Search
Contact
Login
Share this article
U.S. Citizenship and Immigration Services (USCIS) announced today it will implement the second phase of its policy memo on the issuance of “Notices to Appear” in cases involving inadmissible and deportable foreign nationals beginning Nov. 19, 2018.
The policy memo issued by USCIS earlier this year generally expands the agency’s discretion to issue a Notice to Appear (NTA) to individuals whose petition or application with USCIS is denied. The NTA is an official charging document USCIS issues as the first step to initiating removal proceedings and arguing the reasons why the recipient is no longer eligible to stay in the U.S. The NTA also instructs the recipient to appear before an immigration judge.
Key points:
Background: The updated policy memo was issued in June 28, 2018. Under the new policy, individuals whose petition or application is denied by USCIS will no longer be in a period of authorized stay and may be issued an NTA that starts deportation proceedings. Implementation of the policy was delayed, however, and the agency decided to carry it out in phases. The first phase, implemented on Oct. 1, 2018, concentrated on denied I-485 and I-539 applications.
BAL Analysis: Implementation of the policy for employment-based petitions and applications will continue to be delayed at this time and individuals receiving denials should therefore not receive a Notice to Appear on the basis of a denied employment-based petition. USCIS has said it will continue to take an incremental approach to implementing the policy. The agency will hold a stakeholder engagement on Nov. 15, 2018, at 2 p.m. EST on the policy memo and respond to pre-submitted questions. Information on attending is available here and USCIS will post updates on implementation of the NTA policy on a dedicated Notice to Appear Policy Memorandum page. BAL will continue to monitor future phases of this policy.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The Ninth Circuit U.S. Court of Appeals has affirmed a nationwide preliminary injunction issued in January by a California court that prevented the administration from immediately ending the Deferred Action for Childhood Arrivals (DACA) program, and required the Department of Homeland Security (DHS) to continue accepting renewal applications.
Background: In its ruling on Thursday, the Ninth Circuit rejected the administration’s argument that the decision to rescind DACA could not be reviewed by the courts, and agreed with the lower court that the plaintiffs were likely to succeed in their claims. The plaintiffs, including several states led by California and individual DACA recipients, contend that the rescission of DACA was arbitrary and capricious, the administration did not follow the rulemaking process required by the Administrative Procedure Act, and the rescission violated their rights to due process and equal protection.
Earlier this week, before any appellate courts had ruled, the Trump administration sought Supreme Court review of the cases. In February, the Supreme Court denied a previous request by the administration to fast-track the DACA cases.
BAL Analysis: The appeals court ruling does not change the status quo. For now, DHS will continue accepting renewal applications under the DACA program, but not new applications. The administration’s request for Supreme Court review earlier this week seemed unlikely to be granted, given the fact that none of the appeals courts had yet ruled. However, now that the Ninth Circuit has issued a ruling, the Supreme Court could agree to take the case in the spring 2019 term. BAL will continue to provide updates as the DACA litigation progresses.
Travelers planning international trips to or from the U.S. in the coming months can reduce delays and last-minute headaches by planning now for the peak holiday travel season and observing the following tips:
Check your passport.
Check your visa.
Take advantage of trusted traveler programs.
Frequent travelers to the U.S. may wish to apply for membership in a trusted traveler program, such as Global Entry, NEXUS, SENTRI or FAST. The programs allow members to use automated airport clearance and streamlined customs for faster entry into the U.S.
Allow extra time.
Travelers should leave early for their departures and expect longer-than-normal lines at airport security checkpoints.
In addition to the tips above, the U.S. government also provides useful guidance for hassle-free holiday travel. The State Department website includes tips for preparing for emergencies, driving overseas, bringing copies of travel documents, handling money, learning about local laws, vaccinations, health insurance and packing prescription medicine. U.S. Customs and Border Protection suggests that travelers crossing U.S. land borders use less-popular routes, keep travel documents handy, be prepared to declare all items upon returning to the U.S., and download the Border Wait Times app for current information on ports of entry at the borders with Canada and Mexico. Travelers are also reminded of the potential travel ban for certain nationalities and the infrequent use of extreme vetting in some visa interviews.
