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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

USCIS Will Accept Credit Card Payments
for Most Common Petitions and Applications

This month, USCIS announced that it will now accept credit card payments for 41 of its fee-based forms being processed at USCIS lockbox facilities. These forms include the I-130 petition for relatives, I-140 petitions for employees, and I-485 green card applications. The Form I-129 is not included, meaning that fees for H-1B, O, P, E, and L petitions must still be paid by check.

To pay by Visa, MasterCard, American Express, or Discover, applicants will need to use Form G-1450, Authorization for Credit Card Transactions. Card information is entered into the pay.gov system operated by the Treasury Department, and the Form G-1450 will be destroyed to protect the cardholder's information.

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Immigration Reform Updates

President Trump's decision to end the DACA program has served as a catalyst to reform the country's broken immigration system quickly. Over the past five months since the announcement that DACA would be terminated on March 5, popular and political support for DACA gained momentum. The President also expressed a desire for fair treatment of DACA recipients. However, and despite the headlines, talking points, and rhetoric, DACA is still set to expire on March 5, and Congress appears to be even further from consensus than when they started. (But see story, below, on the DACA injunction.)

There have been at least 20 immigration reform bills introduced in Congress, and none of them is perfect. And, the White House issued its framework for immigration reform, which includes commitment of funds for border security, status for 1.8 million DREAMers, reduction of family-based immigration to the nuclear family, and elimination of the Diversity Visa lottery.

In the wake of this activity, Senate Majority Leader Mitch McConnell allowed four immigration bills to come up for a vote in the Senate last week. The McCain/Coons attempt at a clean Dream Act fell eight votes short of passing. A bipartisan proposal from Senators Collins, Durbin, Graham, and Flake to create a path to citizenship for DACA recipients with some border funding and changes to family-based immigration missed passage by six votes. Senator Grassley introduced the White House framework as its own bill but it went nowhere. A fourth bill dealing only with sanctuary cities made it to the floor, but also failed.

If these votes are an indicator of things to come, it is unlikely that Congress will reach a DACA solution before March 5.

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DACA Lawsuit Results
in Nationwide Injunction

Judge Nicholas G. Garaufis of the federal district court in Brooklyn has stepped into the DACA debate and issued an injunction ordering the Administration to keep DACA in place as it was before the Administration announced termination of the program. However, USCIS has announced that it is not accepting DACA requests from individuals never granted DACA. The injunction from Judge Garaufis is similar to one issued last month by Judge William Alsup of the federal district court in San Francisco.

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More Updates on TPS:
Syrians, El Salvadorans, and Haitians

DHS Secretary Nielsen has determined that an extension of the Temporary Protected Status designation for Syria is warranted pursuant to INA §244(b)(1)(A) (ongoing armed conflict) and INA §244(b)(1)(C) (temporary but extraordinary conditions). The designation has been extended for another 18 months, through September 30, 2019. However, there is a small caveat in the determination: TPS will not be offered to any Syrian national who arrived after August 2016. This restriction could be appropriate under a determination for a natural disaster, but it does not make a lot of sense to apply such a restriction to what has essentially been determined to be an active combat zone. There are fewer than 7,000 Syrians in the United States who have protection under TPS.

Meanwhile, and as widely reported in the news, DHS terminated TPS for nationals from Nicaragua, Haiti, Sudan, and El Salvador, the latter of which will officially terminate on September 9, 2019. The loss of TPS designation for El Salvador alone will affect 200,000 people who have been legally residing in the U.S. for nearly two decades.

The termination of Haiti's TPS designation has been challenged in the courts by the NAACP, alleging the termination was motivated by racial animus. Meanwhile, and while that case is litigated, DHS removed Haiti from the H-2A/B visa list (visas for low-skill seasonal workers in agriculture and other industries who are citizens of a designated country). The current list includes over 80 countries, mostly from the Western Hemisphere and Europe. DHS has the authority to add or remove countries from the list at any time. In its notice removing Haiti from the H-2 country list, DHS cites "high levels of fraud and abuse" and a "high rate of overstaying" by the few Haitians who hold H-2A/B visas. Belize and Samoa were also removed from the lists for risks stemming from human trafficking and for not taking back nationals ordered removed from the United States, respectively.

