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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

Travel Ban Upheld
by Supreme Court

On June 26, the Supreme Court issued its much anticipated decision, upholding President Trump's September 24, 2017 Proclamation ("Travel Ban 3.0"), which currently excludes nationals from seven countries, stating that the proclamation was "squarely within the scope of Presidential authority under the INA." (Trump v. Hawaii, 6/26/18). The travel ban includes restrictions against five majority-Muslim nations — Iran, Libya, Somalia, Syria, and Yemen. North Korea and Venezuela are also on the list. Three other majority-Muslim nations (Chad, Iraq, and Sudan) were removed since the policy was first implemented through Executive Order in January 2017.

The Court rejected the constitutional challenge to the ban. Applying deference to the President despite the evidence presented, the Court explained that it would "uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." The court then concluded, based on the record in the case, that the ban had "a legitimate grounding in national security concerns, quite apart from any religious hostility." In a 5-4 vote, the Court's conservatives said the President's statutory power over immigration was not undermined by his history of incendiary statements about the dangers he said Muslims pose to Americans.

Chief Justice Roberts delivered the opinion of the Court, and Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor also filed a dissenting opinion, in which Justice Ginsburg joined.

Writing for the majority, Chief Justice John G. Roberts Jr. said that Mr. Trump had ample statutory authority to make national security judgments in the realm of immigration.

Even as it upheld the travel ban, the majority took a momentous step. It overruled Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II. But Chief Justice Roberts said this decision was very different: "The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority," he wrote. "But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission."

The Executive Order travel ban did include provision for case-by-case waivers of the entry restrictions, if a consular officer determines that the applicant meets each of the following three criteria: (1) denying entry would cause the foreign national undue hardship; (2) entry would not pose a threat to the national security or public safety of the United States; and (3) entry would be in the national interest.

In guidance issued in February 2018 to Senator Chris Van Hollen (D-MD), the Department of State (DOS) advised the following in terms of how a waiver of the travel ban may be overcome: First, to satisfy the undue hardship criterion, the applicant must demonstrate to the consular officer's satisfaction that an unusual situation exists that compels immediate travel by the applicant and that delaying visa issuance and the associated travel plans would defeat the purpose of travel. Second, the applicant's travel may be considered in the national interest if the applicant demonstrates to the consular officer's satisfaction that a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of that country are lifted. Finally, to establish that the applicant does not constitute a threat to national security or public safety, the consular officer will consider the information-sharing and identity-management protocols and practices of the government of the applicant's country of nationality as they relate to the applicant. If the consular officer determines, after consultation with the Visa Office, that an applicant does not pose a threat to national security or public safety, and the other two requirements have been met, a visa may be issued with the concurrence of a consular manager. Hopefully, further guidance will be issued by DOS and DHS to help potential applicants better understand what is required.

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Supreme Court Upholds Due Process Rights for
Certain Immigrants in Removal Proceedings

Due process is an essential tenant of the rule of law. In the immigration context, there are certain standards that must be met to ensure a full and fair hearing for the immigrant. The immigration laws require that "Notices to Appear" (NTAs), which are essentially the immigration version of a charging document, must contain specific things. These include: nature of proceedings, legal authority for proceedings, the charges against the immigrant, the time and place of the hearing, and a notice that the alien may be represented and that they must provide the court with their contact information. On June 21st, the Supreme Court ruled in Pereira v. Sessions that failing to meet the requirement to list the time and place of the hearing when serving an NTA invalidates it. The case has potentially far-reaching implications for removal cases.

Routinely, both Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) do not list the time and/or place of the hearing, instead listing "to be set." An immigration court case cannot commence without proper service and filing of the NTA. If an NTA is invalid, then arguably the court does not have jurisdiction over the case and proceedings must be terminated. This opens the door for thousands of immigrants to file motions to terminate their court case. Presently, this decision is being inconsistently applied nationwide. Some judges are terminating proceedings, and some are requesting that both the immigrant and the government file written arguments. Still others are continuing cases until further guidance is received, and a few are denying such motions.

There are specific cases in which terminating proceedings — even if ICE files a correct NTA right away — is beneficial. For example, in cancellation of removal cases, the NTA stops the accrual of time the immigrant can use to meet an eligibility requirement. If the old NTA is deemed invalidated and a new NTA is issued, the immigrant might now qualify. Additionally, for I-601A Provisional Waiver cases, an immigrant must either not be in removal proceedings or have his or her case administratively closed. If the court terminates their case based on Pereira, the immigrant could become eligible for the waiver. Overall, this decision will help immigrants and ensure that future NTAs are issued in accordance with the law.

