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New USCIS Policy Makes it Easier to Refuse Visa Application without RFE

On July 13, 2018, US Citizenship and Immigration Services (hereinafter “USCIS”) introduced a new policy memo into circulation that makes it easier for USCIS adjudicators to deny an application (including but not limited to foreign workers, H1B) without first having to issue a request for evidence (hereinafter “RFE”) or even a notice of intent to deny (hereinafter “NOID”).

This updated guidance goes into effect September 11, 2018 and will reverse previous guidance that allowed USCIS adjudicators to deny cases only when there was no possibility that the application could be corrected on an iterative basis.

USCIS director Francis Cissna said the memo is an “overdue policy change” that restores “full discretion to our immigration officers to deny incomplete and ineligible applications”.  “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners.”

Additionally, on June 28, 2018, USCIS introduced another policy memo which could potentially put H-1B workers into deportation proceedings even while he or she is challenging a denial.  In response, immigration lawyer, Cyrus Mehta stated “USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial”.  Attorney Mehta suggests H-1B extension petitions should be filed well in advance of the expiry date – the law allows six (6) months prior – so that a decision or general tilt is known while the applicant is still in status.

Read together, the memos can potentially put any foreign worker including H-1B into a lock step.

USCIS says the new policy is intended 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. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

 

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U.S. Army Quietly Discharging Immigrant Recruits

The Associated Press (hereinafter (“AP”) has reported that some immigrant U.S. Army reservists and recruits who enlisted in the military with a promised path to citizenship are being abruptly discharged.  While the AP was unable to quantify how many men and women who enlisted through the special recruitment program have been removed from the Army, immigration attorneys say they know of more than 40 who have been discharged or whose status has become questionable, jeopardizing their futures.

Some of the service members say they were not told why they were being discharged. Others who pressed for answers said the Army informed them they’d been labeled as security risks because they have relatives abroad or because the Defense Department had not completed background checks on them.

Spokespeople for the Pentagon and the Army said that, due to pending litigation, they were unable to explain the discharges or respond to questions about whether there have been policy changes in any of the military branches.

Eligible recruits are required to have legal status in the U.S., such as a student visa, before enlisting. More than 5,000 immigrants were recruited into the program in 2016, and an estimated 10,000 are currently serving. Most go the Army, but some also go to the other military branches.

To become citizens, the service members need an honorable service designation, which can come after even just a few days at boot camp. But the recently discharged service members have had their basic training delayed, so they can’t be naturalized.  Additionally, immigration attorneys told the AP that many immigrants let go in recent weeks were an “uncharacterized discharge,” neither dishonorable nor honorable.

Margaret Stock, an Alaska-based immigration attorney and a retired Army Reserve lieutenant colonel who helped create the immigrant recruitment program, said she’s been inundated over the past several days by recruits who have been abruptly discharged.  All had signed enlistment contracts and taken an Army oath, Ms. Stock said. Many were reservists who had been attending unit drills, receiving pay and undergoing training, while others had been in a “delayed entry” program, she said.  “Immigrants have been serving in the Army since 1775,” Stock said. “We wouldn’t have won the revolution without immigrants. And we’re not going to win the global war on terrorism today without immigrants.”

Non-U.S. citizens have served in the military since the Revolutionary War, when Continental soldiers included Irish, French and Germans. The U.S. recruited Filipino nationals to serve in the Navy in the 1940s, and worked to enlist Eastern Europeans in the military over the next decade, according to the Defense Department.  Since Sept. 11, 2001, nearly 110,000 members of the Armed Forces have gained citizenship by serving in the U.S. military, according to the Defense Department.

Army reservist Lucas Calixto, a Brazilian immigrant who resides in Massachusetts and came to the US when he was 12-years-old, filed a lawsuit in Washington D.C. against the Army alleging the Defense Department hadn’t given him a chance to defend himself or appeal. He said he was given no specific grounds other than “personnel security.”

