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.
USCIS Broadens Categories for Deportation Under New Policy Guidance and Will Issue Notices of Appearance
On June 28, the U.S. Citizenship and Immigration Service (USCIS) issued new policy guidance that expands the circumstances under which an adjudicator will generate a Notice to Appear (NTA), a charging document that commences removal proceedings and the deportation process, and instructs its recipient to appear before an immigration judge. The guidance broadens USCIS authority to initiate NTAs in cases of fraud, criminal activity, or when an immigrant applicant is denied an immigration benefit and accrues unlawful presence. The guidance aligns the agency with current immigration enforcement priorities under Executive Order 13768, Enhancing Public Safety in the Interior of the United States.
Traditionally, under 2011 policy guidance, USCIS referred deportation matters to Immigration Customs Enforcement (ICE). Now, USCIS will issue NTAs on its own. The new guidance also states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States”. Thus, applicants for U.S. citizenship, green card, or extension or change of status petitions who are ultimately denied could face deportation, whether they are business visitors, H-1B visa holders, or international students.
This policy shift may impact the American workplace if immigrant workers facing deportation lose their jobs due to deportation, and employers must rehire.
To compound the increase of deportation proceedings that the policy might spark, immigration courts and judges currently face over 700,000 backlog cases, almost double the 400,000 cases held in 2014 by the U.S. Department of Justice Executive Office of Immigration Review.
The new USCIS guidance exempts most Deferred Action for Childhood Arrivals recipients.
Mayer Brown is pleased to welcome María (“Maru”) Ferré as counsel in our Global Mobility group within the firm’s Employment & Benefits practice located in our Northern California offices. Maru focuses on immigration compliance and risk management.
In addition to enhancing the firm’s Global Mobility & Migration and Employment & Benefits capabilities in the Bay Area, Maru brings impressive experience in creating and managing immigration compliance products for clients doing business around the world.
Prior to joining Mayer Brown, Maru developed and implemented a mobility compliance program for 26 jurisdictions outside the United States, as well as global strategies and best practices to facilitate the movement of personnel around the world. In addition to her direct development of risk management, compliance and advisory services, she managed the local network of counsel in the global locations of major clients. A native Spanish speaker, Maru is particularly familiar with employer mobility needs and challenges in Latin America and Asia. She is also experienced in addressing clients’ needs in Europe, the Middle East and North America, including US immigration.
In a 5-4 decision issued on Tuesday, June 26, 2018, the US Supreme Court upheld the president’s broad statutory authority to suspend the issuance of visas to nationals of certain countries in the interests of national security. Finding the September 24, 2017, Proclamation 9645 (“Proclamation”) to be neutral on its face, the Court rejected the arguments of the State of Hawaii that the ban was a thinly veiled attempt to ban Muslims from the United States in violation of the Establishment Clause of the US Constitution and the Immigration and Nationality Act (“INA”).
“By its plain language, [the INA] grants the president broad discretion to suspend the entry of aliens into the United States,” the majority opinion, authored by Chief Justice John Roberts, states. “The president lawfully exercised that discretion based on his findings—following a worldwide, multiagency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”
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:
The Court of Justice of the European Union (ECJ) has ruled that spouses of the same sex are covered under the EU law providing for freedom of residence to EU citizens and their family. In a June 5, 2018 Press Release, the ECJ explains “[a]lthough the Member States have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.”
The ECJ’s judgment arises from a case brought by a Romanian national who was unsuccessful in securing residency rights in Romania (which does not legally recognize same-sex marriage) for his same-sex spouse, a US citizen whom he had married in Brussels. The residency request was based on an EU Directive guaranteeing the freedom of movement and residence to EU citizens and their families; this EU directive allows the non-EU “spouse” of an EU citizen to join his or her EU spouse in the member state in which the EU spouse is living. The couple brought an action before the Romanian courts, which then asked the ECJ to decide whether a same-sex spouse may be regarded as the “spouse” of an EU citizen under the freedom of movement directive. In its June 5 press release, the ECJ states that “in the directive on the exercise of freedom of movement the term ‘spouse,’ which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen.”
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.
Mayer Brown counsel Lisa Pino was quoted in an article featured in The California Lawyer Daily Journal discussing the uptick in Immigration and Customs Enforcement (“ICE”) worksite investigations, which have doubled since October 2017. This increase aligns with the Trump Administration’s immigration policy priorities, published in late 2017, to hire 10,000 more ICE officers and 300 Federal prosecutors. Pino advises employers to focus on compliance, mitigate risk, and adopt best practices to better manage the immigration needs for their workforce.