General Immigration News and Updates

On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice

 

 

President Trump signed a bill today, H.R. 6157, with a short-term continuing resolution (CR) preventing a government shutdown and extending certain programs, including the EB-5 Regional Center Program, through December 7, 2018.  Without the CR, the EB-5 Regional Center Program would have expired on September 30, 2018.  The CR extends the EB-5 Regional Center Program without any changes.  The spending bill includes funding for the departments of Defense, Education, Health and Human Services, and Labor.  We continue to closely follow activity on Capitol Hill as efforts towards EB-5 reform continue.

The U.S. Citizenship and Immigration Services (USCIS) announced that the filing fee for premium processing will increase from $1,225 to $1,410, beginning on October 1, 2018.  According to USCIS, this 15% increase in price is in step with inflation since DHS last adjusted premium processing rates in 2010 and will allow USCIS to more effectively adjudicate petitions and maintain service to petitioners.  The new rule was published in the Federal Register on August 31, 2018.

Premium processing is an optional expediting service that is currently authorized for certain employment-based petitioners filing Forms I-129 or I-140.  The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.  Under premium processing, USCIS has 15 days to process these specific types of employment-based immigration benefit requests.  Without premium processing, adjudication can take upwards of 4 months.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits.  Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore.  “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is available for certain employment based nonimmigrant visas, including H-1Bs, L-1s, O-1s and Ps, as well as some employment base permanent residency categories.  Earlier this year, USCIS suspended premium processing for all H-1B petitions subject to the annual quota on H-1 visas (i.e. “cap cases”).  This suspension was initially slated to end on September 10, 2018, but USCIS has now pushed that date back to February 19, 2019.  Additionally, USCIS also announced that, as of September 11, 2018, it will expand the suspension to include H-1B petitions seeking to amend existing H-1B status, to request a change of employer, or to change status.  Only H-1B petitions seeking an extension of status (with no change in circumstances or employer) or H-1B petitions filed under the H-1B Cap Exemption will be able to file under premium processing beginning September 10, 2018.  In the absence of premium processing, USCIS may take four to six months (or longer) to complete the processing of an H-1B petition.

Employers and employees alike will have to take into consideration the impact of processing times and increased fees when planning to file nonimmigrant and immigrant visa petitions.  The unavailability of premium processing can impact the timing of employment and prolong restrictions on international travel.

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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.

On May 21, 2018, I posted a blog regarding the then Proposed USCIS Policy Change for F, J, and M Nonimmigrants and Unlawful Presence implications.  On August 9, 2018, USCIS issued a revised final policy memorandum, effective that day.  USCIS made changes to its proposed policy after considering feedback the agency received during the public comment period mentioned in the prior blog post.

Effective August 9, 2018 (last Thursday), F and M nonimmigrants who timely file for reinstatement of status with USCIS after falling out of status will have the accrual of unlawful presence suspended while their application for reinstatement is pending.  The reinstatement application is considered timely if filed within a five month window of the student falling out of status. If the reinstatement is ultimately denied, unlawful presence will start accruing on the day after the denial.

J nonimmigrant reinstatement requests are administered by the Department of State (DOS) and if the J-1 reinstatement applicant’s request is approved, unlawful presence will not accrue.  Likewise, Unlawful Presence would start to accrue in the instance of a denial, although DOS has not weighed in at this time as to when it will begin to accrue.

USCIS will host a stakeholder meeting on August 23rd.  Please refer back to this blog as more information becomes available.

 

On August 3, 2018, the US District Judge for District of Columbia, John D. Bates, ruled that the Trump administration must fully restore the DACA program. In the decision, the court stated, “The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.” In addition, the court also denied the government’s motion to reconsider, stating that “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” However, the judge delayed the order until August 23, 2018 to allow the government to determine whether it will appeal the court’s decision.

The August 3rd decision will not make any new changes to the DACA program. It is still being implemented on the terms of the prior court rulings. USCIS is still accepting and processing DACA Renewal applications who have previously been approved for DACA as a result of the two nationwide injunctions issued in California and New York earlier this year. USCIS is still not accepting the new or initial applications for the first time.

