Author: CYA

On Wednesday, the Trump administration’s proposed rule for eliminating the H-4 EAD was submitted to the Office of Management and Budget (OMB) for review.  The administration had previously published an agenda item in December of 2017 titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, indicating their intent to remove the current H-4 employment authorization document (EAD) rule that has been in place since 2015.

The Obama administration created the H-4 EAD program to allow the spouses of certain H-1B skilled workers to be employed while in the U.S.  The H-4 EAD has been particularly important for families that are awaiting approval for permanent residency.  Without the H-4 EAD, these dependent spouses cannot work in the U.S. until they receive green cards, a process which can often take many years, especially for immigrants from countries like India and China that send a lot of high-skilled talent to the U.S.  Since the rule went into effect, more than 90,000 spouses have been approved for work permits.  More than 90 percent of those who would be affected by the removal of the program are women.

Once the OMB reviews the proposed rule, it will be published in the Federal Register.   Upon publishing, a comment period occurs after which the administration must review the comments and make any necessary revisions before the rule is finalized.  Litigation could potentially delay the rule for months or years longer.  The proposed rule has not escaped the attention of Congress where a bill was introduced in the House of Representatives called the “H-4 Employment Protection Act of 2018” (H.R.7150) which seeks to protect the program.

A federal district judge in Seattle has ordered the Defense Department to stop discriminating against naturalized citizens who volunteered to serve in the U.S. Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was created in 2009 to attract immigrants with specialized skills such as critical foreign language skills or specialized healthcare training in exchange for an accelerated path to citizenship.  NPR’s Richard Gonzales reports that “[m]ore than 10,000 soldiers have served in the U.S. military through the MAVNI program.”

However, the program was frozen in 2016 due to security concerns. The Department of Defense has required MAVNI participants to undergo “continuous monitoring” which includes security checks every two years, even after discharge if the participants worked for the government or government contractors. No person affiliated with the DoD, other than MAVNI participants, was required to undergo such checks absent particularized suspicion.

The plaintiffs, 17 naturalized citizens who enlisted through the MAVNI program, argued that the increased scrutiny represented unconstitutional discrimination based on national origin. The Pentagon argued that the ongoing security checks were necessary for national security and that they were not based on the plaintiff’s national origin, but on the manner in which they enlisted into the Army.

Judge Thomas Zilly noted however, that the “defendant’s witnesses acknowledged that no MAVNI soldier who has become a naturalized citizen has ever been charged or convicted of espionage or any other criminal offense or been denaturalized.” Judge Zilly found that the evidence in the case “shows that the DoD was aware of the equal protection violations that would arise if naturalized MAVNI soldiers were treated differently from other citizens, but it nevertheless persisted in the discrimination.”

On November 30, 2018 the Department of Homeland Security (DHS) announced a proposal to amend the regulations regarding the allocation process for H-1B cap-subject petitions. Under the proposed rule, all U.S. employers seeking to file H-1B cap-subject petitions would need to first electronically register with U.S. Citizenship & Immigration Services (USCIS) during a designated registration period. USCIS would then conduct a lottery from the pool of electronic registrations, and only those selected would be eligible to file a petition for adjudication.

The number of visas available under the H-1B program is capped at 65,000 annually, with certain employers and petitions being exempt from this cap. An additional 20,000 visas are reserved for individuals who hold advanced degrees from U.S. higher education institutions. Because demand for visas far exceeds the number of visas available, a lottery system has been used to determine which petitions are selected for processing.

Along with requiring electronic registration, the new proposal would also reverse the selection process. Under the proposed rule, all qualified registrants would participate in the lottery to fill the regular 65,000 cap first, and then those not selected who hold advanced degrees would participate in the lottery for the advanced degree cap.

If the rule is finalized as proposed, but there is insufficient time to implement the new registration system in time for the opening of the Fiscal Year 2020 H-1B cap filing season on April 1, 2019, USCIS has announced that it would likely suspend implementation of the new registration system.

This rule is a proposal only and is not yet in effect. The attorneys at Stern & Curray will continue to monitor the situation and keep you informed.

