Monique Kornfeld, Immagration Lawyer

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.”

USCIS Proposes Removal of the Foreign Entrepreneur Startup Visa Immigration Program

May 30th, 2018

USCIS has proposed a rule to remove the International Entrepreneur Parole Program (IEP). The proposed rule requests comments, which are due on June 28, 2018 (83 FR 24415, 5/29/18).

Earlier this year, a federal judge ordered the Department of Homeland Security (DHS) to rescind its delay of a rule allowing certain foreign entrepreneurs to work in the US to grow their startup companies.  The National Venture Capital Association filed a lawsuit in the US District of Columbia challenging the delay of the International Entrepreneur Program (IEP).  It argued that the Trump Administration violated the Administrative Procedures Act (APA) by ignoring the proper procedures in postponing implementation of the International Entrepreneur Program (IEP), which was scheduled to go into effect on July 17, 2017.  Several technology companies later joined the suit.

The rule, proposed by President Obama, would have allowed foreign entrepreneurs to work in the US for five years to direct and develop their business. In July 2017 before the effective date, the Trump Administration pushed back the implementation to March 14, 2018, stating that it was “highly likely” that the rule would be revoked.

The International Entrepreneur Program (IEP), also called the International Entrepreneur Rule (IER), or the startup visa, would have allowed foreign entrepreneurs to grow innovative companies, stimulate the economy and create jobs. The US economy has thrived in part because of the significant contributions of immigrant entrepreneurs.

We will continue to report on breaking developments on this evolving and very important topic.

 

USCIS Revises Requirements for Employment of Certain F-1 STEM OPT Students

May 15th, 2018

In April 2018, USCIS revised its website page for Optional Practice Training for STEM students that appears to bar F-1 students working pursuant to their STEM OPT (optional practical training) to be situated at third party sites. The website page 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, according to the preamble to the March 11, 2016 STEM OPT Final Rule:

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.

Based on this preamble, USCIS is improperly restricting the workplace of F-1 students working pursuant to STEM OPT. So long as there is a genuine employment relationship between the STEM employee and the employer, and both parties have complied with and signed the Form I-983 training program, which includes an obligation for the employer to provide practical training to the employee, then the employer should be allowed to place the F-1 student at the end client. Congress and USCIS are aware of this issue and hopefully we will receive favorable clarification on it.

 

USCIS Issues Policy Memo on Accrual of Unlawful Presence for F, J and M Nonimmigrants

May 13th, 2018

USCIS has published a draft of a policy memorandum substantially broadening its definition of unlawful presence for F, M and J nonimmigrants and their dependents, and thereby potentially subjecting far more nonimmigrants to the three or ten-year bars to reentry into the US after their departure.

The US immigration laws impose a three or ten-year bar on certain nonimmigrants who overstay or otherwise violate the terms of their status and accrue unlawful presence and then depart the US. If a nonimmigrant with a certain date of expiration on her I-94 card overstays that date by more than 180 days and then departs the US, then she cannot reenter for three years.  If she overstays for more than one year, then she cannot reenter for 10 years. In addition, individuals who have accrued more than one year of unlawful presence in the US, whether in a single stay or during multiple stay in the US, and who reenter or attempt to reenter the US without being admitted or paroled are permanently inadmissible. Also, a nonimmigrant who does not overstay the expiration date but has a formal finding against her by USCIS or an immigration judge that she has violated the terms of her status will be subject to the same bars if more than 180 days or one year elapses since the determination of the status violation.  It should be emphasized that only a departure from the US triggers the bar.

Only with a waiver can foreign nationals reenter the US within this period of inadmissibility. A waiver for a nonimmigrant visa entry (for a temporary period) is available to any foreign national (INA §212(d)(3) waiver).  The 212(d)(3) waiver requires a weighing of at least three factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration law, or criminal law violation, if any; and (3) the nature of the applicant’s reasons for wishing to enter the United States. However, a waiver for an immigrant visa (or legal permanent residency) is available only to those foreign nationals who can show extreme hardship to a parent or spouse who is a legal permanent resident or US citizen.

Students in F-1 and M status and exchange visitors in J-1 status, and their dependents, are not given a precise date of expiration on their Forms I-94, but rather a designation of “duration of status” or  “D/S.”  Before USCIS’ policy change, unlawful presence did not apply to those with a designation of duration of status on their Form I-94s who overstayed or otherwise violated the terms of their status, unless an immigration judge or USCIS made a formal finding of a status violation against them.   Unlawful presence would be start to be counted from the date of the finding of the status violation and once more than 180 days or one year elapsed since the order, then only after departing the US would the foreign national be subject to the three or ten-year bar to reentry.