Considering the pending litigation, the American Immigration Lawyer Association recommends the eligible DACA recipients who would like to renew their DACA to consult with an attorney and submit their DACA renewal application as soon as possible.

ICE workplace audits are on the rise.  And if you didn’t know, the federal government and California are not harmonious in their views on immigration issues. That means that ICE raids on California employers are likely to continue, especially in target industries such as hospitality, construction, agriculture, tech, and manufacturing. And if you want to minimize your company’s exposure to massive fines and possible criminal prosecution, this issue should be on your radar.

One of the biggest traps of late seems to be the I-9 form.  Under federal law, all employers in the US are required to complete the I-9 in order to verify the identity and employment eligibility of new hires. Employers are required to have a completed I-9 on file for every employee. The employee must complete Section 1 of the I-9 at the time of hire (and absolutely not before acceptance of a job offer). The employer must complete Section 2 of the I-9 within three business days of the hire date. I-9s must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later.  Failure to abide by these rules can lead to very severe penalties and fines.

When ICE wants to examine your workforce, it provides a Notice of Inspection that gives you just three days to get your I-9s and payroll records ready for review. Once that happens, it is very hard to fix any problems you may have. There just isn’t time and ICE has discretion to disregard any remediation efforts after the service of the NOI.

What can be wrong with an I-9, you ask?  Well if our audits of I-9s are indicative, close to 50% if not more usually have problems, including:

Hand with pen fills in a paper form us immigration visa
  • Incomplete, with information, signatures, and dates missing.
  • Incorrect information, such as a document for List B or C in the List A column.
  • Signatures that don’t match the names on the documents.
  • Blank Section 2 with the List A or B and C documents simply attached.
  • Documents that don’t match the names on the form.
  • Older or incorrect versions of the I-9 used.
  • And on and on and on….

The I-9 may look like a simple form, but it is not and can cost the employer significant cash in fines … and possible criminal prosecution!  So if the person completing your new hire paperwork isn’t skilled or trained on how to complete this form, chances are your I-9s are imperfect.  It is not uncommon when we perform I-9 audits to see the same mistake(s) repeated over the course of thousands of I-9s!  That means risk, and these days, big risk.

The other problem is that you can’t just ask specific employees to re-verify their status, for example if there is a rumor that the employee may be undocumented, because that can lead to claims of discrimination. Remember national origin and citizenship status are protected categories. So the only way to fix the I-9s is to audit all of them, fix all of the mistakes that you can, and do it before any audit or notice of inspection from a government agency.

Oh, and please do not audit without the attorney-client privilege protection. The last thing you want are emails indicating that your I-9s are wrong, or your employees are illegal, and you knew about it and didn’t fix it. Knowingly employing, hiring, or continuing to employ undocumented workers is a crime. Employers are subject to criminal prosecution—yes, that means possible jail time.

What can employers do proactively to mitigate civil penalties and exposure to criminal prosecution?

  • #1!  Work with counsel to conduct a proactive internal audit.  Doing so before ICE arrives with a NOI is the most effective way of mitigating fines.
  • Ensure your HR representative(s) responsible for completing I-9s with new hires is well trained and savvy as to what they legally can and cannot say to the employee during the verification process.  Simply asking the employee to present a specific document in the course of completing the I-9 is unlawful.
  • Conduct regular training for HR personnel and team leaders/managers who interact with employees as to the do’s and don’t’s of communicating with employees.
  • Establish immigration compliance I-9 and/or E-Verify standard operating procedures—also used to show good faith compliance and a factor for mitigating fines.
  • If storing I-9s electronically, check with counsel to ensure you are storing them properly and in a way that is not further exposing the company to additional violations.
  • Streamline your company I-9 process so as to minimize room for error in delinquent completion of the I-9 or mistakes on dates of hire.
  • Establish a ‘tickler’ calendar reminder system to handle reverification for those employee’s with work authorization documents containing an expiration date.  Remember- the burden is on the employer to ensure their employees are work authorized during the entire period of employment.
  • Act sensibly:  employers should not be overzealous in their employment verification practices as this too may lead to claims of discrimination and/or retaliation.

