more concerning is that DHS has been applying this rule retroactively and invalidating employment that has already been approved by the school and registered in the SEVIS system.
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NEWS IN BRIEF
The following additional items may be of interest to our readers:
Judge Orders DACA Reinstatement: The lawsuit against terminating DACA continues in federal court, where a district court judge ruled that the program must be fully restored.
TPS Extensions for Yemen and Somalia: On July 19, 2018, DHS Secretary Kirstjen Nielsen announced that Temporary Protected Status (TPS) would be extended for Somalia, determining that the ongoing conflict and extraordinary yet temporary conditions that support Somalia's current designation still exist. The country received its initial designation in 1991 for the same reason. There are about 500 Somali TPS beneficiaries, and they are eligible to re-register for an extension of their status for 18 months, through March 17, 2020. On August 14, 2018, TPS was extended for Yemen, who may extend their status through March 3, 2020. Initially designated in 2015 based on ongoing armed conflict resulting from the 2014 Houthi expansion, that conflict and humanitarian crisis continues today. There are approximately 1,250 current beneficiaries under Yemen's TPS designation.
Immigration Judges' Union Files Grievance with Department of Justice: The National Association of Immigration Judges, the union representing some 350 immigration judges, filed a grievance with the DOJ's Executive Office for Immigration Review (EOIR) seeking redress for the unwarranted removal of numerous cases from the docket of an immigration judge. The grievance asserts that EOIR violated the collective bargain agreement between the union and the agency, violated the immigration regulations concerning immigration judges, and the Due Process Clause of the Constitution.
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