In a statement, the Defense Department said: “All service members (i.e. contracted recruits, active duty, Guard and Reserve) and those with an honorable discharge are protected from deportation.”

President George W. Bush ordered “expedited naturalization” for immigrant soldiers in 2002 in an effort to swell military ranks. Seven years later the Military Accessions Vital to the National Interest program, known as MAVNI, became an official recruiting program.  It came under fire from conservatives when President Barack Obama added DACA recipients — young immigrants who were brought to the U.S. illegally — to the list of eligible enlistees. In response, the military layered on additional security clearances for recruits to pass before heading to boot camp.  The Trump Administration added even more hurdles, creating a backlog within the Defense Department. Last fall, hundreds of recruits still in the enlistment process had their contracts canceled. A few months later, the military suspended MAVNI.  Republican Congressman Andy Harris of Maryland, who has supported legislation to limit the program, told the AP that MAVNI was established by executive order and never properly authorized by Congress.  “Our military must prioritize enlisting American citizens, and restore the MAVNI program to its specialized, limited scope,” he said.

 

Federal Court Blocks Trump Administration’s Arbitrary Detention of Asylum Seekers

On July 2, 2018, a federal court blocked the arbitrary detention of asylum seekers fleeing persecution, torture, or death in their countries of origin. It also ordered a case-by-case review of whether each asylum seeker in the class-action lawsuit should be released on humanitarian parole. The ruling stems from a challenge brought by the American Civil Liberties Union, Center for Gender and Refugee Studies, Human Rights First, and Covington & Burling LLP.

Government policy stipulates that asylum seekers be granted humanitarian parole as they await their immigration proceedings, provided they meet a series of stringent requirements. Instead, the Trump administration has categorically jailed them indefinitely, in violation of the Constitution, U.S. immigration laws, and the Department of Homeland Security’s own written policy.

“This ruling means the Trump administration cannot use indefinite detention as a weapon to punish and deter asylum seekers,” said Michael Tan, senior staff attorney with the ACLU’s Immigrants’ Rights Project.

The lawsuit targets five (5) U.S. Immigration and Customs Enforcement (hereinafter “ICE”) field offices that have almost entirely stopped granting parole since early 2017. Those offices are Detroit (which covers Michigan and Ohio), El Paso (which covers New Mexico and West Texas), Los Angeles, Newark (which covers New Jersey), and Philadelphia (which covers Pennsylvania).

All the plaintiffs passed credible fear screenings — meaning a U.S. asylum officer has determined their fear of persecution is credible, and that they have a significant possibility of receiving full asylum. More than 1,000 asylum seekers are estimated to have been denied parole in those five ICE districts alone.

“Today’s decision will have an enormous impact on asylum seekers, who pose no risk, and are currently languishing in detention. It is a rejection of the Trump administration’s blanket policy of denying parole to those seeking seeking protection in this country. We hope that our clients and those like them will no longer be wrongly held in prison-like conditions,” said Human Rights First’s Legal Director Hardy Vieux.

Named plaintiff Ansly Damus — an ethics teacher from Haiti — has been locked up in Ohio for more than a year-and-a-half. Damus committed no crime. Rather, he had spoken out against a government official and was then forced to flee violent, political persecution. When he arrived in the U.S., he presented himself to immigration authorities and requested asylum. He passed his credible fear interview and was granted asylum by a judge — not once, but twice. Despite that, he has remained behind bars while the government appealed his grants of asylum. The Trump administration had put Damus behind bars indefinitely alongside thousands of other asylum seekers like him. ICE has not allowed him outside even once in over a year.

“I have not breathed fresh air or felt the sun on my face, and I never know if it is cold or hot outside, if the sun is out, and if the seasons are changing,” Damus said when the lawsuit was filed.