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Attorney General May Make
New Administrative Closure Rules

Systemic and crippling court backlogs are a source of frustration for all sides — ICE, immigrants, and immigration judges alike. Administrative closure is a key tool used by immigration judges to prioritize cases and manage their ever-growing case load. It allows a judge to use discretion and allows immigrants to pursue other forms of relief available to them outside of the courts.

Attorney General Jeff Sessions has taken aim at administrative closures by referring a case from the Board of Immigration Appeals (BIA), the administrative appeals court, to himself, and has invited comments on four key questions: (1) Do immigration judges (IJs) have the authority to administratively close cases? (2) If so, should they? (3) Is another docket-management tool, such as a continuance, more appropriate? and (4) If the AG determines that the BIA and IJs don't have the authority to order administrative closure, what should be done with cases that are already administratively closed?

Interestingly, the case Sessions referred to himself is of an unaccompanied minor who was not represented by an attorney. In this case, the IJ administratively closed proceedings instead of ordering the alien removed when the alien did not appear for his hearing. The judge questioned whether the government had provided his correct address and, concerned about the alien's due process rights, chose not to order him removed. DHS appealed to the BIA. It is concerning that Sessions would pick such a case, of the many available, to review this important procedure. It does not bode well for the future of administrative closure.

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Revamping Interviewing Schedule
to Address Asylum Backlog

USCIS is no longer scheduling affirmative asylum cases based on a "first in, first scheduled" basis. Now, cases that have been pending less than 21 days will be scheduled first, working backwards toward older cases. This new scheduling approach is purposefully aimed at deterring "individuals from using asylum backlogs solely to obtain employment authorization by filing frivolous, fraudulent, or otherwise non-meritorious asylum applications." By giving priority to recent filings, USCIS seeks to refer denied claims to the immigration court faster and cut off work authorization. The following is the new asylum interview scheduling system:

  • First priority: Applicants who were rescheduled for an interview, but the interview had to be rescheduled at the applicant's request or the needs of USCIS.
  • Second priority: Applicants who have been pending 21 days or less.
  • Third priority: All other pending affirmative asylum applicants will be scheduled for interviews starting with newer filings and working back toward older filings.

This new schedule does not, however, guarantee that interviews will occur in 21 days for all who file an asylum application from this point forward. USCIS has already expressed concern that "workload priorities related to border enforcement may affect our ability to schedule all new applications for an interview within 21 days." And, while USCIS's move may delay acquiring an employment authorization document (EAD), it does not prevent one from obtaining it.

No doubt, the current asylum backlog is a serious issue, with no clear answer in sight. Last year, the Asylum Division had a backlog approaching 270,000 asylum cases, more than double from two years before. And, USCIS has struggled over the years to figure how to prioritize scheduling. In fact, this new approach is similar to how asylum cases were scheduled prior to 2014. But, that resulted in a backlog of over 60,000 cases, which was a growing concern at the time. The 2014 asylum scheduling reversed priorities, handling the oldest cases first, but also exacerbated the backlog instead of alleviating it. By the end of FY2015, the backlog had already grown by 77 percent.

Moreover, backlogs do not end with the interview. If an affirmative asylum case is denied, it is referred to the immigration court where the applicant is able to tell his or her story once again before an immigration judge. However, this process can take years due to significant immigration court backlogs. At the end of the day, a vast number of asylum applicants can continue to expect to wait years for an interview and even longer for final disposition of their case.

