Last week the U.S. District Court for the Eastern District of California issued its ruling in United States of America v. State of California.  Fox Rothschild’s Jeffrey D. Polsky, L&E Department Co-Chair offers an insightful summary of the decision, which has implications for both immigration law and California employment law.  To view Jeff’s post on our California Employment Law blog, click here https://californiaemploymentlaw.foxrothschild.com/2018/07/articles/advice-counseling/court-addresses-conflict-between-state-and-federal-immigration-requirements/.

 

In April 2018, U.S. Attorney General Jeff Sessions announced a “zero-tolerance policy” administered by CBP and ICE to criminally prosecute every adult who illegally crossed the border, or tried to do so, including asylum seekers attempting to enter between ports of entry. As part of implementing this policy, the Trump Administration stepped up efforts to separate parents from children at the border in unprecedented numbers never before seen as a deterrent policy to preventing asylum seekers from arriving at the borders. Parents were placed in separate detention facilities facing federal criminal charges for illegal entry and illegal reentry while the children were placed into the custody of the US Department of Health Human Services (DHHS) and its sub-agency, the Office of Refugee Resettlement (ORR). From there, the children were moved to various shelters and licensed facilities across the nation.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

There was no indication in the Trump Administration policy that children would be reunited with their parents after the criminal prosecutions. This policy of separating asylum seeking families runs directly counter to US and international humanitarian and asylum law. Many immigration lawyers, advocates, and leaders in the various local communities, including myself, immediately took to public media criticizing the legality of these practices and expressing moral outrage over these inhumane family separation policies.  Over the course of the next 6 weeks, the unpopularity of the Trump Administration’s immigrant family separation policy rose to an uproar with many sectors of American society speaking out against Trump’s family separation policy.

As a result, on June 20, 2018, President Donald Trump bent to public pressure and signed an executive order, indicating that it is a new policy of the Trump Administration to keep families arriving at the border detained together for an indefinite time period.() The family separation executive order calls for the opening of ad hoc detention facilities and even military bases to be used to house “alien families” together. At the same time, the Executive Order indicates that it will continue to enforce the zero tolerance policy of criminally prosecuting the parents.

Government officials report that approximately 2300 children have been separated from their parents since April 2018 under the zero tolerance policy. At this time, children already in the custody of DHHS and ORR will be processed under prior procedure of releasing children to a qualifying sponsor including another close relative or another parent if not simultaneously detained. There is no clear indication how the Executive Order will be implemented nor how families will be reunited.

There are a number of significant hurdles in how immigration cases are processed as well as limits on federal immigration custody that could prevent the children’s reunification with their parents long-term and/or even permanently. Going back more than 30 years, multiple different US Federal Courts have ruled on the immigration detention of children. In 1993, the US Supreme Court granted certiorari/appellate review in the landmark case of Flores v. Reno in order to address the federal detention of immigrant children. In 1997, the US government and plaintiffs in that case reached a consent decree settlement which set guidelines to protect unaccompanied minor children from unlawful mistreatment while held in federal custody. Collectively known as the Flores Settlement Agreement, these holdings evolved over time and also eventually became codified into US regulations.

In 2014, the Ninth Circuit Court of Appeals in California ruled that the Flores Settlement Agreement covered not just unaccompanied minor children but also expanded it to cover children accompanied by their migrant families as well. It also set a general standard that children cannot be kept in federal detention facilities for more than 20 days at a time due to the physical and mental health ramifications of prolonged detention on children.  In attempting to implement his Executive Order and open the door to permit long-term family detention, Trump will hit significant legal barriers in trying to overturn these historical binding case law precedents passed to protect immigrant children from that very thing, prolonged detention.

