Monique Kornfeld, Immagration Lawyer

Agents as Petitioners for O-1 and P-1 Petitions

July 20th, 2018

Beneficiaries of O-1 extraordinary ability and P-1 athlete and entertainer petitions may be sponsored by agents in place of a traditional employer. The agent must be representing a foreign or US single or multiple employers.  This is particularly helpful for petitions involving projects with multiple third party employers where it would be onerous to require a separate petition for each employer.

The agent has many obligations and does not just serve as a signator. These obligations include ensuring statements in the petition are accurate, describing in detail the projects and itinerary, providing the terms and conditions between the agent and the beneficiary and the essential terms between the employer and the beneficiary, accepting service of process, notifying USCIS of any material changes in employment and being responsible for the return transportation of the beneficiary.

The agent must be a US person and is usually a company but can also be an individual. It is optimal if the agent is a type of business manager but the agent may also be an accountant or booking agent, or even an attorney (although the immigration attorney should not serve as the agent because of potential conflicts). There must be a contract between the agent and the beneficiary specifying the terms of employment.  The agent must also include statements from the employers authorizing the agent to file the petition.  The agent is not required to receive more traditional forms of consideration, such as a  share of the beneficiary’s profits, but can receive alternative forms of consideration, including the benefits of aesthetic value.

 

USCIS Extends Temporary Protected Status for Somalia

July 20th, 2018

On July 19, 2018, USCIS announced that it will extend Temporary Protected Status (TPS) for beneficiaries from Somalia through March 17, 2020. The Department of Homeland Security has determined that the ongoing armed conflict and extraordinary and temporary conditions warrant protection for foreign nationals from Somalia.

USCIS may designate a foreign country for TPS if conditions in the country are unsafe for its nationals to returning safely, or in certain circumstances, where the country cannot adequately manage the return of its nationals.  A national of a TPS country, or someone who last resided there, may apply for TPS status while in the US.

USCIS may designate a country for TPS based on one of the following temporary conditions:

  • Ongoing armed conflict (such as civil war):
  • An environmental disaster (such as an earthquake), or an epidemic; or
  • Any other extraordinary and temporary situation.

TPS beneficiaries who are found primarily eligible based on an initial review of their cases are granted the following:

  • Protection from being removed from the US:
  • Ability to obtain employment authorization; and
  • Ability to obtain permission to travel abroad.

Also, if TPS is granted, then the beneficiary cannot be detained by DHS on the basis of his or her immigration status in the United States.

While TPS is only a temporary benefit, as opposed to legal permanent residency, and does not lead to any other immigration status, it does not bar someone from seeking to change immigration status. A TPS beneficiary may apply for another type of nonimmigrant visa, such as an H-1B specialty worker or F-1 foreign student, file to adjust status based on an immigrant visa petition (based on family qualifications, marriage or employment) or apply for any other immigration benefit (e.g. asylum).

Current countries designated for TPS are the following:

  • El Salvador;
  • Haiti;
  • Honduras ;
  • Nepal;
  • Nicagarua;
  • Somalia;
  • Sudan;
  • South Sudan;
  • Syria; and
  • Yemen.

 

To be eligible for TPS the applicant must be a national of the designated TPS country or a person who last habitually resided in that country. The applicant must also meet certain physical presence and residence requirements in the US, which are detailed in the TPS chart at https://www.uscis.gov/humanitarian/temporary-protected-status#What%20is%20TPS?. To be eligible for TPS extension under Yemen’s current designation, in additional to meeting the usual requirements, individuals must have continuously resided in the US since May 1, 2012, and have been continuously physically present in the US since September 18, 2012.

Certain crimes and activities render a person ineligible for TPS. These include convictions of any felony or two or more misdemeanors committed in the US; other crimes making a person inadmissible to the US; security-related activities making a person inadmissible to the US; and engagement in terrorism or persecution of others.

EB-1 Final Action Date in August 2018 Visa Bulletin Causes Confusion

July 19th, 2018

The US Department of State Visa Bulletin for August 2018 states that a final action date of May 1, 2016, will take effect “immediately” for EB-1 Worldwide, El Salvador, Guatemala, Honduras, Mexico, and the Philippines. This immediate effective date has created confusion.