On November 9, 2018 President Trump issued a presidential proclamation that, in conjunction with a joint interim final rule issued by the Department of Homeland Security and the Department of Justice, bars individuals from seeking asylum who enter outside of designated ports of entry at the U.S. – Mexico border. Under this “asylum ban,” only those individuals who cross the border at legal checkpoints would be eligible to apply for asylum. Those who enter elsewhere would only be eligible to apply for more limited forms of relief, withholding of removal or protection under the Convention Against Torture (CAT). These protections are more difficult to obtain than asylum and provide fewer benefits. In contrast to asylum, withholding of removal and protection under CAT do not provide an opportunity for individuals to apply for permanent residency.

Soon after the proclamation was issued, several groups filed lawsuits challenging the ban.  On November 19, 2018, Judge Jon S. Tigar of the U.S. District Court in San Francisco ordered a temporary injunction on the implementation of the asylum ban, reflecting his conclusion that the plaintiffs challenging the ban were likely to succeed on the merits of their claim. The temporary injunction will remain in effect until December 19, 2018 when the court considers arguments for a permanent order.

The United States Citizenship & Immigration Service (USCIS) recently issued a reminder to F-1 students with pending H-1B petitions that work authorization for those students in “cap-gap” status is valid only through September 30, 2018. Any student in cap-gap status with an H-1B petition that remains pending on October 1, 2018 should not work on or after this date.  As USCIS  explained, an F-1 student with a pending change of status petition who has work authorization (such as an I-765 with valid dates) that extends past Sep. 30^th may continue to work as authorized.

Under the regulations, an F-1 student who is the beneficiary of an H-1B petition subject to the cap, and who is requesting a change of status to H-1B on Oct. 1^st, may have his or her F-1 status and current employment authorization extended through Sep. 30^th. Known as the “cap-gap,” this mechanism allows for the “gap” to be filled between the expiration of a student’s F-1 status and the beginning of his or her H-1B status.

As USCIS previously announced, premium processing is temporarily unavailable for cap-subject H-1B petitions. The suspensions are anticipated to last through February 2019.

If you have question regarding how this information may affect your situation, call us today to schedule a consultation with an experienced immigration attorney.

On August 9, 2018, USCIS issued a new policy memorandum revising the determination as to when individuals who enter the United States on certain nonimmigrant visas (F, J, and M) begin to accrue “unlawful presence.”

Generally, academic students (F), exchange visitors (J), and vocational students (M) are admitted to the U.S. for the “duration of their status,” which allows them to remain in the U.S. as long as they maintain their nonimmigrant status. This is usually accomplished by staying engaged in a full course of study or exchange program, not working without authorization, and abiding by all terms of their visa.

Previously, individuals admitted to the U.S. on F, J, and M nonimmigrant visas did not accrue unlawful presence until the day after their Form I-94 expired (if an expiration date was given), or until a USCIS officer or immigration judge determined that they violated their nonimmigrant status.

The new policy memorandum changes the way in which unlawful presence is determined for F, J, and M nonimmigrants.

• F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018 will begin to accrue unlawful presence as of August 9, 2018, unless they had already started accruing unlawful presence before that date.
• F, J, or M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018 will being to accrue unlawful presence:
  • The day after they no longer pursue the course of study or authorized activity, or the day after they engage in unauthorized activity
  • The day after completing their course of study or program, plus any authorized grace period
  • The day after their Form I-94 expires, if admitted until a certain date
  • The day after an immigration judge orders the nonimmigrant removed

The accrual of unlawful presence can have serious immigration consequences. Someone who accrues more than 180 days of unlawful presence and then departs the U.S. may be barred from returning to the U.S. for three years, and a person who accrues a year or more of unlawful presence may be barred from returning for ten years.

Under this new policy memorandum, F, J, and M nonimmigrants may inadvertently violate their status and accrue unlawful presence, resulting in serious immigration consequences.

If you have any questions about how this new change might affect your immigration case, please call us and schedule a consultation.

In an official Policy Memorandum issued on Friday, USCIS announced that the agency will be changing its longstanding policy on issuing denials without first requesting additional evidence to demonstrate eligibility for the immigration benefit being sought.

Since 2013, USCIS has instructed its adjudicators to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) when evidence submitted at the time of filing fails to clearly establish eligibility or ineligibility for the benefit sought. This gives the applicant an opportunity to respond, clarify any issues USCIS may have with their application, and submit additional documentation to support their application.