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Immigration Enforcement Measures
Dominate Immigration Policy and Practice

Changes and enhancements to immigration enforcement measures continue to develop at a breathtakingly rapid pace. Currently front and center is the Administration's separation of family members on the southern border, which has finally pushed the border wall from the spotlight. Attorney General Jeff Sessions' "zero-tolerance" policy for illegal border crossings resulted in directing his attorneys to pursue criminal prosecutions for any individual caught crossing illegally, sparked a national uproar. The President was forced to issue a new Executive Order on June 20, which continues to produce confusion, uncertainty, and widespread criticism, never mind abhorrent conditions for those affected. The fate of some 2,300 children separated from their parents after crossing the southern border remains uncertain and bogged down in tremendous bureaucratic red tape, and 17 states have now sued the government over its family separation policy. Simply stated, the situation is a mess.

The Attorney General has also issued two precedential decisions that will produce major changes in the immigration courts. In Matter of Castro-Tum, AG Sessions effectively prevented immigration cases from being administratively closed unless required by statute or regulation. He also ordered that the 300,000+ cases that were administratively closed under President Obama be reopened. In the second decision, Matter of A-B-, AG Sessions took a broad step in unilaterally declaring that asylum claims based on gang violence or domestic violence were unlikely to qualify for asylum. When this decision is applied to credible-fear interviews for screening asylum applicants at the border, numerous people could be turned away at the door before being provided a chance to develop their claims. The Attorney General's recent decisions are complemented by the completion quotas being imposed on immigration judges (700 per year), and the curtailing of continuances to allow the parties (or judge) more time to develop and try a case.

ICE continues to be active in their enforcement actions against employers who hire undocumented workers and their employees using fraudulent identity documents. High-profile raids recently took place at a slaughterhouse in Tennessee and at two flower/garden centers in Ohio. In the Ohio raids, 114 workers were placed in detention but no company officials were arrested during the raids. At the same time the agency has increased I-9 audits by nearly 60 percent compared to the last fiscal year, and has plans for another wave of audits this summer, pushing the total to well over 5,000 by September 30, 2018. ICE has also developed a plan to create an Employer Compliance Inspection Center to centralize issuing and reviewing audits, with a goal of 15,000 audits issued per year. The point of this plan is to give the impression to employers that they are likely to be audited.

The Attorney General and the Administration are continuing to take dramatic steps to enforce their anti-immigration agenda. Historically, such actions would simply be a temporary show of force to demonstrate confidence in the executive branch's ability to enforce immigration laws as Congress prepares for reform. Under this Administration, however, it is difficult to anticipate whether any immigration reform will be possible.

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Overstay Report Prompts Changes to Policies
Regarding Foreign Students & Unlawful Presence

The Department of Homeland Security (DHS) is required to present an annual report of the number of foreign nationals who are admitted but overstay. Overstays are defined as (1) individuals for whom no departure has been recorded and are likely still in the U.S., and (2) individuals who have a recorded departure after their lawful period of admission expired. DHS is currently able to track overstays from all air and sea entries (excluding C and D visa holders) but does not have data for land entries from Canada and Mexico. The report for FY2016 indicated that over 98 percent of the 50,437,278 nonimmigrants admitted via air and sea ports in FY2016 departed the United States on time and abided by the terms of their admission.

However, some visa categories are more prone to overstaying than others. For example, the report notes that of the 1,457,556 foreign students expected to depart in FY2016, 5.48% overstayed their visa (F students: 6.19%; J students: 3.80%; M students: 11.60%). The departure rates by major source countries for foreign students is as follows: China: 94.98%; India: 95.38%; South Korea: 94.94%; Japan: 97.08%; Saudi Arabia: 93.17%; and the United Kingdom: 97.54%. On the other hand, Chad, Congo (Kinshasa), Djibouti, and Libya all have overstay rates that hover around 40%. The worst offender, Eritrea, has a foreign student overstay rate of 77.78%. (It is important to keep in mind that these countries only send a few students to the U.S. each year, so each overstay will drastically affect the final percentage.)