USCIS has clarified that through the end of July 2018, it will continue to accept, interview and adjudicate adjustment applications (Form I-485) in the categories of EB-1 Worldwide, El Salvador, Guatemala, Honduras, Mexico, and the Philippines regardless of the priority date. Beginning on August 1, 2018, USCIS will only accept I-485 applications for these EB-1 categories for applicants with a priority date before May 1, 2016.

For those applicants in these EB-1 category who are losing their nonimmigrant status after the end of July 2018, it is critical that they file the Form I-485 application to adjust status before August 1, 2018. A pending I-485 application to adjust status provides lawful status in the US and the adjustment applicant may also apply for the employment authorization document (EAD) and advance parole travel document.

USCIS Announces Adjustment of Status Filing Dates for August 2018

July 19th, 2018

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for August 2018. Applicants of family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for August 2018. Applicants of employment-based cases must use the “Final Action Dates” chart in this Visa Bulletin.

USCIS Issues Guidance Making Immigration Denials Easier

July 16th, 2018

US Citizenship and Immigration Services USCIS) issued a policy memo for adjudicators reviewing applications and petitions for immigration benefits that provides them with broader discretion to deny them outright without first sending a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).  Such a policy shift is disproportionately punitive and may lead to increased litigation.

The guidance will take effect on September 11, 2018, and will apply to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date. It will overturn a 2013 policy memo on the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. The 2013 policy memo restricted denials without RFEs or NOIDs only where there was “no possibility” of approval.

The new policy provides the adjudicator with full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. Its alleged mission is to “discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.” However, this new guidance appears to be no more than a thinly veiled attempt by this administration to discourage any and all immigration to the US.

USCIS will issue denials without first issuing an RFE or NOID when there is no legal basis for the requested benefit, or requests a benefit or relief under a terminated program. Also, if all of the required initial evidence is not initially filed with the application, then USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Its examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:

  • Waiver applications submitted with  little to no supporting evidence; or
  • Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).

 

Also, such a policy change could ultimately lead to more beneficiaries or applicants being placed in removal proceedings, in light of USCIS’s other recent policy memo shifting the burden to USCIS in issuing notices of appearance (NTAs) to appear in removal proceedings and broadening the circumstances in which it must issue such NTAs.

In light of the severe consequences of filing deficient immigration applications and petitions, it is more important than ever for employers and individuals to retain highly experienced attorneys for filing such immigration cases.

 

 

US DHS Extends Temporary Protected Status (TPS) for Yemen

July 9th, 2018

On July 5, 2018, USCIS announced that it will extend Temporary Protected Status (TPS) for beneficiaries from Yemen through March 3, 2020. The Department of Homeland Security has determined that the ongoing armed conflict and extraordinary and temporary conditions warrant protection for foreign nationals from Yemen.

USCIS may designate a foreign country for TPS if conditions in the country are unsafe for its nationals to returning safely, or in certain circumstances, where the country cannot adequately manage the return of its nationals.  A national of a TPS country, or someone who last resided there, may apply for TPS status while in the US.

USCIS may designate a country for TPS based on one of the following temporary conditions:

  • Ongoing armed conflict (such as civil war):
  • An environmental disaster (such as an earthquake), or an epidemic; or
  • Any other extraordinary and temporary situation.

TPS beneficiaries who are found primarily eligible based on an initial review of their cases are granted the following:

  • Protection from being removed from the US:
  • Ability to obtain employment authorization; and
  • Ability to obtain permission to travel abroad.

Also, if TPS is granted, then the beneficiary cannot be detained by DHS on the basis of his or her immigration status in the United States.

While TPS is only a temporary benefit, as opposed to legal permanent residency, and does not lead to any other immigration status, it does not bar someone from seeking to change immigration status. A TPS beneficiary may apply for another type of nonimmigrant visa, such as an H-1B specialty worker or F-1 foreign student, file to adjust status based on an immigrant visa petition (based on family qualifications, marriage or employment) or apply for any other immigration benefit (e.g. asylum).

Current countries designated for TPS are the following:

  • El Salvador;
  • Haiti;
  • Honduras ;
  • Nepal;
  • Nicagarua;
  • Somalia;
  • Sudan;
  • South Sudan;
  • Syria; and
  • Yemen.