Children will also not be released to parents who are not bond eligible and remain in detention to pursue their family’s asylum cases taking upwards of a year.  When short-term parental reunification is not possible due to parental detention and/or inability to locate the parents or vice versa, ORR will be forced to determine what is “in the best interests” of the child.  That could mean filing local state family court guardianship petitions to declare the children permanent wards of the state under the appearance that it looks like the children were abandoned by the parents due to the parents’ unintentional absences while stuck in ICE detention and/or deported abroad. Children who were separated from their parents at the border were given different non-sequential  9 digit alien numbers (A file numbers) as opposed to immigrant families processed as family units.  An alien number is similar to an immigrant’s social security number. It is how immigrants undergoing immigration court proceedings are tracked.  Trying to track a separated missing child with a non-sequential alien number would be worse than finding a needle in a haystack even for ICE officials.

There are currently extremely long immigration court backlogs spanning the course of approximately 3-5 years. Immigration courts process juveniles on different dockets from adult and family unit dockets.  Even if parents elect to quickly give up and take voluntary departure/ removal orders in order to attempt to expedite reunification with their children, that does not mean that the children could do the same. Parents could find themselves stuck outside the US waiting years for reunification with their children while the children’s juvenile immigration court proceedings drag on in the United States.


Kristen Schneck is a partner in Fox’s Immigration Practice Group, based in Pittsburgh. She focuses her practice on removal and asylum matters.

The President recently suggested that due process does not apply to immigrants coming to the United States of America. The 14th Amendment states that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The language of “any person” has been well-established to include not only United States Citizens but also immigrants, including those here with documentation and those without proper documents.

The U.S. Supreme Court most recently addressed this topic when the Court ruled in Zadvydas v. Davis (2001) that “due process” of the 14th Amendment applies to all aliens in the United States whose presence may be or is “unlawful, involuntary or transitory.” This built upon previous Supreme Court cases such as Plyler v. Doe (1982), Yick Wo v. Hopkins (1886), and Wong Win v. United States (1896), all which establish precedent that due process is applicable every person in the United States and not just to U.S. Citizens.

Plyler v. Doe held that a Texas statute withholding state funds from local school districts for the education of children who were not “legally admitted” into the United States, and authorizing local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

Wong Win v. United States held that the United States must provide for a judicial trial to establish guilt before subjecting aliens to infamous punishment at hard labor, or by confiscating their property.

Yick Wo v. Hopkins held that the guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, color, or nationality.

Immigrants (both documented and undocumented) are entitled to Due Process under the United States Constitution.

If you are an immigrant (or anyone) and you encounter any government official, you have the right to remain silent and can refuse the search of yourself, your car or your residence. You have the right to leave if you are not under arrest and any government agent cannot enter your property without a warrant. You have the right to an attorney.

The recent rhetoric of the President does not negate the United States Constitution or hundreds of years of case law.

Flag of IsraelThe Israeli Knesset Internal Affairs Committee recently approved the new E-2 visa regulations thereby allowing Israeli entrepreneurs to file for and obtain E-2 visas in the United States.  Until now, Israeli citizens were not eligible for the E-2 visa.  This is a tremendous step forward for Israeli investors looking to pursue startups in the United States, especially tech-startups.

The start-date for filing E-2 applications for Israeli citizens has not yet been finalized until mutually agreed upon between the U.S. Embassy and the Israeli Government. Israel is widely recognized as a leader in the emerging tech and medical startup spaces, often targeting the US market.  The availability of the E-2 visa to Israeli entrepreneurs in emerging tech will lead to enormous opportunities for Israeli investors and U.S. citizens alike.  We will keep you informed of the official start-date for filing E-2 Israeli Investor applications.  The approved regulations also provide reciprocal means for U.S. citizens wanting to start a new business in Israel through the B-5 visa category.

USCIS recently issued a reminder for F-1 students that transferring to another education institution or beginning studies at another educational level automatically terminates Optional Practical Training (OPT) as well as the corresponding employment authorization document (EAD).  The requirement to maintain status is important due to the proposed USCIS Policy Memorandum on the Accrual of Unlawful Presence for F, J. and M nonimmigrants whereby they will lose Duration of Status designation by engaging in an unauthorized activity.  F-1 students must make certain to not work with a terminated EAD and should be certain to work closely with their school’s International Student office.

