What's New in the World of Immigration?

02/20/2019 - Slow Immigration Processing Times Draw Criticism and Questions

The National Law Review

Immigration case processing times have dramatically increased in the last few years, impacting U.S. businesses and immigrant families, often causing gaps in work authorization and even loss of employment. In a January 2019 Policy Brief, AILA (American Immigration Lawyers Association) opined, on the basis of USCIS data, that the Agency’s processing delays had reached “crisis levels under the Trump Administration,” noting that:

"[t]hese ballooning delays leave families—including families with U.S. citizen spouses and children in financial distress, expose protection-seekers to potential harm by bad actors, and threaten the viability of American companies facing workforce gaps."

The 2018 Homeland Security Report stated that at the end of FY 2017 (including President Trump’s first 9 months in office), there was a net backlog of 2.3 million cases – double the figure from FY 2016. And Congress is taking notice. More than 80 Democratic members of the House of Representatives, in their oversight capacity, sent a letter to USCIS Director L. Francis Cissna expressing their “grave concerns” about the delays. Indeed, the Congressmen are suggesting that the delays themselves seem to be a policy goal, stating:

Clearly, policy changes implemented by the administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission. Rather than continuing to seek ways to simplify and streamline its benefit-delivery system, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.

The Representatives want the backlogs to be reduced and have asked Director Cissna to answer a number of questions, including:

- How are “extreme vetting,” in-person interviews for employment-based green cards, and the USCIS reversal of the deference policy regarding nonimmigrant visa extensions contributing to the backlog?

- Why, when USCIS clearly needs more adjudicators, is the Agency requesting the transfer of $200 million of its own fee revenue over to ICE enforcement?

- Why have processing times increased while case volume appears to be receding?

The backlog may be yet another reflection of Director Cissna’s new mission statement, issued in February 2018, echoing President Trump’s emphasis on enforcement. In that statement, the Director removed the emphasis on customer satisfaction (i.e., the satisfaction of petitioners and beneficiaries) and instead focused on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm . . . .”

11/23/2018 - USCIS to End Self-Scheduled Infopass Appointments

In yet another move to eliminate services available to paying customers, USCIS has announced that is will eliminate self-scheduled INFOPASS appointments by the end of 2019. INFOPASS is an in-person meeting with a USCIS personnel that is available to Applicants who have gone through the legal process and paid for immigration benefits such as work permits, travel permits, adjustment of status and citizenship. These appointments are vital in cases where USCIS error creates a delay in the processing or receipt of a necessary document, as often online resources are inadequate and requests through the National Customer Service Center are followed by notorious delays and inaction.

Below is the official announcement from USCIS, which ironically comes under the pretense of "modernization":

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will expand its Information Services Modernization

Program to key field offices, beginning with the Detroit Field Office and the five offices in the Los Angeles District on Nov. 13. Field offices in the Newark, Great Lakes, and San Francisco districts will implement the program during the first quarter of fiscal year (FY) 2019. USCIS anticipates expanding the program to all remaining field offices by the end of FY 2019.

The Information Services Modernization Program ends self-scheduling of InfoPass appointments and instead encourages applicants to use USCIS online information resources to view general how-to information and check case statuses through the USCIS Contact Center. Recent improvements to online tools provide applicants the ability to obtain their case status and other immigration information without having to visit a local field office.

11/19/2018 - An End in Sight: No More I-131 Denials after International Travel

This past year, USCIS initiated a confusing and controversial policy of denying pending I-131 Applications due to "abandonment" when the applicant traveled internationally. This was the case even for applicants who had other valid means of reentering the USA, such as a current I-131 travel document or valid visa.

Thankfully, USCIS has vouched to end this practice, a move we have all been eagerly anticipating.

The American Immigration Lawyers Association (AILA), a national association of Immigration Attorneys who have been fighting to end this and other disturbing USCIS policies, provides the below update:

AILA Doc. No. 17081867 | Dated November 19, 2018

On November 16, 2018, during the Office of the Citizenship and Immigration Services (CIS) Ombudsman Annual Conference, USCIS Director L. Francis Cissna spoke briefly on the USCIS policy to deny pending Forms I-131, Application for Travel Document when an applicant travels overseas. Based on feedback from the CIS Ombudsman and other stakeholders, Director Cissna indicated that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas. Though he did not provide a timeline for this change, he indicated that policy on this would be forthcoming.

AILA submitted comments to USCIS on October 15, 2018, requesting, among other things, that USCIS remove language from the Form I-131 instructions that considers an application for advance parole document abandoned if the applicant departs the U.S. before the document is issued, or at a minimum, that USCIS restore a prior policy exempting applicants who travel on valid nonimmigrant visas or approved advance parole travel documents from the abandonment policy. It is unclear whether USCIS will alter its policy yet again, or simply restore its prior policy. AILA will continue to provide updates on this development.

09/26/2018 - USCIS to Begin Implementing New Policy Memorandum on Notices to Appear

USCIS ANNOUNCEMENT 09/26/2018

U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

USCIS is holding a public teleconference on Thursday, Sept. 27 from 2 - 3 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will conclude with a question and answer session, as time permits.

07/18/2018 - Foreign Workers Face Higher Hurdles in Visa Applications

Bloomberg By Emily McCormick July 18, 2018, 3:38 PM EDT

For highly-skilled foreign workers applying for a new work visa or an extension, the stakes involved just got a whole lot higher.

The U.S. Citizenship and Immigration Services recently updated its guidance, taking a much stricter approach to approving applications that are largely filed by those seeking work in the tech industry.

Under the new policy, which goes into effect Sept. 11, agents will be able to deny applications deemed incomplete or containing errors, without first asking applicants to address the flaw or warning them of an intent to refuse their submission. Recently the agency also widened the range of cases for which it could begin the process of removing foreign nationals to include those whose immigration benefits, such as work status, have been denied.

The measures are likely to disproportionately affect those whose applications require large amounts of supporting evidence, said Sarah Pierce, a policy analyst with the Migration Policy Institute. Employees with H-1B visas -- mostly held by people in the technology, science and medicine industries -- are currently often asked to respond to a request for evidence from USCIS to prove whether they are qualified for their work, or whether their job is considered a specialty occupation, Pierce added.

The updates could make small errors on filings lead to harsh consequences -- including deportation -- and are part of "a broader trend of USCIS becoming more of an enforcement agency than an immigrants benefits agency," Pierce said. The USCIS in February updated its mission statement to remove reference to the U.S. as a "nation of immigrants" and instead included language on "protecting Americans" and "securing the homeland."

The recent move by USCIS "creates traps" for individuals already working legally in the country -- or seeking to work here -- by upping the consequences for clerical errors, said Todd Schulte, president of immigration reform lobbying group Fwd.us, which was founded by technology leaders including Facebook Inc. Chief Executive Officer Mark Zuckerberg and Dropbox Inc. CEO Drew Houston. And it could affect more than just tech companies, Schulte said. "Cracking down on legal immigration is simply this: It’s encouraging innovation and job growth to happen someplace else." Microsoft Corp. expanded its Vancouver office several years ago, in part due to Canada’s more lax visa regulations. The updated USCIS policies add a layer of instability for employers. “There’s a chance that not only is the case going to be denied, but also that the beneficiary could be placed in removal proceedings," said Hassan Ahmad, managing attorney with the HMA law firm. "How can you do business with this type of uncertainty?" USCIS spokesman Michael Bars said the policy changes are part of an effort to help "cut down on frivolous applications, reduce waste, and help ensure legitimate, law abiding petitioners aren’t undermined by those able to game our system." The number of requests for evidence to H-1B visa petitions rose 45 percent for the period of Jan.1 to Aug. 31, 2017 from the same period a year earlier, according to a report by Reuters. Given the volume of the requests, "it may seem like it would be a natural option" for USCIS officers to want to leverage the new policies to avoid issuing additional RFE’s, said Anastasia Tonello, president of the American Immigration Lawyers Association. But without the requests for evidence, applicants don’t have an opportunity to explain themselves if they make a mistake that could be as minor as writing their work address incorrectly on an application, she said.

07/06/2018 - Add NoteBookmark New USCIS Policy Will Needlessly Push Thousands More Cases into the Deportation Machinery

AILA Doc. No. 18070604 | Dated July 6, 2018

WASHINGTON, DC – On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance, dated June 28, 2018, regarding Notices to Appear (NTA). An NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear before an immigration judge. Recognizing the need for USCIS to focus on adjudicating immigration benefits and welcoming new immigrants into the United States, as the Homeland Security Act intended, the Department of Homeland Security (DHS) has long-relied upon the enforcement components of DHS, namely Immigration and Customs Enforcement (ICE), to handle NTA issuance in most cases. In a sweeping move, the new guidance shifts more of that function to USCIS and mandates USCIS, except in very limited circumstances, to issue an NTA upon denial of an immigration benefit request where the applicant, beneficiary, or requestor is removable. Perhaps most significantly, NTAs will be issued to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied.

Anastasia Tonello, President of AILA, stated, “The new guidance will have a chilling effect, discouraging people who are eligible for immigration benefits from applying out of fear that they will be tossed into the deportation machine if they are denied – even if that denial is due to an agency mistake. It is based on the false assertion that everyone who comes to the United States and seeks an immigration benefit intends to break the law by overstaying if they are denied, when the vast majority comply on their own. As a result, USCIS will now needlessly sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their application is denied. This could include workers who have fully complied with our immigration laws who may unexpectedly be informed by USCIS that they no longer qualify for the visa status they have legally held for years and will now be placed in removal proceedings. This policy erases the ‘Service’ from USCIS and transforms the agency into yet another DHS enforcement tool.”

Benjamin Johnson, AILA Executive Director added, “The Homeland Security Act was designed to have three components, service, enforcement, and border control, each under a different agency, particularly so that the ‘service’ component was not overshadowed by the enforcement and border components. The Trump Administration is re-writing the Homeland Security Act without Congressional action. The new policy will also create an operational nightmare for both USCIS and the immigration courts by diverting USCIS adjudication resources to enforcement activities and adding more cases to our already overburdened immigration court system with cases that pose no threat to public safety or national security. Over the past decade, USCIS processing times across all product lines have grown consistently worse and the immigration court backlog it at its highest ever, exceeding 700,000 cases as of May 31, 2018. This guidance is a recipe for disaster, further cementing the Administration’s rejection of any exercise of prosecutorial discretion on immigration, a cornerstone of every other law enforcement system in America. This policy is built on the Administration’s belief that every immigrant is unwelcome and undesirable. That is not the story of our nation, which has benefited tremendously from the contributions of immigrants.”

05/31/2018 - Trump's 'zero tolerance' at U.S.-Mexico border is filling child shelters

Author: MOLLY HENNESSY-FISKE for the LA TIMES/ MAY 30, 2018

Family separations on the southern border due to President Trump’s “zero-tolerance” policy increased the number of immigrant children in government shelters 22% during the last month, officials said.

As of Wednesday, 10,852 migrant children were being held at shelters run by the Department of Health and Human Services, compared with 8,886 at the end of last month, said agency spokesman Kenneth Wolfe. The average time such children spent at government shelters has also increased, from 51 to 56 days.

The new zero-tolerance policy piloted in Arizona and west Texas last year was extended border-wide last month. Under the policy, migrants who enter the United States illegally face misdemeanor charges in federal criminal court, felony charges if they have crossed illegally before; parents are sent to federal detention, their children to shelters. In the past, such cases were often handled administratively, not in criminal court.

Trump tweeted inaccurately over the weekend that a “horrible law” was prompting the migrant family separations. Immigrant advocates insisted the administration was to blame for pursuing criminal charges against migrants, instead of handling their cases administratively.

Health and Human Services has 100 shelters in 14 states, and "additional temporary housing is only sought as a last resort when current locations are reaching capacity," said Wolfe, a spokesman for the department’s Administration for Children and Families.

That’s what’s happening now that the shelters are 95% full, he said. The agency has 1,218 extra beds reserved elsewhere, including several hundred at a government-owned building near an Air Force base in Homestead, Fla. Officials are also considering housing children at several military bases, as they did after an influx of Central American children in 2014.

Unaccompanied minors now include children who cross the border without an adult and those separated from adults charged in federal criminal court under the new policy. At least 638 migrants who crossed with 658 children were charged under the policy between May 6 and May 19, a U.S. Customs and Border Protection official told a Senate committee last week.

Last year, Health and Human Services assumed custody of more than 40,000 immigrant children, releasing 93% to family members and other sponsors (half were parents, 40% close relatives). The department has a responsibility to assume custody within 72 hours and try to place children, but it is not required to track sponsors.

Last week, Health and Human Services drew criticism after reports that 1,475 of the children they placed last year were "missing,” according to a phone survey 30 days later. Trump administration officials responded by announcing an agreement by Health and Human Services to give the Department of Homeland Security access to information about sponsors they’re still vetting, and to improve the process, fingerprinting parents who attempt to claim children. Homeland Security officials said the new coordination will better protect migrant children, but some migrant advocates worry it could deter families from claiming children.

"If somebody is unwilling to claim their child from custody because they're concerned about their own immigration status, I think that de facto calls into question whether they're an adequate sponsor and whether we should be releasing a child to that person," Steven Wagner, acting assistant secretary of the Administration for Children and Families, told reporters in a telephone briefing Tuesday.

Wagner added that the department plans to increase sponsor screening because “we have the problem of people fraudulently claiming to be parents when, in fact, they're not.”

Immigrants advocates said the added oversight could increase the number of children in already crowded Health and Human Services shelters.

“Their workload has grown significantly, and they’re not equipped to be handling children who have been orphaned by these new policies,” said Ben Johnson, executive director of the Washington-based American Immigration Lawyers Assn.

Johnson also criticized the department’s short-term solution to the space crunch.

“Commandeering these military bases to house children has never turned out well,” Johnson said. “It’s resulted in more lawsuits and more inhumane conduct and treatment of people housed there. … Those facilities are not designed for these kinds of people.”

Migrant parents already appear less willing to claim their children, according to Leah Chavla, a policy advisor at the Washington-based Women’s Refugee Commission.

Three years ago, 60% of unaccompanied youths were claimed by parents, but that dropped to 41% this fiscal year following immigration crackdowns by the administration, including raids on sponsors last summer that resulted in 400 people being detained in the Midwest and southern United States. Chavla’s group and other advocates filed a complaint about the raids with Homeland Security’s Office for Civil Rights and Civil Liberties and its Office of inspector general alleging unlawful conduct, but the raids still had a chilling effect.

“Families are more reluctant to come forward,” Chavla said, and children are reluctant to identify their parents to Health and Human Services for fear they will be deported.

“They’re going to languish in custody. We’re going to see the length of stay creep up” for unaccompanied children, she said.

Lee Gelernt, an immigration attorney with the American Civil Liberties Union, filed a lawsuit to force the government to stop separating families at the border, and a federal judge in California is considering it.

Gelernt was in El Paso on Wednesday meeting with one of the plaintiffs, a Brazilian mother charged and jailed near the border and separated last August from her 14-year-old son, who was sent to Illinois. They are still not reunited.

“There’s just going to be hundreds of parents and kids that fall into the Brazilian mom’s situation,” Gelernt said. She asserts that the government is separating families to deter immigration.

In March and April, more than 50,000 people were detained per month trying to cross the southwest border illegally, levels similar to those during the Obama administration, according to U.S. government figures. During those two months about 8,400 unaccompanied minors were caught on the border.

Soon after Trump’s inauguration in January 2017, border crossings briefly dropped to record lows before creeping back up again at the end of last year. The increase has frustrated the president, who has repeatedly called for more action to seal the border.

05/17/2018 - AG’s Latest Move Further Erodes the Independence of Immigration Judges

AILA Doc. No. 18051753

WASHINGTON, DC - Today, in a precedent decision, the Attorney General of the United States announced that immigration judges and members of the Board of Immigration Appeals no longer have the authority to "administratively close" court cases before them, with the exception of cases that meet very narrow criteria. With this move, the Attorney General has eliminated a critical docket management tool, effectively ensuring that the immigration court system will remain encumbered with massive case backlogs well into the future.

AILA President Annaluisa Padilla responded, "In today's decision the Attorney General grossly misinterprets the law and disregards existing federal regulation and decades of immigration court practice. The Attorney General cherry-picked a case that is not reflective of the universe of cases that have been administratively closed and with the stroke of a pen, dismissed the inherent authority of judges to manage immigration court proceedings, an authority that has been recognized for more than 30 years and that the National Association of Immigration Judges strongly supports as a matter of court efficiency. Unfortunately, today's decision represents the first in a series of efforts by the Attorney General to singlehandedly rewrite immigration law."

