Visa Lawyer Blog

Articles Posted in Undocumented Immigrants

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On Friday August 31, 2018, Texas District Judge Andrew Hanen declined to issue a preliminary injunction that would have put a stop to the DACA program immediately. As we previously reported, the fate of the DACA program now rests in Judge Hanen’s hands, who is currently presiding over a lawsuit filed by the State of Texas along with seven other states (State of Texas, et al., v. the United States of America, et al.). At issue in that case is (1) whether the creation of DACA violated the Constitution (2) whether the DACA program violates the substantive and procedural requirements of the Administrative Procedure Act.

Texas, along with other states, are collectively asking the Court to provide declaratory and injunctive relief temporarily halting the DACA program, as well as a court ruling finding the DACA program unconstitutional. According to Texas, the DACA program is illegal because its creation violated the procedural and substantive aspects of the Administrative Procedure Act. In addition, Texas argues that the program violates the Take Care Clause of the U.S. Constitution.

On Friday, the judge issued a ruling on the States’ collective request for a preliminary injunction to temporarily stop the government from issuing or renewing DACA permits. In response to the States’ request for a preliminary injunction, Judge Hanen wrote a lengthy 117-page opinion drawing on the need to exercise judicial restraint with regard to DACA, “the failure of Congress to act [with regard to DACA] does not bestow legislative authority on either the Executive or Judicial branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States….”

Hanen sealed his opinion with a forceful statement regarding his sentiments toward DACA, “Unfortunately the Judiciary is not the branch of government designed to salvage a program that should have emanated from Congress, or at the very least complied with the APA…This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”

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A federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. The new ruling gives the Trump administration a 20-day deadline to implement the complete restoration of the program or file an appeal. The District Court judge behind the order stated in his ruling that the Trump administration failed to justify its decision to end the DACA program, which protected approximately 800,000 young adults from deportation.

The Trump administration plans to appeal the ruling using the 20-day delay granted by the judge in the ruling. Today the attorney general, Jeff Sessions, issued a statement following the court decision stating that the Trump administration strongly disagrees with the decision adding that, “The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.”

The attorney general claimed that the Obama administration “violated its duty to enforce our immigration laws” by allowing the establishment of the DACA program and the catch and release policy,” that the current administration not only had the authority to withdraw from the DACA program but had a duty to do so. The Trump administration has interpreted recent court decisions contradicting the termination of the DACA program as an improper use of judicial power.

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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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TPS Extended for Somalian Nationals

Today, July 19, 2018 the Secretary of Homeland Security, Kirstjen M. Nielsen, announced that the TPS designation for Somalia will be automatically extended for 18 additional months. Somalian nationals with TPS benefits will have the opportunity to re-register for an extension of their TPS benefits for a period of 18 months through March 17, 2020.

This automatic extension has been granted because the Secretary has determined that conditions continue to exist to support Somalia’s TPS designation. It is estimated that approximately 500 Somalian nationals have TPS benefits. This group of individuals may continue to remain in the United States on a lawful basis with work authorization benefits through March 17, 2020, so long as they re-register when the re-registration period opens.

Sanctuary states sue the federal government over withholding of government funding

Several states including New York, Connecticut, New Jersey, Washington, Massachusetts, and Virginia, are suing the federal government, challenging the Trump administration’s decision to withhold government funding for sanctuary cities who refuse to cooperate with federal agents in the detention of undocumented immigrants. According to these states, the federal government is seeking to coerce “sanctuary cities” by forcing local law enforcement officials to act as federal immigration agents.

Last year, the President signed the controversial executive order, “Enhancing Public Safety in the Interior of the United States,” requiring local law enforcement to notify federal agents regarding the release of undocumented immigrants from state detention centers, or risk losing federal government funding.

Section 9 of the Executive Order states:

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DHS Statement on Family Reunification

The Department of Homeland Security recently issued a statement outlining the administration’s four-point plan to reunite minor children separated from their parents at the border. Beginning July 10, 2018, HHS and DHS will coordinate the reunification of children under 5 years of age currently in the custody of HHS, with parents who are in DHS custody.

#1 Verification of Parental Relationship

The administration will first ensure that a parental relationship with the child has been verified before reunifying the child with his or her parent. In addition, the parent must undergo a background check to ensure that reunification will not compromise the safety and welfare of the child. If a parent is found unsuitable for reunification purposes, in the course of a background check, the child will not be reunified with the parent. Parents who are in the custody of the U.S. Marshall or in a state or county jail for other offenses may not be reunified with their child.