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Administration Announces Implementation
of New Refugee Screening Procedures

When the executive order travel bans were issued, they included directives to the DHS Secretary to review the security risks posed by refugee admissions. In January, DHS announced that additional security enhancements and recommendations to strengthen the integrity of the U.S. Refugee Admissions Program (USRAP) have been implemented. The new measures are part of the Administration's effort to intensify screening and vetting for all arriving foreign nationals, but particularly for refugees arriving from the Middle East and Africa. These measures include:

  • Additional screening for certain nationals of high-risk countries;
  • Administering the USRAP in a more risk-based manner when considering the overall refugee admissions ceiling, regional allocations, and the groups of applicants considered for resettlement;
  • A periodic review and update of the refugee high-risk country list and selection criteria.

It is reasonable for DHS to evaluate our refugee program for security and efficiency, but not to re-orient it away from its primary humanitarian purpose of providing relief to those who are persecuted and identifying refugees for resettlement. We hope these new measures, which focus on security threats and risk assessments, do not totally undermine the reason for our refugee admissions program.

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CBP Sending Compliance Emails to
Warn VWP Entrants of I-94 Expiration Date

CBP recently announced that it has implemented two new traveler compliance initiatives to allow Visa Waiver Program (VWP) (ESTA) travelers to check the status of their stay in the United States. A new feature added to the I-94 website under the "View Compliance" tab allows VWP travelers to check the status of their admission to the United States. This check will inform travelers of the number of days remaining on their lawful admission or the number of days they have remained past their admitted until date. In addition, CBP is now sending email notification to VWP travelers who are still in the United States 10 days prior to the expiration of their lawful admission period according to its records, and advising that the foreign national must depart the United States unless a pending or approved petition allows the person to remain (such as having applied to adjust as an immediate relative). CBP has taken these steps as part of CBP's Traveler Compliance Check launched in May 2017 to prevent travelers from overstaying.

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Consular Officers Given Greater Flexibility
on Validity Period of Nonimmigrant Visas

A DOS revised note provides guidance to consular officers on how and when to issue nonimmigrant visas for a shorter period of time, or a fewer number of admissions (entries), than that prescribed on the basis of reciprocity if warranted in an individual case. DOS advises that limitations of visa validity are most appropriate when the applicant's bona fides in the immediate near term are not in question, but the stability of the applicant's longer-term ties to his or her residence abroad are in doubt. Other scenarios also could apply. Normally, the U.S. prescribes the period of visa validity and number of entries consistent with how that foreign country treats U.S. citizens in the same or similar visa category. While consular officer decisions are not appealable, officers who identify due cause for such limitations are required to obtain concurrence from a consular manager.

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OIG Reports Poor Conditions
in ICE Detention Facilities

The Office of Inspector General for DHS, the "watchdog" of the department, conducted random site visits at six ICE detention facilities to determine whether the baseline standards of detainee treatment were being met. The resulting report exposed numerous unsatisfactory conditions at several ICE detention facilities.

One of the facilities was not housing detainees according to their criminal history, resulting in nonviolent aliens being housed with violent criminals. Another facility was uniformly strip-searching all detainees and failing to document the reason or results. Administrative and disciplinary segregation was poorly documented and potentially abused. Detainee grievances went unaddressed. Some facilities inspected had failed to provide language assistance, creating a communication barrier between detainees and staff that "risks turning problems that could have been resolved through routine interaction into disciplinary issues." The ICE National Detainee Handbook, which covers critically essential information about their legal rights, was not provided in a language that could be understood. Medical consent forms were not always available, even in Spanish. Furthermore, four of the six facilities reported instances of mistreatment of detainees by staff. There were other instances of poor conditions and lack of hygienic supplies.

The audit done by the OIG was telling. Of the six facilities visited, one was operating fairly well. Three needed some corrections implemented immediately, and two were absolutely abysmal as far as their all-around treatment of detainees. That is not a good indicator of the general conditions at the majority of the other detention facilities. This is not new news. Conditions at detention facilities have been the subject of law suits for decades. The OIG report recommended that ICE improve those problems specifically identified. However, given some of the content of the report, the Director of ICE may be better served by also investigating and terminating the employment of facility staff now who are responsible for these gross oversights and abuses.

