We would like to remind our readers that beginning September 11, 2018, USCIS immigration officers will have the discretion to issue denials without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOIDs).
The new policy was announced in a policy memorandum released during the month of July.
On September 6, 2018, the CIS Ombudsman’s Office provided further details on the new policy:
I-751 Change to Filing Location
Today, Monday September 10, 2018, the United States Citizenship and Immigration Services announced a change to the filing location for Form I-751 Removal of Conditions. The agency is now directing petitioners to send Form I-751 to a USCIS Lockbox facility instead of directly to the California and Vermont service centers. California, Nebraska, Vermont, and Texas will distribute the load of removal of conditions applications and adjudicate these petitions accordingly. When filing at a Lockbox facility, the petitioner may pay the filing fee with a credit card using Form G-1450.
TPS Somalia
USCIS has automatically extended the validity of Employment Authorization Documents (EADs) issued under the TPS designation of Somalia with an original expiration date of Sept. 17, 2018, for 180 days, through March 16, 2019.
Somalian nationals whose EADs expired on March 17, 2017, and who have applied for a new EAD during the last re-registration period, but have not yet received their new EAD card, are covered by the automatic extension.
If your EAD is covered by this automatic extension, you may continue to use your existing EAD through March 16, 2019, as evidence that you are authorized to work.
To prove that you are authorized to continue working legally, you may show the following documentation to your employer:
Photo by Molly Adams
On Friday August 31, 2018, Texas District Judge Andrew Hanen declined to issue a preliminary injunction that would have put a stop to the DACA program immediately. As we previously reported, the fate of the DACA program now rests in Judge Hanen’s hands, who is currently presiding over a lawsuit filed by the State of Texas along with seven other states (State of Texas, et al., v. the United States of America, et al.). At issue in that case is (1) whether the creation of DACA violated the Constitution (2) whether the DACA program violates the substantive and procedural requirements of the Administrative Procedure Act.
Texas, along with other states, are collectively asking the Court to provide declaratory and injunctive relief temporarily halting the DACA program, as well as a court ruling finding the DACA program unconstitutional. According to Texas, the DACA program is illegal because its creation violated the procedural and substantive aspects of the Administrative Procedure Act. In addition, Texas argues that the program violates the Take Care Clause of the U.S. Constitution.
On Friday, the judge issued a ruling on the States’ collective request for a preliminary injunction to temporarily stop the government from issuing or renewing DACA permits. In response to the States’ request for a preliminary injunction, Judge Hanen wrote a lengthy 117-page opinion drawing on the need to exercise judicial restraint with regard to DACA, “the failure of Congress to act [with regard to DACA] does not bestow legislative authority on either the Executive or Judicial branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States….”
Hanen sealed his opinion with a forceful statement regarding his sentiments toward DACA, “Unfortunately the Judiciary is not the branch of government designed to salvage a program that should have emanated from Congress, or at the very least complied with the APA…This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”
BREAKING: The United States Citizenship and Immigration Services (USCIS) will be publishing a final rule in the Federal Register tomorrow August 30, 2018, increasing the premium processing fee charged by the agency by 14.92 percent.
According to USCIS the increase in the fee accounts for inflation according to the Consumer Price Index. The last time that the filing fee for premium processing was updated to account for inflation was in the year 2010.
The adjustment in the fee will bring the premium processing fee to $1,410 instead of $1,225. The final rule states that the ruse will become effective 30 days after publication in the federal register which would fall on September 30th of this year. Any applications postmarked on or after September 30th will need to include the new $1,410 filing fee instead of the previous filing fee.
DHS has authorized the fee increase without notice and comment, because according to DHS it is “unnecessary.” The government cites 5 U.S.C. 553(b)(B) and INA section 286(u), 8 U.S.C. 1356(m) as authority to adjust the fee without notice or public comment.
During March of this year, the United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing services for all fiscal year 2019 cap-subject petitions, including petitions requesting an exemption from the general cap. USCIS announced that the suspension would last until September 10, 2018, in order to reduce H-1B processing times for long-pending petitions.
Temporary Suspension to Continue through February 19th
Recently, USCIS announced that the agency will be extending the temporary suspension until February 19, 2019.
In this post, we would like to keep our readers informed about Visa Bulletin projections for the month of October. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.
Below are the highlights of those trends and projections for the month of October.
EB-1 Worldwide: It is expected that heavy demand in this category will prevent this category from becoming current in October. Previously, it was believed that EB-1 Worldwide would become current on October 1st, but this will no longer be the case according to current projections. EB-1 China and EB-1 India will have earlier final action dates than the EB-1 Worldwide category, which are expected to fall in the month of October. It is projected that the EB-1 categories will not move forward until about December or 2019.
Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.
USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.
Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”
The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.
A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.
In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.
However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).
New Policy
On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.
Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:
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).
A federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. The new ruling gives the Trump administration a 20-day deadline to implement the complete restoration of the program or file an appeal. The District Court judge behind the order stated in his ruling that the Trump administration failed to justify its decision to end the DACA program, which protected approximately 800,000 young adults from deportation.
The Trump administration plans to appeal the ruling using the 20-day delay granted by the judge in the ruling. Today the attorney general, Jeff Sessions, issued a statement following the court decision stating that the Trump administration strongly disagrees with the decision adding that, “The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.”
The attorney general claimed that the Obama administration “violated its duty to enforce our immigration laws” by allowing the establishment of the DACA program and the catch and release policy,” that the current administration not only had the authority to withdraw from the DACA program but had a duty to do so. The Trump administration has interpreted recent court decisions contradicting the termination of the DACA program as an improper use of judicial power.
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