This is budget planning season for many employers.  Our advice is to add an I-9 audit to your budget for 2019.

USCIS announced yesterday that it has returned all FY2019 cap-subject H-1B petitions that were not selected in the “lottery”.

 You may recall that between April 2-6, USCIS received 190,098 FY 2019 cap-subject H-1B petitions.  In May, USCIS completed its computer-generated random selection process for 20,000 US advanced degree petitions as well as the 65,000 remaining FY2019 spots. Many of these petitions were subject to requests for more evidence (RFEs).  Simple division indicates that for FY 2019, ~45% of the H-1B petitions were selected for processing, leaving ~55% (or 105,098 petitions) to be returned.

 After August 13, 2018, petitioners who timely filed their FY2019 cap-subject H-1B petitions but did not receive an I-797 Notice of Action acknowledging receipt nor their returned petition (with unused filing fees), may contact USCIS.

 To discuss this, or how to be prepared for the FY2020 cap season, please feel free to email or call Ms. Wadhwani or your Fox Rothschild contact.


Catherine Wadhwani is a partner and co-chair of the Immigration Practice Group at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

More than 5,200 businesses around the country have been served with I-9 inspection notices since January in a two-phase nationwide operation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) in what appears to be the largest I-9 inspection action ICE has undertaken to date.

This latest round of workplace audits on employers clearly indicates that the I-9 inspection is now a top priority in U.S. immigration enforcement policy that targets employers rather than employees via the workplace raids of the past.

This alert outlines the current processes in place for I-9 inspections and includes practical advice on how to respond to an audit as well as steps to take now to ensure that your business is in compliance.

Notice of Inspection – NOI

The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer, which informs them that HSI will perform a comprehensive review of (i.e. audit) their hiring records (specifically Form I-9s and associated documents) to determine compliance with employment eligibility verification laws.  Upon receiving an NOI, an employer is required to produce the company’s I-9s within three business days, after which ICE will conduct an inspection for compliance.

In Phase I of the current operation, between Jan. 29 and March 30, 2018, HSI served 2,540 NOIs and made 61 arrests.  During Phase II, between July 16 and 20, HSI served 2,738 NOIs and made 32 arrests.

ICE is the federal agency responsible for upholding the Immigration Reform and Control Act (IRCA), a law designed to protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.

Under IRCA, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. ICE/HSI uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.

A ‘Culture of Compliance’

Derek N. Benner, Acting Executive Associate Director for HIS, stated: “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records.  All industries, regardless of size, location and type are expected to comply with the law.”

Benner contends that worksite enforcement “protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

HSI increased the number of I-9 audits, Benner said, to “create a culture of compliance among employers.”

All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States. The law requires that employers execute this process upon hire of an employee, review and record the individual’s original, valid identity documents and determine whether those documents reasonably appear to be genuine and related to the individual.

HSI follows a detailed process when conducting a Form I-9 inspection.  Guidance on that process and the associated civil fine structure can be found here.  This guidance outlines ICE’s process for a Form I-9 inspection, the penalties for various related violations, and the factors ICE considers during the course of the inspection and in determining a fine, including mitigating or enhancing factors involved.

Civil Fines and Potential Prosecution

Employers determined not to be in compliance with the law face the likelihood of civil fines and could ultimately face criminal prosecution if it is determined that they were knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.

Failure to follow the law can result in criminal and civil penalties.  In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.  (See our earlier post on this topic.)

Monetary penalties for substantive and uncorrected technical violations, errors that the layperson often view as ‘paperwork errors’ range from $220 to $2,200 per violation and penalties for knowingly hiring and continuing to employ violations range from $3,548 to $19,242 per violation. In determining penalty amounts, ICE imposes a higher fine rate on employers with a higher percentage of I-9s with violations and then considers five factors to either enhance or mitigate fine amounts: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.