Therefore, under the old rules, if an F-1 student overstayed for more than one year after her authorized status expired, including the completion of her studies, the completion of any optional practical training, and the 60-day grace period, she would not incur any unlawful presence or trigger the three or ten-year bar to reentry upon her departure from the US.

It is important to distinguish between unlawful presence and maintenance of lawful status in the US. Not all violations of lawful status are unlawful presence, triggering the three and ten-year bars to reentry.  For example, an H-1B worker who works without status during the validity period of his H-1B visa petition may be violating the terms of his status but he is not accruing unlawful presence.  Only when a formal finding by USCIS or an immigration judge has been made against him for such violation would it trigger the bars.

Under the new policy memorandum, USCIS will calculate unlawful presence much earlier for these F, M and J nonimmigrants by finding that it will start upon a status violation, even one that is not the subject of a formal finding by an immigration judge or USCIS. Under the memo, the following rules apply:

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

 

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

 

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

 

Such a change on unlawful presence calculation is highly unfair to the foreign national, who may unknowingly violate the terms of her status. Immigration policy is highly variable and it is challenging even for immigration attorneys to always be apprised of the latest developments in immigration policy and law.  For example, USCIS has recently stated that it may find that F-1 STEM optional practical training (OPT) status may not allow the F-1 student to be placed at a third party site.

Also, the current policy of only triggering unlawful presence once a formal status violation finding has been made against the foreign national provides her with notice of the violation and an opportunity to rebut an incorrect finding, either by contesting a USCIS determination or having a hearing before an immigration judge. Even H-1B workers who violate the terms for their status but otherwise do not overstay the expiration date on their Form I-94 are not deemed to have started the clock for unlawful presence.

The public has until June 11, 2018, to comment on the memo and it will take effect on August 9, 2018. Please email all comments to publicengagementfeedback@uscis.dhs.gov.

 

 

A Brief History of Deferred Action for Childhood Arrivals (DACA)

May 7th, 2018

A federal court in Washington D.C. ruled that USCIS must accept new and renewal applications under Deferred Action for Childhood Arrivals (DACA). It held that the Trump administration’s rescission of DACA in March 2018 was arbitrary and capricious.  However, the court did suspend its order for 90 days to give USCIS time to explain the revocation of DACA. NAACP v. Trump.

Previously, district courts in California, New York and the District of Columbia blocked implementation of the winding down of DACA ordered by the Trump Administration in September 2017 to take effect in March 2018. The federal district court in California held that the government could not revoke DACA recipients’ work permits or other protections without giving them proper notice and a chance to defend themselves.  Also, the order allowed for DACA recipients to apply for renewals.  The Supreme Court denied a petition for writ of certiorari of the California ruling.

In 2012, the Executive Branch created DACA to protect approximately 700,000 undocumented young immigrants known as Dreamers. It established the program as an exercise of its prosecutorial discretion for deciding whether to removal an alien from the US.  DACA provides temporary protection from removal (deportation) for certain undocumented children.  A DACA recipient may obtain an employment authorization document (EAD), and in very limited circumstances, permission to travel abroad (advance parole) and reenter without abandoning DACA status.  An applicant for DACA must show that he or she:

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching his or her 16th birthday;
  3. Has continuously resided in the United States since June 15, 2007, up to the present time;
  4. Was physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Has not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Several states sued the Obama Administration in 2014 when it sought to create a similar program known as DAPA (Deferred Action for Parents of Americans) and to expand DACA. The Fifth Circuit upheld a preliminary injunction and found that these programs were contrary to federal law and failed to fulfill the notice-and-comment procedure of the Administrative Procedures Act (APA).  The Supreme Court affirmed the decision.  Texas and other plaintiff states then threatened to amend their complaint to challenge the original DACA program if that program were not rescinded.  In response, the US Department of Homeland Security (DHS) issued a memorandum directing that DACA be wound down.  As a result, the plaintiff states agreed to dismiss their complaint challenging DACA.  In September 2017, the Trump Administration ordered that it would rescind DACA as of March 2018.

Congress has not yet created new DACA legislation and attempts at passing such a law have been highly contentious and subject to intense political jockeying. The Trump administration contends that President Obama’s executive order establishing DACA violated the purview of the Executive Branch by making a new law, which the administration argues falls under Congress’s ambit.  The Obama administration claimed that it was merely carrying out the traditional and Constitutional functions of the Executive Branch by exercising its discretion in determining who should be subject to removal.

