Visa Lawyer Blog

Articles Posted in Deportation & Removal

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In this post, we bring our readers important information regarding revisions to the Notice to Appear “NTA” policy guidelines. On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released new policy guidance outlining the Department’s priorities for enforcement and removal of undocumented immigrants from the United States.

Form I-862 also known as a Notice to Appear is a document that is given to an individual to initiate removal proceedings. The Notice to Appear instructs the individual of a date and time to appear in immigration court for removal proceedings.

To better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication,” of cases filed with USCIS. The revised policy does not apply to recipients and requestors of Deferred Action (DACA) when (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. For this class of individuals the 2011 NTA guidelines will apply.

The President’s Executive Order 13768 specifically calls on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order prioritizes the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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A recent Supreme Court decision may enhance the pool of individuals eligible for cancellation of their removal proceedings. Cancellation of removal is a form of relief granted to individuals unlawfully present in the United States, who have been physically present in the United States continuously for a period of no less than 10 years, immediately preceding the date of an application for cancellation of removal. Under 8 U.S.C. section 1229(b)(1)(A), however the period of continuous presence ends when the alien has been served with a notice to appear in immigration court, also known as an “NTA.” A notice to appear is a document issued by the government that initiates a noncitizen alien’s removal proceedings.

Section 1229(d)(1)(A) mandates that the United States government must serve noncitizens in removal proceedings with a written “notice to appear,” specifying the time and place where the removal proceedings are expected to take place.

However, the Department of Homeland Security has followed a regulation dating back to the year 1997 wherein the agency has failed to notify noncitizens of the time, place, or date of initial removal hearings “whenever the agency deems it impracticable to include such information.”

The Board of Immigration Appeals (BIA) has held that even though these notices do not specify the time and date of removal proceedings as required by 8 U.S.C. section 1229(b)(1)(A), the period of continuous presence is still considered to have ended at the time the notice to appear (NTA) is served on the noncitizen alien.

The 1997 regulation along with the BIA ruling has created problems for individuals who would otherwise qualify for cancellation of removal under section 1229(d)(1)(A) of the law, because a deficient NTA served upon a noncitizen would mean that the individual would continue to remain physically present in the United States, despite being served with a deficient NTA.

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Return of Unselected Petitions for H-1B Applicants FY 2019 Begins

H-1B applicants who were not selected in the H-1B visa lottery for fiscal year 2019 will begin to receive their rejected applications from the Vermont Service Center and California Service Center. Our office expects to receive returned packages within the next few months. If you were not selected in the lottery, there are several alternatives that you may be interested in. To read all about these alternatives please read our helpful blog post here.

USCIS Adjustment of Status Filing Dates July 2018

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On Wednesday June 20, 2018, President Donald Trump signed executive order, “Affording Congress an Opportunity to Address Family Separation,” in response to mounting outrage over the administration’s controversial policy of separating immigrant parents from their children at the border.

The executive order clarifies that it will remain the policy of the United States to detain and remove aliens who have unlawfully entered or attempted to enter the United States outside of a designated port of entry, and that such individuals remain subject to a fine or imprisonment under U.S. law. The administration however promises to maintain family unity “by detaining alien families together where appropriate and consistent with law and available resources.”

What the order does

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Today, Monday June 11, 2018, in an unprecedented move, the Trump administration announced that it would be dropping asylum protection for survivors of domestic violence. The announcement was made by Attorney General Jeff Sessions this afternoon in the case Matter of A-B- 27 I&N Dec. 316 (A.G. 2018), which explained that victims of domestic violence would no longer be eligible to receive asylum in the United States.

Matter of A-B- 27 effectively reverses a decision formerly made by the Department of Justice immigration appellate court which granted asylum to a woman from the country of El Salvador on the basis of allegations of rape and abuse by her husband.

In his decision, dated June 11, 2018, the Attorney General overruled a separate but similar decision in Matter of A-R-C-G-, stating that the case was “wrongly decided” by the appellate court and should not have become precedent. The Attorney General was able to make such a binding decision on immigration courts across the country because their authority derives directly from the Department of Justice, instead of the judiciary branch.

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In this post, we bring an important reminder to the attention of F-1 Students with Optional Practical Training. F-1 students who transfer to another school or begin their studies at another educational level, such as a master’s degree program after completion of the bachelor’s degree, will have their OPT automatically terminated, as well as the corresponding employment authorization document, also known as a work permit.