“The United States has long recognized its moral and legal obligation to protect refugees, including the right to seek asylum. People fleeing persecution should never be locked away just for asserting this right. Today’s decision recognizes that asylum seekers deserve compassion and the protection of our laws, not punishment,” said Eunice Lee, co-legal director of the Center for Gender and Refugee Studies.

The case, Damus v. Nielsen, was filed in U.S. District Court in Washington, D.C. It names the Department of Homeland Security (hereinafter “DHS”) and the Department of Justice (hereinafter “DOJ”) as defendants.

The ruling can be found at:

https://www.aclu.org/legal-document/memorandum-opinion-granting-preliminary-injunction

https://www.aclu.org/legal-document/order-granting-classwide-preliminary-injunction

17 States Sue Over Trump Family Separations

A coalition of 17 states filed suit in the U.S. District Court in Seattle on June 26, 2018 over President Trump’s family separation policy, arguing that it unconstitutionally infringes on parents’ rights and is motivated by “animus” toward Latinos.  Specifically, the lawsuit asserts that President Trump’s policy violates Fifth Amendment guarantees of due process and equal protection, federal asylum laws and a federal statute called the Administrative Procedure Act.

Stating Trump’s policy as “abhorrent and indefensible,” the lawsuit argues that the administration’s move to separate more than 2,000 immigrant children from their parents has harmed the interests of the states’ residents and interferes with the states’ ability to protect children from abuse.

The suit is led by Washington state Attorney General Bob Ferguson, who painted it as part of a broader campaign to resist Trump administration initiatives.

“This case, like all our cases against this Administration, says something important about who we are as a people,” Ferguson said. “We will stand up for the Constitution, basic decency and fundamental American values.”

It’s unclear how pivotal the state-led litigation will be in challenging Trump’s family separation policy, which he purported to reverse in an executive order last week as outrage built over the growing number of border-crossing families being split up as adults were taken to court for criminal prosecution.

The American Civil Liberties Union (hereinafter “ACLU”) has already moved to use a pre-existing lawsuit to get a judge to force reunification of children separated from their families. Other cases brought on behalf of individual parents are pending. And Trump has acknowledged that to implement his plan to shift to family detention, a federal court will have to modify a longstanding consent decree to permit children to be held for more than 20 days.

In addition to Washington, New York, and California, the new suit is backed by Massachusetts, Maryland, Oregon, New Mexico, Pennsylvania, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, Virginia, Vermont, North Carolina, Delaware and the District of Columbia.

Spokespeople for the Justice Department did not immediately respond to requests for comment on the suit.

Supreme Court Upholds Trump’s Travel Ban

On June 26, 2018, the US Supreme Court upheld President Trump’s travel ban targeting several Muslim-majority countries, in a significant victory for the administration and a blow to anti-discrimination advocates.  In a 5-4 ruling, the Court accepted the government’s argument that the ban was within the president’s power to craft national security policy and his authority to “suspend entry of aliens into the United States”.

The White House called the ruling “a tremendous victory for the American people” and said the Supreme Court “has upheld the clear authority of the president to defend the national security of the United States” despite “months of hysterical commentary from the media and Democratic politicians”.

Opponents of the ban have said it has not made the country safer, while singling out Muslims for unfair treatment and violating constitutional protections against discrimination on religious grounds.

Even as the court upheld the ban, Chief Justice John Roberts criticized Trump, and emphasized the importance of the principle of religious non-discrimination in US history.  “The president of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf,” Roberts wrote.“  Our presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this nation was founded.”  Roberts pointed out that George W Bush defended “the true faith of Islam” after the September 11 attacks and said America is “a great country because we share the same values of respect and dignity and human worth”.  “Yet it cannot be denied,” Roberts wrote, “that the federal government and the presidents who have carried its laws into effect have – from the nation’s earliest days – performed unevenly in living up to those inspiring words.”

Roberts’ opinion did not address the question of whether it was intended to exclude Muslims specifically.