On May 11, 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum for Public Comment, with the comment period set to end on June 11, 2018.  The proposed change would affect those individuals and their dependents in the following statuses:  Student (F-1 Academic Student and F-2 Spouse or Child of F-1 nonimmigrant); Exchange Visitor (J-1 Exchange Visitor and J-2 Spouse or Child of J-1 nonimmigrant); and Vocational Student (M-1 Vocational Student or non-academic Student and M-2 Spouse or Child of M-1 nonimmigrant).  The new policy memorandum would change the way F, M, and J visa holders accrue unlawful presence.   A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled” according to INA §212(a)(9)(B)(ii).  If one is unlawfully present for greater than 180 days, a three year bar is placed upon the individual to return to the United States.  If the person is unlawfully present for greater than one year, a 10 year bar is placed upon the individual to return to the United States.

The current policy memorandum dated May 6, 2009, entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act”, USCIS recognized that a Customs and Border Protection (CBP) stamp of Duration of Status (D/S) meant that those individuals with this admittance into the United States did not accrue unlawful presence until the day after USCIS formally found a nonimmigrant status violation or on the day after an Immigration Judge ordered exclusion, deportation or removal.  Those who were admitted until a specific date as shown on their Form I-94 Entry Record would start accruing unlawful presence on the day after this form expired.

USCIS now proposes that effective August 9, 2018, those F, J. or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status before August 9, 2018 will start accruing unlawful presence at that time and will no longer be deemed to be in Duration of Status.  If a nonimmigrant in these statuses has been found in violation prior to this date or had their Form I-94 expire previously, they will start to accrue unlawful presence on the earlier date.  This is a significant change in policy and the understanding of duration of status and changes the requirement that only a finding by USCIS of being out of status when adjudicating a request for another immigration benefit or a finding by an immigration judge triggers unlawful presence.  Now simply being out of status as of August 9, 2018, would trigger the start of the calculation of unlawful presence.

As of August 9th if the policy becomes procedure, students will begin to accrue unlawful presence if they are not in lawful nonimmigrant status on or after August 9, 2018, defined by no longer pursuing the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  Additionally, the day after completing the course of study or program (including any authorized practical training plus any authorized grace period (as outlined in 8 CFR 214.2)), they will begin to accrue unlawful presence.

8 CFR 214.2 allows an additional 60-day period to prepare for departure from the United States or to transfer.   An F-1 student authorized by the DSO to withdraw from classes will be allowed a 15-day period for departure from the United States. The Regulations also allow for what is commonly known as “Cap Gap” wherein an F-1 student who is the beneficiary of a Cap Subject H-1B petition with a change of status request is automatically extended until October 1st of the fiscal year in which the H-1b is filed.   As many immigration practitioners know, H-1b petitions often are not adjudicated by October 1st and this will put those F-1 students who would have been allowed to stay in the U.S. in reliance of Duration of Status after the Cap Gap period has ended at risk of accruing Unlawful Presence if they remain in the United States.  As such, this change in policy is fundamentally unfair because it was made after the filing of the fiscal year H-1B applications and will impact numerous students.

Furthermore, it is not clear how the government will allow for Re-instatement of Student status, as per the regulations at 8 CFR 214.2(f)(16), where a student who has been out of status for less than 5 months or shows an exceptional circumstance can be re-instated by USCIS and re-enrolled in school.  Re-instatement requires that the student does not have a record of repeated or willful violations of USCIS regulations.  However, if the Unlawful Presence has started to accrue, it is questionable whether USCIS will approve such requests.

As the Policy Memorandum proposes a material change in the accrual of Unlawful Presence for Students, Exchange Visitors and Vocational Students, it is sure to bring legal challenges.  The proposed change will essentially ensure that those who come here to study face additional challenges beyond their studies.

Please keep tuned in to this blog for further information as it becomes available.

