General information

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.

A judge for the Federal District of D.C. ruled Tuesday that the administration improperly terminated the DACA program, and the Department of Homeland Security must therefore accept new DACA applications. Under previous court orders, DHS was only required to accept DACA renewal applications, leaving out those who were eligible but had never received DACA.

Importantly, the ruling will not go into effect for 90 days, allowing DHS an opportunity to explain the legal justification for canceling the program. If DHS fails to provide an adequate basis for canceling the program within the next 90 days, individuals who were eligible but never applied for DACA would be able to do so.

Our firm has recently received reports of individuals with pending One-Step Adjustment of Status applications receiving phone calls from someone claiming to be from the Denver Sheriff’s Office. The person on the phone is reported to allege that the individual missed an immigration-related court date and must report to the sheriff’s office.

If you receive any calls from individuals claiming to be from law enforcement or immigration, please contact your immigration attorney immediately. Additionally, please remember to never give personal information over the phone to anyone claiming to represent a local, state, or federal government agency. Local law enforcement agencies do not investigate immigration offenses, and although they may send letters through the mail, neither USCIS nor ICE will use phone calls to collect information or make allegations.

USCIS announced on Saturday that it will resume accepting DACA renewal applications. The announcement comes in response to an injunction issued last week by a federal district court in San Francisco, which ordered DHS to continue accepting renewal applications while a lawsuit against the decision to end DACA moves forward. Because the injunction is temporary and part of ongoing litigation, it is uncertain how long the window to apply for a renewal will remain open.

The details of the USCIS announcement are outlined below.

If your DACA expired on or after September 5, 2016 or if you currently have DACA:

You may apply to renew your DACA now. Even if your DACA will not expire in less than six months, you may apply to renew it, though this may result in an approved period of less than two years from the end of your current DACA period. Because the court order is temporary and subject to future litigation, recipients will want to renew their DACA as soon as possible.

If you previously had DACA, but it expired or was terminated before September 5, 2016:

You may apply for DACA again, though you must apply as an initial applicant rather than a renewal.

If you have never applied for DACA:

Unfortunately, USCIS is not currently accepting requests from first-time DACA applicants.

Advance Parole:

Advance Parole is the name for permission from the U.S. government to travel outside the United States for specific reasons and authorization to renter upon return. USCIS is not currently accepting applications for Advance Parole based on DACA.

The Department of Homeland Security announced on Monday that it is ending the Temporary Protected Status (TPS) designation for over 200,000 Salvadorans who have lived and worked lawfully in the US for the past 17 years. The termination of TPS, however, will be delayed until September 9, 2019, in order allow individuals time to close their businesses, sell their homes and assets, and otherwise prepare for their departure from the United States.  According to the Washington Post, the decision to revoke TPS for El Salvador will impact not only the over 200,000 individuals protected by the status, but also their estimated 190,000 US-born children.

DHS originally designated TPS for El Salvador in response to two devastating earthquakes that struck only weeks apart in 2001, resulting in thousands of landslides across the country. Over one thousand Salvadorans lost their lives in the quakes and resulting landslides, and hundreds of thousands of homes were destroyed, in addition to millions of dollars in damage to the country’s water and sanitation systems.

The protected status designation has been renewed 11 times since its initial designation. The most recent extension, which was granted in 2016, cited numerous subsequent natural disasters to justify the extension, including hurricanes, tropical storms, flooding, seismic activity, and a prolonged drought that caused severe shortages of food and adequate drinking water. Additionally, the previous extension cited the increased spread of mosquito-borne illness, housing and electricity shortages, and gang-related insecurity across the country as further justification. In Monday’s announcement, DHS Secretary Kirstjen M. Nielson states that the decision came after determining that “the original conditions caused by the 2001 earthquakes no longer exist,” and that the “substantial disruption of living conditions caused by the earthquake no longer exist.”