BAL is available to assist employers and individuals in need of additional information or more tailored advice.
A pilot program that was scheduled to expire Wednesday for Canadian nationals applying for L-1 visas at the Blaine, Wash. port of entry has been extended through April 30, 2019.
Background: The pilot program is a joint initiative between CBP and USCIS. It began April 30, 2018 and was set to expire Oct. 31.
BAL Analysis: While this program may at some point be extended to all Canadian posts in order to centralize processing at the Service Centers, at this point it is still limited to the Blaine port of entry. USCIS and CBP encourage employers using the pilot program to file their petitions as far in advance of travel as possible. The agencies are seeking feedback on the pilot program from Canadian citizens and their employers via email at public.engagement@uscis.dhs.gov. Comments will be used when the agencies consider extending the program to other points of entry.
U.S. Citizenship and Immigration Services has issued a policy memorandum that details changes in how it will calculate the validity period of the medical exam that green card applicants submit in support of their adjustment-of-status applications.
Background: Green card applicants are required to undergo a medical exam and obtain a signed Form I-693 from a USCIS-certified physician (“civil surgeon”) to submit in support of their green card application. Under current policy, Form I-693 is valid for one year from the date of its filing with USCIS. The new policy effectively doubles the period of time that the medical exam will remain valid while USCIS adjudicates the green card application.
BAL Analysis: Applicants will be required to obtain their medical examinations no earlier than 60 days prior to the date of filing their adjustment-of-status applications, but should be less likely to need to update an expired medical exam.
The Department of Homeland Security has announced that Temporary Protected Status beneficiaries for El Salvador, Nicaragua, Haiti and Sudan will retain their TPS designation while a lawsuit challenging the termination is pending. The announcement comes in response to a preliminary injunction issued by a federal judge that blocked DHS from implementing and enforcing its plan to terminate TPS designations for the four countries. The court ordered DHS to implement procedures to ensure that TPS remained in effect during the lawsuit.
Background: Last month, the U.S. District Court for the Northern District of California in Ramos v. Nielsen, No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) issued a nationwide temporary injunction that blocked DHS from terminating TPS for the four countries. TPS beneficiaries from the four countries and their U.S. citizen children challenged the termination of the program as violating rulemaking procedures and constitutional protections against discrimination. DHS announced late last year and early this year that it was terminating several TPS designations, including Sudan on Nov. 2, 2018, Nicaragua on Jan. 9, 2019. Haiti on July 22, 2019, and El Salvador on Sept. 9, 2019.
BAL Analysis: At this time, TPS beneficiaries of the four countries do not need to take any action. Employers should be aware of the automatic extension of EADs for Sudanese and Nicaraguan TPS beneficiaries and of the extension of the TPS designation for El Salvador and Haiti while the lawsuit and injunction is pending. BAL will provide updates on the lawsuit and any changes to TPS designations as a result of the litigation.
President Donald Trump plans to sign an executive order that would end the right to citizenship based on birth in the United States for children born to undocumented immigrants, according to an interview he gave to Axios.
The president said he has been told that he can amend the 14th Amendment of the Constitution without Congressional consent and “just with an executive order.”
Background: The first clause of the 14th Amendment, known as the citizenship clause, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The long-established view of the executive branch and the courts is that undocumented immigrants are “subject to the jurisdiction” of the U.S. Conservatives who want to limit birthright citizenship have argued that the term “jurisdiction” should be read to mean “complete jurisdiction” based on undivided allegiance to the U.S. and mutual consent between the U.S. government and the individual, which they argue undocumented parents do not have.
BAL Analysis: Although Congress has at times contemplated changes to the 14th Amendment through legislation, the executive branch has never seriously considered unilaterally changing its interpretation of it. An executive order would be subject to legal challenge and we anticipate a court would enjoin implementation of the executive order pending legal review. The president’s statement—just days before the mid-term election—is best viewed as a political pronouncement intended to rally his supporters who care about illegal immigration. The likelihood of the administration successfully changing birthright citizenship is remote.
Read BAL legal analysis here.