In a dissenting opinion, Justice Sonia Sotomayor found “stark parallels” between Tuesday’s decision and Korematsu v United States, the 1944 ruling in which the Supreme Court upheld the internment of Japanese Americans.  The American Civil Liberties Union (hereinafter “ACLU”) also accused the court of repeating the Korematsu decision.

Roberts rejected the link to Korematsu, however.

ICE Arrests nearly 150 Meat Plant Workers in Northern Ohio

On June 19, 2018, unannounced Immigration Customs Enforcement (hereinafter “ICE”) raids resulted in the arrest of more than 140 workers at four (4) meat processing plants in Salem, Ohio.  ICE calls this its largest workplace raid in recent history.

According to Fresh Mark, who supplies bacon, ham, and hot dogs to businesses and sports complexes in Ohio, it is a member of ICE’s voluntary IMAGE (ICE Mutual Agreement between Government and Employers) Program.  Fresh Mark reportedly has been under investigation for a year.  The number of arrests made at the Fresh Mark locations tops the number made across the county at 7-Eleven locations in January of 2018, the 97 arrests made in April of 2018 at another meatpacking plant in Tennessee, and the 114 arrests made in early June of 2018 at a flower and garden center, also in Ohio.  Search warrants for documents were executed at two (2) of the Fresh Mark locations.  Most of those arrested were sent to processing facilities in Ohio and Michigan to begin removal proceedings for entering the country illegally and for using fake identity documents.  The workers who are in the country legally but did not have proper documentation with them at the time of the raid were released after officials determined they are authorized to work in the United States.

According to the company, it was one of the first companies in Ohio to become a member of ICE’s voluntary IMAGE Program.  As a member of the program, employers agree to:

  • Complete the IMAGE Self-Assessment Questionnaire/Application
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility policy, including an annual internal I-9 audit
  • Submit to a Form I-9 inspection
  • Review and sign the official IMAGE partnership agreement with ICE

For IMAGE members, ICE and United States Citizenship and Immigration Services (hereinafter “USCIS”) will provide education and training on proper hiring procedures, fraudulent document detection, and use of the E-Verify employment eligibility verification program.  Membership does not protect against enforcement actions.

H-1B Visa Rules Tightening For Outsourcing And Staffing Companies

The Trump Administration has been targeting outsourcing and staffing firms that use H-1B non-immigrant visas, the most popular employment-based visa for foreign professional workers. The Administration has issued guidance after guidance since March 2017 that add requirements for such firms.

Rather than hiring workers one by one, U.S. companies may engage outsourcing and staffing firms that obtain H-1B visas and hire groups of high-skilled foreign workers who then are placed with the U.S. company as needed. The Administration has targeted this business model.

As part of its effort to protect the U.S. workforce and prevent the abuse of immigration programs as outlined in the “Buy American, Hire American” Executive Order, the Trump Administration has targeted outsourcing and staffing firms that use H-1B visas. The Administration said abuses of the H-1B program, such as not paying the required wage or having workers do “non-specialty occupation” work, harm the U.S. workforce and are more likely to occur at third-party worksites.

On March 31, 2017, the U.S. Citizenship and Immigration Services (hereinafter “USCIS”) published new guidance aimed at outsourcers and others who might be trying to bring technology workers (i.e., computer programmers) to the U.S. at lower salary ranges. The guidance suggested that computer programmer positions might not be “specialty occupations” and, therefore, might not be eligible for H-1B visas. The USCIS warned employers that H-1B petitions for computer programmers would be subject to greater scrutiny. In the first eight months of 2017, USCIS issued more than 85,000 Requests for Evidence (RFEs) asking for more evidence on H-1B petitions. This was an increase of 45 percent over the previous year and the highest number since 2009.

On April 3, 2017, the Department of Justice (hereinafter “DOJ”) reminded employers not to discriminate against U.S. workers with hiring practices that favor H-1B workers. Having a discriminatory preference for using outsourcing firms was one example given. The agency noted that it was committed to “vigorously prosecuting” such claims of discrimination.

