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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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The House of Representatives recently made a bold move that could give undocumented farmworkers a pathway to permanent residence.

Yesterday, December 11, 2019, by a vote of 260-165, the House passed the Farm Workforce Modernization Act, a progressive bill that if approved by the Senate, would create several exciting opportunities for undocumented farmworkers as well as U.S. employers.

What does the Bill propose?

The bill would allow existing agricultural workers in the United States to legalize their status through continued agricultural employment and contribution to the United States economy.

Which workers would be eligible for Permanent Resident Status?

Earned Pathway to Legalization

  • Individuals who have worked in agriculture in the U.S. for at least 10 years before enactment of the bill, must continue to work for at least 4 more years in agriculture on Certified Agricultural Worker (CAW) status before being eligible to apply for permanent residence OR
  • Individuals who have worked in agriculture in the U.S. for less than 10 years, must work at least 8 more years in agriculture on CAW status before being eligible to apply for permanent residence
    • Applicants who qualify based on one of these criteria would be required to pay a $1,000 fine

In addition, the bill would:

  • Create a new temporary worker visa program for current unauthorized farmworkers called Certified Agricultural Worker (CAW) status. CAW visas would be renewable and five-and-a-half years in length. The number of CAW visas would be uncapped.
  • Establish eligibility requirements of the CAW visa.Unauthorized immigrants who have spent at least 180 days of the last two years in agricultural employment would be eligible for the Certified Agricultural Worker Visa.
  • With few exceptions, applicants must meet existing work visa admissibility requirements to be eligible and must pass a criminal background check.
  • Felons and those who have been convicted of multiple misdemeanors (two or more offenses of moral turpitude or three offenses in general) would not be eligible.

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As previously reported, the government has issued a new final rule in the Federal Register entitled “Visas: Ineligibility Based on Public Charge Grounds,” giving consular officials wide discretion to deny immigrant and nonimmigrant visa applications on public charge grounds.

In line with this new rule, today October 24, 2019, the Department of State issued a 60-day notice in the Federal Register alerting consular applicants of the agency’s plan to require immigrant visa applicants to complete Form DS-5540, a Public Charge Questionnaire to determine whether the applicant is likely to become a public charge. Public comments will be accepted up to December 23, 2019. Comments may be submitted by going to www.Regulations.gov and entering ‘‘Docket Number: DOS–2019–0037’’ in the Search field.

Why is Form DS-5540 being proposed?

According to the 60-day Notice:

The Department seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient and will not rely on public resources to meet their needs, but rather, will rely on their own capabilities, as well as the resources of sponsors.

Through the DS–5540, the Department will collect information in a standardized format regarding applicants’ ability to financially support themselves following entry into the United States, without depending on government assistance.

Fields primarily pertain to the applicant’s health, family status, assets, resources, financial status, education, skills, health insurance coverage, and tax history. The DS–5540 would also require applicants to provide information on whether they have received certain specified public benefits from a U.S. Federal, state, local or tribal government entity on or after October 15, 2019.

Consular officers will use the completed forms in assessing whether an applicant is likely to become a public charge and is thus ineligible for a visa under section 212(a)(4)(A) of the Immigration and Nationality Act (‘‘INA’’).

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On Friday October 11, 2019, three Federal courts in California, New York, and Washington issued three temporary injunctions blocking the Trump administration from enforcing the Public Charge rule on a nationwide basis, which was set to go into effect on October 15, 2019.

The decision to block the government from enforcing the Public Charge rule is sure to set off a contentious legal battle that is just beginning to unfold.

California’s Injunction

In California, the City of San Francisco, State of California, and La Clinica de La Raza, a health care provider, joined together as plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), and the President of the United States to prevent the Public Charge rule from going forward.

U.S. District Judge Phyllis Hamilton granted the Plaintiffs a preliminary injunction bringing a temporary stop to the government’s plans to enforce the rule, in states falling under the purview of the U.S. District Court of Appeals for the Ninth Circuit.

Judge Hamilton wrote that in seeking to enforce the final rule, the government failed to consider the impact the rule would have on local and state governments when immigrants chose to leave public health benefit program, “[DHS] made no attempt, whatsoever, to investigate the type or magnitude of harm that would flow from the reality which it admittedly recognized would result—fewer people would be vaccinated,”

Washington’s Injunction

Similarly in a separate but related lawsuit, the States of Washington, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island joined together as Plaintiffs to sue the United States Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security (DHS), the heads of these agencies, and the President of the United States.

The Washington injunction was more sweeping in scope in that the Federal Judge in that case, Rosanna Malouf Peterson, ordered a nationwide injunction forcing the government to refrain from implementing or enforcing the rule on a temporary but nationwide basis. In her decision Judge Peterson wrote, “the Court declines to limit the injunction to apply only in those states within the U.S. Court of Appeals for the Ninth Circuit.”

As a result, the broad scope of the injunction prevents the government from enforcing the Public Charge rule on a nationwide basis.

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On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

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In this post we bring you the latest immigration news.

Final Rule Inadmissibility on Public Charge Grounds

The Department of Homeland Security has posted the official version of final rule “Inadmissibility on Public Charge Grounds,” in the Federal Register.

The Final Rule will become effective at 12:00 a.m. EST on October 15, 2019.

Who does the rule apply to?

The rule will be applied to applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

The rule will not apply to applications and petitions pending with USCIS prior to October 15, 2019.

To read the official version of the rule please click here.

USCIS Completes Return of Unselected H-1B Petitions

As of August 15, 2019, USCIS has returned all FY2020 H-1B cap-subject petitions that were not selected in the lottery. Unselected petitions contain a rejection notice explaining that the petition was not selected in the lottery.

If you submitted a FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you do not receive a receipt notice or returned petition by August 29, 2019, contact USCIS for assistance.

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Several months ago, we reported that the United States Citizenship and Immigration Services (USCIS) amended its policy regarding the issuance of Notice to Appear (NTA) documents in removal proceedings.

During the month of June, USCIS released a policy memorandum indicating the agency’s intent to revise NTA policy to better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States.” NTAs are documents that are issued to alien’s subject to removal from the United States. Issuance of an NTA initiates the process of removing an individual from the United States.

Specifically, the Executive Order 13768 called on DHS to “prioritize the removal of aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4) … who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.”

In addition, the Executive Order called for the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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“Fake Dates” Appear on Notices of intent to Deny

Across the nation, news outlets are reporting that dozens of individuals have received court orders from Immigration and Customs Enforcement (ICE) ordering them to appear in court by a certain date.

The problem? When these individuals showed up to court on the date indicated on the notice, they were turned away by court staffers who notified them that their names were not listed on the judge’s official dockets.

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, “aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as aliens “who, regardless of the basis for removal:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense that has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but have not departed; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security”

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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