F-1 students who transfer schools or begin studying at another educational level, will not be otherwise affected, so long as they comply with all of the requirements necessary to maintain their student status. F-1 students must not work with a terminated/expired EAD. Doing so violates U.S. law, and will result in serious immigration consequences, such as the removal of the foreign national from the United States or barring the foreign national from re-entering the United States, in addition to other serious consequences such as the accrual of unlawful presence.

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that may soon change the way the accrual of unlawful presence is calculated for individuals currently in the United States on an F, J, or M non-immigrant visa type, as well as their dependents accompanying them in the United States.

The new policy proposes that F, J, and M nonimmigrants who fail to maintain their nonimmigrant status before August 9, 2018, will begin accruing unlawful presence on that day.

Generally, F, J, and M nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, will begin to accrue unlawful presence the day after they abandon their course of study or authorized activity, or engage in an unauthorized activity.

Current Policy

Since 1997, it has been USCIS policy to begin calculating the accrual of unlawful presence, for a F or J nonimmigrant admitted to the United States in duration of status (D/S), one day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

F, J, and M nonimmigrants admitted for a specified date (not D/S) began to accrue unlawful presence on the day their Form I-94 expired, on the day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

DHS recently conducted a study to determine the number of nonimmigrants in F, J, or M status who have overstayed. For FY 2016, DHS calculated that out of a total of 1,456,556 aliens in F, J, and M nonimmigrant status expected to change status or depart the United States, 6.19% of F nonimmigrants, 3.80% of J nonimmigrants, and 11.60% of M nonimmigrants actually overstayed their status.

This minuscule percentage has caused USCIS to revise its policy and change how the accrual of unlawful presence is calculated for this demographic.

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Our fears have come true. On May 4, 2018, we reported that the Department of Homeland Security would be making an official announcement terminating the TPS designation for the country of Honduras. Shortly after our report, DHS published a formal announcement terminating the Temporary Protected Status (TPS) designation for Honduras, with a delayed date of termination for a period of 18 months. The official date of termination will be January 5, 2020.

This means that nationals of Honduras living in the United States under TPS will have a period of 18 months to arrange for their departure from the United States or seek alternative legal status to remain lawfully present in the United States.

According to a statement released by DHS, the decision was made after the Secretary determined that “the disruption of living conditions in Honduras from Hurricane Mitch that served as the basis for the TPS designation” in 1999 were no longer substantial enough to justify continuation of the designation.

The report also claims that conditions in 1999 have greatly improved, and the country has made “substantial progress in post-hurricane recovery and reconstruction from the 1998 Hurricane Mitch.”

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Temporary Protected Status has come under vigorous attack by the Trump administration. As previously reported, the Secretary of the Department of Homeland Security, appointed by President Trump has been instructed by the administration to scrutinize the TPS program closely to align with the President’s hard line stance on immigration. Within the last few months, the Department has mounted an aggressive attack on the TPS program, stripping El Salvador, Nicaragua, Haiti, and Nepal of its TPS designation.

As readers may recall, during November of 2017, the Secretary of Homeland Security announced that the TPS designation for Honduras would be extended for a period of 6 months from January 5, 2018 to the new expiration date of July 5, 2018, granting Hondurans under TPS an automatic extension. This extension was granted because the administration needed more information to determine whether the country’s designation would continue. As the new expiration date approaches, the day of reckoning may finally be here for nationals of Honduras under TPS.

According to reports released by the New York Times this afternoon, officials speaking on condition of anonymity have told reporters that the Trump administration has already decided to end the TPS designation for the country of Honduras, but has yet to formally announce the termination. The decision to terminate the TPS designation for Honduras is expected to be handed down on Friday.

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Federal Judge John Bates of the Federal District Court for the District of Columbia has spoken to protect Dreamers from deportation, where Congress has remained silent. In a Tuesday ruling, Judge Bates called the Department of Homeland Security’s decision to rescind the DACA program “arbitrary and capricious,” and with no sufficient basis to justify rescission of the program, ordered DHS to accept and process new as well as renewal DACA applications.

As part of his opinion Judge Bates vacated the Trump administration’s decision to rescind DACA, for a period of 90 days, giving the Department of Homeland Security an opportunity to explain its decision to rescind the DACA program. If the government fails to adequately explain the grounds for finding the DACA program to be unlawful, DHS must accept and process new and renewal DACA applications. DHS has responded to the ruling in a statement where it vowed to “continue to vigorously defend” its decision to rescind the DACA program and looks “forward to vindicating its position in further litigation.”

This ruling is the third in recent months against the Trump administration’s decision to rescind the DACA program.  Earlier this year, Federal Judges in Brooklyn and San Francisco issued similar rulings to keep the DACA program in place, however the Bates ruling is the first ordering the government to accept new DACA applications.

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