AILA Executive Director Benjamin Johnson stated, "This decision is yet another effort by this administration to undermine due process in immigration proceedings. Due process demands that we maintain an immigration court system with independent judges who have the authority and flexibility to make decisions that are not only legally correct but are also grounded in fundamental fairness. Immigration judges use administrative closure for many legitimate reasons, including court efficiency. But it is also often employed when an immigrant is eligible for some type of legal status that can be pursued outside of court with U.S. Citizenship and Immigration Services (USCIS). Forcing these cases through the court system while another agency is determining the person's eligibility for an immigration benefit wastes finite court resources that can and should be used on more pressing cases. Today's decision erodes judicial independence and strips due process from immigrants, turning the court into a machine for deportations rather than an arbiter of justice."

05/15/2018 - USCIS Completes Data Entry of FY2019 H-1B Cap-Subject Petitions

AILA Doc. No. 18051534 | Dated May 15, 2018

USCIS announced it has completed data entry for all FY2019 H-1B cap-subject petitions selected in its computer-generated lottery and will begin returning H-1B cap-subject petitions that weren’t selected. Some petitions will be transferred between the Vermont and California Service Centers.

04/12/2018 - USCIS Completes the H-1B Cap Random Selection Process for FY 2019

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States;

Change the terms of employment for current H-1B workers;

Allow current H-1B workers to change employers; and

Allow current H-1B workers to work concurrently in a second H-1B position.

02/16/2018 - Senate Bipartisan Efforts to Save Dreamers Destroyed by Veto Threat

AILA Doc. No. 18021635 | Dated February 16, 2018

WASHINGTON, D.C. - The American Immigration Lawyers Association (AILA) expressed deep disappointment in the failure of the Senate to pass commonsense reforms to protect Dreamers. At the same time, AILA commends the many Senators who stood firm against the nativist voices demanding legislation to gut legal immigration and make our country weaker.

The Senate's failure to pass a bill means that March 5, the day the Deferred Action for Childhood Arrivals (DACA) program formally expires, remains the critical deadline. Though court rulings have enjoined termination of DACA for those who have already received DACA protections, the Trump administration has asked the Supreme Court to take the issue up immediately. With such uncertainty, the urgency could not be greater for Congress to pass a bill that solves the crisis and provides permanent legal status for Dreamers.

"The Senate debate and votes this week are a wakeup call to this administration which has thus far broken every pledge to help Dreamers. The President now bears the responsibility to protect Dreamers and must cooperate with bipartisan lawmakers," said Annaluisa Padilla, AILA President. She continued, "This week was a rollercoaster, but the blame rests squarely with Stephen Miller and the extremist voices in the White House who maneuvered a veto threat to block any possibility of passing a bipartisan deal to protect Dreamers. Once again, the administration resorted to divisive politics over good policy, ignoring the fact that nearly 90% of Americans support legal status for Dreamers."

AILA Executive Director Benjamin Johnson noted, "It is time for the White House to stop holding Dreamers hostage for unreasonable demands that were soundly rejected by 60 Senators. The blame for the failure to pass legislation rests solely with the President whose misinformation and threats doomed this debate. He knows it, and we all know it. As we look back on this week's events, one thing is clearer than ever: the only path forward is a narrow deal that pairs the Dream Act with smart, sensible border security."

01/16/2018 - DACA RENEWALS NOW BEING PROCESSED!

USCIS Announcement: Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction

Jan. 13, 2018, Update: Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF).

Additional information will be forthcoming.

12/31/2017 - How Trump Went After Immigrants in 2017

Full Original Article from Vice News, Author Meredith Hoffman, 12/30/2017

Trump Has Moved to Restrict Legal Immigration

Trump is the first president in decades to fight for a major reduction in legal—not just illegal—immigration. Claiming immigrants are taking jobs from US citizens, he has begun a series of administrative changes to make it harder to obtain a visa to enter the US, along with supporting legislation that would drastically lower the cap of visas granted each year.

“The most historic change this administration has made is changing the conversation around legal immigration,” Sarah Pierce, a policy analyst for the Migration Policy Institute, told me. “Previously, it was just such a standard that legal immigration is a net positive and so tied up in our heritage. Before the idea of reducing legal immigration was fringe.”

The April executive order “Buy American, Hire American,” which Trump claimed would result in higher wages and employment rates for US workers, called on the government to increase scrutiny of applications for the H-1B, or skilled worker, visa, of which there are 85,000 granted each year.

Since then, US Citizenship and Immigration Services (USCIS) has issued more requests for evidence from applicants to show they serve a role that couldn’t easily be filled by a citizen. This has caused delays in the approval process, Anastasia Tonello, president-elect of the American Immigration Lawyers Association, told me.

“Things are very much in flux,” said Tonello, who noted that USCIS had also issued new guidelines for accepting applications from computer programmers and economists.

Approval rates for H-1B visas have already begun to drop: 86 percent and 82 percent of H-1B applications were approved this October and November, compared with 93 percent and 92 percent for the same months last year, according to data shared by USCIS.

“It is true that we’ve issued more Requests for Evidence recently. This increase reflects our commitment to protecting the integrity of the immigration system,” said USCIS public affairs officer Carolyn Gwathmey. “We understand that RFEs can cause delays, but the added review and additional information gives us the assurance we are approving petitions correctly. Increasing our confidence in who receives benefits is a hallmark of this administration and one of my personal priorities.”

Still, Gwathmey said the annual approval rate for visas remained above 90 percent*, and she noted that USCIS is still considering new measures to further implement Trump’s “Buy American Hire American” order, including a “thorough review of employment based visa programs.”

Trump has just begun his efforts to slash legal immigration, and more drastic cuts appear on the horizon for 2018, Pierce projected. This month Trump called for an end to “chain migration,” or visas based on family ties, and he has already begun the process of rescinding work authorizations to the spouses of H-1B recipients. And he has thrown his support behind legislation that would cut legal immigration in half (that bill, the RAISE Act, seems unlikely to pass).

To Mark Krikorian, executive director of the Center for Immigration Studies, which supports reductions to legal and illegal immigration, Trump’s proposals are “long overdue.”

“Legal immigration is simply too high and badly run,” he told me. “What worked during our country’s adolescence doesn't work in our maturity.”

Trump Has Made More Undocumented Immigrants Vulnerable to Deportation

Hundreds of thousands of immigrants who were protected under the Obama administration are now in limbo, or being told to leave, after Trump decided to end two pivotal programs shielding them from deportation.

In September, Trump announced the end of DACA, the Obama-era program providing deportation relief and work permits to young immigrants brought to the US illegally as children. Roughly 800,000 of these immigrants—who often don’t remember a home other than the US—had status under DACA, a protection that has begun to expire.

"Every week since since Trump's termination of DACA, 850 immigrant youth have fallen out of status and lost their protections from deportation, their jobs, their driver's license, their ability to go to college, and peace of mind,” said Greisa Martinez Rosas, advocacy director at United We DREAM, a nonprofit created by and for immigrant youth.

Trump also removed temporary protected status from 60,000 Haitians who were granted it after the country’s 2010 earthquake, along with 2,500 Nicaraguans granted it in 1998 after Hurricane Mitch. That means that within months, these residents—some who have lived here for decades—must leave or they will be eligible for deportation.

Trump's Administration Is Prioritizing All Undocumented Immigrants for Deportation

Just five days after his inauguration, Trump sent shockwaves through the immigrant community with an executive order making all undocumented residents priorities for deportation. The Obama administration, by contrast, had focused its efforts on serious criminals and recent border crossers.

“Interior enforcement of our nation’s immigration laws is critically important to the national security and public safety of the United States,” Trump’s executive order explained. “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.”

Within weeks, a wave of raids proved Immigration Customs and Enforcement (ICE) agents would indeed pick up any undocumented immigrant in their wake. Out of ICE’s 110,568 arrests in fiscal year 2017, nearly one-third—31,888 detainees—had no criminal convictions, according to Migration Policy Institute’s analysis of ICE’s year-end removal data. More than 90 percent of the individuals removed from the interior by the Obama administration in fiscal year 2016 had been convicted of what the administration deemed “serious crimes.”

“We saw a lot of really sympathetic cases of deportations that shouldn't have taken place,” Stephen Legomsky, former chief counsel of USCIS under the Obama administration, told me of enforcement in 2017. “The Obama administration really did focus almost all its enforcement efforts on people who posed a real danger in the US or were apprehended at border, whereas the Trump administration has given free rein to ICE agents.”

Immigrant advocates say these deportations have separated families, struck fear throughout the immigrant community, and given ICE agents too much discretion in their enforcement.

But Krikorian said the change was “clearly a positive” development and “simply a restoration of normal immigration enforcement.”

“Under Obama, only the bad guys were targeted. Ordinary lawbreakers were in effect protected from law enforcement,” said Kriokorian. “That’s essentially saying breaking the law shouldn't have consequences.”

Trump Has Slashed Refugee Admissions

Just as the world reached a record high in displaced people since the end of World War II, Trump used his executive power to slash US refugee admissions to their lowest level in the history of the program. Where Obama had set the annual cap at 110,000, Trump slashed that number to 45,000 in a September proposal to Congress.

“The President has made clear that in the admission of refugees for resettlement, the safety and security of the American people is paramount,” Stephanie Sandoval, a spokesperson for the State Department, told me in an email, noting that all refugees were undergoing “enhanced security vetting procedures.”

To American citizens and politicians wary of the US resettlement program, this reduction was a welcome shift and served to help keep the country safe.

But the extreme reduction in resettlement numbers has been disastrous for the refugee community, according to Melanie Nezer, policy director of the resettlement organization HIAS. Refugees planning to reunite with relatives in the US lost their slots to enter the country, as did thousands of other individuals living in camps abroad.

The Trump administration also withdrew in December from the UN Refugee Pact, signaling “a “lower engagement overall in global refugee policy,” Nezer said.

“The US has always taken responsibility to be part of the solution for people who have been persecuted... rather than put[ing] responsibility all on countries neighboring conflict,” she added.

Finally, There's Trump's Travel Ban

The travel ban has been one of the highest-profile and most controversial policy changes of the Trump administration since it singled out individuals from specific countries as ineligible for US entrance. After his first two versions of the ban were struck down in court, Trump issued a third version in September that is currently being enforced as legal challenges move forward.

“Our government's first duty is to its people, to our citizens—to serve their needs, to ensure their safety, to preserve their rights, and to defend their values,” Trump said in his statement about the most recent version of the ban.

The current ban limits travel from six majority-Muslim countries—Chad, Iran, Libya, Somalia, Syria, and Yemen—as well as North Korea and Venezuela.

“For the families affected, this is really heartbreaking—they're facing the prospect of never being able to live with their loved ones in this country,” said Cody Wofsy, an attorney with the ACLU's Immigrants' Rights Project. “And for millions of American Muslims this is a message of exclusion that is completely contrary to values our country was founded on.”

Individuals from the banned countries can apply for waivers to be accepted into the US, but Wofson said he had so far not heard of any waivers being granted.

But Department of State spokesperson Virgil Carstens said the ban was integral for national security. Carstens said he could not provide information on the number of visa waivers granted, nor could he share information about Begami’s case, but added waivers could be granted if a visa denial would cause undue hardship, and if the applicant’s entrance into the US would serve in the national interest.

“We will continue to work with identified countries to address information sharing deficiencies that resulted in their recommendation for travel restrictions,” Carstens told me in an email.

Meanwhile, Gerami, (a 73 year old Iranian surgeon with terminal cancer) has reapplied for his visa, waits in Montreal for word from the US embassy about whether he can seek life-saving treatment in California.

“He’s gotten depression and anxiety, and has lost his speech because of the tumor,” his daughter told me. “Sometimes he just cries.”

12/22/2017 - CBP Practice Alert: International Travel for Economist TN Holders

AILA Doc. No. 17122215 | Dated December 22, 2017

On November 20, 2017, USCIS issued a policy memorandum on TN nonimmigrant Economists. The policy points established in the memorandum are:

- For purposes of the TN classification, whether a job is that of an Economist is determined by the primary activity, not the job title.

- If the job duties for the position primarily include the activities of other occupations, including but not limited to Financial Analysts, Market Research Analysts, and Marketing Specialists, the individual will not qualify for TN status as an Economist.

- The Department of Labor (DOL) Standard Occupation Classification (SOC) system specifically excludes Market Research Analyst and Marketing Specialist from the definition of Economist. Therefore, persons who are engaged in activities associated with Market Research Analysts and Marketing Specialists as described in the SOC and the BLS Occupational Outlook Handbook (OOH) do not qualify as TN Economists.

- Though the occupations of Economist and Financial Analyst are related, Financial Analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions. Therefore, consistent with the SOC, USCIS considers Financial Analyst and Economist as two separate occupations for purposes of TN status.

While USCIS is bound by this guidance as of November 20, 2017, as of December 22, 2017, the Department of State (DOS) has not posted a Transmittal Letter to the Foreign Affairs Manual (FAM) revising its policy on NAFTA Professionals, located at 9 FAM 402.17. In addition, members should note that CBP does not always follow USCIS guidance and it is unknown at this time whether CBP policy has changed or will change its policy to align with the USCIS memorandum. Informally, AILA members have reached out to CBP officials at various ports of entry and have been informed that no guidance or musters have been issued to date. One port noted that if such guidance is issued, CBP may revoke the TN status of previously approved individuals encountered at ports of entry who are seeking readmission in TN status as Economists.

Other ports noted that CBP’s training and reference materials on TN adjudications have continually referred to the OOH as a tool for determining whether the applicant meets the requirements for the occupations listed in 8 CFR 214.6(c) and Appendix 1603.D.1 to Annex 1603 of NAFTA. It is therefore not clear whether CBP would consider the USCIS policy memorandum as meriting a muster.

CBP has the authority to refuse admission to anyone it deems inadmissible to the United States. This authority includes inadmissibility under INA §212(a)(7) for those who fail to present proper documents. This category could be used to deny admission to individuals with previously approved TNs who are classified as Economists and, upon review, are considered Financial Analysts, Market Research Analysts, or Marketing Specialists.

Before traveling with a TN approval in the Economist category about international travel, these uncertainties should be taken into consideration. It should be stressed, however, that at this time AILA is not aware of any official CBP policy on this issue.

AILA Doc. No. 17122215.

12/21/2017 - y To curb illegal border crossings, Trump administration weighs new measures targeting families

Author: Nick Miroff for The Washington Post

The Trump administration is considering measures to halt a surge of Central American families and unaccompanied minors coming across the Mexican border, including a proposal to separate parents from their children, according to officials with knowledge of the plans.

These measures, described on the condition of anonymity because they have not been publicly disclosed, would also crack down on migrants living in the United States illegally who send for their children. That aspect of the effort would use data collected by the Department of Health and Human Services (HHS) to target parents for deportation after they attempt to regain custody of their children from government shelters.

The Department of Homeland Security (DHS) has previously considered some of these proposals, but there is renewed urgency within the administration to address an abrupt reversal of what had been a sharp decline in illegal immigration since Trump took office in January.

In November, U.S. agents took into custody 7,018 families, or “family units,” along the border with Mexico, a 45 percent increase over the previous month, the latest DHS statistics show. The number of “unaccompanied alien children,” or UAC, was up ­­26 percent.

Children’s shelters operated by HHS are at maximum capacity or “dangerously close to it,” an official from the agency said. Overall, the number of migrants detained last month along the Mexico border, 39,006, was the highest monthly total since Trump became president, according to DHS figures.

The proposals, which have been presented for approval to new DHS Secretary Kirstjen Nielsen, were developed by career officials at Immigration and Customs Enforcement (ICE) and other DHS agencies, administration officials said.

Tyler Houlton, a DHS spokesman, confirmed the agency has “reviewed procedural, policy, regulatory and legislative changes” to deter migrants. Without giving further details, he said some of the measures “have been approved,” and DHS is working with other federal agencies “to implement them in the near future.”

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders, and as a result we are continuing to review additional policy options,” Houlton said.

The most contentious ­proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be “well cared for as we deal with their parents.”

Kelly did not move forward with the plan, in part because of the backlash it triggered, administration officials said, and also because illegal migration had plunged to historic lows.

[DHS considers separating mothers and children who cross the border illegally]

Trump administration officials described the measures as unpalatable but necessarily tough policy options to discourage Central American families from embarking on the long, dangerous journey to the border — or hiring smugglers to bring their children north.

“People aren’t going to stop coming unless there are consequences to illegal entry,” one DHS official said.

Migrants from El Salvador, Guatemala and Honduras represent the largest share of families and children taken into U.S. custody along the border, with many telling border agents that they fear for their lives if sent back to their home countries. The three nations, known as the “Northern Triangle” of Central America, are crippled by gang violence and homicide rates that are among the world’s highest.