Under the new policy, however, USCIS adjudicators are instructed to deny any applications that fail to establish eligibility in the initial submission. This includes not only denials based on statutory ineligibility, but also denials based on a lack of sufficient initial evidence. The USCIS Policy Memo provides examples of these situations, including waiver applications with little to no supporting hardship evidence, or permanent resident applications that lack a required Affidavit of Support. While an applicant and their counsel could previously expect the opportunity to respond to an RFE or NOID in these and similar cases, it appears that an outright denial will be more likely under the new agency policy.

The new policy goes into effect September 11, 2018, and applies to all applications, petitions, and requests submitted to USCIS after that date.

Immigrants seeking admission to the U.S.  will now face new challenges, as the Trump administration has proposed new guidelines in determining whether a visa applicant is likely to become a “public charge.”  Under current guidance from U.S. Citizenship and Immigration Services (USCIS) and the Department of State, a public charge refers to a person who is primarily dependent on the government for support. The purpose of the public charge determination is to prevent people, who are likely at any time to require governmental support, from being admitted to the United States. This determination is not only very broad in nature, but it is also at the discretion of the consular officers, leaving room for very different application and results at each consulate.  Furthermore, it appears USCIS may incorporate some of these changes into its adjudication of applications to adjust status (green card applications) for applicants already present in the U.S.

When determining whether someone is likely to become a public charge, consular officers are required to take into account certain factors such as the person’s age, health, family status, assets, resources, financial status, education, and skills. A leaked draft of the proposed regulation states that additional factors will now be considered or weighed differently, including whether the person has ever used certain governmental programs or benefitted from certain tax deductions.

To make matters worse, the Department of State’s Foreign Affairs Manual (FAM), which provides regulatory guidance for consular officers, has already made changes to its public charge determination. The change notates that “a properly filed, non-fraudulent Form I-864 [Affidavit of Support] in those cases where it is required, is a positive factor in the totality of the circumstances that you must consider when making a public charge determination.” This is a substantial deviation from previous practice. In the past, a properly filed Form I-864 Affidavit of Support was generally considered sufficient to satisfy the “totality of the circumstances” analysis such that approval based on this form was customary.

Unfortunately, these changes will undoubtedly increase the number of applicants denied admission to the U.S., and for many applicants these changes will require a new approach and additional documentation at consular and USCIS interviews.

Attorneys at Stern & Curray are watching this issue carefully. If you have questions about these changes and how they might affect your immigration case, please call us and schedule a consultation.

The use of administrative closure has come to a halt after the decision rendered by Attorney General Jefferson Sessions in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which holds that, in most cases, immigration judges do not have the authority to indefinitely suspend immigration proceedings by administrative closure.

In the past, immigration judges relied on their ability to administratively close cases, technically suspending them, instead of rendering a final decision, in an effort to manage cases in a more efficient manner. This essentially allowed immigrants to remain in the United States without a legal status. The use of this method was inferred from the ability of judges to use their independent judgment and discretion, as consistent with regulations, in the disposition of their cases.

According to the opinion, immigration judges, acting under the authority granted to them under a Statute or as delegated by the Attorney General, do not have unfettered authority to administratively close cases; but are rather permitted to use administrative closure in a specific category of cases – where a previous regulation or a previous judicially approved settlement expressly authorized such an action. As of now, all cases that are currently administratively closed may remain closed unless the Department of Homeland Security (DHS) or the respondent requests re-calendaring.

In addition, administrative closure has been commonly used in the past to allow individuals in removal proceedings to apply for and receive a Provisional Unlawful Presence Waiver prior to departing the United States. Without such a waiver, anyone who has accrued more than six months of unlawful presence and leaves the United States must remain outside the country for either 3 or 10 years before they can be granted a visa, even if they are married to a U.S. citizen or permanent resident. Individuals who are in removal proceedings, however, are ineligible to apply for this waiver unless their case is administratively closed. This decision therefore effectively bars anyone in removal proceedings from applying for a Provisional Unlawful Presence Waiver, adding significantly to the length of time they will be separated from their family in the United States.