Possibly motivated by this data, USCIS issued a policy memorandum regarding "unlawful presence" for foreign students. Most of these individuals are admitted under a flexible "duration of status" (D/S) designation, which has historically protected foreign students from accruing unlawful presence if they violate their student status. The new memo, however, presents updated guidance for calculating the amount of unlawful presence for foreign students (F-1, J-1, M-1) and their dependents. For these individuals, unlawful presence starts accruing as follows:

  • For F, J, or M nonimmigrants who failed to maintain their status before August 9, 2018, unlawful presence will begin accruing starting August 9, 2018.
  • For F, J, or M nonimmigrants who failed to maintain their status on or after August 9, 2018, unlawful presence will begin accruing:
    • The day after the student no longer pursues the course of study or authorized activity/work;
    • The day after the student engages in an unauthorized activity/work;
    • The day after completing the course of study (including any OPT options and the grace period);
    • The day after the I-94 expires, if admitted until a date certain; and/or
    • The day after the student is ordered excluded, deported, or removed (whether or not the decision is appealed)

This new policy is an attempt to reduce the percentage of student visa overstays. It will take affect August 9, 2018 and will be applicable to foreign students admitted in D/S or until a date certain. Technological advancements in data collecting and sharing through the SEVIS program have made this change in policy possible. In assessing whether a foreign student accrued unlawful presence, the USCIS officer will consider all of the information contained in available DHS systems and databases, including SEVIS, as well as any other information contained in the student's alien record. The academic and immigration community are concerned about the accuracy of the information being shared and the reliability of notifying the foreign student if a violation is found. This is especially concerning because foreign students would become subject to the three- and ten-year bars if they accrue more than 180 and 365 days of unlawful presence, respectively. Such bars are triggered when the foreign student leaves the United States.

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More on Foreign Students

Reporting Volunteer Positions During OPT

In a new "broadcast message," SEVIS Response Center advises that foreign students engaging in volunteer work that is unrelated to their course of study does not qualify as optional practical training (OPT) and should not be listed as OPT employment. Reporting nonqualifying volunteer work as OPT employment could be considered a violation of the student's reporting requirements and subject them to removal. Additionally, nonqualifying volunteer work does not stop the accrual of unemployment, which the OPT program has limited to a total of 90 days.

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USCIS Processing Times:
What Do They Mean?

The processing times listed on the USCIS website now show a range of expected completion dates as opposed to a concrete date. For example, change-of-status applications (I-539) filed at the Vermont Service Center for the H-4 category show processing times of 10.5 to 13.5 months. This "cycle time" indicates that 50 percent of these cases are adjudicated within 9.5 months, and 93 percent are adjudicated within 13.5 months. Other types of applications and petitions have greater ranges, sometimes because these cases are handled by one of the numerous field offices, which vary considerably in efficiency and speed. Cycle times for naturalization applications are 10 to 19 months; employment-based green card applications have a cycle times of 8.5 to 22 months.

USCIS is currently proceeding with naturalization applications in the order that they were filed, but about 10 percent of cases (likely selected at random) are being processed through the ELIS system for training purposes, which is why some cases seem to be adjudicated far more quickly than most. Also, InfoPass appointments will become increasingly sparse as USCIS continues to pull more of its staff from InfoPass assignments so they can continue working on their respective caseloads.

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USCIS Extends I-829 & I-751 Receipt Notice Validity
Due to Increased Processing Times

USCIS announced that EB-5 investors filing I-829 applications and marriage-based petitioners who file I-751 applications to remove the conditions on their green cards will be able to use the receipt notice as evidence of continued status for 18 months past the expiration date on their conditional green card. This increased validity period (up from 12 months) is the result of increased processing times for these petitions.

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DHS Releases Its Strategy
to Secure the Northern Border

While significant attention is given to the U.S.-Mexico border, our northern border with Canada still merits attention and security. DHS recently released its Northern Border Strategy to secure the 5,525-mile border, the longest land boundary between two countries in the world. The terrain on the border varies widely according to location and seasonal weather patterns, presenting unique challenges in security. DHS reports that approximately 400,000 people and over $1.6 billion in goods cross the northern border daily through more than 120 ports of entry. To facilitate the safe, secure, and efficient flow of goods and people, DHS has committed over 3,600 CBP officers, 2,200 Border Patrol agents, 180 CBP agriculture specialists, 230 CBP Air and Marine personnel, 1,300 ICE special agents, and 8,000 Coast Guard personnel.

