What's New in the World of Immigration?

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."


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.