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Updates
| Class Action Lawsuit Challenges Immigration Agency’s Unlawful Rejection of Thousands of Humanitarian Applications |
| November 19, 2020 |
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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 arbitrary that USCIS has rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.” |
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| USCIS Issues Final Regulation on Inadmissibility on Public Charge Grounds |
| September 14, 2019 |
| 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, unless lawsuits already filed enjoin its implementation. Read More |
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| More on Government’s Attempts to Restrict Asylum Protection |
| June 17, 2019 |
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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:
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| Another Blow to Asylum Seekers: Attorney General Strips Eligibility for Bond |
| April 16, 2019 |
| On April 16, the Attorney General (AG) issued a decision in an asylum case, ruling that asylum seekers who entered between ports of entry — even if they establish a credible fear of persecution — are no longer eligible for release on bond by an immigration judge. The decision sweeps aside long-standing court precedent and will make it much harder for asylees to prove their claims or access legal counsel. Now, asylum seekers must request release at the discretion of ICE, which is unlikely to do so. In issuing this decision, the Administration is attempting to expand mandatory detention even though it has a choice not to detain these asylum seekers. The law provides that asylum seekers can be released from detention if they do not possess a flight risk or threat to the public safety. Not only does the decision affect asylum seekers, but it threatens the independence of immigration judges. The AG delayed implementation of his decision for 90 days to give DHS time to plan for additional detention facilities. The American Immigration Lawyers Association (AILA) and other organizations plan to challenge the decision. |
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| F-1 “Cap-Gap” Status and Work Authorization Extension Only Valid through September 30 |
| September 28, 2018 |
| 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. Read More |
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| USCIS Implements New Notice to Appear (NTA) Policy |
| September 26, 2018 |
| 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. Read More |
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| USCIS Not Obligated to Issue RFEs and NOIDs in the Case of a Deficient Filing |
| September 12, 2018 |
| 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 |
| August 23, 2018 |
| 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. Read More |
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Federal Federal Judge Orders Government to Reunite and Stop Separating Immigrant Families  |
| June 26, 2018 |
| A federal judge ordered the reunification of thousands of parents and children forcibly separated by the Trump administration. The American Civil Liberties Union sought the nationwide preliminary injunction to halt the practice and immediately reunite all the separated families. Thousands of families have been torn apart by this inhumane practice, which is designed to scare other families from seeking refuge in the United States. In its ruling, the court said all children must be reunited within 30 days; children under five within 14 days; and all parents must be able to speak with their children within 10 days. The court also prohibited any deportation of parents without their children, absent of a knowing waiver. In the future, no child can be separated unless it is genuinely in the child’s best interest. Read More |
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| Travel Ban Upheld by Supreme Court |
| June 27, 2018 |
| 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. Read More |
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| Supreme Court Upholds Due Process Rights for Certain Immigrants in Removal Proceedings |
| June 26, 2018 |
| 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. Read More |
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| Immigration Enforcement Measures Dominate Immigration Policy and Practice |
| June 26, 2018 |
| (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. Read More |
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| Overstay Report Prompts Changes to Policies Regarding Foreign Students & Unlawful Presence |
| June 26, 2018 |
| 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. Read More |
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| Reporting Volunteer Positions During OPT |
| June 26, 2018 |
| 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. Read More |
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| USCIS Processing Times: What Do They Mean? |
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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. Read More |
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USCIS Extends I-829 & I-751 Receipt Notice Validity Due to Increased Processing Times 
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| June 26, 2018 |
| 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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| 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. |
- 10/2020 – Immigration Law Update (Oct. 2020)
- 08/2020 – Immigration Law Update (Aug. 2020)
- 07/2020 – Immigration Law Update (July 2020)
- 04/2020 – Immigration Law Update – Special Edition (Apr. 2020)
- 04/2020 – Immigration Law Update (Apr. 2020)
- 03/2020 – Immigration Law Update (Mar. 2020)
- 09/2019 – Immigration Law Update (Sept. 2019)
- 06/2019 – Immigration Law Update (June 2019)
- 04/2019 – Immigration Law Update (Apr. 2019)
- 03/2019 – Immigration Law Update (Mar. 2019)
- 12/2018 – Immigration Law Update (Dec. 2018)
- 10/2018 – Immigration Law Update (Oct. 2018)
- 09/2018 – Immigration Law Update (Sep. 2018)
- 06/2018 – Immigration Law Update (June 2018)
- 04/2018 – Immigration Law Update (Apr. 2018)
- 02/2018 – Immigration Law Update (Feb. 2018)
- 12/2017 – Immigration Law Update (Dec. 2017)
- 10/2017 – Immigration Law Update (Oct. 2017)