Visa Lawyer Blog

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A new factsheet published by AILA and Kids in Need of Defense (KIND) provides statistics on the representation and removal of unaccompanied children and families facing removal proceedings before immigration court. The data concludes that an overwhelming number of unaccompanied children and families are ordered removed from the United States, despite having demonstrated a legitimate fear of persecution or torture and passing a credible fear interview, making these individuals viable candidates for asylum, prosecutorial discretion, or other relief from deportation. This is due to a lack of legal representation and legitimate concern for the due process of law.

Families Passing Credible Fear in preliminary interviews with federal asylum officers

On the whole, the majority of families in detention centers demonstrate a legitimate fear of persecution or torture and maintain a high rate of approval during credible fear interviews;

  • In preliminary interviews with asylum officers, approximately 90% of families successfully demonstrated a credible fear of persecution or torture;
  • Upon completion of these interviews, approximately 88% of detained families pass their credible fear interviews;
  • The USCIS Asylum Office has indicated that the credible fear passage rates remain unchanged—at a rate of 90%;
  • DHS data indicates that 53% of 121 individuals, arrested by DHS during the January raids, lacked legal representation before immigration court;

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Beginning February 19, 2016 certain nonimmigrant Caribbean residents seeking admission to the United States as H-2A agricultural workers, will be required to obtain a valid passport and valid H-2B visa in order to be admitted. Spouses and children traveling with an H-2A agricultural worker will also be required to present a valid passport and H-2A visa. The H-2A nonimmigrant visa exception for Caribbean residents was first introduced during World War II in an effort to address labor shortages in the American workforce. The change, comes as part of the revised 2016 Omnibus Appropriations Bill, which eliminates the nonimmigrant visa exception for these individuals, along with other provisions that impact the H-2B nonagricultural visa program. The new rule will apply to nationals of the United Kingdom, France, the Netherlands and nationals of Barbados, Grenada, Jamaica, Trinidad and Tobago, who either maintain a residence in a territory governed by England, France, or the Netherlands located in the adjacent islands of the Caribbean, or maintain a residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. The change was validated in yesterday’s Federal Register by the Department of State and Homeland Security respectively. Removal of this visa exemption will allow the Department of State to properly screen individuals prior to their arrival in the United States, and further protect agricultural workers from employment violations and work related abuse. To learn more about the H-2A visa program click here.

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On January 21, 2016 the Department of Homeland Security confirmed that the Visa Waiver Program Improvement and Terrorist Travel Prevention Act would begin to be implemented. As a result of the recent terrorist attacks in San Bernardino county and abroad, Congress passed the Act in an effort to protect Americans from potential attacks and to secure the border. The Act increases travel restrictions for certain nationals seeking admission to the United States via the Visa Waiver Program.

Presently, the Visa Waiver Program allows nationals from 38 designated countries to travel and seek admission to the United States without a visa, for a maximum duration of 90 days. Visa Waiver Program travelers must have an approved Electronic System for Travel Authorization (ESTA) before travel.

As of January 21, nationals of visa waiver participating countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 will no longer be eligible to travel or seek admission to the United States under the visa waiver program.  Nationals from visa waiver participating countries who maintain dual nationality with any of the aforementioned countries, are also excluded from traveling or seeking admission to the United States under the visa waiver program. Instead, these individuals must apply for a tourist visa at a United States Consulate or Embassy abroad before seeking admission to the United States. Part of this process will require a nonimmigrant interview to be conducted, before issuance of a tourist visa. DHS expects that this new legislation will not adversely impact visa waiver program travelers, since the Act does not ban these individuals from traveling to the United States, rather it removes the privilege of traveling under the visa waiver program, and requires these individuals to apply for a tourist visa.

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On January 23, 2016 a Federal District Court Judge for the District of Columbia granted the federal government an extension for the STEM Optional Practical Training (OPT) program to resume, giving the Department of Homeland Security (DHS) more time to issue a new replacement rule. The STEM OPT program had been in place since 2008, but was recently invalidated following a court order requesting the Department of Homeland Security (DHS) to issue a new replacement rule by February 12, 2016. DHS responded by requesting an additional 90 days to implement the final rule by May 10, 2016.

As part of their request, the federal government argued that exceptional circumstances existed to warrant the extension. This was owed to an unprecedented amount of comments received by DHS, that could not be reviewed and analyzed by the February deadline. According to the Administrative Procedures Act, DHS is required to publish a final rule 60 days before its effective date. During the comment period alone, DHS received over 50,000 comments that were nearly impossible to review and revise by the February deadline. Although plaintiffs for the original suit challenged the court stating that the court did not have jurisdiction to grant the extension, the court agreed with the federal government. The court stated that it did indeed have jurisdiction over the motion and that the undue hardship that STEM OPT participants and employers would experience, absent a new replacement rule, constituted an exceptional circumstance to warrant the extension. It is estimated that approximately 434,000 international students might benefit from the new replacement rule.