Trump administration officials say Central American migrants and the paid smugglers who bring them to the border shamelessly exploit Americans’ compassion, entering the United States illegally and gaming the asylum process.

If a migrant’s stated fear of being sent home is considered “credible,” they enter an asylum process that may take years to adjudicate, and the flood of such petitions in recent years has worsened the backlog of more than 600,000 cases pending in U.S. immigration courts.

Asylum seekers are typically issued work permits while they wait for the process to play out, and when their rejected appeals are exhausted, they often ignore court orders to leave the United States, choosing to remain in the country illegally.

The Trump administration wants to significantly expand immigration detention capacity, and hire more judges and expedite asylum cases to stop migrants from taking advantage of “loopholes” in the asylum process.

The proposal to separate parents from their children is viewed by the agency as a more immediate tool to halt the latest border surge.

DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids,” said Andrew R. Arthur, a resident fellow at the Center for Immigration Studies, which seeks to reduce immigration. A former U.S. immigration judge and Republican congressional policy staffer, he called it “a reasonable step to take.”

“It might seem heartless, but it’s more heartless to give them the illusion they’re going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real,” Arthur said.

The unaccompanied minors are typically seeking to reunite with a parent already living illegally in the United States. By law, migrants under age 18 who arrived without a parent must be turned over to HHS within 72 hours of being taken into DHS custody. The shelters where they are housed are designed to be more like boarding schools than grim detention centers.

The minors are placed in the care and custody of the Office of Refugee Resettlement at HHS’s Administration for Children and Families (ACF), which seeks to identify an adult sponsor who can take custody of them.

The process takes about six weeks on average, HHS officials say. “It’s a little-known fact that over half of those who enter illegally are placed with a parent already in the United States,” ACF spokesman Kenneth Wolfe said.

The parents, or any other adult seeking to take custody of a child, must submit to an extensive background check that includes information about their immigration status. But administration officials say that information is neither checked against DHS biometric data nor shared with ICE for potential enforcement purposes. The new DHS proposals under consideration would change that.

If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting “devastating” trauma on families fleeing Central America because they feel their lives are at risk.

“These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers,” said Greg Chen, director of government relations of the American Immigration Lawyers Association.

“These are families that have no other choice for their survival,” he said.

10/12/2017 - AILA: Trump Administration Erodes Integrity and Fairness in Immigration Courts

AILA Doc. No. 17101233

WASHINGTON, D.C. - The American Immigration Lawyers Association (AILA) expressed its strong opposition to the Trump administration's plans to impose numeric quotas on immigration judges in order to speed up deportations. The unprecedented effort to compel judges to complete cases under stricter deadlines threatens the integrity of the immigration court system and the independence of the judicial branch. The immigration courts are administered by the Executive Office for Immigration Review (EOIR), which is housed within the Department of Justice (DOJ).

"Subjecting judges to numeric case completion goals undermines one of the core principles of our judicial system - entitlement to a fair day in court. What the administration is proposing is akin to the assembly line justice that America has opposed in oppressive regimes around the globe," said Annaluisa Padilla, AILA President. "A system that evaluates immigration judge performance based on how fast they can churn through cases will simply pressure judges to rush through decisions, rather than give careful consideration to the law and facts in each case. Immigration judges already have among the highest caseloads of federal judges. Justice and fairness cannot be thrown out the window to meet an arbitrary quota."

"AILA members are in the immigration courts every single day," added Benjamin Johnson, AILA Executive Director. "They and their clients bear the brunt of a court system that is overworked, under resourced, and subject to the inherent conflict of interest that comes from immigration judges being employees of the nation's chief law enforcement officer instead of part of an independent court system. This new proposal will only make an intolerable situation worse. It is an affront to the foundation of American justice, which was built on the principles of equality before the law and an opportunity to have cases decided by independent judges. Immigration judges are making important, often life or death, decisions every day: whether a mother and child will remain together or be torn apart, whether a father is returned to a country where he was persecuted, or whether the dreams of an immigrant will be allowed to grow and flourish, or die on the vine. The primary focus for judges must be to make the right decision. Creating an environment where the courts care more about speed than accuracy and where judges are evaluated and rewarded based on quantity instead of quality is simply unacceptable."

09/20/2017 - 30/60 Day Rule is Dead

On Sept. 1, 2017, the U.S Department of State (DOS) updated the Field Adjudicators Manual (FAM) at 9 FAM 302.9-4(B)(3). The Field Adjudicators Manual (FAM) serves to guide consular officers in their adjudications process, and this particular section provides guidance regarding “misrepresentation” by applicants “at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

The changes include the addition of a section entitled “Inconsistent Conduct Within 90 Days of Entry.” The new language effectively eliminates the prior “30/60 day rule” which found a presumption of misrepresentation only if an alien engaged in activity inconsistent with their nonimmigrant status within 30 days of admission, and generally no basis for misrepresentation if an action was taken after 60 days.

A finding of misrepresentation can have extreme consequences. With this recent change there are several things to keep in mind:

New guidance may have negative consequences for individuals who have relied upon the old rule as well as those who make immigrant filings in the future. Individuals cannot engage in any activity within a 90-day period of entering the United States that is inconsistent with the immigration classification under which they entered the country.

Those who do perform activities that are inconsistent with their status may be found to have made a willful misrepresentation when securing the visa at the Consulate or when entering the United States and being inspected by an immigration officer. Such individuals may be found inadmissible and barred from entering the United States for life.

Types of impermissible conduct:

- Getting married in the United States within 90 days of entering the country on a visa that requires an intent to return to your home country (e.g., B visa, Visa Waiver Program, J-1, F-1, etc.)

- Working without authorization

- Enrolling in school when such activity is not permitted by the visa (for example B visas and the Visa Waiver Program do not allow for school enrollment)

The new rule was announced without any warning or period of public comment. Public comment is not required but the sudden nature of the change increases the number of potential individuals impacted.

Under the old rule if an individual engaged in any of the above conduct within a 30-day period, a finding of fraud or misrepresentation could be presumed. Now that period is extended to 90 days.

09/05/2017 - DACA Termination: It's a Sad Day.

Today hundreds of thousands of DACA holders, their families and their supporters were left in shock as the DACA program was terminated by presidential announcement.

DACA was born from the Obama Administration's informed realization that, in order to keep the country safer, we need to prioritize certain groups for deportation and protect others. It currently takes years for illegal immigrants to move through the court system. We need to unclog the courtrooms by fast-tracking the removal of violent criminal aliens and placing others at the back of the line.

The Obama Administration granted "Deferred Action for Childhood Arrivals", also known as DACA, to kids who were brought into the country as minors prior to 2012 and through no fault of their own were without status in the USA. It was reserved only for those of the group who didn't have criminal records and finished school or served in the military. The cut-off date also predated the surge from Latin America of the past few years. Giving these kids a protected status cleared the clogged courtrooms so that Judges could focus on less-deserving groups.

Not only has this policy been effective, but it was and is completely within the powers of the president. Granting deferred executive action is a clear executive power, and the president is the head of the executive branch of the US Government.

I represent a lot of DACA holders. Many of these kids didn't even realize they were illegal until they asked their parents for their social security numbers for college applications. The US is their home, and study after study shows the positive impact these kids have on the community and US economy.

I can say first-hand that my clients who hold DACA are overachievers who absolutely do not deserve to be given the same deportation priority as criminals. Of the DACA holders I represent, the majority are currently in or are recent graduates of Masters Degree programs, about 10% own their own business and employ American workers, and about 40% are married to US Citizens but cannot qualify for the green card because their parents brought them here illegally.

If you voted for or currently support Trump because you want violent criminal aliens out of the USA, you should be extremely disappointed by today's news. I want violent criminals out too. However, I know that if we really want violent criminal aliens out, we need a system that prioritizes the removal of certain groups and places others at the back of the line.

When an illegal immigrant gets a notification to appear in court, the only thing accomplished at the first hearing is that the Judge schedules another hearing years later to actually hear their case. In the meantime, we spend our tax dollars housing criminal aliens in detention centers or letting them roam our communities. Now that these well-deserving kids are stripped of their deferred status, they will clog up the courts meaning it will take YEARS LONGER to get the violent criminals out. These kids will spend their time in lawyers officers and court rooms, stressed and uncertain, instead of the schools and businesses where they contribute and invest as active members of our society.

The American Immigration Lawyers Association today released the following announcement:

WASHINGTON, D.C. - In the wake of today's announcement by the Trump administration, the American Immigration Lawyers Association (AILA) condemned the cancellation of the Deferred Action for Childhood Arrivals (DACA) initiative and reiterated its support for Dreamers and DACA recipients with the following statement:

"While the administration has turned its back on the nearly 800,000 hardworking DACA recipients for whom this nation is the only home they know, AILA and its members continue to stand with them as they fight to realize their American dreams," said Annaluisa Padilla, AILA President.

"A countdown clock now hangs over the head of every Dreamer in America and it is incumbent upon Congress to act quickly before that clock runs out. The vast majority of Americans, on both sides of the aisle, are in favor of granting legal status and the chance to become citizens to the Dreamer population. These young people are making America greater every day, building stronger communities and contributing their talents to American industry. Congress must take up the mantle that President Trump has cast aside and champion Dreamers before time runs out."

AILA Executive Director Benjamin Johnson noted, "Make no mistake: this announcement kills the DACA program that has benefited so many Dreamers and the communities they live in, and our country as a whole. To add insult to injury, Attorney General Jeff Sessions used the announcement of this decision to accuse Dreamers of stealing jobs and threatening our culture. That is not only wrong, it is offensive. The administration is pandering to nativists and bowing to the threats of a few state attorneys general who fail to recognize the constitutional authority of the executive branch that past Republican and Democratic presidents exercised for decades. By abandoning these young people, the administration is conceding far more than it gains from fulfilling a reprehensible campaign promise. But that's the choice the President has made, to forsake America's future and the lives of these young people who aspire to be a part of that future. We now look to Congress to live up to America's fundamental principles and stand up for Dreamers."

08/29/2017 - AILA Condemns Presidential Pardon of Joe Apairo as "A Shameful Exercise of Presidential Power"

AILA Doc. No. 17082699.

WASHINGTON, D.C. — The American Immigration Lawyers Association (AILA) condemned President Trump's decision to grant a pardon to disgraced Sheriff Joe Arpaio in the following statement:

"By pardoning Sheriff Arpaio, the President has undermined the judicial branch, a core institution of our democracy," said Annaluisa Padilla, AILA President. "He has violated any sense of justice or equality under the law. While the administration is deporting people who pose no threat to their communities, the president now grants amnesty to someone who has been convicted of ignoring a court order and violating the civil rights of an entire community. That is the definition of hypocrisy."

Benjamin Johnson, AILA Executive Director remarked, "This is an offensive use of the power of the Presidency and an affront to basic principles of fairness and justice. Today, a convicted civil rights violator will walk free, while decent, hardworking people with deep ties to their communities will continue to be torn from their homes and separated from their families. Now is the time for real leaders to stand up for what is right and support legislation that will provide a permanent solution for the victims of our outdated immigration system."

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

08/21/2017 - USCIS Is Denying Pending Forms I-131 for Abandonment Due to International Travel

AILA Doc. No. 17081867 | Dated August 18, 2017

AILA has received reports from members that USCIS has been denying Form I-131 advance parole applications for abandonment in instances where the applicant has traveled abroad during the pendency of the application. The pending Form I-131 application is being denied even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. In the denial notification, USCIS points to the Form I-131 instructions at page 6 where it states that "[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned." In the past, USCIS has approved advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.

In response to these reports, AILA contacted the USCIS Service Center Operations Directorate (SCOPS) to determine if this change of policy was intentional. SCOPS recently responded that the denials were proper; the policy is that traveling internationally while an application for advance parole is pending will result in the denial of that application notwithstanding prior practice to the contrary.

AILA will continue to pursue this issue in liaison discussions with USCIS. In the meantime, it appears that advance parole applications will continue to be denied if an individual travels abroad while the application is pending with USCIS. Please note that for adjustment applications filed after July 30, 2007, there is no additional fee to file a new application for advance parole following the denial of an application. Applicants may wish to consider submitting a new Form I-131 application to USCIS if a pending application is denied, as well as avoiding international travel during the pendency of the advance parole application. AILA will provide an update to members on this issue as soon as more information becomes available.

08/11/2017 - President Trump is endorsing an immigration plan that will hurt job growth and the U.S. economy overall, according to two recent studies.

From CNN Money / By Patrick Gillespie and Tal Kopan

In a report published Thursday, the University of Pennsylvania's Wharton School said the immigration plan, dubbed the RAISE Act, would result in 4.6 million lost jobs by the year 2040. It also found that the U.S. economy would be 2% smaller than it would be under the current immigration policy during that time. Last week, Trump threw his support behind the RAISE Act, a bill crafted by Republican Senators David Perdue and Tom Cotton. The proposal seeks to cut legal immigration to the U.S. by 50% within a decade.

"If you have fewer workers, we will have less economic growth," said Kimberly Burham, a managing director at the Penn Wharton Budget Model, a nonpartisan research team at UPenn.

Economists say the U.S. economy depends on foreign workers to grow the labor force and maintain growth. Since 2000, Baby Boomers have been retiring at a much faster pace than the U.S. job market has been growing, according to data from the Atlanta Federal Reserve and Labor Department.

There were 27 million foreign-born workers in the United States last year, government figures show. "Immigrants, especially new immigrants, are highly productive and if we decrease that number, that will harm economic growth in the short and long run," said Burham.

The White House claimed the Wharton study had "major methodological faults" and that the economic gains it assumes come "at the expense of American workers."

"The estimates show that the job 'losses' under their RAISE Act model are far smaller than the reduction of foreign workers - effectively meaning a net increase in available jobs for Americans. The passage of the RAISE Act would raise wages and increase economic opportunity for Americans who have been left behind under the failed policies of past administrations," a White House official told CNNMoney.

The RAISE Act seeks to limit the ability of immigrants to get permanent residency in the form of green cards, restricts immediate family members who can be sponsored for visas and eliminates the international diversity lottery. Instead of replacing those green cards, it would overhaul the employment-based visa system, switching over to a point-based system that places heavy emphasis on higher education, salary and English-language skills.

Another analysis, shared first with CNN, found that blocking low-skilled immigrants from entering or staying in the country could also have vast ramifications for small business creation in the U.S.

Low-skilled immigrants have started millions of small businesses in the U.S., despite having less than a bachelor's degree, according to New American Economy, an advocacy group founded by Michael Bloomberg.

According to the group's analysis of Census Bureau data, more than 2.1 million immigrant entrepreneurs in the U.S. don't have a bachelor's degree. Of those 2.1 million, 445,000 had businesses in construction and more than 100,000 were in landscaping or building services.

Under the RAISE Act's point system, it would be almost impossible for an immigrant with just a high school education to qualify for long-term residency in the U.S.

The group also pointed to past studies that have found that in 2010, one in 10 Americans in the private sector were employed by an immigrant-owned business, that immigrants are twice as likely as U.S.-born Americans to start their own business and that immigrants own more than one-quarter of Main Street businesses in the U.S., including over half of grocery stores and one-third of restaurants.

Supporters of the bill argue that it will raise wages for working Americans and increase the portion of college-educated immigrants who enter the country legally.

"We will build an immigration system that raises working wages, creates jobs, and gives every American a fair shot at creating wealth, whether your family came over on the Mayflower or just took the oath of citizenship," Cotton said when introducing the bill last week.

Despite the White House's support, the bill has little chance of passing in its current form. Many Republicans who support a merit-based system would prefer one that also values low-skilled immigrants, especially lawmakers with heavy agricultural constituencies. When asked about the bill, Senate Majority Whip John Cornyn called it a conversation starter and a "beginning not the end."

07/25/2017 - Add NoteBookmarkShare AILA Urges House to Reject Wasteful and Unnecessary Border Wall Spending

WASHINGTON, DC - The American Immigration Lawyers Association (AILA) strongly opposes adding funding for a wasteful and unnecessary border wall to the appropriations package set to be voted on later this week. Members of the House plan to add the $1.6 billion in funding to a "minibus" spending measure covering, among other things, Defense, Military Construction, and Veterans Affairs. In an effort to get votes for the wall, appropriators are attaching it to funding for programs helping America's military service members and veterans.

