Visa Lawyer Blog

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Yesterday, Federal Judge Edward Chen, of the United States District Court for the Northern District of California, issued a preliminary injunction temporarily stopping the United States government from rescinding the temporary protected status designation for immigrants from Sudan, El Salvador, Haiti, and Nicaragua.

By court order, the government must maintain the TPS designation for the above-mentioned countries, and continue to allow beneficiaries of these countries, to apply for employment authorization, while a lawsuit challenging the rescission of TPS for these countries moves through the court system.

Before the preliminary injunction the TPS designations would officially terminate as follows:

  • Sudan, TPS Designation was to terminate on November 2, 2018
  • Nicaragua, TPS Designation was to terminate on January 5, 2019
  • Haiti, TPS Designation was to terminate on July 22, 2019
  • El Salvador, TPS Designation was to terminate on September 9, 2019

The preliminary injunction comes on the heels of a class-action lawsuit brought by immigrants from these countries over the rescission of the TPS designation for Sudan, El Salvador, Haiti, and Nicaragua. The lead plaintiff named in the lawsuit Ramos v. Nielsen, is Crista Ramos, a 14-year old United States Citizen whose mother is a TPS holder from El Salvador. Ramos, along with other Plaintiffs in this lawsuit allege that the government rescinded TPS protections for the above-mentioned countries, based on a predetermined political agenda in violation of the law.

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If you are an F-1 student with an H-1B petition that remains pending with the United States Citizenship and Immigration Services (USCIS), and your “cap-gap” employment authorization is only valid through September 30, 2018, you may risk accruing unlawful presence if you continue to work on or after October 1, 2018.

What is a “cap-gap”

You are in “cap-gap” status if you are an F-1 student who is the beneficiary of a timely filed H-1B cap subject petition with USCIS, and you are seeking a change of status from F-1 student to H-1B on October 1st, October 1st being the requested start date of H-1B employment.

A “cap-gap” is used to fill the gap between the end of a student’s F-1 status and the beginning of potential H-1B status. To avoid any gap in status, USCIS extends the validity period of both the student’s F-1 status and current employment authorization, but only until September 30.

The “cap-gap” period begins when an F-1 student’s status and employment authorization expires.

Temporary Suspension of Premium Processing

USCIS has temporarily suspended premium processing services for cap-subject petitions to prioritize the adjudication of cap-gap petitions filed by students, however USCIS does not guarantee that it will adjudicate these petitions in a timely manner by October 1st. Students with a cap-gap H-1B petition that remains pending on or after October 1st are no longer authorized to continue working under the cap-gap regulations.

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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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On Saturday, September 22, 2018, the Department of Homeland Security announced a new proposed rule that may prevent non-citizens reliant, or likely to become reliant on public benefits, from gaining admission to the United States.  The new proposal entitled, “Inadmissibility on Public Charge Grounds,” has been signed by the Secretary of Homeland Security, and the proposed rule is expected to be published in the federal register in the coming weeks, according to a DHS press release.

APA Procedure

Once the proposed rule has been published in the federal register, the government must allow the public to comment on the proposed rule for a 60-day period. Once that period is over, the government will have the opportunity to review comments and make changes if necessary to the proposed rule. Thereafter, the government will publish a final rule which will become law 60 days after the date of publication.

Who is a Public Charge?

Under the Immigration and Nationality Act, a public charge is defined as an “alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Such aliens are not admissible to the United States on public charge grounds.

Applicants seeking admission to the United States should be aware that, “an alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for support, and who has no person in the United States willing and able to assure the alien will not need public support, generally is inadmissible as likely to become a public charge.”

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. 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.

EB-1 Worldwide: this category is not expected to advance until January 2019. Time will tell whether this category will become current during the next year.

EB-1 China and EB-1 India: Also expected to experience forward movement until January 2019. A cutoff date for this category will continue through the next 12 months.

EB-2 Worldwide: This category is expected to remain current until at least the foreseeable future.

EB-2 China: is two months behind EB-3 China, which may prompt EB-2 applicants to downgrade.

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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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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:

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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:

  • Your TPS-related EAD with a Sept. 17, 2018 expiration date; or
  • Your TPS-related EAD with a March 17, 2017 expiration date and your EAD application receipt (Form I-797C, Notice of Action) that notes your application was received on or after January 17, 2017

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If you are a citizen of Canada or Mexico and you are interested in working in the United States temporarily, the TN visa may be right for you.

Under 8 CFR 214.16, Citizens of Canada or Mexico may seek temporary entry under the North American Free Trade Agreement (NAFTA) to engage in business activities at a professional level.

This section of the law defines business activities at a professional level as “undertakings which require….at least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of NAFTA.”

What are business activities at a professional level?

A citizen of Canada or Mexico may perform prearranged business activities for a United States entity, meaning that the Canadian or Mexican citizen must have a pre-arranged employment agreement to perform professional services in the United States. TN applicants may not enter with the intent to establish permanent residence in the United States. TN visa applicants may only remain in the United States to fulfill their pre-arranged employment agreement and depart after that period has ended. The TN visa is issued for an initial period of 3 years, with one-year extensions granted thereafter if necessary.

The following table outlines professions authorized for TN Visa purposes:

Appendix 1603.D.1 (Annotated)

– Accountant – Baccalaureate or Licenciatura Degree; or C.P.A., C.A., C.G.A., or C.M.A.

– Architect – Baccalaureate or Licenciatura Degree; or state/provincial license. 2

2 The terms “state/provincial license” and “state/provincial/federal license” mean any document issued by a state, provincial, or federal government, as the case may be, or under its authority, but not by a local government, that permits a person to engage in a regulated activity or profession.

– Computer Systems Analyst – Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma 3 or Post Secondary Certificate 4 and three years’ experience.

3 “Post Secondary Diploma” means a credential issued, on completion of two or more years of post secondary education, by an accredited academic institution in Canada or the United States.

4 “Post Secondary Certificate” means a certificate issued, on completion of two or more years of post secondary education at an academic institution, by the federal government of Mexico or a state government in Mexico, an academic institution recognized by the federal government or a state government, or an academic institution created by federal or state law.

– Disaster relief insurance claims adjuster (claims adjuster employed by an insurance company located in the territory of a Party, or an independent claims adjuster) – Baccalaureate or Licenciatura Degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.

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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.”

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