Presently, 23,000 students are STEM OPT participants, while approximately 2,300 more individuals are dependents of these participants. Had the extension been denied, thousands of students, their educational institutions, and their employers would be adversely affected. Litigation will continue over the validity and issuance of the replacement rule. If your initial OPT will expire between now and the May 10 deadline, and you are still within the 120-day filing window, you should apply for your 17-month extension as soon as possible, to benefit from the 17-month extension under the 2008 OPT rule. If your OPT will expire on or after May 11, and you are still within the 120-day filing window, you may be able to receive a 17-month extension. Once the new rule is in place and you are outside of the filing window, you will need to wait for the new rule and apply for benefits under the new rule. The new rule is expected to be published by March 11, 2016.

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Following a recent surge in apprehensions of undocumented immigrants at the Southwest border, the Department of Homeland Security announced that, beginning January 1st Immigration and Customs Enforcement (ICE) engaged in a concerted nationwide crackdown, taking adults and some children into custody, who have evaded their orders for removal. In a recent press release, the Secretary of DHS, Jeh Johnson indicated that the crackdown occurred as a result of President Obama’s November 2014 executive action on immigration, which put in place new priorities for removal, including the removal of convicted criminals, individuals posing a threat to national security, individuals apprehended at the border or who were found to have entered the United States unlawfully after January 1, 2014. In November 2014 President Obama had implemented these new priorities in an effort to secure the border. In the press release, Jeh Johnson added, “as I have said repeatedly, our borders are not open to illegal migration; if you come here illegally, we will send you back consistent with our laws and values…individuals who constitute enforcement priorities, including families and unaccompanied children will be removed.”

According to the Department of Homeland Security, Central American migrants were removed and repatriated at an increasing rate since the summer of 2014. During this time, there was a surge in the number of families and unaccompanied children from Central America attempting to cross the southern border illegally. In response to this surge, DHS collaborated with the Mexican, Guatemalan, Honduran, and Salvadorian governments to decrease these numbers. According to Jeh Johnson the collaborative efforts were temporarily successfully. In 2015 the number of apprehensions by the U.S. Border Patrol decreased dramatically to 331, 333. Fiscal year 2015 experienced the lowest amount of apprehensions on the southern border since 1972. Recently, an increased rate of apprehensions resurfaced. This sudden spike resulted in the January 1st crackdown prompting ICE to action. As part of the crackdown, dozens of female agents and medical personnel were deployed to assist with the apprehension and removal process. According to DHS, in cases involving medical urgency or other reasons, ICE exercised prosecutorial discretion. As stated by DHS, enforcement operations will continue as needed in collaboration with state and local law enforcement.

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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As previously reported, the STEM Optional Practical Training (OPT) rule that had been in place since 2008, was invalidated following a court order requesting the Department of Homeland Security to issue a new replacement rule. The court gave the DHS until February 12, 2016 to come up with a replacement rule in order for the STEM OPT program to continue. In order for a new replacement rule to be put in place, DHS was required to publish the final rule 60 days before its effective date, according to procedural rules established by the Administrative Procedures Act. In order to meet such a deadline, DHS needed to have published the final rule by December 14, 2015 in order for it to be enforced by the February deadline. Luckily, the government filed a motion to extend the stay of the court order—to May 10, 2016, thus requesting an additional 90 days for the government to implement a final rule. In order for the motion to be successful the government must establish that exceptional circumstances warrant such relief to be given. The government has argued that there is an unprecedented amount of comments that cannot be reviewed and analyzed by the February deadline. During the comment period, DHS received over 50,000 comments that it must review, revise, and finally publish a final rule. The court is not expected to rule on the motion until early 2016. Meanwhile the plaintiffs of the original suit have filed an appeal before the DC Circuit Court arguing that the OPT program is not within the authority of the DHS.

If the motion is unsuccessful, the government may file a motion at the district court level or request a stay of the court’s injunction at the circuit court level. In any case, those affected should be aware that the government still has several avenues through which relief may be granted: (1) the Judge may grant the government its requested 90-day delay on the present motion; (2) the Judge may later grant a complete stay pending appeal of the injunction; or (3) the DC Circuit may stay the Judge’s injunction while it considers the merits of her rulings in the underlying case.  CIS has not yet released official correspondence explaining whether students affected will be granted a STEM extension after the February deadline.

For more information please contact us.

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District Court Denies Request for Temporary Restraining Order to Halt Syrian Re-Settlement Program in Texas

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First Family of Syrian Refugees Arrives in Canada

In their December suit, Texas Health and Human Services Commission V. United States, et, al., the state of Texas alleged that the United States government and the International Rescue Committee unlawfully attempted to re-settle six Syrian refugees in the city of Dallas without prior  consultation and collaboration. According to Texas, the federal government failed to consult with the state regarding re-settlement of these refugees, and prevented them from receiving vital information relating to security risks posed by Syrian refugees prior to their re-settlement. Texas also claimed that the International Rescue Committee similarly failed to collaborate and consult with the Texas Health and Human Services Commission in advance prior to the re-settlement of these refugees. To protect itself, the state of Texas asked for an injunction and a temporary restraining order to halt the resettlement of Syrian refugees until security checks could confirm that these Syrian refugees do not pose a threat to the state of Texas.