The Northern Border Strategy addresses the full spectrum of border-related issues including: preventing terrorism and criminal threats, disrupting illicit border activity; leveraging intelligence and information sharing; facilitating legal trade and travel; promoting continued joint cross-border operations, exercises, and programs with partners; and supporting cross-border resiliency efforts for shared resources and critical infrastructure. DHS will use this strategy to prioritize their resources over the next five years, when the Northern Border Strategy will be reviewed and updated.

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DOS Proposing Retaliatory Restrictions
on Chinese Student Visas

As the Trump Administration continues to take a hard-line stance toward China in the sphere of free trade and open markets, the Department of State is considering limiting the issuance of F-1 visas to Chinese nationals. A June 11, 2018 proposal is a direct response to China's alleged intellectual property violations. There has been no formal policy release yet, though DOS may limit visas to just one year on a case-by-case basis for Chinese graduate students studying in the science, technology, engineering, and mathematics (STEM) fields. There also will likely be additional clearances for Chinese nationals seeking work visas through certain U.S. companies that handle sensitive material. As part of his national security strategy, President Trump indicated that the Administration would review visa procedures and, more specifically, "consider restrictions on foreign STEM students from designated countries to ensure that intellectual property is not transferred to our competitors."

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Judge Orders DHS & DOJ to Fix Asylum Filing Procedures to Comply with One-Year Rule

A district court judge recently issued an important decision regarding the one-year filing deadline for asylum applications. By law, an asylum seeker who is present in the United States may apply for asylum but must do so within one year of arrival. The proper place to file (or lodge) the asylum application depends on which agency has jurisdiction over the case. In a functioning immigration system, an asylum seeker would appear at a port of entry or the border, have a credible-fear interview, and be released with instructions to file the formal asylum application with the immigration court (or USCIS, depending on the case) during the next 365 days.

Unfortunately, our current immigration system is overburdened and does not always afford the opportunity to file an asylum application within one year. First, it is not uncommon that the asylum applicant is not informed by CBP or ICE about the filing deadline. Second, if the applicant is referred to court, the charging document rarely has a scheduled court date and is often not filed with the immigration court for months. Until the charging document is filed, an asylum application cannot be filed with the court. That leaves hopeful asylum applicants in an impossible situation: even if they were informed about the one-year deadline, there is nowhere to file an asylum application anyway.

The judge ruled against the government, and gave DHS three months to create a better system of notifying individuals about the one-year deadline. The judge also ordered DHS to fix the mechanisms within the department to allow asylum applications to be filed in a timely manner, and gave it four months to accomplish this.

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USCIS Sued Over
Third-Party Worksite Memo

Just before this year's H-1B lottery, USCIS published a memorandum that requires petitioners who place their H-1B employees at third-party worksites to provide significantly more evidence to establish the employer-employee relationship. Such evidence could include documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the entire duration of H-1B employment. The memo aligns with the Buy American, Hire American executive order issued by President Trump at the beginning of his term. The Department of Labor has also made changes to its Labor Condition Application, requiring the legal business name of the end-user client at whose worksite the beneficiary intends to work.

However, a lawsuit filed against USCIS in New Jersey claims that the agency exceeded its authority in issuing additional requirements on third-party worksite H-1B petitions and violated the Administrative Procedures Act. Several small staffing companies along with the Small and Medium Enterprise Consortium (a trade organization) are seeking a temporary restraining order to stop USCIS from enforcing the memo. The lawsuit alleges an impermissible focus on the alien beneficiary instead of the petitioner, and expresses concern that the new requirements will be impossible to meet.

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NEWS IN BRIEF

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

U.S. Embassy in Nicaragua: Due to the current unrest in Nicaragua, the U.S. embassy in Managua has significantly reduced its hours, and DOS has suspended almost all visa processing. The embassy is prioritizing U.S. citizen services, immigrant visa cases that were already pending at the embassy as of May 16, 2018, and emergency nonimmigrant visa services. It is assessing the security situation on a daily basis before determining when it will resume normal hours of operation. Meanwhile, Nicaraguan nationals who are physically in another country may apply for a U.S. visa at that country's U.S. embassy. Additional information can be found at on the embassy's FAQ page.

DACA Update: DACA was set to terminate on March 5, 2018, but a federal court enjoined the termination and ordered DHS to continue accepting applications. The Ninth Circuit will hear the case next and likely uphold the injunction. In the meantime, DACA beneficiaries can use this time to renew their status. A permanent solution would likely need to come from Congress, which has yet to be able to pass any relevant legislation.

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