The decision comes after two other countries lost their TPS designations in 2017, Haiti and Nicaragua. The Trump Administration extended the TPS designation for Honduras until July 2018, but suggested that it may decide not to renew the designation in the future.

The Department of Homeland Security is reported to be considering changes to regulations that currently allow certain individuals in H-1B status to extend their status beyond the 6-year limit. The changes being considered would impact individuals who have an approved I-140, but are not yet able to apply for permanent residence (green card) due to the visa backlog. Currently, such individuals are eligible to extend their H-1B beyond the 6-year limit in 3-year increments, which allows them to continue working without interruption for their US employer while they wait for their priority date to become current.  Although no changes to the extension regulations have occurred, DHS is reported to be considering making these extensions discretionary, which would greatly increase the risk of denials.

Importantly, any change to DHS’s interpretation of this regulation would require a formal announcement followed by a 90-day notice and comment period before any changes could be implemented. In addition, any change to DHS’s longstanding interpretation of law would be subject to extensive litigation, which would likely further delay implementation of any change.

While these reported considerations are worrisome, there have not yet been any changes in DHS regulations or policies. We will continue to stay abreast of any changes to this and other DHS policies, and will post updates on our website.

A panel of the 9^th Circuit Court of Appeals yesterday granted a preliminary stay of the lower court’s injunction, which had prevented the administration from enforcing the  latest version of President Trump’s travel ban. The current version of the travel ban applies to nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

In granting the stay, the court cited the Supreme Court interim decision concerning the previous version of the ban, and created the same exception for persons with a “credible claim of a bona fide relationship with a person or entity in the United States.” Familial relationships under this exception include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins, while any relationship to an entity must be “formal, documented and formed in the ordinary course, rather than for the purpose of evading [the ban].” The exceptions do not apply to nationals of North Korea or Venezuelan government officials, for whom the full ban remains in place.

The current travel ban applies differently to nationals from each of the eight countries. If you are impacted by the ban and have plans to travel outside the country, please consult your immigration attorney before making travel arrangements or departing the United States.

USCIS reports that employers are being targeted in an email scam requesting employers to submit I-9 information. The emails are reportedly sent from a fraudulent email, news@uscis.gov, and contain USCIS labels, employer addresses, and links to websites that appear government related. If you receive an email purporting to be from USCIS and requesting I-9 information, do not respond or click on any links within the email. If you receive a fraudulent email, you can forward the email to the USCIS webmaster at uscis.webmaster@uscis.dhs.gov.

Employers must complete a Form I-9, Employment Eligibility Verification, for every employee on their payroll, and these forms must be retained for the required period of time. Employers are not, however, required to submit the forms to USCIS.

In a speech to the Heritage Foundation this week, acting Immigration and Customs Enforcement Director Tom Homan stated that ICE will dramatically increase worksite enforcement actions in 2018. When asked whether the agency would do more to target those who employ undocumented workers, Homan said that he has directed Homeland Security Investigations, ICE’s investigative unit, to audit its current worksite enforcement and increase these operations “by four or five times, “ according to an article in the Washington Examiner.

“We’re taking worksite enforcement very hard this year,” stated Homan. “We’ve already increased the number of inspections and worksite operations; you’re going to see that significantly increase this next fiscal year.”

In addition, Homan stated that ICE will not only target the employers who hire undocumented workers, but will also arrest any undocumented workers they encounter during these enforcement operations. This marks a stark deviation from ICE’s previous worksite enforcement strategy, which prioritized employers who knowingly hire large numbers of undocumented workers and engage in trafficking, smuggling, visa fraud, money laundering and other criminal conduct. Under the previous enforcement strategy, these criminal arrests took priority over civil immigration violations of undocumented employees.

In addition to worksite enforcement, Homan stated that ICE will continue its recent trend of arresting undocumented individuals at courthouses and near schools around the country. Churches and hospitals, however, will remain outside the scope of these enforcement operations.