On December 9, 2015 the U.S. district court denied the temporary restraining order, adding that the state of Texas failed to provide compelling evidence to suggest that Syrian refugees pose a substantial threat of irreparable injury to its citizens. Presiding district court Judge David C. Godbey added that, “the [Texas] commission has failed to show by competent evidence that any terrorists actually infiltrated the refugee program, much less that these particular refugees are terrorists’ intent on causing harm.” Although the lawsuit still stands and will likely not receive a final ruling until early next year, the district court set an important precedent in its denial of the temporary restraining order. Judge Godbey further maintained that it is not within the purview of the district court to assess what risk, if any, Syrian refugees pose to any particular state. Such risk can only be assessed by the federal government. On this issue Godbey stated that, “the Court has no institutional competency in assessing the risk posed by refugees. That is precisely the sort of question that is, as a general matter, committed to the discretion of the executive branch of the federal government, not to a district court.” The rest of the lawsuit remains in litigation.

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Earlier this week, in a 407-19 vote the House of Representatives successfully passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, a bill that seeks to increase restrictions for travelers coming to the United States under the Visa Waiver Program, a program which currently allows citizens from 38 designated countries to travel to the United States without a visa. In order to become law the bill must also pass through the Senate. The bill was introduced following President Barack Obama’s address to the nation, in which he confronted the threat of the Islamic State of Iraq and the Levant (ISIL) and the recent terrorist attacks in Paris and San Bernardino.

In his address, President Obama pledged to work closely with the Department of State and Homeland Security to revise the visa waiver program, under which one of the San Bernardino assailants traveled to the United States. The Problem? The President misspoke—the assailant traveled to the United States with a K-1 fiancé visa and not through the visa waiver program. Instead Obama meant to say that he would work with the DOS and DHS to revise the visa program in general. In light of this innocent mistake, the House continued its support to tighten the visa waiver program, despite the fact that no evidence has been presented suggesting that terrorists and/or their radicalized accomplices have traveled to the United States using this program. This would mean that the government is concerned that terrorists, disguised as refugees, may travel from Syria and surrounding countries, into Europe and in the process acquire European citizenship making it easy for them to travel to the United States through the visa waiver program. The government may also be concerned that ISIL is radicalizing and recruiting European citizens of middle eastern descent to their cause.

As it stands there are no middle eastern countries participating in the visa waiver program. The majority of the countries eligible to participate are from Western Europe with few exceptions including Chile, Taiwan, Australia etc. Individuals who have applied for a United States visa but have been denied, are not eligible to travel to the United States under the visa waiver program, even if their country participates in the program. Such individuals must apply for the appropriate visa at a US embassy or consulate abroad in order to travel to the United States. Critics allege that as a result of such legislation, consular officials and CBP agents will inevitably profile visa waiver travelers.

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Tashfeen Malik, a Pakistani citizen, and her husband Syed Rizwan Farook, a naturalized United States Citizen, are known globally as the couple behind the San Bernardino shootings, which took the lives of 14 people and left 21 injured. Twenty-eight-year-old Syed Farook was identified as an environmental health services inspector employed by the San Bernardino County Department of Public Health. He was attending a holiday party at the Inland Regional Center where he worked. Reports confirm that a dispute occurred between Syed and an attendee of the party causing Syed to leave the party. He later returned with his wife Tashfeen dressed in tactical gear carrying assault weapons and semi-automatic pistols. Days after the attack, it became known that the assault was inspired but not directed by the Islamic State of Iraq and the Levant (ISIL), the terrorist group which claimed responsibility for coordinated attacks that occurred in Paris just last month. Through a radio message disbursed online, ISIL confirmed that the duo were indeed supporters of the group praising them for their efforts, but stopping short of taking credit for the attack. The FBI has since confirmed that the couple had been ‘radicalized’ for some time before the actual attack took place, though it is not clear how the couple became radicalized, how they rehearsed the attack, and whether the couple maintained ties to any other terrorist organizations. It is known that Syed and his wife Tashfeen had visited gun ranges in the Los Angeles area for target practice just days before the December 2nd assault at the Inland Regional Center, a social services facility located in San Bernardino, California where Syed was employed.

Investigations have revealed that Syed and Tashfeen met one another on a Muslim dating site a couple of years ago. The relationship flourished, and eventually Tashfeen Malik obtained and entered the United States legally on a K-1 fiancé visa. Last year, Tashfeen became a United States lawful permanent resident through her marriage to Syed, a naturalized citizen. In response to the recent terror attacks around the world and the Syrian refugee crisis, President Obama delivered a rare address to the nation from the Oval Office yesterday evening declaring the San Bernardino massacre an “act of terrorism designed to kill innocent people.”

In his address, President Obama outlined his administration’s four-tier strategy to defeat ISIL and discussed necessary measures that must be taken by Congress to bring about legislation that will protect our country from extremism and combat the war on terror. Such measures include the following:

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