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Court Holds that Administration Cannot Withhold Federal Funds, Even from Sanctuary Jurisdictions

One of President's Trump's first actions in office was to make a show of withholding federal funds from sanctuary jurisdictions. In the "Enhancing Public Safety in the Interior of the United States" Executive Order, the President sought to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." Two California jurisdictions that do not honor detainers (the core compliant of the Administration) sued in federal court to enjoin the order.

In his opinion, U.S. District Judge William Orrick first identified which branch controls the grant of federal funds: Congress, not the President. The judge also relied on the Tenth Amendment, which requires that any conditions on federal funds must unambiguous, timely made, bear some relation to the funds at issue, and not be unduly coercive. The Executive Order did not meet the requirements, and the judge was able to permanently enjoin this portion of it. (Because of the high interest in sanctuary cases, the district court has established a dedicated Web page with case information and other important news.)

The decision by the federal judge came shortly after the Attorney General sent letters to several sanctuary jurisdictions threatening them with withholding federal dollars if cooperation in immigration was not forthcoming. After the decision, the relevant authorities in the executive branch did disperse federal funds to many jurisdictions, including those that had received a letter from the AG just a few weeks prior.

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ICE Still Appearing at Courthouses

ICE has in place a policy governing interior enforcement actions at sensitive locations. These locations have been defined as schools, hospitals, houses of worship, religious/civil events (e.g., weddings and funerals), and public demonstrations (e.g., marches and rallies). Under its guidelines, if an enforcement action is set to take place at one of these locations, there must be prior approval or exigent circumstances. (Its policy applies only at sensitive locations not merely near them.) ICE has never considered courthouses to be sensitive locations and will conduct enforcement operations there. ICE has been pressed on this issue several times, because the policy deters victims and witnesses to crimes to come forward, but has not expressed any willingness to add courts to the sensitive locations list. In fact, DHS Secretary Nielsen, at her recent Senate hearing, rejected all proposals to discontinue the practice. ICE supports this decision by citing: (1) the unwillingness of some local jurisdictions to honor ICE requests; (2) the inherent safety in pursuing enforcement actions in places where people have already been screened for weapons, and (3) that enforcement actions at courthouses are extremely common for other local, state, and federal law enforcement officials. While a number of judges have publicly expressed their outrage over the practice, the public should not expect ICE to stop this practice absent a judicial ruling.

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News in Brief

The following additional items may be of interest to our readers:

Parole for Entrepreneurs Moving Forward: The international entrepreneur rule allows certain entrepreneurs to be granted "parole" and remain in the U.S. while they develop their business idea. The rule was crafted late in President Obama's term and was set to take effect on July 17, 2017. The incoming Administration delayed implementation and was sued in federal district court. That court held: "Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act shapes the contours of those consequences." The court concluded that the delay was unwarranted and ordered USCIS to implement its parole rule. The rule is scheduled to go into effect on March 14, 2018.

Public Charge: The Administration may be considering taking a more serious look at the "public charge" provisions that affect admissibility. Under INA §212(a)(4), an individual who is likely to become primarily dependent on the government for subsistence can be labeled a public charge and deemed inadmissible — a determination that relies on a number of considerations and is primarily based upon the receipt of cash benefits. A leaked draft of potential changes to the existing laws include the considerations of public assistance beyond cash benefits, including educational programs, CHIP, WIC, and others. Stay tuned.

TN Visa Becomes More Restrictive for Economists: USCIS recently issued new guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist. Professional economists requesting TN status must now engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

DHS Issues Waiver to Expedite Construction Efforts on Border: On January 23, 2018, DHS issued a waiver that eliminated the Department's obligation to comply with various laws, including environmental and cultural property laws. This waiver was issued to ensure the expeditious construction of barriers and roads on the border in portions of the El Paso sector, a high-traffic area. In FY2016 alone, CBP apprehended over 25,000 illegal aliens and seized approximately 67,000 pounds of marijuana and 157 pounds of cocaine in the sector. DHS exercised its authority under section 102(c) of the 1996 IIRIRA legislation, which has been invoked on seven previous occasions: five times between 2005 and 2008 and twice in 2017.

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