What's New in the World of Immigration?

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.