A new version of the Labor Condition Application for Nonimmigrant Workers (LCA, Form 9035) is expected to be published in the coming days. The form will include a new requirement that H-1B sponsors provide the name of the end-user company if the H-1B worker will be working at a site owned and operated by an end client.
BAL Analysis: H-1B petitioners should prepare to begin providing the legal business names of clients who will be hosting H-1B workers at their sites. BAL is closely monitoring these developments and will provide additional updates on the substantive changes in the new LCA and the timeline for implementation.
The Department of Homeland Security published an updated regulatory agenda this month, indicating that the Trump administration will continue to pursue plans to reform the H-1B annual allotment process and terminate H-4 work authorization, among other regulatory priorities. Here are some of the administration’s key proposals on employment-based immigration:
BAL Analysis: Most of the proposals in the regulatory agenda were already under consideration, though in many cases publication timelines have changed.
Regulatory changes do not take effect immediately—it usually takes a minimum of three months after a proposed regulation is issued before a final rule is published. When an agency publishes a proposed rule, members of the public are given the opportunity to submit formal comments to the government. The government agency is then required to review and consider these comments in drafting a final regulation. Typically, a regulation does not become effective immediately and has a 30-day delayed effective date.
Employers are encouraged to work with BAL to plan for possible changes, as well as to participate in the public comment period to help influence the direction of any new regulations. BAL will continue to provide clients with information on these and other regulatory and policy changes as it becomes available.
U.S. Citizenship and Immigration Services is expected to soon begin taking regulatory steps to reform the H-1B lottery system. The agency has announced that it will propose the following three changes:
Flipping the order of the H-1B lotteries. Under law, the number of cap-subject H-1B visas cannot exceed 65,000 per year, with an additional 20,000 set aside for applicants with a U.S. master’s degree or higher. Currently, USCIS runs the computer-generated lottery for applicants with a master’s degree first, putting any applicants that are not selected in the “master’s cap” into the broader lottery, which is conducted second.
USCIS is expected to propose changing the order of the lotteries, a move that would increase the chances for master’s degree holders being selected. It is not yet clear whether USCIS will use the formal rulemaking process for this proposal, but the agency has said it intends to apply the new process to April 2019 H-1B cap filings. The change would not affect the H-1B application process for employers or employees and only impacts USCIS’s internal processes.
Requiring companies to “pre-register” for the H-1B lottery. This change was proposed in 2011 but never adopted. Assuming that USCIS uses a similar framework, employers would submit a registration for each beneficiary they intend to sponsor for a cap-subject H-1B visa. USCIS would select registrations that would roughly correspond to the maximum number of H-1B visas available under the cap. Companies would then be permitted to file complete Labor Condition Applications and H-1B petitions for only those beneficiaries whose registrations were selected.
This change would have a significant impact on employers. While USCIS has said employers would save resources they would normally spend on compiling full H-1B petitions, it is possible that if the registration window is too close to April 1, companies would end up expending significant time and resources to prepare petitions anyway. USCIS Director L. Francis Cissna has said he intends to have this change implemented before the 2019 lottery, which may be an aggressive timeline given how long the formal rulemaking process takes and because of competing agency priorities. The possibility of litigation also adds to the uncertainty.
Prioritizing H-1B visa number allocation based on wages, education or other criteria. This proposal stems from a 2017 Executive Order by President Donald Trump directing relevant government officials to prioritize allocation of H-1B visas for “the most skilled or highest-paid petition beneficiaries.” BAL anticipates that USCIS will issue a notice of proposed rulemaking that solicits comments on how USCIS should prioritize H-1B allocation in line with the president’s order. While this proposal could have a sweeping impact on H-1B visa allocation, few details on any potential changes are available at this point. It is too early to say whether USCIS will be in a position to implement any changes in the next six months.
BAL Analysis: While the changes that are being discussed are significant, no proposals have yet been published. The extent to which these planned reforms will affect companies’ H-1B cap planning for April 2019 will depend on the timing and method by which USCIS proposes them. BAL will continue following potential changes to the H-1B program and will update clients as news develops. A more detailed analysis of the reforms USCIS is considering is available here.