On May 2, 2018, Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia filed a motion in federal district court in Texas for a preliminary injunction to prevent the government from implementing the 2012 memo that created DACA and from issuing or renewing DACA petitions in the future. In their motion, the states argue that DACA is not merely an exercise of prosecutorial discretion but an unlawful grant of lawful presence status and work authorization to hundreds of thousands of undocumented aliens.  The plaintiff states argue that the program rests on a theory of unreviewable power that would allow the Executive Branch to grant lawful presence and work authorization to any undocumented alien in the US.

The plaintiff states also allege that the Obama Administration promised that DACA would not confer a path to citizenship. They then state that 1,056 DACA recipients have been granted citizenship and 39,514 granted legal permanent residency.

If the district judge decides in the plaintiffs’ favor, he could direct the Trump administration to end DACA. This order would be in conflict with the previous orders of district courts upholding the program, greatly increasing the likelihood that the Supreme Court will step in and decide the case.

USCIS Announces Adjustment of Status Filing Dates for May 2018

May 4th, 2018

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for May 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 May 2018. Applicants of employment-based cases must use the “Final Action Dates” chart in this Visa Bulletin.

USCIS Announces Termination of Temporary Protected Status for Nepal

April 27th, 2018

On April 26, 2018, USCIS announced that it will terminate Temporary Protected Status (TPS) for beneficiaries from Nepal on June 24, 2019. The Department of Homeland Security has also recommended terminating TPS status for Haiti.

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 (to be terminated September 9, 2019);
  • Haiti (to be terminated July 22, 2019);
  • Honduras ;
  • Nicagarua (to be terminated January 5, 2019);
  • Sierra Leone;
  • Somalia;
  • Sudan (to be terminated November 2, 2018);
  • 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?.

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.

Extraordinary Ability Immigrant Visa Petitions (EB-1A) Approved for Nepalese Singer and Indian Sociology Professor

April 23rd, 2018

My office has obtained Form I-140 immigrant visa petition approvals pursuant to the EB-1A extraordinary ability preference category for a Nepalese singer and songwriter and an Indian professor of sociology who conducted superlative research in the comparative labor market. The key to a successful EB-1A extraordinary ability immigrant visa petition is appropriately framing and narrowing the category in which you are claiming that the foreign national is extraordinary, thereby reducing the pool of similar experts against whom the foreign national is compared.

The EB-1A extraordinary ability visa petition is the most challenging. One must show extraordinary ability in the sciences, arts, education, business or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.  One must have a level of expertise indicating that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.”  In other words, the worker should be the cream of the crop.   Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize.  Other lesser awards might also qualify, but would have to rise to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the foreign national has not received a single high-ranking, distinguished, internationally-recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
  3. Published material about the alien in professional or major trade publications or major media relating to the alien’s work in his field;
  4. Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
  5. Evidence of the alien’s original contributions of major significance to the field;
  6. Authorship of scholarly articles in the field, in professional journals or other major media;
  7. Display of the alien’s work at artistic exhibitions or showcases;
  8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  9. Evidence that the alien commands high remuneration in relation to others in the field; and
  10. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. In the case of the Nepalese singer, her music was both modern and culturally distinct. We emphasized that her extraordinary ability was as a contemporary singer and songwriter in modern Nepalese music. In the case of the professor of sociology, her research spanned a broad array of issues relating to labor and ethnicity, gender and race. We argued that she had a unique expertise at the interdisciplinary and comparative crossroads of the study of gender, labor, race, ethnicity, immigration and globalization. We also emphasized her expertise on female labor within South Asia as well as within South Asian immigrant communities in the United States.

In the case of the Nepalese singer, her music was both modern and culturally distinct. We emphasized that her extraordinary ability was as a contemporary singer and songwriter in modern Nepalese music.  In the case of the professor of sociology, her research spanned a broad array of issues relating to labor and ethnicity, gender and race.  We argued that she had a unique expertise at the interdisciplinary and comparative crossroads of the study of gender, labor, race, ethnicity, immigration and globalization. We also emphasized her expertise on female labor within South Asia as well as within South Asian immigrant communities in the United States.

US Department of State Issues Visa Bulletin for May 2018

April 22nd, 2018

The Department of State (DOS) posted the Visa Bulletin for May 2018, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. USCIS has not yet announced whether it will accept adjustment of status applications   based on the filing or final action date charts for May 2018.  This information can be found at USCIS’s website.

The following information is the for the final action dates chart. The EB1 category remains current for the worldwide category but has backlogged to January 1, 2012 for China and India. The EB2 category for India is at December 22, 2008, and for China September 1, 2014. The EB3 worldwide category remains current and the EB3 category for China is at June 1, 2015, and at May 1, 2008, for India.