"Funding $1.6 billion for an unnecessary border wall is nothing but wasteful spending generated from an idea touted on the campaign trail: we need to 'build a great wall.' Earlier this month, House appropriators yielded to the President's demand for billions in funding for a massive ineffective and cruel deportation force. Now the President's party leadership is trying to go around the normal process by slipping border wall money into a larger funding package," said Annaluisa Padilla, AILA President. She continued, "Instead of a funding bill that covers the entire Department of Homeland Security (DHS), party leadership is tacking money for a wall, panned by border state representatives from both parties, onto funding for other vital and necessary programs. The wall will wreak havoc on local communities, and Congress needs to stand against this effort and these wasteful budget games."

Greg Chen, AILA Director of Government Relations noted, "The House is deceiving the public by saying the wall serves any purpose other than fulfilling President Trump's campaign promise. Border apprehensions have hit historic lows over the past two decades, so the wall has nothing to do with national security or protecting border communities. Behind all the fake bluster about security, the House proposal excludes money for federal emergency disaster relief, Coast Guard, and other DHS programs that actually protect our homeland. This proposal is a shameful and massive waste of Americans' tax dollars that advances the Administration's singular purpose of building a behemoth deportation machine to remove people who have lived here for years, including Dreamers and their families, damaging our entire nation."

07/24/2017 - USCIS to Resume H-1B Premium Processing for Certain Cap-Exempt Petitions

From ILW.COM

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

Starting today, those cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.

USCIS plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will have to reject both forms.

07/18/2017 - Trump Should Show Some Political Courage and Endorse Immigration Protection for Dreamers

July 18, 2017. Los Angeles Times Editorial Board.

Seven years ago, Congress had a chance to take a humane approach to people living in the United States illegally not through their own actions, but through the actions of their parents. Arriving as children, some of these immigrants were smuggled across the border while others entered legally but their families failed to leave when they were supposed to. Many weren’t even aware of their immigration status until they tried to get a job or had some other official contact that required proof of citizenship or a Social Security number. Many also know no other country — they have been raised as Americans, educated in American schools, and share American dreams and values. It would be cruel to send them packing now.

To lessen the threat of deportation for those who arrived in the United States as children, the House in 2010 passed the Dream Act, which would have provided a path to citizenship for those who met certain conditions. But Democrats in the Senate failed to muster enough support to bring it to a vote, so it died. In the wake of that political debacle, President Obama created the Deferred Action for Childhood Arrivals program, using prosecutorial discretion to grant temporary relief for people who met roughly the same conditions spelled out in the failed Dream Act. Of the 1.3 million people eligible for protection — a renewable two-year card granting permission to live and work in the United States — some 750,000 have applied for and received it.

Enter Donald Trump. One of the mainstays of his presidential campaign was demonization of immigrants in the country illegally and bellicose promises to deport them all, build a wall along the southern border and make Mexico pay for it. But Trump was strangely, for him, conciliatory about the Dreamers — those who would have been eligible for protection under the Dream Act. After initially pledging to “immediately end” the program once he moved into the Oval Office, he softened on the campaign trail.

He should show some political courage, endorse the DACA provisions and defend them should Texas carry through with its threat to sue.

As well he should. The usual arguments for escalating deportations — that low-wage immigrants compete unfairly with U.S. citizens, and that they somehow pose a threat to public safety — are especially hollow when applied to those brought into the country as young children.

As president, Trump has expressed sympathy for the Dreamers’ plight and has left the DACA program alone even as he ramped up deportations and ended Obama’s planned extension of protections to parents of citizens and legal residents, but who are themselves in the United States illegally. Yet Trump also has not endorsed DACA, likely fearing backlash from political supporters who bought into his draconian views on immigration.

Those waters were further muddied recently when Texas and several other states threatened to file a legal challenge to DACA if Trump did not rescind it. Last week, Homeland Security Secretary John F. Kelly told members of Congress that he thought the Obama executive action that created DACA was likely illegal and an abuse of executive power. He questioned whether the Trump administration would defend it in court if the states did sue. Trump responded that he would make the decision on DACA, not Kelly or U.S. Atty. Gen. Jeff Sessions (whose antipathy to immigration runs deep). Meanwhile, the Dreamers are left in limbo as the infighting in the White House continues between the hard-liners who want to end DACA and those whose hearts aren’t made completely of ice.

The best solution here is a comprehensive immigration overhaul that would include a reprieve for the Dreamers, but it’s quixotic to think that this White House, and this Congress, would ever agree on humane reforms. The closest we came was the 2013 “Gang of Eight” Senate bill that, while imperfect, offered a bipartisan blueprint for dealing with immigrants who are in the country illegally, among other improvements in the law. That measure died in the House when Republican Speaker John A. Boehner refused to let it come to a vote.

Trump can move us in a better direction. He should show some political courage, endorse the DACA provisions and defend them should Texas carry through with its threat to sue. That would leave some of his core supporters frothing at the mouth, but that’s what a leader does — makes the tough calls in the country’s best interests regardless of the politics.

06/18/2017 - Refugees Contribute More In Taxes Than They Ever Receive in Benefits

By Melissa Cruz, immigrationimpact.com

Refugee resettlement has long been a cornerstone of United States foreign policy, but in the first weeks of the Trump administration, the president attempted to suspend the decades-long program in favor of a more isolationist approach. One reason the president gave for wanting to temporarily bar the world’s refugees was their supposed financial burden—but a new study (http://www.nber.org/papers/w23498) suggests that refugees ultimately pay far more in taxes than they receive in welfare benefits.

According to a working paper from the National Bureau of Economic Research (NBER), refugees who entered the country as adults will have paid an average of $21,000 more in taxes than they received in benefits over their first 20 years in the United States.

This greatly exceeds the amount the government pays in relocation costs and social programs per refugee—roughly $107,000, compared with the estimated $129,000 each pays in taxes across all levels of government.

The study further points out that refugees experience a significant increase in employment rates and earnings over time, two factors that ultimately add to the U.S. labor market, not stifle it. Though refugees initially experience lower rates of employment and pay, this changed substantially after just six years of living in the United States. Researchers found that refugees were able to accomplish this despite arriving in America with significant language and educational barriers, in addition to experiencing trauma in their home countries.

This was especially true for those that arrived to the country before the age of 14. Those refugees typically graduate high school and enter college at the same rate as their U.S.-born peers, the researchers found.

These statistics dispel the all-too-common myths that refugees drain the U.S. economy and rely on taxpayers.

“You can’t just look at one side of this equation. [They’re] getting benefits, but they’re also generating income,” said William Evans, one of the paper’s authors and a Notre Dame economist. “They’re living [here], so therefore they are paying taxes.”

The NBER paper comes on the heels of the administration’s most recent attempt to curb refugee funding. In his federal budget proposal, the president called for a 25 percent cut in funds for refugee resettlement on American soil. The budget also requested a 13 percent decrease in U.S. contributions typically reserved for international aid groups helping refugees abroad.

Based on humanitarian principles alone, America’s responsibility to offer aid to those seeking refuge is clear. But in undercutting the fiscal arguments against refugee resettlement, these statistics leave little room to reason otherwise.

06/15/2017 - America Benefits from Growing Economic Clout of DACA Recipients

By Walter Ewing, immigrationimpact.com

Now marking its fifth year, the Deferred Action for Childhood Arrivals (DACA) initiative has been a much-needed lifeline for more than one million young undocumented immigrants who were brought to the United States as children. DACA was announced by the Obama administration on June 15, 2012. DACA granted a temporary reprieve from deportation, as well as work authorization, to those who qualified.

The DACA initiative was always meant to be a stop-gap measure; something to fill the legislative void until Congress passed either the DREAM Act or a broad-based legalization program for most undocumented immigrants already living in the country.

But with the fifth anniversary comes a level of uncertainty for DACA recipients. Although President Trump has at times said that anyone brought here in an undocumented status as a child deserves a lasting solution to their plight, he has also repeatedly pledged to get tough on all undocumented immigrants.

The DACA program continues to function, however, even under the current administration. Statistics released by U.S. Citizenship and Immigration Services (USCIS) reveal that roughly 36,000 young adults have qualified for DACA in 2017 thus far. In addition, 211,000 renewals have been granted.

Nearly 788,000 cases have been approved since DACA began in 2012. The overwhelming majority of DACA recipients are from Mexico, followed by El Salvador, Guatemala, and Honduras. The state that is home to most DACA recipients is California, followed by Texas, New York, and Illinois.

Studies have shown that DACA recipients experience an easier transition into adulthood, increased employment and educational opportunities, and are better equipped to contribute to the economy.

The arguments in favor of DACA—and legalization more generally—are not only humanitarian, they are fiscal as well. An April report from the Institute on Taxation and Economic Policy (ITEP) estimated that undocumented young people now enrolled in or eligible for DACA pay roughly $2 billion each year in state and local taxes. Creating a path to citizenship for DACA-eligible youth would increase their state and local tax payments by $505 million—for a total of $2.53 billion a year.

Beyond taxes, there are other social and economic benefits of DACA. As the Cato Institute has pointed out, DACA recipients have already been screened for criminal records. They are not eligible for welfare benefits or subsidies under the Affordable Care Act. They pay their own application processing fees, so the program has no uncompensated administrative costs. And being able to work openly and in the formal economy creates more jobs, fuels innovation, and allows DACA recipients to start families in which their own children have a better shot at success as well.

No matter how you look at it, DACA has been a successful program on both humanitarian and economic grounds. It has enabled its beneficiaries to contribute more to the economy and the treasury, without imposing any net costs on the federal government. In the absence of a legislative solution, DACA recipients should continue to be protected from deportation.

05/23/2017 - Trump Administration Budget Aims to Undermine Due Process and Implement Mass Deportation Plan

AILA Doc. No. 17052361 | Dated May 23, 2017

WASHINGTON, DC - AILA opposes the Trump Administration's newly released Fiscal Year 2018 budget request, which would fund massive increases in immigration enforcement and border security and undermine due process in immigration law through the power of the purse. This request for billions more dollars to grow an enormous deportation force - which has already ripped apart families and communities - is especially extraordinary considering that President Trump is demanding deep cuts in domestic programs that are vital to working class Americans. Most troubling, the Administration's budget would fund a 66 percent increase in the nation's already sprawling immigration detention system and add 1,500 enforcement agents.

The proposed budget is not based on any demonstrated border security or public safety needs. In fact, border apprehensions have declined steadily during the past two decades. Moreover, the Administration is indiscriminately arresting and detaining undocumented people, families, and Dreamers. ICE statistics show that, in the first 100 days of the new Administration, arrests of individuals with no criminal convictions increased by 157 percent.

The proposed budget goes hand-in-hand with several bills now being moved through Congress that constitute an unprecedented expansion of immigration enforcement that is fundamentally inconsistent with principles of due process and fairness. Together the budget and these enforcement-only bills would enable the Administration to implement an immigration agenda focused solely on mass detention and deportation without regard to the harm it would do to American communities.

Benjamin Johnson, AILA Executive Director noted, "Nowhere in this budget is there any recognition that immigrants have been crucial to America's success. This budget ignores the desperate need in our country for smart immigration reform that will benefit all Americans and offer a chance for the undocumented to legalize their status - something 90 percent of Americans want. This budget fails on so many levels."

The Administration and DHS budget documents released today include the following provisions:

INCREASED ENFORCEMENT AND DETENTION

- The Trump Administration budget is seeking funding to maintain an average daily detained population of 51,379, an increase of 66% over prior Congressional authorizations of 34,000 detention beds.

- There is currently no need for any additional detention capacity. In order to maintain an average daily population above 51,000, ICE will have to arrest, detain and deport tens of thousands of long-time residents who pose no threat to public safety.

- DHS disclosed in its budget documents that ICE will no longer expect the overwhelming majority of its detention facilities to comply with any set of ICE detention standards under an alarming rationale: that it is has been difficult for some field offices to find new detention facilities as so many "are unable or unwilling to meet ICE's detention standards."

- The Trump Administration budget would hire an additional 1,000 immigration enforcement agents for his deportation force.

- Through the budget process, the Administration is attempting to rewrite federal law to prohibit state and local law enforcement agencies from restricting compliance with constitutionally-suspect ICE detainer requests. States and localities would almost certainly challenge this provision as unconstitutional.

- The proposal includes almost $23 million for the E-Verify program, which includes money to work towards mandatory, nationwide use of the program.

BORDER WALL AND ADDITIONAL BORDER PATROL AGENTS

- The Administration budget proposes spending $1.6 billion on a wasteful and unnecessary border wall that confers no operational advantages.

- The Administration budget also proposes the hiring of another 500 unneeded and inadequately screened and trained Border Patrol officers.

- The immense budgets allocated to CBP under the prior two Administrations have already funded the deployment of costly and extensive border security resources, incorporating a layered system of physical barriers and border security technologies supplemented by a huge force of Border Patrol and other CBP personnel.

THE DOJ BUDGET

- The Administration's budget seeks the hiring of 70 new U.S. Attorneys at the Department of Justice to prosecute people for immigration-related offenses. Immigration prosecutions already comprise the majority of all federal prosecutions. This is a disproportionate allocation of criminal justice resources in comparison to the far more serious federal felonies for which the Department of Justice is responsible.

REFUGEE AND HUMANITARIAN ASSISTANCE

- The proposed budget would slash funding for international refugee and humanitarian assistance, including a complete elimination of the Emergency Refugee and Migration Fund which is critical for the U.S. government's capacity to respond to urgent crises. This plan will reduce the number of refugees resettled in the United States to 50,000 in 2018, far short of what is needed.

More information can be found in AILA's report published in April, 2017: President Trump's Massive Enforcement Plan: Wasteful and Ineffective.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

05/05/2017 - H-1B Cap Gap for Students Without a Rejection or Decision

USCIS announced on May 3, 2017, that data entry for FY2018 has been completed and that petitions not selected in the lottery would begin to be returned. However, it may take several weeks for all unselected petitions to be returned.

In the interim, for those cases where neither a receipt nor a rejection notice has been received, students may continue to benefit from an automatic cap-gap extension until a rejection notice is received.

Once a rejection notice is received, a student has the standard 60-day grace period starting from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

AILA Doc. No. 17050532

04/14/2017 - Border Officers Nearly Double Searches of Electronic Devices, U.S. Says

Article from the New York Times. By RON NIXON. APRIL 11, 2017

WASHINGTON — Customs officers at the border and at airports almost doubled their searches of electronic devices of people entering the United States in the last six months, according to data released Tuesday by Customs and Border Protection.

Despite the surge in searches — nearly 15,000 from October to March, compared with 8,383 in the same period in 2015 and ’16 — agency officials said the latest numbers represent less than one percent of the 189.6 million travelers that arrived in the United States in that period.

“These searches, which affect fewer than one-hundredth of one percent of international travelers, have contributed to national security investigations, arrests for child pornography and evidence of human trafficking,” said John P. Wagner, a deputy assistant commissioner at Customs and Border Protection.

Privacy activists say the searches are invasive and violate Fourth Amendment protections against unreasonable searches.

But courts have long held that those protections do not apply at the border and at airports because of the government’s compelling interest in combating crime and terrorism.

A 2014 Supreme Court ruling did say, however, that law enforcement needed to have a warrant to search electronic devices when a person was being arrested.

“Modern cellphones are not just another technological convenience,” Chief Justice John G. Roberts Jr. wrote. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” the chief justice wrote.

But since that case did not involve a search at the border, Homeland Security officials said the ruling did not apply to border searches.

Faiza Patel, a co-director of the liberty and national security program at the Brennan Center for Justice at the New York University School of Law, said she expected that to change.

“Lots of these exemptions to the Fourth Amendment were created when we weren’t seeing these kinds of searches of people’s personal devices,” she said. “I’m not sure that this can continue based on the way things are changing.”

The policy of searching cellphones and other electronic devices at the border started in the George W. Bush administration with a focus on specific individuals, but the searches have recently expanded to include broad ranges of people who do not pose a threat.

Joseph B. Maher, the acting general counsel at the Homeland Security Department, said searching electronic devices was the same as searching luggage.

“Just as Customs is charged with inspecting luggage, vehicles and cargo containers upon arrival to the U.S.A., there are circumstances in this digital age when we must inspect an electronic device for violations of the law,” Mr. Maher wrote last month in an op-ed in USA Today.

Last week, however, a bipartisan group of lawmakers on Capitol Hill introduced legislation that would require customs officers to get a warrant to search the contents of electronic devices at the border.

“By requiring a warrant to search Americans’ devices and prohibiting unreasonable delay, this bill makes sure that border agents are focused on criminals and terrorists instead of wasting their time thumbing through innocent Americans’ personal photos and other data,” said Senator Ron Wyden, Democrat of Oregon.

The bill was co-sponsored by Senator Rand Paul, Republican of Kentucky, and Representatives Jared Polis, Democrat of Colorado, and Blake Farenthold, Republican of Texas.