#2 Transportation of Parents to ICE custody

Parents separated from their children will be transported to ICE custody where they will be reunited with their parents. Beginning July 10, 2018, DHS will coordinate physical reunification of minor children under 5 years of age with parents transported to ICE custody, provided the parent has been cleared for parentage and poses no danger to the child.

#3 Preparation of Children under Five Years of Age for Transportation

The Office of Refugee Resettlement (ORR) will coordinate transportation of minor children under the age of five for reunification purposes. Children will be transported under supervision and their possessions will be brought with them to ICE custody.

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In this post, we bring our readers important information regarding revisions to the Notice to Appear “NTA” policy guidelines. On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released new policy guidance outlining the Department’s priorities for enforcement and removal of undocumented immigrants from the United States.

Form I-862 also known as a Notice to Appear is a document that is given to an individual to initiate removal proceedings. The Notice to Appear instructs the individual of a date and time to appear in immigration court for removal proceedings.

To better align with the President’s Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication,” of cases filed with USCIS. The revised policy does not apply to recipients and requestors of Deferred Action (DACA) when (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. For this class of individuals the 2011 NTA guidelines will apply.

The President’s Executive Order 13768 specifically calls 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 prioritizes 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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A recent Supreme Court decision may enhance the pool of individuals eligible for cancellation of their removal proceedings. Cancellation of removal is a form of relief granted to individuals unlawfully present in the United States, who have been physically present in the United States continuously for a period of no less than 10 years, immediately preceding the date of an application for cancellation of removal. Under 8 U.S.C. section 1229(b)(1)(A), however the period of continuous presence ends when the alien has been served with a notice to appear in immigration court, also known as an “NTA.” A notice to appear is a document issued by the government that initiates a noncitizen alien’s removal proceedings.

Section 1229(d)(1)(A) mandates that the United States government must serve noncitizens in removal proceedings with a written “notice to appear,” specifying the time and place where the removal proceedings are expected to take place.

However, the Department of Homeland Security has followed a regulation dating back to the year 1997 wherein the agency has failed to notify noncitizens of the time, place, or date of initial removal hearings “whenever the agency deems it impracticable to include such information.”

The Board of Immigration Appeals (BIA) has held that even though these notices do not specify the time and date of removal proceedings as required by 8 U.S.C. section 1229(b)(1)(A), the period of continuous presence is still considered to have ended at the time the notice to appear (NTA) is served on the noncitizen alien.

The 1997 regulation along with the BIA ruling has created problems for individuals who would otherwise qualify for cancellation of removal under section 1229(d)(1)(A) of the law, because a deficient NTA served upon a noncitizen would mean that the individual would continue to remain physically present in the United States, despite being served with a deficient NTA.

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Return of Unselected Petitions for H-1B Applicants FY 2019 Begins

H-1B applicants who were not selected in the H-1B visa lottery for fiscal year 2019 will begin to receive their rejected applications from the Vermont Service Center and California Service Center. Our office expects to receive returned packages within the next few months. If you were not selected in the lottery, there are several alternatives that you may be interested in. To read all about these alternatives please read our helpful blog post here.

USCIS Adjustment of Status Filing Dates July 2018

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On Wednesday June 20, 2018, President Donald Trump signed executive order, “Affording Congress an Opportunity to Address Family Separation,” in response to mounting outrage over the administration’s controversial policy of separating immigrant parents from their children at the border.

The executive order clarifies that it will remain the policy of the United States to detain and remove aliens who have unlawfully entered or attempted to enter the United States outside of a designated port of entry, and that such individuals remain subject to a fine or imprisonment under U.S. law. The administration however promises to maintain family unity “by detaining alien families together where appropriate and consistent with law and available resources.”

What the order does

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Today, Monday June 11, 2018, in an unprecedented move, the Trump administration announced that it would be dropping asylum protection for survivors of domestic violence. The announcement was made by Attorney General Jeff Sessions this afternoon in the case Matter of A-B- 27 I&N Dec. 316 (A.G. 2018), which explained that victims of domestic violence would no longer be eligible to receive asylum in the United States.

Matter of A-B- 27 effectively reverses a decision formerly made by the Department of Justice immigration appellate court which granted asylum to a woman from the country of El Salvador on the basis of allegations of rape and abuse by her husband.

In his decision, dated June 11, 2018, the Attorney General overruled a separate but similar decision in Matter of A-R-C-G-, stating that the case was “wrongly decided” by the appellate court and should not have become precedent. The Attorney General was able to make such a binding decision on immigration courts across the country because their authority derives directly from the Department of Justice, instead of the judiciary branch.

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