Articles Posted in Inadmissability

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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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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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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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Credit: Mathia Swasik

On May 23, 2017, President Donald Trump unveiled his controversial budget proposal “A New Foundation for American Greatness” for FY 2018 which intends to make good on his promise to crack down on illegal immigration and apprehend undocumented immigrants with a criminal record. In a message accompanying his budget proposal, the President stated, “In these dangerous times, our increased attention to public safety and national security sends a clear message to the world — a message of American strength and resolve. It follows through on my promise to focus on keeping Americans safe, keeping terrorists out of our nation, and putting violent offenders behind bars.” To that end, the President has requested an additional $2.7 billion in funding to bolster border security and immigration enforcement measures. In addition to tightening the southern border, the budget proposal seeks to prevent undocumented immigrants from receiving tax credits by requiring individuals claiming child tax credits to provide a verifiable Social Security Number valid for employment purposes.

The budget also takes aim against “sanctuary cities” throughout the United States which serve as haven communities for undocumented immigrants. One of the proposals seeks to force local governments to cooperate with federal immigration authorities by detaining undocumented immigrants in local jails, and complying with orders from immigration officials to assist federal authorities in holding and detaining undocumented immigrants for removal. Noncompliance would result in withholding of federal grants.

Although federal law requires that local governments allow employees to share information about undocumented immigrants with federal officials, local governments are not required to assist federal law enforcement in the detention process, those that do, do so voluntarily. A provision in the President’s budget proposal attempts to change this by changing federal law to force local government to comply with federal requests to detain undocumented immigrants in local jails. As part of this provision, federal grants would be disseminated only to cities complying with federal authorities.

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New developments have recently unfolded since the passage of Texas’ controversial SB4 law—a law that bans sanctuary cities in the state of Texas, and requires local jurisdictions and law enforcements officials to cooperate with federal immigration authorities to apprehend undocumented immigrants in the state of Texas.

The controversial bill has suffered its first blowback. The border town of El Cenizo has sued the state arguing that the ban is unconstitutional. The Mayor of El Cenizo, Raul Reyes, told reporters that the bill “hinders the relationship between police departments and the community,” and “decreases criminal activity reports which opens up the door to more domestic violence and more sexual assaults against immigrants.” The city of El Cenizo has been joined in their lawsuit against the state by Maverick county, El Paso county, and the League of United Latin American Citizens. The small town of El Cenizo, Texas first came to national attention when the Spanish language was declared the city’s official language.

The Texas Attorney General envisioned a pushback from “sanctuary cities.” At about the same time that the governor of Texas signed SB4 into law, the attorney general sought to protect the state against future challenges to the law, by filing a lawsuit against known “sanctuary cities” in the state of Texas that have limited the federal government’s power to detain undocumented immigrants by refusing to cooperate with federal immigration officials. The lawsuit was filed on May 7, 2017 in the United States District Court for the Western District of Texas. The state of Texas filed the lawsuit so that they could have a single court ruling upholding the constitutionality of SB4 that would invalidate any lawsuits filed against the state.

Among the cities which have been identified as “sanctuary cities” that have been noncompliant with the federal government’s demands are: Travis County, the city of Austin, and other local officials including Travis County Sheriff Sally Hernandez, who has limited cooperation between local law enforcement and federal immigration officials.

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On February 20, 2017, the U.S. Department of Homeland Security released a memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” The memorandum establishes new policies that call for the detection, apprehension, detention, and removal of undocumented immigrants residing in the United States unlawfully. The policies outlined in this memorandum will replace the former President’s deportation policies. According to the directive, the removal of undocumented immigrants will be prioritized based upon the potential danger the individual poses to citizens of the United States and the potential risk of flight.

Among other things the directive mandates the following:

  • Expand the 287(g) program, which authorizes state and local law enforcement officials to assist federal law enforcement in investigating, identifying, apprehending, arresting, detaining, transporting, and searching undocumented immigrants;
  • Immediately begin planning, design, construction and maintenance of a land border wall between the United States and Mexico;
  • Expand the scope of expedited removal of undocumented immigrants pursuant to section 235(b)(1)(A)(iii)(I) of the Immigration and nationality Act, to detain and expeditiously remove undocumented immigrants apprehended at the border, who have been ordered removed from the United States after being denied relief from deportation;

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Last week, United States Immigration and Customs Enforcement (ICE) launched a series of immigration enforcement operations nationwide, otherwise known as “raids” to crack down on illegal immigration. The operations took place over a five-day period in the metropolitan cities of Los Angeles, Chicago, Atlanta, San Antonio, and New York City, and resulted in the arrest of more than 680 individuals. According to the Department of Homeland Security, these raids were targeted at convicted criminals unlawfully present in the United States, persons who are a threat to our public safety, including gang members, and “individuals who have violated our nation’s immigration laws” by illegally re-entering the country after having been removed, including fugitives who could not be found after having been ordered removed by federal immigration judges. Additionally, DHS reported that of those who were arrested, approximately 75 percent were criminal aliens, convicted of crimes including “homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.”

Communities across the United States went into uproar, after reports began pouring in that hundreds of non-threatening individuals including mothers and children were being taken into custody and removed from the United States during these operations. One of the first such individuals to be arrested was Guadalupe Garcia de Rayos, a Mexican mother of two U.S. Citizen children, who was detained by ICE at a routine check point in Phoenix, after having lived 20 years in that state. Garcia de Rayos had come to the United States illegally as a child. She was arrested during a 2008 raid on her Arizona workplace on suspicion that the business was hiring undocumented immigrants using fraudulent IDs. Garcia de Rayos was taken into custody six months later, when investigators discovered discrepancies in her employment documents. She pled guilty in 2009 to criminal impersonation and was sentenced to 2 year’s probation. Despite these offenses, Guadalupe was considered to be a “low priority” of enforcement and was required to check in with immigration officials.

After news broke of her arrest, the Mexican Foreign Ministry issued a statement urging Mexican nationals to contact the Mexican consulate for immigration assistance, information relating to their immigration rights, and protections offered to them by the Center for Information and Assistance to Mexicans (CIAM). According to the Foreign Ministry, Mexican consulates in the United States have allocated additional resources to protect the rights of Mexican nationals. The Foreign Ministry added that they anticipate these immigration raids will increase in severity and are likely to violate the due process of rights of Mexican nationals.

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