Articles Posted in Inadmissability

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As previously reported, the government has issued a new final rule in the Federal Register entitled “Visas: Ineligibility Based on Public Charge Grounds,” giving consular officials wide discretion to deny immigrant and nonimmigrant visa applications on public charge grounds.

In line with this new rule, today October 24, 2019, the Department of State issued a 60-day notice in the Federal Register alerting consular applicants of the agency’s plan to require immigrant visa applicants to complete Form DS-5540, a Public Charge Questionnaire to determine whether the applicant is likely to become a public charge. Public comments will be accepted up to December 23, 2019. Comments may be submitted by going to www.Regulations.gov and entering ‘‘Docket Number: DOS–2019–0037’’ in the Search field.

Why is Form DS-5540 being proposed?

According to the 60-day Notice:

The Department seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient and will not rely on public resources to meet their needs, but rather, will rely on their own capabilities, as well as the resources of sponsors.

Through the DS–5540, the Department will collect information in a standardized format regarding applicants’ ability to financially support themselves following entry into the United States, without depending on government assistance.

Fields primarily pertain to the applicant’s health, family status, assets, resources, financial status, education, skills, health insurance coverage, and tax history. The DS–5540 would also require applicants to provide information on whether they have received certain specified public benefits from a U.S. Federal, state, local or tribal government entity on or after October 15, 2019.

Consular officers will use the completed forms in assessing whether an applicant is likely to become a public charge and is thus ineligible for a visa under section 212(a)(4)(A) of the Immigration and Nationality Act (‘‘INA’’).

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On Friday October 11, 2019, three Federal courts in California, New York, and Washington issued three temporary injunctions blocking the Trump administration from enforcing the Public Charge rule on a nationwide basis, which was set to go into effect on October 15, 2019.

The decision to block the government from enforcing the Public Charge rule is sure to set off a contentious legal battle that is just beginning to unfold.

California’s Injunction

In California, the City of San Francisco, State of California, and La Clinica de La Raza, a health care provider, joined together as plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), and the President of the United States to prevent the Public Charge rule from going forward.

U.S. District Judge Phyllis Hamilton granted the Plaintiffs a preliminary injunction bringing a temporary stop to the government’s plans to enforce the rule, in states falling under the purview of the U.S. District Court of Appeals for the Ninth Circuit.

Judge Hamilton wrote that in seeking to enforce the final rule, the government failed to consider the impact the rule would have on local and state governments when immigrants chose to leave public health benefit program, “[DHS] made no attempt, whatsoever, to investigate the type or magnitude of harm that would flow from the reality which it admittedly recognized would result—fewer people would be vaccinated,”

Washington’s Injunction

Similarly in a separate but related lawsuit, the States of Washington, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island joined together as Plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), the heads of these agencies, and the President of the United States.

The Washington injunction was more sweeping in scope in that the Federal Judge in that case, Rosanna Malouf Peterson, ordered a nationwide injunction forcing the government to refrain from implementing or enforcing the rule on a temporary but nationwide basis. In her decision Judge Peterson wrote, “the Court declines to limit the injunction to apply only in those states within the U.S. Court of Appeals for the Ninth Circuit.”

As a result, the broad scope of the injunction prevents the government from enforcing the Public Charge rule on a nationwide basis.

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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In this post we bring you the latest immigration news.

Final Rule Inadmissibility on Public Charge Grounds

The Department of Homeland Security has posted the official version of final rule “Inadmissibility on Public Charge Grounds,” in the Federal Register.

The Final Rule will become effective at 12:00 a.m. EST on October 15, 2019.

Who does the rule apply to?

The rule will be applied to applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

The rule will not apply to applications and petitions pending with USCIS prior to October 15, 2019.

To read the official version of the rule please click here.

USCIS Completes Return of Unselected H-1B Petitions

As of August 15, 2019, USCIS has returned all FY2020 H-1B cap-subject petitions that were not selected in the lottery. Unselected petitions contain a rejection notice explaining that the petition was not selected in the lottery.

If you submitted a FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you do not receive a receipt notice or returned petition by August 29, 2019, contact USCIS for assistance.

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called 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 called for 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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“Fake Dates” Appear on Notices of intent to Deny

Across the nation, news outlets are reporting that dozens of individuals have received court orders from Immigration and Customs Enforcement (ICE) ordering them to appear in court by a certain date.

The problem? When these individuals showed up to court on the date indicated on the notice, they were turned away by court staffers who notified them that their names were not listed on the judge’s official dockets.

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as alienswho, regardless of the basis for removal:

(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”

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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DHS Statement on Family Reunification

The Department of Homeland Security recently issued a statement outlining the administration’s four-point plan to reunite minor children separated from their parents at the border. Beginning July 10, 2018, HHS and DHS will coordinate the reunification of children under 5 years of age currently in the custody of HHS, with parents who are in DHS custody.

#1 Verification of Parental Relationship

The administration will first ensure that a parental relationship with the child has been verified before reunifying the child with his or her parent. In addition, the parent must undergo a background check to ensure that reunification will not compromise the safety and welfare of the child. If a parent is found unsuitable for reunification purposes, in the course of a background check, the child will not be reunified with the parent. Parents who are in the custody of the U.S. Marshall or in a state or county jail for other offenses may not be reunified with their child.

#2 Transportation of Parents to ICE custody

Parents separated from their children will be transported to ICE custody where they will be reunited with their parents. Beginning July 10, 2018, DHS will coordinate physical reunification of minor children under 5 years of age with parents transported to ICE custody, provided the parent has been cleared for parentage and poses no danger to the child.

#3 Preparation of Children under Five Years of Age for Transportation

The Office of Refugee Resettlement (ORR) will coordinate transportation of minor children under the age of five for reunification purposes. Children will be transported under supervision and their possessions will be brought with them to ICE custody.

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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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