 

To be eligible for TPS the applicant must be a national of the designated TPS country or a person who last habitually resided in that country. The applicant must also meet certain physical presence and residence requirements in the US, which are detailed in the TPS chart at https://www.uscis.gov/humanitarian/temporary-protected-status#What%20is%20TPS?. To be eligible for TPS extension under Yemen’s current designation, in additional to meeting the usual requirements, individuals must have continuously resided in the US since January 4, 2017, and have been continuously physically present in the US since March 4, 2017.

Certain crimes and activities render a person ineligible for TPS. These include convictions of any felony or two or more misdemeanors committed in the US; other crimes making a person inadmissible to the US; security-related activities making a person inadmissible to the US; and engagement in terrorism or persecution of others.

DOS Report on Trends for Visa Number Availability in the Visa Bulletin

June 30th, 2018

On June 18, 2018, Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the US Department of State (DOS), provided American Immigration Lawyers Association (AILA) with the following analysis of the current trends and projections for visa number availability for the various immigrant preference categories. These numbers are published in the Visa Bulletin each month.

Employment-Based Preference Categories

EB-1 China, EB-1 India. These categories will remain steady at January 1, 2012, until the remainder of the fiscal year (October 2018). It is hoped that visa numbers in these categories will become available again on October 1, 2018.

EB-1 Worldwide. Charlie expects that a final action date will need to be imposed either in August or September 2018 but that the numbers will become current again in October.

EB-2 Worldwide. Charlie may need to impose a final action date either in August or September 2018 but the numbers will become current again in October.

EB-2 India. These numbers will advance to March 15, 2009, in July 2018 and is likely to remain steady at that date through October 1, 2018.

EB-2 China and EB-3 China. In July, the EB-2 China numbers will catapult forward by four months to January 1, 2015. EB-3 China demand is very high because of hundreds of downgrades and has reached its limit. This has resulted in EB-2 China numbers being two years ahead of EB-3 China. No further advancement in EB-3 China should be expected this viscal year, with the final action date returning to June 1, 2015, in October 2018.

EB-5 China. The final action date for EB-5 China will hold at August 1, 2014 and is expect to remain at that date through at least September.

F-1 STEM OPT Students Working at Third-Party Sites

June 29th, 2018

In April 2018, USCIS updated its website regarding the employment of F-1 student and it appears to bar F-1 students in the STEM optional practical training (OPT) program from working at third-party locations. In particular, it states: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” However, as noted by American Immigration Lawyers Association (AILA), this is contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. The preamble to the March 11, 2016 STEM OPT Final Rule provides:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

In addition, US Immigration and Customs Enforcement (ICE) has stated in response to an FAQ that F-1 STEM OPT students may use staffing/placement agencies to find work training so long as that agency provides and oversees the training.

USCIS is concerned that the employer who is required to sign the training plan would not be able to supervise the F-1 student at a third party site. However, remote supervision of the F-1 student is certainly feasible and USCIS’ most recent website guidance is overreaching. Also, “staffing agencies” may also provide sufficient supervision and training of the F-1 student.

The good news is that AILA has received reports (as recent as June 2018) that the placement of F-1 STEM OPT students at third party sites has been approved after employers of third party STEM placements have responded to a request for evidence (RFE) for an H-1B petition.

Finally, it should be emphasized that the new unlawful presence memo becomes effective on August 9, 2018, which now subjects F-1 students to the three and ten-year bars to reentry in a broader range of circumstances. One of these circumstances would be if USCIS denies such third party placement of an F-1 STEM OPT student and makes a finding that the F-1 student violated the terms of his or her status, which would result in the retroactive accrual of unlawful presence.

 

 

President Trump Reverses Policy Separating Immigrant Families and Seeks Indefinite Family Detention

June 22nd, 2018

President Trump signed an executive order “Affording Congress an Opportunity to Address Family Separation,” reversing his administration’s prior policy separating children from their parents at the border. This order instructs the Department of Homeland Security (DHS) to take measures to detain family units without separating children from parents during pending criminal improper entry or immigration proceedings by ordering the Department of Justice (DOJ) to revise the 1997 Flores Settlement Agreement.

Illegal entry at the US border is a crime and criminal proceedings require the separation of parents from their children. However, the Obama Administration asserted prosecutorial discretion and waived criminal prosecution for immigrants with children at the border so as to keep them together.