The border searches are also the subject of a lawsuit. The Knight First Amendment Institute at Columbia University is suing the Homeland Security Department for details of searches of travelers’ electronic devices by customs officers since 2012.

The lawsuit claims that customs officers and special agents with Homeland Security Investigations, a part of Immigration and Customs Enforcement, have seized and searched the electronic devices of thousands of people, including citizens, without suspicion — which it said could violate the Constitution.

03/06/2017 - DHS and DOS Implementation of Executive Order Imposing Travel and Refugee Ban

AILA Doc. No. 17012670 | Dated March 6, 2017

ALERT: On March 6, 2017, President Trump reissued the Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” effective March 16, 2017. The previous Executive Order 13769 of January 27, 2017, will be revoked on March 16, 2017 and replaced with this reissued Order. DHS provided a fact sheet and Q&As. The White House also issued a memorandum to the Secretary of State, the Attorney General, and the Secretary of Homeland Security on the implementing of the Order issued on March 6, 2017.

The new Executive Order bans immigrant and nonimmigrant entries for nationals of six designated countries - Syria, Iran, Libya, Somalia, Sudan, and Yemen - for at least 90 days beginning on March 16, 2017. However, the new Order no longer includes Iraqi nationals in the 90-day travel ban; allows case-by-case waivers in certain situations; and exempts certain categories of individuals completely, including LPRs and current visa holders.

Additionally, the order suspends the USRAP for 120 days after March 16, 2017 (subject tocertain case-by-case exceptions), suspends the Visa Interview Waiver Program, calls for heightened vetting and screening procedures, and directs DHS to expedite completion of a biometric entry-exit tracking system.

02/24/2017 - Overwhelmed Courts Could Limit Impact Of Adding Immigration Officers

From NPR Morning Edition. Author Richard Gonzalez.

The Department of Homeland Security issued new guidelines this week that call for hiring 15,000 additional Border Patrol agents and immigration officers. It also wants to greatly expand the number of unauthorized immigrants who are prioritized for deportation.

But between arrest and possible repatriation, those swept up will have court dates. Right now, that can take time.

U.S. Immigration Courts are 'Operating In Crisis Mode,' judges say. That's because there are only 300 immigration judges in the country, and pending cases are at a record high. On average, each judge has a backlog of about 1,800 cases to hear. That leads to lengthy delays, said Deep Gulasekaram, who teaches constitutional and immigration law at Santa Clara University.

"It's early 2017 now; it's not unusual to see court dates for people that are in 2020, late 2020," he said. "So we're thinking three years hence for when you actually get your case heard."

That delay impacts the way the immigration courts are perceived inside and outside of government, said Dana Leigh Marks, president of the National Association of Immigration Judges.

"The immigration courts are the legal Cinderellas — we often are forgotten when immigration enforcement is discussed," said Marks. "If we are not given the resources necessary to adjudicate these cases fairly and in a timely fashion, then the removal process will break down."

The Department of Homeland Security acknowledges the current pressures on immigration courts. In issuing the new guidelines, the agency said the "unacceptable delay" in courts allows unauthorized immigrants to remain in the country for years.

One way the order addresses the problem is to expand what's known as "expedited removal" — deportation without ever seeing an immigration judge — to unauthorized immigrants who have been in the country less than two years and are detained anywhere in the country. Under President Obama, this process was used only immigrants arrested within 100 miles of the border and within two weeks of arrival.

"If the administration is going to rely more on expedited removal, they may think that more immigration judges are not necessary," said Ingrid Eagly who teaches at the UCLA Law School. But Eagly said any expansion of expedited removal is likely to be challenged in the federal courts on the grounds that it denies due process.

The Department of Homeland Security also is calling for a "surge" in the deployment of immigration judges to review claims made by people who recently crossed the border.

Still, such a move could have a predictable impact on the courts, said Santa Clara Law's Deep Gulasekaram.

"Diverting current resources to the border is certainly going to make every place else that much more strained," he said.

It's important to note that immigration judges are not like other judges — they aren't part of the judicial branch. They are lawyers hired by the U.S. Department of Justice to administer the law.

NPR contacted the department's Executive Office for Immigration Review, which supervises the immigration courts, to ask about the hiring of new judges and the possible redeployment of judges to the border.

In an email, a spokeswoman said her office still is reviewing the new guidelines and hopes to hire 50 more judges. That would bring the current case backlog per judge down to about 1,500.

02/06/2017 - Troubled by Likely Confirmation of Senator Jeff Sessions for Attorney General

As early as tomorrow, a final confirmation vote could come for Attorney General (AG) nominee Senator Jeff Sessions (R-AL). On Friday, February 3, 2017, the American Immigration Lawyers Association submitted a statement to the U.S. Senate on the nomination of Senator Sessions for AG, messaging that "AILA is deeply troubled by the likely confirmation of Senator Jeff Sessions for Attorney General." AILA also has a Take Action on its website urging AILA members to contact their members of Congress and request that they consider the following when casting their vote on Senator Sessions' nomination:

- Even before his confirmation, Senator Sessions' influence and views on excluding people of Muslim faith from our country have been realized.

- Senator Sessions' statements and record make clear that he lacks the ability or desire to fully enforce civil rights laws protecting the rights of immigrants and other noncitizens.

- Senator Sessions remains opposed to the 14th Amendment's guarantee of birthright citizenship. Senator Sessions continues to believe that indiscriminate prosecution and unrestrained removal of unauthorized immigrants is in the country's best interests.

- Senator Sessions' opposition to immigration extends to the most vulnerable populations.

This update from AILA Doc. No. 15011390

02/03/2017 - Chasing Down the Rumors - No New Countries to Be Added to Travel Ban

American Immigration Lawyers Association confirms that there are no current plans to expand the travel ban beyond the current seven (7) countries.

In response to rumors of plans to expand the travel ban to other countries, DOS informed AILA that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, "Protecting the Nation From Foreign Terrorist Entry into the United States." This includes Colombia and Venezuela which have been widely rumored to be under consideration. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.

01/29/2017 - SPREAD THE WORD: IF ASKED TO RELINQUISH YOUR STATUS OR SIGN FORM I-407 AT THE BORDER: DO NOT SIGN ANYTHING! ASK FOR A "N.T.A."

Legal Permanent Residents (LPR's or "green card holders") returning to the USA from abroad should NOT surrender their green cards if asked to do so by an airport or border official. DO NOT SIGN ANYTHING, even if pressured to do so. Instead ASK FOR AN N.T.A. ("Notice to Appear" before an immigration judge). A green card holder cannot lose their green card simply as a result of going abroad. Only an immigration judge, NOT a border officer, can take away someone's green card status.

DO NOT sign Form I-407. I-407 is a voluntary abandonment of green card status. The I-407 is something returning green card holders are NOT required to sign. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Form I-407 must be signed voluntarily and there are no potential negative ramifications for refusing to sign.

IMPORTANT: Refusing to sign Form I-407 is NOT grounds for detention. Rather, a green card holder who refuses to sign Form I-407 must be issued a Notice to Appear (N.T.A.) so that they have the opportunity to go to court and speak with an immigration judge. Again, only an immigration judge, NOT a border officer, can determine whether a green card holder has lost their status.

If an airport or border officer states that you have abandoned your status by traveling abroad, again, DO NOT SIGN ANYTHING. Tell them you have NOT abandoned your status and ask for an N.T.A., which again means "Notice to Appear" before an immigration judge.

In Court, DHS will have the high burden of proving to the immigration judge that you have abandoned your green card by clear, unequivocal, and convincing evidence. A green card holder who is placed in removal proceedings doesn't lose their status until a final order of removal is issued by a judge.

Please share this information with family and friends.

01/27/2017 - URGENT: Executive Order Update & Travel Warning

President Trump signed an Executive Order relating to visa issuance, screening procedures, and refugees. The Executive Order is titled "Protecting the Nation from Foreign Terrorist Entry Into the United States."

Among other provisions, Section 3 of the Executive Order, "suspends" the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order. Designated countries are those identified in INA §217(a)(12) and later added to the list of countries with Visa Waiver restrictions and would therefore include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Note that INA §217(a)(12) includes restrictions on people who travel to the designated countries, as well. It does not appear that the Executive Order is meant to encompass these individuals; however, it is not completely clear.

The order also does not define what it means to be "from" a designated country. Thus, in an abundance of caution, it may be best to interpret the term broadly to include passport holders, citizens, nationals, dual nationals, etc. Additionally, after 90 days, travel is not automatically reinstated. Instead, DHS is required to report whether countries have provided information "needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." If not, the country would have 60 days to comply, or the travel ban would become indefinite.

Anyone who might be affected by the Executive Order should refrain from traveling outside of the United States. AILA has reached out to CBP for information on how they are currently handling the entry of individuals from designated countries, and will update this alert with additional information as soon as it is available. Please note that the situation is fluid, and may change at any time.

Adapted from AILA Doc. No. 17012670

11/09/2016 - Post Election Blues: What now?

AILA Doc. No. 15011390 | Dated November 9, 2016

Our nation's political leadership will turn bright red in January 2017 with not only the White House but also both houses of Congress won by Republicans. On the campaign trail, President-elect Donald Trump espoused draconian policies such as deporting all undocumented immigrants, banning Muslims, creating roving ICE deportation patrols, ending DACA, and of course building a wall. Even if the new president moderates his views, he has surrounded himself with advisors, such as Senator Jeff Sessions (R-AL) and Kris Kobach, who have advanced extreme views on immigration.

If you're wondering what a new administration might do if restrictionist and anti-immigrant voices take control, look at the 79 ideas that Center for Immigration Studies came up with for the next president: "A Pen and a Phone."

The Republicans will retain control of Senate with 51 seats; Democrats have 45 seats; and Independents have two seats (the Independents have been caucusing with the Democrats). So far, the Democrats have gained the Illinois seat where incumbent Senator Mark Kirk (R) was defeated by Representative Tammy Duckworth (D-IL-08). Senator Kelly Ayotte (R-NH) remains in a tight race against Democratic challenger Maggie Hassan who was leading by less than a thousand votes.

With the Senate remaining in Republican control, key leadership posts will probably not change within the GOP where Mitch McConnell (R-KY) is Majority Leader and Senator John Cornyn (R-TX) is Majority Whip. With Senator Harry Reid (D-NV) retiring, Senator Chuck Schumer (D-NY) is expected to become the Democratic Leader and Senator Dick Durbin (D-IL) should be staying in the Democratic Whip position.

On the House side, while the margin between the majority and minority parties narrowed by 8 or 9 seats, Republicans were also able to maintain their majority status with 239 seats and Democrats with 193 seats. Both parties will be holding their party leadership and organizing meetings in the next couple of weeks.

The big question for House Republicans is whether or not Speaker Ryan (R-WI-01) will have a smooth or bumpy path on his reelection as Speaker of the House. There have been reports the ultraconservative Freedom Caucus is divided on whether or not they should support Ryan for another term as Speaker. Speaker Ryan has supported positive immigration reform efforts and a successful challenge to his Speakership would not bode well for immigration reform efforts. In committees that impact immigration policy, just as in the Senate, some Members of Congress will be considering committee moves and changes. More will be clarified in the coming weeks but there could new players in the Judiciary and Homeland Security committees.

09/02/2016 - American Immigration Lawyers Assoc. President: Trump speech was fantasy, not policy

By William A. Stock. President of American Immigration Lawyers Association (AILA). 09/01/2016.

Donald Trump began his immigration speech Wednesday by promising a “detailed policy address” rather than a rally speech. It is true that he provided a bit more detail in the ten points he recited before a crowd in Arizona than he has listed on his website since last fall but most of the additional detail came in the form of a chorus of talking points from anti-immigration hardline groups.

His policy proposals were a wish-list of the “enforcement only” approach that has been tried, and failed, for the past twenty years. In fact, the entire speech was a full-throated endorsement of the immigration restrictionists’ approach to the immigration debate. Trump’s vision of America is not a shining city on a hill, but a city under siege from dark forces.

Trump’s speech provided no “pivot” to a more reasonable immigration policy, and explicitly shut down the possibility of a path to legal status for any immigrant who has overstayed a visa or has entered without authorization. It is here that the contradiction at the heart of the “enforcement only” immigration policy lies. What Mr. Trump failed to mention is that we have 11 million people living without legal status in the United States precisely because there are vanishingly few routes through which they can obtain legal status under current law, but there is significant demand from American employers for their work, and from American communities for their contributions.

If we are going to “enforce all of our immigration laws,” which provide no path back to legal status regardless of how good a person is or how long they have lived in the United States, then it does not matter how “fair, just and compassionate” the deportation process is. At the end of that process, with no path to legal status, families will be torn apart and American communities will be devastated.

Few people discussing the immigration issue today highlight the law at the root of this current immigration dilemma. In 1996, shortly after Pete Wilson won reelection as governor of California on a strongly anti-immigration platform, the Republican-controlled Congress passed, and Democratic President Bill Clinton signed, a bill called the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA. It is that bill which closed of many of the paths people had been able to use to “get legal” if they had fallen out of status. It created a “one strike and you are out” rule of deportation for a broad range of nonviolent crimes, and it gave sweeping powers to the immigration agencies to deport and remove suspected undocumented immigrants with only limited legal process.

From 2002 to 2006, a “no tolerance” immigration policy was imposed within the immigration agencies, and local police departments were given the unfunded mandate of enforcing immigration law through 287(g) agreements. Mr. Trump promises to return to these policies with a vengeance, forgetting that they were ended because police departments wanted them to end due to the damage they did to police-community relations.

It is no surprise that one of the speakers introducing Mr. Trump was the Maricopa County Sherriff, Joe Arpaio, who was recently referred for criminal prosecution for his disregard of a federal judge’s order to cease the unconstitutional profiling of U.S. citizens and legal residents who are Latino.

Mr. Trump’s speech peddled the fantasy that doubling down on these failed policies will miraculously end crime and unemployment mere months after his election. Twenty years after IIRIRA was passed, these enforcement-only approaches to immigration control have resulted in more than twice as many people without status (5 million in 1996, 11 million today), and a California completely controlled by the Democratic party. The National Review recently suggested rebranding this approach as “enforcement first,” doubling down on the enforcement-only approach with the goal of having as many people as possible self-deport before discussing any path to legal status for those who remain.

The enforcement-only or enforcement-first approach ignores two fundamental realities:

1. A majority of Americans support a path to legal status for many of the people presently without one.

2. Unless immigration law provides both workable paths for legal immigration and credible enforcement against those who do not follow those paths, it will not be sustainable. At present, our immigration laws fail to provide such workable paths.

After the election, Republicans will have to decide on a path forward with regard to immigration.

If Mr. Trump wins the election, they will be asked to go along with his plans for building a wall across the U.S.-Mexico border, to grant significant additional funding to immigration enforcement agencies, and to federalize local police to assist with enforcement of immigration laws in their communities.

If he does not win, there will be an opportunity for us to define a different path forward, one which recognizes that those immigrants Mr. Trump referred to just last week as “good people” need a path under our laws to legal status and full integration in our communities. We should seize that opportunity to enact laws that resolve the contradiction at the heart of “enforcement only” policies, provide such a path for the “good people,” and continue the American tradition of welcoming and assimilating immigrants from around the world.

William A. Stock is an attorney and president of the American Immigration Lawyers Association.

07/24/2016 - The Democrats’ Biggest Contrast With Trump’s Immigration Vision Will Be A Family

Source: Buzzfeed.com 07/24/2016

PHILADELPHIA — The Democrats will be presenting a starkly different immigration message this week during their convention — especially around the issue of undocumented immigration.

At the RNC, Donald Trump described a violent America, which featured the suffering of innocents at the hands of vicious undocumented immigrants; the convention also featured people whose son or daughter had been killed by an undocumented immigrant. In Philadelphia, the Democratic National Convention will present three faces from Nevada by way of Mexico: a young woman, Astrid Silva a DREAMer activist; and Karla and Francisca Ortiz, a 10-year-old U.S. citizen girl and her undocumented mother, who will all speak at the convention Monday.

In October 2013, after a lawyer repeatedly accepted money from the Ortiz family but didn’t help them, immigration agents came to detain Karla Ortiz’ father. His status, and her mother’s, are perilous. They were given an order of deportation but were granted a stay after Sen. Harry Reid and former Rep. Steven Horsford intervened.

During the lead up to the February Nevada caucus, Karla Ortiz was in the audience for a Clinton event with DREAMers, including Silva, and their parents. It wasn’t planned for her to ask a question, but she did, and the moment was captured by videographers that trail Clinton.

