What's New in the World of Immigration?

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.