That same day, USCIS announced that Fraud Detection and National Security (hereinafter “FDNS”) site visits would be more targeted, including a focus on H-1B workers who work off-site at another company or organization’s location.

In March 2018, USCIS issued new guidance clarifying requirements for H-1B petitions involving third-party worksites. According to the guidance, evidence is required to show that the beneficiaries who work at third-party locations will be employed in a specialty occupation throughout the requested period. Evidence also is required to show that the petitioner maintains an employer-employee relationship with the beneficiary throughout that period. The evidentiary requirements are onerous. They include:

  • Detailed evidence of work assignments;
  • Copies of all contractual agreements between all parties;
  • Itineraries with specific dates and locations; and
  • Copies of detailed statements of work signed by the end-user client.

With this guidance, the USCIS confirmed that no deference would be given to prior adjudications.

In April 2018, USCIS introduced restrictions on staffing agencies hiring OPT STEM students. The optional practical training (hereinafter “OPT”) program for international F-1 visa students with U.S. degrees in science, technology, engineering, or mathematics (hereinafter “STEM”) allows these students to remain in the U.S. for up to 36 months after obtaining their degrees to pursue degree-related work experience. The newest restriction states that to be eligible for OPT STEM training, there must be a bona fide employment relationship and the training should take place on-site at the employer’s place of business, unless it could be shown that the trainee was being actively supervised by the employer at the third-party location.

Several small technology staffing companies and a trade organization, the Small and Medium Enterprise Consortium, have filed suit in New Jersey federal court seeking a temporary restraining order against USCIS enforcing the new requirements. The plaintiffs noted that the H-1B program was designed to ease the critical shortage of technology workers in the U.S. The case is still pending.

More changes may be coming for H-1B workers at third-party worksites. Reportedly under consideration is the addition of a section to the H-1B Labor Condition Application (hereinafter “LCA”) forms to require the name and address of third-party worksites. Employers seeking to hire under the H-1B visa program must first complete an LCA to provide certain information to the Department of Labor regarding wages, working conditions, and benefits available to the foreign workers. Currently, an address is required, but not the name of the company. This change will make the names of companies who use outsourcing and staffing firms public record and may be part of the Administration’s “name and shame” agenda.

For the first time on record, according to the Department of Labor (hereinafter “DOL”), the number of U.S. job openings exceeds the number of job seekers. Further, at the end of May 2018, the unemployment rate was 3.3 percent for adult men and women, the lowest level since 2000.

Given the current low unemployment in the U.S., the Administration’s economic purpose in targeting outsourcing and staffing firms is unclear. The newest guidance and OPT STEM rules are on course to stifle the ability of technology staffing companies to serve their clients.

USCIS to Implement Online Processing of FOIA Requests

On May 30, 2018, U.S. Citizenship and Immigration Services (hereinafter “USCIS”) announced the launch of our Freedom of Information Act (hereinafter “FOIA”) Immigration Records SysTem (hereinafter “FIRST”), which will eventually allow users to submit, manage, and receive FOIA requests entirely online.  Before this change, USCIS only accepted FOIA requests by mail, fax, and email, and requestors typically received their documents on a compact disc by mail.

USCIS is commencing FIRST’s digital delivery of services in phases. Initially, requestors who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally, eliminating the time and expense associated with receiving requests by mail.

Through their account, requestors can track the status of their FOIA cases and will receive email notification when USCIS has uploaded their records. In the coming months, this digital delivery option will be expanded to all FOIA and Privacy Act requestors. When FIRST is fully operational, requestors will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents. USCIS will notify the public as additional services become available.

FIRST is part of the agency’s ongoing effort to move the nation’s legal immigration system away from paper-based services to digital transactions.

FOIA provides the general public an avenue to request access to a variety of public information from federal agencies. Like all federal agencies, USCIS is required to disclose such records and information upon receiving a request.