Karla Ortiz began to cry, asking Clinton to protect her parents. A glassy-eyed Clinton told the young girl she was being very brave and to let her do the worrying. From the experience, the campaign produced an ad titled “Brave” that was effective, particularly in Nevada. After, in a note Karla Ortiz wrote to Clinton, obtained by BuzzFeed News, she said that growing up she went to court a lot and never knew why her parents were always crying.

“One day my heart hurt and they took me to the doctor,” Karla wrote. “The doctor said that my heart speeds up and that he thought it was because I was afraid all the time. The doctor told my mom that she had to take care of my heart because fear could make me sick.”

The moment on Monday will be striking. Karla Ortiz will speak, but so will her mother — in Spanish, with her daughter translating for her, a reality that many children of immigrants have dealt with for decades and continue to deal with.

“When you become the voice of your parent, you are thrown into being an adult when you are a kid,” one Clinton staffer said.

Silva, the second DREAMer to speak at the DNC, will be one of the headliners Monday. Lorella Praeli, an activist turned staffer who is running the Latino vote program for the campaign, said DREAMers have been normalized in a way parents haven’t been yet, which represents progress for the immigration movement. She said Karla and Francisca Ortiz are excited and nervous. “They can’t really believe it’s happening, they see themselves as bringing us closer to the solution,” she said.

Erika Andiola, an activist and Praeli’s opponent on the Bernie Sanders side during the primary, agreed. “I think definitely it’s a step forward,” she said, noting that she also wanted people who are not eligible for Obama’s immigration actions and an unaccompanied minor to speak.

“I’m glad that we have folks who are affected by immigration system that are actually speaking, telling their stories about them and their families,” she said. Alida Garcia, a 2012 Obama campaign veteran who works for Mark Zuckerberg’s immigration advocacy group FWD.us, said that both Karla and Francisca Ortiz speaking was a sign of growth for the movement “and a more accurate reflection of who we’re fighting for when we talk about comprehensive immigration reform.”

Out of the 11 million undocumented, DREAMers are only around 2 million of those, she said. “Having a parent on stage is affirmation of who we’re fighting for when we want to pass immigration reform,” she added.

In February, Karla Ortiz told Clinton she was afraid her parent’s were going to be deported. Now she will share that message from the Democratic convention stage.

07/08/2016 - USCIS Returns Unselected Fiscal Year 2017 H-1B Cap-Subject Petitions

USCIS announced on July 8, 2016, that it has returned all fiscal year 2017 H-1B cap-subject petitions that were not selected in the computer-generated random selection process.

USCIS previously announced on May 2, 2016, that it completed data entry of all selected cap-subject petitions.

If you submitted an H-1B cap-subject petition between April 1 and April 7, 2016 and have not received a receipt notice or a returned petition by July 22, 2016, you may contact USCIS for assistance.

06/23/2016 - Supreme Court Tie Blocks Obama Immigration Plan

SOURCE: NYT. 07/23/2016.

WASHINGTON — The Supreme Court announced on Thursday that it had deadlocked in a case challenging President Obama’s immigration plan, effectively ending what Mr. Obama had hoped would become one of his central legacies. The program would have shielded as many as five million undocumented immigrants from deportation and allowed them to legally work in the United States.

The 4-4 tie, which left in place an appeals court ruling blocking the plan, amplified the contentious election-year debate over the nation’s immigration policy and presidential power.

When the Supreme Court agreed to hear the case in January, it seemed poised to issue a major ruling on presidential power. That did not materialize, but the court’s action, which established no precedent and included no reasoning, was nonetheless perhaps its most important statement this term.

The decision was just nine words long: “The judgment is affirmed by an equally divided court.”

But its consequences will be vast, said Walter Dellinger, who was acting solicitor general in the Clinton administration. “Seldom have the hopes of so many been crushed by so few words,” he said...

05/24/2016 - Lawsuit Seeks Transparency in H-1B Lottery Process

AILA Doc No. 16052301 | Dated May 23, 2016 AILAAIC

Washington D.C. - The American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) have teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking information about the government’s administration of the H-1B lottery. The lawsuit, filed last Friday, was brought under the Freedom of Information Act (FOIA). Hughes Socol Piers Resnick & Dym, Ltd. is co-counsel with attorneys from the Council.

Every year, U.S. employers seeking highly skilled foreign professionals submit petitions to USCIS on the first business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. With an annual limit of 65,000 visas for new hires—and 20,000 additional visas for professionals with a master’s or doctoral degree from a U.S. university—employer demand for H-1B visas has exceeded the statutory cap for more than ten years.

If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency uses a computer-generated random selection process (or “lottery”) to select a sufficient number of H-1B petitions to satisfy the limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected are returned to the petitioning employers. U.S. employers, foreign nationals seeking H-1Bs, and immigration lawyers are keenly interested in how USCIS administers the lottery process.

USCIS has never been forthcoming in describing the selection process. “When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.”

“Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted,” said AILA Executive Director Benjamin Johnson. He continued, “Instead of responding to our requests for information about how the lottery is conducted, how cap-subject petitions are processed, and how the numbers are estimated and tracked, USCIS has kept the process entirely opaque. This litigation is intended to shine a necessary light on an important process in America’s business immigration system.”

03/23/2016 - USCIS Confirms that Standard Procedures Apply to FY2017 H-1B Lottery

From AILA | AILA Doc No. 16032137 | Dated March 21, 2016

USCIS confirmed to AILA that standard procedures will apply for the FY2017 lottery: If more than enough H-1Bs are received during the first 5 business days in April, a random lottery will be conducted for petitions received during that time period for first the master’s and then the regular cap.

As it does each year, on March 16, 2016, USCIS announced that it would begin accepting H-1B cap-subject cases on April 1, 2016 (AILA Doc. No. 16031607). The announcement included a statement that the "[t]he first 20,000 H-1B petitions filed for individuals with a U.S. master's degree or higher are exempt from the 65,000 cap." AILA received several inquiries from members who read this and were concerned that the process had changed, such that the "master's cap" exemption process would be handled on a strict first-come, first-served basis, rather than the historical practice of a random computer selection from all eligible petitions received within the first five business days of the filing period, assuming more than 20,000 petitions are received during that period.

In correspondence and conversations with AILA representatives, USCIS confirmed that the practice this year will not be different than previous years. The process is as follows: If there are more than 20,000 "master's cap" petitions filed during the first five business days in April, there will be a random computer selection from those petitions for the 20,000 exemptions. Any petitions not selected for the master's cap will then be included in the random selection for the 65,000 regular cap.

03/10/2016 - New U.S. Rule Extends Stay for Some Foreign Graduates

Excerpted from the NY Times, 03/09/2016

The federal government will publish the rule on Friday, saying that international students earning degrees in science, technology, engineering and mathematics fields in the United States will now be eligible to stay for three years of on-the-job training. This is seven months longer than under the 2008 rule it replaces for the STEM Optional Practical Training program, known as OPT. The new rule will take effect on May 10.

Beyond offering graduates more experience in their fields, the extension serves another purpose. “If my work visa gets denied this year, I still have two more opportunities to apply, and I can keep working within the country,” said Ms. Aramandla, who wanted to be an engineer since she was 10, growing up in Chennai, India. She graduated from N.Y.U. in May; under the previous 29-month rule, she would have been able to stay only through October 2017.

Ms. Aramandla will apply in April for a visa, known as an H-1B, for so-called skilled foreign workers. But Congress caps those yearly at 65,000, with an additional 20,000 slots for graduates with advanced degrees like Ms. Aramandla. The government received nearly four times as many applications for those visas as were accepted in last year’s lottery.

This rule is yet another flash point in the controversy over immigration reform. Industry leaders who say they are desperate for skilled talent and those defending the rights of American workers see the training program’s extension as an end-around to stalled reform. But that is all they agree upon.

“It’s an ongoing assault on American workers,” said John Miano, a lawyer for a technology workers’ union in Washington State, whose lawsuit last summer was what forced the government to vacate the previous rule and create a new one, this time for public comment.

“They are just trying to double down on what they’re doing before,” he said of the government. “‘O.K., you didn’t like 29 months? We’ll make it 36 months.’”

Mr. Miano says his group, the Washington Alliance of Technology Workers, is still arguing the legality of the program in an appeal. The next hearing will be in May at the United States Court of Appeals for the District of Columbia.

The government posted a similar version of the rule in the federal register in October, drawing more than 50,500 comments. (Death threats to President Obama were removed, officials said.) A large number of commenters who said they were foreign students supported the rule. But there were also comments from people who identified themselves as unemployed technology workers or concerned citizens who believed the government “was destroying this country,” and thought that it showed the government was “standing with illegals.”

The new rule states directly that “a STEM OPT student would not replace a full- or part-time, temporary or permanent U.S. worker,” and that the salary offered would “be commensurate” to American workers.

Officials with the Immigration and Customs Enforcement agency said they tried to tighten training programs, mandate oversight of employers and make sure that the students come from accredited universities in an effort to prevent fraud.

“In our mind, it enhances training and puts safeguards in to make sure that if you are an employer that you are not unfairly disadvantaging U.S. workers,” Rachel Canty, deputy director for the agency’s Student and Exchange Visitor Program.

The agency said it would provide help sessions for eligible students, employers and academic institution on its website on Friday.

Ms. Aramandla, who works for Loring Consulting Engineers and designs heating, ventilation and air-conditioning systems for schools in New York, said her training would not be applicable in India, nor would she find the same work environment there; as a woman in India, she feels she would not be as respected as she is in the United States.

Michael DesRochers, the president of Loring, said Ms. Aramandla was an integral employee in his technical work force, which is 7 percent foreign.

“The labor market is tight,” Mr. DesRochers said. “We don’t look at it as the international students are taking away American opportunities. We feel we’re offering to all.”

His company’s work may intersect again with the new rule: Recently, his engineers replaced the ventilation and mechanical systems for the United States Supreme Court.

12/21/2015 - The Border

AILA Doc No. 12032166 | Dated December 21, 2015

The past decade has been marked by a dramatic buildup of border security and the expenditure of enormous resources on border personnel, border infrastructure and surveillance. Nonetheless, lawmakers continue to emphasize resource-heavy approaches that are premised on a strategy of making the border impenetrable, or nearly so. But, the border is more secure than ever before. Border apprehensions are at the lowest point in four decades, and the unauthorized population has fallen by eight percent since 2006.

This is the time to identify clear and reasonable border security goals that move beyond strategies focused solely on increasing spending at the Southern border. An effective border security plan must be based on performance metrics and measurable standards of border safety that are both achievable and fiscally responsible.

12/02/2015 - Filing a NEW or AMENDED H-1B based on Change of Employment Location

USCIS now requires employers to file a NEW or AMENDED H-1B petition when an employee's place of employment changes to a different geographical area. (AAO's Matter of Simeio Solutions, LLC). The new filing must also include a certified LCA 9035 to reflect the change.

"Place of Employment" is defined as the worksite or physical location where the work is actually performed by the H-1B employee.

"Geographical Area" means the area within normal commuting distance of the place of employment or within the same Metropolitan Statistical Area (available at http://www.bls.gov/oes/current/msa_def.htm).

The good news is that once the petition is filed, the H-1B employee can immediately begin to work at the new location. The petitioner does not have to wait for a final decision on the amended or new petition.

This DOES NOT APPLY to:

 Movement of an employee's place of employment within the same geographical area;

 Short-term placements of up to 30 days, or in some cases up to 60 days (where the employee is still based at the "home" worksite) or less, provided certain provisions of 20 CFR 655.735 are met; or

 "Non-worksite" locations. A location is considered a non-worksite if the employee is attending training or a conference, the employee spends little time at any one location, or the job involves short periods of travel to other locations on a casual short term basis.

If you are unsure of whether a new petition is required, please contact an Immigration Attorney to discuss the details of your situation.

10/15/2015 - Immigration Working to Extend the 17 Month Stem Program

From AILA President-Elect William Stock

Ever since an August 12 court decision, technology companies, universities and foreign students have been eagerly waiting for the Department of Homeland Security (DHS) to republish a rule creating the “STEM OPT Extension,” part of the Optional Practical Training program that provides foreign students the right to work temporarily during or after their studies in the United States. A proposed rule was sent to the Office of Management and Budget (OMB) last Friday, so it could conceivably be released in time to meet the court’s February 12 deadline, if necessary.

In order to understand why the time is getting short for the rule to be published means one must delve into the timeframes and procedures for regulatory action set forth in the Administrative Procedures Act (APA). Under the APA, an agency must publish a proposed rule with a request for comment, collect those comments, and then publish a final rule that takes those comments into account. (Note that the agency need not incorporate any of the suggestions into the final rule, but must provide a reasoned explanation for the choices made.)

Working backwards from the required effective date of February 12, 2016, then the first timeframe to take account of is the mandatory 60-day delay between the publication of the final rule and the effective date. Because the rule is a “significant rule” within the meaning of Executive Order 12866, a minimum 60-day delay between final publication and effective date is imposed. As such, to be effective on February 12, 2016, when the court’s order invalidates the STEM OPT rule, the final replacement rule must be published no later than December 14, 2015.

To publish a final rule by December 14, a proposed rule should be published at least 60 days before that date. The 60-day timeframe is set by the APA, which requires that any proposed rule be released with at least 30 days for comment from the public. After the comment period, the agency will need time to evaluate and analyze the comments – at least 30 days – before publishing the final rule. So, the draft rule should be published no later than October 15. Theoretically, DHS could take less than 30 days to review and incorporate comments into the final rule, but that would be difficult.

The February 12 deadline for a new rule may, however, be vacated, meaning the current STEM rule may stay in effect because of the current status of the litigation against the rule. The district court’s August 12 order was the result of a lawsuit brought by the Washington Alliance of Technology Workers (WashTech), which sought to challenge DHS’s authority to create any form of practical training work authorization. The district court’s order, holding that the practical training program was within DHS’s lawful authority, was not the result WashTech sought.

Since WashTech has appealed the court’s final order, all of the issues in the case are now before the Court of Appeals for the District of Columbia Circuit, where a three-judge panel will review the lower court’s rulings. These rulings – that WashTech has sufficient standing to bring a challenge to the OPT program; that the OPT program is within DHS’s authority; and that the STEM OPT rule was procedurally defective – are the basis for the court’s order vacating the STEM OPT rule. Since all those questions are under review, the government will likely ask the court to stay the lower court order, suspending the February 12 deadline, well before it goes into effect.

Written by William Stock, AILA President-Elect

10/14/2015 - Another Update to the Visa Bulletin - from the Department of State

The Department of State has just announced that each month, it will determine whether or not applicants for immigrant visas can apply under the "Dates for Filing" chart (the earlier dates) as opposed to the "Final Action" chart. The DOS will make this determination each month depending on how many visa applicants are currently applying for available visas. This means that instead of accepting the two-tier system as a given each month, applicants will have to check if the DOS is allowing applications in the earlier category prior to filing their applications.

This directly from the Department of State:

"Beginning with the November 2015 Department of State (DOS) Visa Bulletin, if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on www.uscis.gov/visabulletininfo that applicants may use the Dates for Filing Visa Applications chart. Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications."

"We anticipate making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin. "

If you have any questions about when to file your case, do not hesitate to contact a qualified immigration attorney.

09/10/2015 - Is the New Two-Tier Visa Bulletin Making Your Head Spin? Let's Make It Simple...

The October 2015 Visa Bulletin came out yesterday and it includes a pretty significant change. Many people, lawyers included, are grappling to understand why there are now TWO different charts for "green card" cases, when previously there was only one.

Here is the simplest way to explain the use of two charts:

The first chart, called the "Dates for Filing" chart, represents the date that an applicant can APPLY for the green card. The second chart, the "Final Action" chart, represents the date that the green card is available to be ISSUED by Immigration.

This is a HUGE benefit because it will allow many applicants to file sooner. In some cases, people can apply years before the green card is actually available, which will allow applicants to have work and travel permits earlier, protect them from accruing unlawful presence, and will also have a huge impact on protecting children from aging-out of their parents' applications.

Now for the more technical explanation:

The “Application Final Action Dates” tier (which is consistent with prior Visa Bulletins) is the cutoff date which would determine when a pending I-485 or NVC/Consular immigrant case can be approved. The idea is for DOS to be able to track much more closely the use and availability of visa numbers so that the “Application Final Action Date” would reflect a more accurate date as to when a green card can be approved.

The major change is the introduction of “Dates for Filing Visa Applications” cutoff date. This will be used by USCIS to indicate that there are more immigrant visas available for the fiscal year than there are known applicants for such visas. When this is the case, the Visa Bulletin would indicate a cutoff date for Filing Visa Applications which is earlier (by few years in many cases) than the “Application Final Action Date” and this would allow those applicants whose priority date earlier than the applicable Filing Visa Applications date to prepare and file their I-485 application.

