Immigration News

Today, immigration advocates filed a national class action lawsuit against U.S. Citizenship and Immigration Services (USCIS) challenging a new agency policy, which has resulted in the rejection of thousands of applications filed by vulnerable immigrants. The lawsuit alleges that the agency rolled out the new rule by specifically targeting humanitarian benefits provided by Congress, including those for survivors of domestic violence and human trafficking; asylum seekers; and children who have been abandoned, abused, or neglected. Under the new policy, USCIS rejects applications that have any blank response field, even where the question is not applicable—for example where the applicant fails to include a response for middle name because they have no middle name. In many cases, USCIS’ implementation of the new rule has led to rejections even where the applicant did include responses in all of fields, as in one of the named Plaintiffs’ cases. Additionally, the rule is so […]

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DHS published a new public charge rule that dramatically changes the standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a “public charge.” “Public charge” is not defined in the immigration law, but since 1999, the term has meant a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” The rule takes effect on October 15, 2019 (see below), unless lawsuits already filed enjoin its implementation. The rule is significant and is expected to result in an increase of denials for both immigrants and nonimmigrants. It is expected to deter persons from seeking benefits for which they are eligible, even if they are exempt from this public charge rule, because of the fear it could disqualify them for permanent residency or a visa. Specifically, the rule affects persons […]

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It seems like every month the Administration comes up with yet another way to restrict the ability of asylum seekers to obtain protection from persecution in order to deter the flow of refugees. On April 29, President Trump issued a memorandum ordering changes to U.S. asylum policies. The memo orders the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would: Require asylum seekers to pay a fee to apply for protection. Require applicants to pay a fee to apply for work authorization for the first time. (Right now, asylum applicants — who must wait 180 days before qualifying for work authorization — can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.) Place people who have shown a credible or reasonable fear of being persecuted or tortured into limited removal proceedings that […]

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USCIS has reminded F-1 students whose cap-subject H-1B petition remains pending that they risk accruing unlawful presence if they continued to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization was only valid through September 30. While USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1 to have his or her F-1 status and any current employment authorization extended through September 30, the regulations do not provide for “cap-gap” work authorization beyond September 30. Clearly, the regulations contemplated that USCIS would adjudicate all affected cases before October 1 to avoid a gap in employment. But, because USCIS has not yet adjudicated all cap-subject H-1B change-of-status petitions for all F-1 students, some beneficiaries will have to stop working. Such F-1 students generally may remain in […]

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Effective October 1, USCIS began implementing its policy of referring cases to the immigration court through the issuance of a Notice to Appear (NTA) on denied status-impacting applications, 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. Although USCIS had had longstanding authority to issue “referral NTAs” to ICE, USCIS exercised this authority sparingly and only in specific situations. Not any more. In announcing the implementation of its new policy, USCIS makes clear that it will be taking an incremental approach; in other words, it will not be referring all cases to ICE. Here is a summary of how USCIS expects to implement the new policy and some procedural considerations: This initial […]

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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. Read More Immigrant Rights Organizations File Complaint With DHS Over Coercive and Illegal Tactics

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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’ […]

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 […]

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) […]

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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 […]

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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 […]

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June 26, 2018 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 […]

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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On October 10, USCIS published a proposed rule that would expand the definition of “Inadmissibility on Public Charge Grounds,” which is intended to determine whether a foreign national is inadmissible because he or she is likely at any time to become a public charge. Having received cash benefits from the United State is currently a consideration in this equation. However, under the proposed rule, an individual having received noncash benefits, including Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing vouchers, or rent subsidies could potentially be considered a “public charge.” The proposed rule cites that individuals, not their family members, who receive one or more of these benefits with a combined value of at least 15 percent of federal poverty guidelines (i.e., roughly $1,800 a year, or $150 a month) could be deemed a “public charge.” These are benefits for which foreign nationals are eligible, but now it appears they will be penalized […]

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Van Der Hout LLP Immigration News Update is our e-newsletter, mailed out approximately six times a year, with recent immigration-related news and information. You can subscribe to the newsletter or view past issues below.