The Flores Settlement sets national standards regarding the detention, release and treatment of all children in immigration detention and strictly limits the government’s ability to keep children in immigration detention. It requires that children be released from custody without unnecessary delay and to place them with a close relative or family friend, and where they cannot be released because of significant public safety or flight risk concerns, be held in the least restrictive conditions possible. In 2015, an appellate court further restricted detention to 20 days pursuant to the Flores Settlement.

Flores mandates that release be the default except:

  1. Where the detention of a child is necessary to ensure his or her appearance in immigration court; or
  2. Where the continued detention of the child is required to ensure his or her safety or the safety of others.  When HHS cannot find a suitable sponsor for a child, that child remains in the custody of HHS.  Flores mandates the minimum conditions that child must be held in.

The Trump Administration has also filed a suit in the Federal District Court in Los Angeles to modify the Flores Settlement to allow immigrant families to be detained indefinitely (and overturn the 20-day rule) in US Immigration and Customs Enforcement (ICE) facilities until their asylum cases are granted or they are ordered deported and to exempt such facilities from state licensure requirements.

Long-term detention of families is not the appropriate solution to family separations, since the children will still suffer inordinate trauma and there are more humane and cost efficient and effective alternatives. The Family Case Management Program, terminated by President Trump, allows families to be released together and monitored by caseworkers and this has yielded a 99% success rate of court attendance.

 

Attorney General Restricts Asylum for Victims of Domestic Violence

June 11th, 2018

On June 11, 2018, Attorney General Sessions issued a precedent decision, vacating a decision by the Board of Immigration Appeals (BIA) and finding that generally, victims of domestic violence and other victims of crime committed by non-governmental actors do not qualify for asylum. His decision usurps the independence of the Immigration Courts and the BIA and flouts due process by disavowing the principle that each asylum case stands on its own merits.

In Matter of A-B- (12/18,2016), the BIA upheld asylum for the respondent and held that membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common,” was one of the main reasons for the spousal abuse in that case. According to US immigration law, a person qualifies for asylum who can show past persecution or a reasonable fear of future persecution on account of race, religion, national origin, political opinion or membership in a particular social group.” A particular social group is defined as persons who hold a “common, immutable characteristic” which may be “an innate one such as sex, color, kinship ties, or in some circumstances…a shared past experience such as former military leadership or land ownership.” Matter of Acosta, 19 I&N Dec. 211, 233–34 (BIA 1985). The characteristic must be one “that the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Also, membership in the particular social group must be socially distinct, “a group need not be seen by society; rather, it must be perceived as a group by society.” Matter of M-E-V-G-, 26 I&N Dec. at 240. Particular social group membership has been one of the most contentious protected groups in asylum law and has greatly evolved over the years to include victims of domestic violence.

Furthermore, there must be a nexus between the harm and the group membership. In Matter of A-B-, the BIA found that the ex-husband abused her based on his position of authority as her ex-husband and father of their children.

Finally, the asylum applicant must demonstrate that his or her government is unable or unwilling to protect him or her from harm based on one of the qualifying groups. In Matter of A-B-, the BIA held that there was evidence that the police did not intervene after being called on multiple occasions. It also noted that a governmental human rights report for El Salvador indicated that domestic violence was a widespread and serious problem and that government’s efforts were minimally effective.

According to Annaluisa Padilla, AILA President, “The Attorney General is turning back the clock on nearly twenty years of asylum law and undermining access to protections for bona fide asylum seekers who have suffered domestic violence, gang violence, or other forms of persecution by private actors. He blatantly ignores the conditions in countries that our own asylum law demands be taken into account when deciding these cases. This decision must also be examined in light of the Central American women and families who are now coming to our borders seeking protection from the uncontrolled, extreme levels violence in their home countries. These women are not safe in their own countries because the government cannot or will not protect them. Furthermore, today’s decision has made the arduous path to asylum even more difficult for those who are pursuing protection on their own without legal representation.”

In response to an invitation for amicus briefs, 16 retired immigration judges and former BIA members have submitted an amicus brief in support of the respondent in Matter of A-B-. It asserts that this case is “rife with procedural violations and is consequently unripe for agency-head review.”