Even though an approval of the I-485 cannot happen until the Application Final Action Date becomes current, the ability to file I-485 is going to provide an opportunity for family members to obtain work authorization and travel permits, protect children from aging-out of family applications where they are dependents, and preserve the ability of the primary I-485 applicant to port their green card case to a new employer under AC21 after 180 days (as long as their I-140 is already approved).

08/18/2015 - What is Happening to the STEM Extension?

I have had many calls and emails about this issue over the last week. Here is the issue in a nutshell:

Last week, a DC District Court invalidated the 17 month STEM extension program, but the measure is not to take effect until February 2016. The Judge recognized the major disruption that this would have on foreign students and therefore stated that the measure would be put off for 6 months.

So what is the problem and why is the STEM extension being invalidated? Basically, the court held that DHS improperly enacted the 17 month STEM extension back in 2008. The extension program was invalid because a public notice and comment period did not take place, as is required prior to enacting such a program.

Should STEM students be worried? My answer: "Not yet." The Judge who made this ruling was very clear that such a change would cause substantial hardship for F-1 STEM students and would create a major labor disruption for the technology sector. As such, the Judge purposely delayed the effective date until February 12, 2016, so that Immigration has time to properly hold the notice and comment period.

Additionally, the Obama Administration is in favor of further expansions of programs like STEM, not less. It is the Administration's aim to support this program.

The 17 month STEM extension is still a viable program.

08/10/2015 - Dissecting Rubio's Comments on Immigration Reform

It is a long-standing pattern in the USA that in order for a Republican Candidate to have a strong chance of winning the Presidential Election, the latino vote is needed. Marco Rubio once appeared a strong hopeful due to his belief in the urgent need for comprehensive immigration reform, however, in the face of the 2016 Presidential Election, he has changed his tune and no doubt has completely lost the latino vote.

In the following clip, Rubio calls for a three step plan to tackle illegal immigration: http://latinousa.org/2015/08/04/rubio-calls-for-three-steps-to-immigration-reform/

From a practitioner's standpoint, I see three major flaws with his plan:

(1) He argues that in Step 1, he would implement a data system to record visa entries/exits, which would make the US effective in catching people who overstay their visas. The glaring problem with this is that we ALREADY HAVE such a system in place for a number of years, the I-94 system, which demonstrates his lack of understanding of the current immigration system and indicates a propensity for wasting taxpayer resources in duplicated efforts.

(2) He calls for an end to family based immigration, which is contrary to our country's longstanding policy of prioritizing family unity. This controversial step will certainly lose him his latino supporters, who characteristically prioritize strong family ties.

(3) In a complete reversal of his previously stated philosophy, he does not offer permanent legal status for persons who entered illegally or who overstayed visas, regardless of the unique factors of their cases. He makes no accommodations for humanitarian, sympathetic and/or mitigating factors. For example: What about women who enter on a fiance or marriage visa and are abused by their spouses who then refuse to finish the green card process for them? What about children who are in the legal immigration process when a parent sponsor dies and they are left without status? What about children brought here as babies who don't even find out that they are not US Citizens until they apply for college? What about hard-working families who have been here for 15 years paying taxes and bettering their communities? And so on...

Marco Rubio's 3 step plan would leave all people, regardless of their unique situation, hanging in limbo without legal protection if they so much as overstayed a single day.

Finally, I take offense to his statement that foreigners would have to "start paying taxes", which shows his unfair prejudice against immigrants portraying them as non-tax paying. In my several years of experience, I have not met harder working, more honest tax-paying people than my latino clients. I take offense to this consistent "criminal imagery" of latino immigrants, a view certainly shared by potential latino supporters.

07/27/2015 - DHS Plans to Expand I-601A Provisional Waivers

Good news! DHS is beginning the rule-making process to expand the current provisional waiver process. The waiver would be expanded in two principal ways:

(1) First, DHS would eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens. Under this proposed rule, the provisional waiver process would be made available to all aliens who are statutorily eligible for waivers of inadmissibility based on unlawful presence and meet certain other conditions.

(2) Second, in relation to the statutory requirement that the waiver applicant demonstrate that denial of the waiver would result in ‘‘extreme hardship’’ to certain family members, DHS proposes to expand the provisional waiver process by eliminating the current restriction that limits extreme hardship determinations only to aliens who can establish extreme hardship to U.S. citizen spouses or parents. Under this proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident spouses or parents).

07/22/2015 - Recall of 3-year DACA Work Permits (Infographic)

AILA has developed both a shareable infographic and print Public Service Announcement (PSA), in English and Spanish, that we encourage you to share widely on social media and in your communities to inform DACA grantees who received 3-year work permits erroneously issued or mailed after February 16, 2015.

This information makes the recall easy to understand, however, if there are any questions or issues, do not hesitate to contact an immigration attorney.

Click here to see the Infographic in English and Spanish.

05/20/2015 - Employment Authorization for Spouses of H-1B Holders (H-4 dependents)

Good news! USCIS has published information to help eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.

Applicants may not apply for employment authorization under this rule until May 26, 2015. Until the H-4 rule takes effect on May 26, 2015, USCIS will not accept any Form I-765, Application for Employment Authorization requesting employment authorization based on your H-4 status. If you submit a Form I-765 before May 26, 2015 USCIS will reject your application and return it and the filing fee to you. You would then need to re-submit the application on or after May 26, 2015.

04/08/2015 - H-1B Cap Reached

USCIS alerted that it has reached the H-1B cap for FY2016. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period. Due to the high number of petitions, USCIS is not yet able to announce when it will conduct the random selection process.

Check back for updates!

03/02/2015 - Employment Authorization for H-4 Visa Holders (Dependents of H-1B Visa Holders)

Great news! US Immigration will allow certain H-4 dependent spouses to apply for employment authorization beginning May 26, 2015. These work permits are available for two categories of people:

(1) - The spouse of an H-1B visa holder, where the principal H1B holder is the beneficiary of an approved I-140. The I-140 approval can be for any employment based category.

(2) - The spouse of an H-1B holder, where the principal H-1B visa holder has extended H1B status BEYOND six years. Note: the 6+ year extensions are based on a PERM/Labor Certification or I-140 filed 365 days prior to the 7th year of H-1B visa status, as authorized under the American Competitiveness in the Twenty-First Century Act, also called "AC21").

The EAD will provide unrestricted employment authorization with any employer or multiple employers. It can be used to work full time or part time for any employer in any field. The validity period of the EAD will match the time remaining in H-4 status.

For more information, contact an Immigration Attorney for a free consultation today!

02/10/2015 - Time to get those H-1B's ready! The 2015 Fiscal Year H-1B Cap Season has begun.

Attention all employers and prospective employees looking to work in the USA: the long awaited H-1B visas are finally available again!

Every year, tens of thousands of visa seekers scramble for one of the limited number of H-1B visas available. If you want to stand a chance, start getting ready now. The petitions will need to be filed by overnight mail on March 31, 2015 to give you the best chance possible.

The H-1B nonimmigrant visa is a VERY attractive visa for many reasons. First of all, it is the classic visa for professionals who have at least the equivalent of a US bachelors degree or higher. It has a relatively long validity period, which is 3 years initially but can be renewed for an additional 3 years (and longer if the green card process has been started on time). It has the benefit of being a "dual intent" visa, which means that the employee can pursue the green card (a permanent status) despite the temporary nature of the visa without complicating travel for example. Immigration law allows for dependent family members to join the H-1B holder in the USA, and there is even talk of a possibility for work authorization for these family members in the near future.

If you think you or one of your employees may be eligible for an H-1B visa, contact an immigration lawyer today. If prior years are any example, these visas will go VERY fast.

01/30/2015 - BREAKING NEWS: USCIS to begin accepting applications for Expanded DACA on February 18, 2015

Update: USCIS will begin to accept requests for consideration of expanded DACA on February 18, 2015.

USCIS will not accept requests before that date. Speak to an attorney today to find out if you qualify and to confirm that you are collecting the correct documents.

Just to recap, you are eligible for the NEW DACA program if:

FOR CHILDHOOD ARRIVALS:

(1) Are of ANY AGE;

(2) Came to the United States before reaching your 16th birthday;

(3) Have continuously resided in the United States since January 1, 2010, up to the present time;

(4) Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;

(5) Had no lawful status on June 15, 2012;

(6) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

(7) Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

FOR PARENTS OF US PERMANENT RESIDENTS OF CITIZENS:

(1) Have lived in the United States continuously since January 1, 2010;

(2) Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and

(3) Are not an enforcement priority for removal from the United States, under the November 20, 2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.

01/15/2015 - NPR: New York City ID Could Open Up Doors — And Privacy Concerns

In New York City, Mayor Bill de Blasio made a pitch for a piece of plastic on Monday — a new ID card for New York City residents, regardless of immigration status.

"One piece of plastic, but it's going to open so many doors for our fellow New Yorkers. It's going to make their lives better," de Blasio said.

New Yorkers 14 and older can now join the largest municipal identification program in the country. De Blasio said renting an apartment, opening a bank account and entering a school building will now be easier for the city's estimated half-million unauthorized immigrants.

"We don't want any of our fellow New Yorkers to feel like second-class citizens. We don't want them to feel left out," he said.

And the IDNYC program doesn't leave out New Yorkers who already have ID. Here's how the mayor sweetened the deal: "A free, one-year membership to 33 cultural institutions! That did get the attention of many New Yorkers," he said.

Johanna Miller of the New York Civil Liberties Union says getting lots of New Yorkers — not just unauthorized immigrants — to sign up will be key.

"Currently, this law, unfortunately, would allow law enforcement to seek your info by only showing that it's relevant to an investigation — and that may be an investigation about somebody else." - Johanna Miller of the New York Civil Liberties Union "The success of this program depends almost entirely on having a diverse pool of cardholders. If the card becomes a scarlet letter for undocumented people then it fails," Miller says.

Los Angeles is preparing to roll out an ID similar to New York's. They join cities like San Francisco; Oakland, Calif.; and New Haven, Conn., where only about 10 percent of the city's population has applied since 2007.

New York officials hope their program will be more widely adopted.

There were already long lines today at the Queens Library's Flushing branch, where Ni Shaolong, 75, waited to apply.

The ID is definitely "a good thing," Ni says in Mandarin. He says he plans to use it to check out books from the public library and visit some of the city's museums for free.

For Wa Sutardji, an immigrant from Indonesia who makes sushi at a Manhattan restaurant, the new ID will help answer more practical questions.

"Everywhere you go, everybody's asking, 'Can I have your ID? Can I have your ID?' This thing is good for the people who don't have the identity," he says.

What may not be good, Miller says, is that privacy protection for cardholders under New York City law is limited.

"Currently, this law, unfortunately, would allow law enforcement to seek your information by only showing that it's relevant to an investigation — and that could be an investigation about somebody else," she says.

Miller says probable cause isn't required for law enforcement or other government agencies to request cardholders' information.

01/02/2015 - AILA Update: Obama's Executive Action

On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

These initiatives include:

• Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years

• Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents* program, provided they pass required background checks

• Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens

• Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs

• Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

IMPORTANT NOTICE: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time.

Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam.

11/21/2014 - How Can I Apply for New Deferred Action? [BEWARE OF SCAMS!!!]

The procedure to apply for the new Deferred Action Status has not yet been released. BEWARE of any attorney who tells you otherwise. BEWARE of any attorney who tries to take money in advance of the process being announced, there is no way to know how much the legal work will cost at this time. If the procedure is anything like DACA (the previous Deferred Action Status), assistance by a licensed Immigration Attorney should not cost more than about $500 to $700 hundred dollars.

While we wait for the announcement of the procedure, there are a few things that you can do now to get ready:

- Collect your biographic documents, such as your passport and birth certificate,

- If applying as a parent, collect your US Citizen or Resident child's birth certificate listing you as the parent,

- If applying as a parent, collect your US Citizen or Resident child's proof of status in the USA, such as: US Birth Certificate, US Passport, Naturalization Certificate, or Green Card,

- Collect proof that you have been in the USA since 01/01/2010, such as: receipts, medical records, employment letter, US taxes, W-2 or 1099, lease, entry documents such as visa or plane ticket, mail sent to your home address, children's birth certificates or medical records showing your name, official mail to your home address, financial statements with your home address etc...

- Collect the disposition for any arrest or past criminal matter. A criminal conviction will likely bar you from eligibility, but it is important to have the disposition so that an Immigration Attorney can research and evaluate whether or not you may be eligible.

11/20/2014 - President Obama Speaks: New Deferred Action Status

The President has just announced a deferred action status for two groups: (1) parents of US Citizens or "Green Card" holders who have been in the USA for at least 5 years (since 01/01/2010), and (2) young people who were brought into the country illegally as of 01/01/2010. This is a temporary protected status and the possibility for a work permit so that families can stay together and taxes can be paid. This temporary protected status would not be available to recent or future entrants, or anyone with a criminal record. It is also not available to parents of "Dreamers."

This is an extremely limited action and not a permanent solution, permanent residence, or citizenship. It is a very fragile temporary status and not nearly enough to fix the country's broken immigration system. Broad-sweeping reform is desperately needed, and as the President commented just now, "only Congress can do that."

May favorite part of the speech had to be when the President essentially stated that this is not an amnesty; the real amnesty is allowing Congress to get off the hook leaving this horribly broken immigration system in place. The President aptly points out that if Congress would like a different path, he has one thing to say: "pass a bill."

--------------------

La parte clave del plan de Obama beneficiará a los indocumentados que tengan hijos que son ciudadanos estadounidenses o residentes permanentes, que demuestren que llevan en el país desde antes del 1 de enero de 2010 y carecen de antecedentes criminales.

Estos indocumentados evitarán la amenaza de la deportación por tres años y obtendrán un permiso de trabajo, según el plan.

11/20/2014 - Preview: President Obama Speaks on Immigration

We are on the edges of our seats waiting to hear what the President is going to say in his speech tonight! Here is what we know now:

In his immigration speech to the nation, President Obama will say the administration plans on granting protective status or “deferred action” to two groups – parents of United States citizens or legal permanent residents who have been in the country for five years, and young people who were brought into the country illegally as of 2010.

Specifics on the president’s 8p.m. ET speech outlining the most sweeping immigration changes in decades were released two hours earlier by the White House.

Tune into the speech at 8pm this evening!

10/28/2014 - Video Interview: The Effects of Same-Sex Marriage on Immigration Benefits

Hear the Director of Immigration Equality discuss the fall of the Defense of Marriage Act (DOMA), federally recognized same-sex marriage, and the effects the changes have had on immigration benefits.

This is a nice recap of how it all happened and how same-sex couples have finally received the benefits they deserve over the past 15 months!

Click here to watch the video.

10/06/2014 - AILA: Obama Talks Big on Immigration Reform, But is Not Delivering.

FOR IMMEDIATE RELEASE

Washington, DC - Leslie A. Holman, President of the American Immigration Lawyers Association (AILA) responded to two recent announcements from the Obama Administration, the first regarding eligible immigrants with Deferred Action for Childhood Arrivals (DACA) applying for the Military Accessions Vital to National Interest (MAVNI) program and a second plan to allow young children from Central American countries to apply for refugee status from outside the U.S.

"Unfortunately, both these announcements are all noise with virtually no impact. The MAVNI program offers a chance for immigrants to serve this country and eventually earn citizenship, but there are so many caveats and limitations that this announcement by its own terms would be limited to very few. Add to that the fact that an existing Administration policy bars people from service based on their family members' immigration status. The result is that virtually all DACA-authorized individuals are effectively blocked from serving.

"Meanwhile President Obama's idea of implementing an in-country refugee processing program in Honduras, El Salvador, and Guatemala could be an effective tool in addressing the humanitarian situation there. But again here is a policy that is so limited as to lack any meaningful impact. The announcement actually lowers the total number of refugee slots available for the entire Latin American region down to 4000, and makes an odd proviso that limits protection of children only to those who have family members legally present in the United States. With tens of thousands in need, that's like the captain of the Titanic telling everyone to jump into one lifeboat. That's no solution for these desperate mothers and children-victims of domestic abuse, gang rape, beatings, and gun violence.

"These two actions are policies that sound good at first, but in operation only pretend to be changes. What we really need is the President to take big, bold action that will help our military, our economy, our communities, our businesses, and our families. These pretenses of policy change aren't helping. Last week he promised real action on immigration. We need better proof than this."

10/01/2014 - Diversity Lottery Registration Opens TODAY!!

