As anticipated by an earlier blog post, and after a couple of months of internal planning, USCIS is ready to announce its implementation plan related to the agency’s new Notice to Appear (NTA) policy guidance. On Thursday, September 27, Mayer Brown’s Global Mobility and Migration practice will eagerly join a live USCIS teleconference entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”. The dialogue will enable our attorneys to immediately learn and question how broadly USCIS plans to interpret its upcoming interpretations of NTA guidance that may warrant deportation proceedings. As previously shared, USCIS officers will soon issue NTAs on a wider range of cases where an individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States. The USCIS teleconference should also share more insight regarding the Department of Homeland Security’s removal priorities per Executive Order 13768, Enhancing Public Safety in the Interior of the United States. More to come from The Mobile Workforce on this topic.
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On August 17, 2018, Judge John D. Bates of the US District Court for the District of Columbia issued an order granting the government’s motion for a stay pending appeal of the court’s order requiring the Department of Homeland Security (DHS) to begin accepting applications for initial grants of DACA benefits and for advance parole under the DACA program. As discussed in Mayer Brown’s Alert regarding the order, the court, in line with other courts that have reviewed the issue, did not grant the government’s motion with regard to applications for renewal of DACA benefits, which DHS must continue to accept.
USCIS announced today that it is expanding its temporary suspension of premium processing to include additional types of H-1B petitions such as change of employer petitions and amendment petitions. Currently, the suspension impacts only cap-subject H-1B petitions which continue to be adjudicated under regular processing. Effective September 11, 2018, all other H-1B petitions will be subject to the same suspension except for the following: (1) cap-exempt petitions filed exclusively with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or (2) petitions filed exclusively with the Nebraska Service Center requesting continuation of previously approved employment without change with the same employer, with a concurrent request for either a visa notification (consular notification) or extension of stay. This means that premium processing is suspended for H-1B change of employer petitions by which a foreign worker may transfer or “port” from one employer to another, as well as for H-1B amendments based on changes in employment such as job location changes. The suspension is expected to last until February 19, 2018.
On July 30, 2018, US Citizenship and Immigration Services announced that it will postpone its June 28, 2018 guidance for the issuance of Notices to Appear (“NTA”) to commence removal proceedings in certain cases. For the time being, USCIS will delay activating the new NTA policy until the agency determines an implementation plan. USCIS did not indicate a timeline or date however by which it will publish its NTA operations plan, an agency function traditionally held by US Immigration and Customs Enforcement (“ICE”).
Although USCIS NTAs are on hold until further notice, employers can take practical steps now to prepare for the agency’s transition, specifically by assessing if any of their foreign national employees may be at risk of a potential removal or deportation proceeding. For example, student employees should have their most current address on file with USCIS in case they receive a Request for Evidence, otherwise they will not be able to respond to USCIS, and could unknowingly receive a NTA if they fail to provide a respond. Similarly, for employees whose work authorization relies upon a non-immigrant visa category, such as an H-1B visa, employers may renew or extend the non-immigrant status beginning six months in advance of the visa expiration. Renewing a non-immigrant visa status as early as possible allows both employers and employees more time to respond to Requests for Evidence, or concurrently strategize other immigration options that may be available, and minimize a disruption of work.
For more information about the USCIS NTA policy delay, please read our Mayer Brown Global Mobility Legal Alert here.
On Tuesday, June 19, 2018, President Donald Trump told House Republicans to send him a compromise immigration bill to address border security and other key issues. Within less than 24 hours, in a move designed to stave off the continued public outcry over the separation of children from migrant parents detained at the southern border, on June 20 the president signed an executive order, “Affording Congress an Opportunity to Address Family Separation.” The executive order states that officials will continue to prosecute everyone who crosses the border illegally but will find or build facilities to hold families together while the parents’ cases are considered by the courts.
Zero Tolerance Policy Reiterated
The president indicated the border will be “just as tough,” with borders “very strong,” but families will no longer be separated. In a news conference where he was flanked by Vice President Mike Pence and Secretary of Homeland Security Kirstjen Nielsen, President Trump indicated, “We are keeping a very powerful border and it continues to be a zero tolerance.” The executive order similarly reiterates the administration’s hard-line policy to detain any adults entering the country illegally, a policy that, according to statistics released on June 19, has led to the separation of more than 2,300 children from their parents. As stated in the order:
On May 10, 2018, USCIS issued a Policy Memorandum entitled “Accrual of Unlawful Presence and f, J, and M Nonimmigrants,” providing new guidance to USCIS officers in the calculation of unlawful presence of students, vocational students, and exchange visitors who remain in the US beyond their authorized period of stay. The Memo is a departure from policy guidance put in place more than 20 years ago. To make sense of the new policy, Forbes turned to Mayer Brown’s Paul Virtue, who, in 1997, authored the “Virtue Memo” when he served as Executive Associate Commissioner for Programs of the Immigration and Naturalization Service (INS). The Virtue Memo established the government’s interpretation of unlawful presence which has been adopted and applied ever since. The new Memo reinterprets how USCIS officials should calculate unlawful presence for F-1, J-1, and M visa holders, as well as their dependent family members.
In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s. These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).
Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status. Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States. The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”
The Texas Attorney General, joined by six other states, filed suit against the federal government yesterday to terminate the Deferred Action for Childhood Arrivals (DACA) program on the basis that DACA derives from an executive overreach by President Obama in 2012. The suit was filed in the Fifth Circuit in Brownsville, Texas, where a November 2015 decision overruled President Obama’s plans to protect more than 4 million individuals from deportation.
The lawsuit further complicates the fate of DACA recipients, also known as Dreamers, as other district court rulings remain active. Most recently, a Washington, DC district judge ordered that DACA renewal applications should continue, and that new applicants may be eligible to apply if the federal government fails to justify within 90 days why DACA should cease altogether.
On April 24, 2018, Judge John D. Bates of the Federal District Court for the District of Columbia ruled against the Trump Administration’s “unlawful” rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Arguing that the decision to end DACA was “arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful,” Judge Bates stayed his decision for 90 days to offer the Department of Homeland Security (“DHS”) the opportunity to provide sound justification for terminating the program.
Should DHS fail to adequately address its reasoning for canceling the DACA program within the timeframe, the government will be ordered to once again accept and process new and renewal DACA applications for eligible applicants.