New USCIS Office Investigating US Citizenship Through Identity Fraud

A new office under U.S. Citizenship and Immigration Services (hereinafter “USCIS”) has been created to investigate naturalization applications.  Specifically, the office is tasked with reviewing U.S. citizenship applications where it is alleged that false identities or documentation were used.

USCIS claims they have identified at least 3,000 potential fraud cases as a part of its ongoing review of more than 300,000 fingerprint records uploaded to a Department of Homeland Security (hereinafter “DHS”) database beginning in 2014.

The targeted review stems from a 2016 DHS inspector general report that found roughly 315,000 old fingerprint records for people who had been deported or had criminal convictions had not been uploaded to a DHS database of immigrants’ identities.  As immigration authorities enrolled the paper records into the DHS system, they discovered hundreds of cases where an alien with an order of removal under one name had been naturalized under another identity.

The records in question were taken by the now-defunct Immigration and Naturalization Service in the 1990s and early 2000s, before DHS’s biometric database — IDENT — was created.

Immigration authorities have reviewed 167,000 of the formerly missing records to date, and about 2,000 of them matched names of people who have naturalized, according to USCIS officials. Of that number, an estimated 1,600 — or 80 percent — of the naturalizations appear to be fraudulent. If that rate holds, USCIS estimates there will be another 1,400 to 1,600 naturalization fraud cases within the second batch of 148,000 fingerprint records, Renaud said.

USCIS Director Francis Cissna revealed the office will fall under the agency’s Los Angeles district and is expected to comprise dozens of attorneys and immigration officers with years of experience handling naturalization cases.  “The new USCIS office in southern California will serve as a centralized location to review and initiate the civil denaturalization process against individuals who had been ordered removed and intentionally used multiple identities in order to defraud the government and the American people to obtain citizenship,” USCIS spokesman Michael Bars said in a statement.

The new office builds on the work of a similar unit that USCIS set up in its Los Angeles field office in January 2017.  Although that team of about a dozen officials is much smaller than the new office is expected to be, it has managed to refer 95 cases to the Department of Justice (hereinafter “DOJ”) for civil denaturalization, according to USCIS figures.

The creation of an office to investigate potential naturalization fraud does not change how cases are ultimately resolved.  Current law requires a USCIS official to prepare an affidavit of good cause, which the DOJ’s Office of Immigration Litigation uses to file a civil lawsuit against a person who is alleged to have fraudulently obtained citizenship.  Denaturalization cases are heard in federal court and only a judge has the authority to strip someone of U.S. citizenship.

Under Attorney General Jeff Sessions, the DOJ has pursued a series of high-profile denaturalization cases against people who lied to immigration officials while applying for citizenship.

USCIS Policy Change Could Bar Many International Students

A May 10, 2018 U.S. Citizenship and Immigration Services (hereinafter “USCIS”) memo, may result in many international students who unknowingly violate their immigration status from being barred from the United States for 10 years.

This Policy Memorandum provides guidance to USCIS officers and assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States. The memo also revises previous policy guidance in the USCIS Adjudicator’s Field Manual (hereinafter “AFM”) relating to this issue.

Citing technological developments that now allow for more precise tracking of compliance with academic and training programs, USCIS will rely on the information entered by the school/training sponsor in the Student and Exchange Visitor Information System (hereinafter “SEVIS”) administered by Immigration and Customs Enforcement (hereinafter “ICE”).

The effective date of the information contained within the memo is August 9, 2018.  Starting on that date, USCIS will change 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.

International educators are concerned the new USCIS policy on “Accrual of Unlawful Presence” will harm students.  The proposed change is operationally complex and may lead to wrongly identifying a large number of foreign students and exchange visitors as failing to maintain lawful status, thus unfairly subjecting them to the 3-year, 10-year, or permanent bars to re-entry to the United States.