 

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (April 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the dramatic final action dates movement in the April Visa Bulletin, which hold steady for May, and provides his predictions on final action date movement in the coming months.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

Given that USCIS takes roughly five months to process I-485 applications to completion, the dramatic final action date advancements in the April Visa Bulletin were not completely unexpected as the objective is to spur more applications in May and June in order to ensure that the full visa numbers will be used by the end of the fiscal year on September 30, 2018.  Since it is unlikely that most May I-485 filings will be processed to completion before the end of the fiscal year, many employment-based preference categories hold their April final action dates in the May Visa Bulletin, with only modest advancements in a few select categories.  These advancements were made in an abundance of caution, based on data Charlie received from USCIS regarding the number of pending cases.

Categories in which final action dates will remain the same include:

  • EB-1 China and India;
  • EB-2 India;
  • EB-3 China and Philippines;
  • EB-4 El Salvador, Guatemala and Honduras, and
  • EB-5 China.

There are only five categories with modest advancements-

  • EB-2 China will move forward one month to September 1, 2014;
  • EB-3 India will advance three months to May 1, 2008;
  • EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and
  • EB-4 Mexico will advance roughly five weeks to October 22, 2016.

As Charlie predicted, EB-5 Vietnam became oversubscribed, due to high demand, and will assume a final action date of July 22, 2014 in May, tracking to EB-5 China.

 Most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date.  As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.  Final action dates advance modestly in May for all family-based preference categories, except FB-1 China, India and Worldwide, which hold at the April dates. T here is no retrogression in any of the family-based preference categories in May.

What can be expected in the coming months?

It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July.  What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS.  The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

With regard to EB-1 China and India, it is too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand.  It is likely that EB-1 China and India will hold for at least another month, but Charlie will continue to watch demand to determine whether any advancements may be possible.

While Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month.  However, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

As noted above, EB-4 Mexico advanced five weeks in May.  Although Charlie predicted a summer retrogression of this category to track to the final action date of EB-4 El Salvador, Guatemala and Honduras, if demand lightens it may be possible to avoid or perhaps delay retrogression for EB-4 Mexico.

You may access the April 2018 Visa Bulletin here and the May 2018 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As has become common under the present Administration, yet another country is losing Temporary Protected Status (TPS) designation.  On April 26, 2018, Homeland Security Secretary Kirstjen M. Neilson announced that Nepal will lose TPS designation on June 24, 2019.  As in past terminations, there is a delay of 12 months to allow for transition.  The April 2015 earthquake and aftershocks decimated the nation and necessitated the designation of TPS for the nation.  The Department of Homeland Security reviewed the disaster relief remediation process and determined that Nepali nationals can now safely return to the country.  Outreach efforts will be made to notify the affected individuals to advise them of the change and that they may still receive other protections under the United States immigration system for which they are eligible.  Nepali citizens with current TPS registrations will be required to re-register for TPS and additionally apply for Employment Authorization in order to legally work until the effective date of the termination on June 24, 2019.

Today, USCIS announced it has completed the H-1B cap FY 2019 random selection process on April 11. This year, USCIS received a total of 190,098 H-1B cap petitions during the H-1B cap FY 2019 filing period, which started on April 2.  The announcement means USCIS has completed the computer generated random selection process and selected enough petitions to meet the 65,000 regular cap and the 20,000 cap under the U.S. advanced degree exemption, known as the master’s cap. Next, USCIS will reject and return all unselected H-1B cap petitions with their filing fees.

As a reminder, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

 

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced the launch of a new and expanded E-Verify website, E-Verify.gov.  The website, which is in both the English and Spanish languages, includes sections for Employers, Employees, About E-Verify and myE-Verify.   E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers can verify the identity and employment eligibility of newly hired employees by electronically matching the information provided by their employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS). On the website, employers will find information on Using an E-Verify Employer Agent, For Federal Contractors, Web Services, Enrolling in E-Verify, Verification Process and Monitoring & Compliance.  Employees can find specific information on E-Verify Overview, Tentative Nonconfirmation (TNC), Employee Email Notifications, Employee Rights and Responsibilities, Correct Your Immigration Record and Reporting Violations.  E-Verify is free and all employers and employees should explore and be familiar with this system since USCIS is encouraging all employers to enroll.  The attorneys at Fox Rothschild are available to assist both businesses and employees alike with any questions regarding the E-Verify system.