From the US Department of State:

The 2016 Diversity Visa Program (DV-2016) will open at noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 1, 2014, and will close at noon, Eastern Standard Time (EST), Monday, November 3, 2014. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) at dvlottery.state.gov. Paper entries will not be accepted. All entrants must print and retain their online confirmation page after completing their DV entries so that they will be able to check their entry status.

We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 3, 2014.

The congressionally mandated Diversity Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 provides for a class of immigrants known as “diversity immigrants.” Sections 201(e) and 203(c) of the INA provide a maximum of 55,000 Diversity Visas each fiscal year to be made available to persons from countries with low rates of immigration to the United States; however, since DV-1999, Congress has set aside 5,000 of this annual allocation to be made available for use under the Nicaraguan and Central American Relief Act (NACARA).

The annual DV program makes visas available to persons meeting the simple, but strict, eligibility requirements. A computer-generated, random drawing chooses selectees for Diversity Visas. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2016, natives of the following countries are not eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years: BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, NIGERIA, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

A “native” ordinarily means someone born within a particular country, regardless of the individual's current country of residence or nationality. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. The Department of State implemented the electronic registration system beginning with DV-2005 in order to make the DV process more efficient and secure. We utilize special technology and other means to identify those who commit fraud for the purposes of illegal immigration or those who submit multiple entries.

For DV-2016, the Department of State will once again implement an online process to notify entrants of their selection, and to provide information about the immigrant visa application and interview. Beginning May 5, 2015, DV-2016 entrants will be able to use their unique confirmation number provided at registration to check online through Entry Status Check at dvlottery.state.gov to see if their entry was selected. Successful entrants will receive instructions for how to apply for immigrant visas for themselves and their eligible family members.

Confirmation of visa interview appointments will also be made through Entry Status Check. For detailed information about entry requirements, along with frequently asked questions about the DV program, please see the instructions for the DV-2016 program available at http://travel.state.gov/content/visas/english/immigrate/diversity-visa/instructions.html.

09/24/2014 - New EB-5 Processing Time Report

USCIS is now processing EB-5 petitions (Form I-526) in just over a year:

08/27/2014 - Receive Duplicate Fingerprint (Biometrics) Notices?

Have you received duplicate fingerprint appointment ("biometric") notices? AILA has issued a statement noting that USCIS is aware that duplicate ASC notices were recently issued in some cases and believes the problem occurred during transition to a new system for generating the notices.

Specifically, in some cases where notices were issued under the old system, duplicates were also generated by the new system.

Though the individual facts and circumstances of each case should be considered in determining how to proceed, USCIS has stated that if a duplicate notice is received and the client has already attended an ASC appointment and had biometrics captured, it should not be necessary to attend the second appointment. However, to be safe, it is best to call the 1-800 listed on the appointment notice to cancel the second appointment, and if you do not get confirmation of cancellation before the appointment, go to the appointment just to be safe.

08/14/2014 - Buzz Feed News: What It Actually Means For Obama To “Go Big” On Deportation Relief

President Obama is expected to soon announce a series of executive actions that would change U.S. immigration policy — after months of anticipation from activists, and increasingly heated questions from the GOP about whether he has the authority to do so. The activists have been clear: They want the president to “go big.”

Click here to see the media campaign and read the original article by Buzz Feed News.

08/07/2014 - Associated Press: Flow of Child Immigrants Slows Along Texas Border

McALLEN, Texas (AP) — Far fewer unaccompanied immigrant children are crossing the Texas-Mexico border, allowing the federal government to close the temporary shelters that it hurriedly opened to handle the surge, authorities say.

The Department of Homeland Security released data Thursday showing that about 5,500 unaccompanied children were arrested in July, barely half the number in May and June and the fewest children arrested in a month since February. Similarly, arrests of parents with children dropped by more than half last month, to just over 7,400.

DHS Secretary Jeh Johnson welcomed the decline but said the current numbers are still much higher than in previous years.

"We continue to have much work to do to address this issue, and our message continues to be clear — 'Our border is not open to illegal migration,'" Johnson said in a statement.

Arrests in South Texas have fallen in recent weeks to about 100 per day, down from 300 or more in June, according to the Border Patrol.

The decline could be the result of searing summer temperatures or a messaging campaign in both the U.S. and the migrants' home countries that stresses the dangers of the journey and warns them they will not be allowed to stay. The government has reduced the removal time for many adults traveling alone from 33 days to about four days, Johnson said.

Officials on the border are careful not to suggest that the crisis has passed. When temperatures subside, they say, children from Honduras, Guatemala and El Salvador could be back in greater numbers.

The White House has shied away from taking credit for the decrease, which gives the administration more time to deal with the crush of immigrants who have already arrived, many drawn here by persistent rumors that once across the border, they will be allowed to stay.

The slowdown also seems likely to reduce the urgency for Congress to act after adjourning last week without a deal to give President Barack Obama any of the money he's asked for to handle the influx. If the slower pace holds, Congress may have little impetus to return to the issue when lawmakers reconvene after Labor Day.

The falling numbers could cause the border crisis to recede somewhat from public view, offering Obama extra space to curb deportations for other segments of the immigrant population, a step he's indicated he plans to take around the end of summer.

This week, the federal agency charged with housing the children announced it would soon suspend operations at three temporary shelters with a total of about 3,000 beds. Government officials said the existing network of federally contracted shelters would suffice, at least for now. The shelters could reopen later, if needed.

From October to July, 63,000 unaccompanied children entered the U.S. illegally, double the number from the same period a year earlier. Another 63,000 families — mothers or fathers with young children — were arrested during that period, and they remain a presence in shelters across the Rio Grande in Mexico.

Total apprehensions — adults and juveniles — in the Rio Grande Valley were 24,500 in July. That was down from about 38,000 in June but still well above the 15,000 in July 2013, according to the Border Patrol.

The state-run children's shelter in Reynosa, Mexico, just across the border from McAllen, has not received a Central American child yet in August, said coordinator Jose Guadalupe Villegas Garcia. The shelter had been receiving 10 to 12 kids from those countries per week in early July, but that rate began slowing around the middle of the month, he said.

At the nearby religiously affiliated Senda de Vida shelter, Eneyda Alvarez, a 28-year-old mother of three watched her 8-year-old son, Antony, kick a soccer ball around the courtyard. Scars from where her husband viciously beat her with a cable showed like tan stripes on Alvarez's dark skin.

When she heard her husband had told his brother to douse the family's house in gasoline and set it ablaze, she sold all their possessions, left two kids with an aunt and headed north with Antony and her mom.

The family made it to the northern Mexican border state of Tamaulipas, but armed men took Alvarez and Antony off a bus in Tampico about six hours south of the border. They held the pair for three days, first in a warehouse with about 200 immigrants, where Alvarez said she saw people with appendages cut off, and later in a two-story house with 18 others.

The men extorted $1,000 from her aunt in Virginia, then threatened to cut off one of Alvarez's fingers if she didn't come up with another $5,000.

Mexican Marines raided the house, finally ending their nightmare. A couple days later, she reunited with her mother at the shelter in Reynosa. She says she cannot return to Honduras because her husband could kill her.

When she left Honduras in late July, she was under the impression the Border Patrol was still releasing mothers traveling with young children because a neighbor had just made it. "Then, I said, I'm going to go."

Hector Joaquin Silva de Luna, a pastor who runs the shelter, said it's been two weeks since any unaccompanied children arrived, but the number of families at the shelter has held steady at 16 to 23 per week. He said many have heard the message from U.S. authorities that they will be deported. A delegation of U.S. officials visited the shelter Sunday.

Ingrid Bran had not heard about the U.S. beginning to detain mothers and children until she arrived at the border. She left the Paraiso department on Honduras' border with Nicaragua a month ago because she couldn't find work cultivating chiles or coffee to support her two children.

"A friend told me to turn myself over to immigration" authorities, Bran said, as her 7-year-old son played with Alvarez's boy. But after arriving at the border, she was told that the previous practices had ended.

___

Associated Press writers Alicia A. Caldwell and Erica Werner in Washington contributed to this report.

07/28/2014 - Helpful Diagrams on the Child Migrant Crisis

These revealing diagrams from the New York Times show that children are being forced out of their native countries (Honduras, El Salvador and Guatemala predominantly) due to horrific gang violence and extreme poverty from areas with the highest homicide rates in the world.

It is an atrocious violation of human rights for the US to send these children back without individualized screenings for each child to determine their eligibility for preexisting and well-established humanitarian relief options.

Exhibiting a shocking reversal of priorities, the US spends astronomical amounts of taxpayer money on war after war, (especially the notorious failure, the "US War on Drugs", which allows cartels to grow in power by keeping the illicit drugs that they sell on the highly profitable black market), and yet turns a cold shoulder to these child refugees when study after study shows how immigrants benefit the US economy despite additional social services needed. These children have been terrorized out of their homes, a vast majority sexually assaulted, brutalized and further extorted in transit, and yet there are people who have the shocking tenacity to say "send them back"? Not only is this a complete lack of respect for human life, but the US has international treaty obligations NOT to deport these children.

Take the editorial content of the diagrams with a grain of salt (it is the New York Times after all), but look at the charts and diagrams of where the minors are coming from, where they are ending up in the USA, as well as statistics on the influx.

07/28/2014 - Immigrant Youth Fair in New York City

It was great to get out and be a part of the Immigrant Youth Fair this past weekend. Volunteer attorneys were able to help a lot of people renewing DACA, applying for their initial DACA, and also screening applicants for other forms of relief such as Special Immigrant Juvenile Status. Thanks to all who helped!

07/24/2014 - AILA Press Release: Severe Due Process Violations at Children's Detention Center in New Mexico

On Tuesday, representatives from the American Immigration Lawyers Association (AILA) along with other immigration advocacy organizations visited the Artesia detention facility in New Mexico housing 400 Central American women and children. AILA observed such severe due process violations at the facility that AILA is now calling for the suspension of all deportations from there until fundamental improvements can be made.

"The lives of children and families are at risk. I was shocked to hear of immigrant families -- including mothers with young children, some still nursing, being sent right back into the danger from which they fled with no meaningful chance to contact a lawyer," said Karen Lucas, AILA Legislative Associate, who was on the site visit. "A woman who speaks no English and has no knowledge of the American legal system can't possibly make a successful asylum claim with no lawyer and no time even to get her bearings. This is truly heartbreaking and a travesty of justice that families are in effect being denied access to asylum and other protection."

Access to counsel at Artesia consists of little more than DHS handing out a single slip of paper with three names, as if these few service providers can represent hundreds of people. No thought has been given to how to provide access to counsel, even though planeloads of people already have been removed. Hundreds of AILA members stand ready to provide pro bono legal assistance. However, there is no effective way as of yet to match them with those who want representation but don't know how or where to ask.

"Women are being asked to share intimate details about past persecution and violence right in front of their children because DHS has not created a safe and separate interview space," said Lucas. "Years ago DHS learned a hard lesson that detention of families is unacceptable. It was sued for bad conditions and abuses at a Texas facility that ultimately was forced to shut down. It should not be going down this path again, and absolutely should not escalate family detention to the level of 6350 more beds that the president is requesting of Congress."

"This has to stop," said Crystal Williams, AILA's Executive Director. "We recognize that the government stood up this facility quickly, but it cannot deport people from it until due process has been provided. And Artesia is just not prepared for that. AILA calls upon the Administration and the Department of Homeland Security (DHS) to suspend these unconscionable and blanket deportation practices until they can ensure a fair and safe process."

More than 57,000 unaccompanied children and tens of thousands more Central Americans traveling as families have crossed the border since October with most fleeing from conditions of extreme violence and poverty. The Artesia Center was opened in barracks of the Federal Law Enforcement Training Center. It now holds about 400 people but eventually will hold about 700 women and children.

Link to the press release here

06/25/2014 - Want More Information on the Child Migrant Humanitarian Crisis? Hear it from the people who actually know what they are talking about!

Click here to watch the most informative video interviews I have seen on the child migrant issue (especially Segment 2).

Special thanks to Heather Axford of Central American Legal Assistance, Steven Choi of the New York Immigration Coalition, Lenni Benson of Safe Passage Project with New York Law School and Representative Hakeem Jeffries, who represents parts of Brooklyn and is putting forth legislation to respond to this growing crisis at the border.

06/20/2014 - AILA Press Release: Increasing Detention Won’t Solve Humanitarian Crisis

Leslie A. Holman, President of the American Immigration Lawyers Association (AILA) responded to the Obama Administration's announcement today that the Department of Homeland Security (DHS) plans to open additional detention facilities for families along with other steps intended to address the humanitarian crisis at our southern border with the following statement:

"We need to address the factors pushing children and families to make the incredibly dangerous journey northward. The current humanitarian crisis will only be solved when those factors are lessened, when gang violence is not an overriding fear, and when abuse and trafficking are not ever-present.

"However, this humanitarian crisis is not going to be solved by increasing the detention of families. Frankly, I'm surprised at this because I believe that our country's values center on protecting families, and these particular families are so very vulnerable. They deserve careful treatment because of their vulnerabilities and our nation's strong humanitarian and asylum principles.

"Putting families in detention is something that has been tried and just doesn't work. A few years ago, Immigration and Customs Enforcement shut down the T. Don Hutto family detention facility in Texas due to the harshness of conditions and abuses. These are families that include the young children we're talking about, who have come seeking safety. Putting them in a position that could lead to abuse is abhorrent to me.

"With this crisis, I can understand the desire to respond quickly and we should. But that shouldn't mean we rush decisions and try to remove people without due process. Already 70 percent of removals take place without ever coming before an immigration judge. I hope the U.S. will not further escalate the use of expedited removal that severely curtails the due process and fairness that are hallmarks of the American legal system. DHS has said they are going to send more judges which is a very good thing, but the immigration court system is still severely underfunded.

"Finally, why would we spend vast sums on detaining families when alternatives to detention are effective, far more humane, and cost far less to implement? Use of alternatives to detention that maintain legal custody such as electronic monitoring and intensive supervision should be greatly expanded instead of institutional detention. Offering a chance for bond and release should be the priority except in rare cases when these options are not suitable. Alternatives to detention would help DHS maintain its humanitarian commitment to protect families."

06/09/2014 - Supreme Court Tells Many 'Aged Out' Immigrants Waiting for Visas to Start Over

A divided Supreme Court sided with the Obama administration on Monday in a ruling that will effectively mean many "aged out" immigrants will have to wait several more years to obtain a visa. In other words, if a parent applies for a visa for their family, but one of their children turns 21 before they reach the front of the line (the wait can take years), that "aged out" child will probably have to start his or her wait all over again as an adult.

As the Associated Press explains, the case centered around the story of Rosalina Cuellar de Osorio, who applied for a visa with her then-13-year-old kid. When de Osorio finally got an available visa, her son had already turned 21, meaning that he could no longer go along for the ride on his mother's application. He was put at the back of the visa waiting list, and waited years before he was finally granted one. The Supreme Court decision reverses one from the 9th U.S. Circuit Court of Appeals in de Osorio's favor.

In her opinion for the court, Justice Elena Kagan determined that the court had to defer to the interpretation of the law by the Board of Immigration Appeals. That board only grants an exception for an "aged-out" child on a family visa application if, in Kagan's words, "those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent." That only applies to a small portion of "aged out" applicants.

This case is a bit confusing (and Kagan's decision appropriately complex) but here are the basics: there is, in fact, a law designed to protect immigrants from aging out of their own visa eligibility — the Child Status Protection Act — but Kagan's opinion finds that the law plausibly "halts the flow of time" for only some categories of visa applications. Under the formula used for those the BIA excludes from that protection, Kagan writes that time spent waiting for a visa to become available counts against the growing applicant: "Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life." There's a provision in the law that could require the government to "automatically convert" those petitions into ones that are more age appropriate, but the BIA has decided that this is not necessarily the case for most "aged out" applicants. Although the Obama administration admits that the law's application is ambiguous, it argued before the court that the BIA's interpretation was reasonable. Kagan agreed:

We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, to- ward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.

The 5-to-4 split on this case had kind of an unusual breakdown: Justices Kennedy and Ginsburg concurred with Kagan's opinion, and Chief Justice Roberts wrote a separate opinion agreeing that the 9th Circuit's decision should be reversed, but with a different reasoning. Scalia agreed with Roberts, making a majority. Justice Sotomayor wrote the dissent, joined by Justices Breyer and Thomas. Justice Alito wrote a separate dissent.

See full article here.

04/10/2014 - USCIS Reaches FY 2015 H-1B Cap

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit. On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28. For more information on premium processing for FY 2015 cap-subject petitions, see the related USCIS Alert.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

- Extend the amount of time a current H-1B worker may remain in the United States;

- Change the terms of employment for current H-1B workers;

- Allow current H-1B workers to change employers; and

- Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.