What To Do if the Government Wants to Inspect Your I-9s:

  • Call your immigration attorney immediately. The time period for responding to ICE is short and it is critical that documents submitted in response to the notice be well-organized and presented in the best light possible.
  • DO NOT submit any documents to ICE without seeking the advice of counsel.
  • DO NOT consent to an immediate inspection if agents show up without warning. You have up to three days to respond/submit documents.
  • DO NOT submit more than what is asked for (such as expired I-9s for former employees, payroll records listing employees not subject to the inspection, etc.)
  • DO NOT let agents take original records without permitting you to take copies
  • DO NOT allow officers to talk with any employees or company officers before you call your attorney.
  • If Department of Labor agents show up for an inspection without notice, decline the inspection. They will notify USCIS/ICE.
  • DO NOT panic and try to correct or otherwise repair your records without the assistance of qualified immigration counsel. Corrections made or new I-9s prepared after the issuance of an NOI are not accepted by ICE, and may create the appearance of bad faith.

The Tools of Protection

Employers that have not yet received an NOI should take immediate steps to protect against possible future violations.

Two key tools in ensuring IRCA compliance are private internal audits and specialized training. Employers should conduct private internal audits with the assistance of a qualified immigration professional to review I-9 documents and correct any errors in advance of an inspection. This type of periodic audit can not only uncover problems in time to be corrected before the imposition of sanctions, but can also demonstrate the employer’s good faith efforts to comply with IRCA’s verification requirements, a mitigating factor in ICE’s penalty determination process. Because private I-9 audits can be performed over time nd at the employer’s convenience, it is less arduous for a company than the three-day audit period forced by an inspection notice.

Many problems with I-9s stem from simple misunderstandings of the procedures and requirements. This can easily be rectified by having a qualified attorney train your personnel about proper procedures. Because the work environment and employee culture changes with some frequency, along with periodic legal changes impacting the I-9 process, refresher training courses for already “expert” personnel are also recommended.

Although employers can select from a variety of service providers to meet their I-9 audit and training needs, legal professionals with experience with immigration, employment and labor law are better equipped to handle IRCA compliance issues, including audits, training and formal inspections. Fox Rothschild provides companies of all sizes with IRCA compliance training seminars and confidential, internal I-9 audits.

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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.

What’s a “Notice to Appear” (NTA)?  How about “unlawful presence”?  Phrases such as these may be a new for many following business/employment based immigration matters.  Because of new USCIS Policy memoranda, these removal terms are now added to our business immigration lexicon and concern.

 NTA is the charging document issued by an authorized agent of the US Department of Homeland Security initiating in adversarial proceedings.  Once an NTA is filed with the immigration court, jurisdiction vests in the Immigration Court and noncitizens enter into removal (fka deportation) proceedings to determine whether they may be removed from or stay in the US. The Immigration Court is part of the Department of Justice’s Executive Office of Immigration Review (EOIR)

 Neither an employer, nor the nonimmigrant whose employer is seeking an immigration benefit such as an extension or change of their status wants an NTA!

 On June 28, 2018, US Citizenship and Immigration Services (USCIS) issued a Policy Memorandum updating its policy on the issuance of NTAs consistent with the January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States.” 

Effective July 5th, :” USCIS , along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border  Protection (CBP), has legal authority under current immigration laws to issue NTAs.  This policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.  The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

..Cases in which, upon denial of an application or petition, an applicant is unlawfully present in the United States”

 USCIS is the part of DHS which adjudicates immigration petitions for benefits such as H-1B status, L-1 status, greencard applications, etc.  Until recently, USCIS was the “service” providing agency.  It did not issue NTAs only due to the denial of a petition and the start of unlawful presence for the beneficiary.  But, what is “unlawful presence” and what does it mean?

 “Unlawful presence” is a legal term defined under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA).  It refers to a person who is ”present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”  The consequence of being unlawfully present is that after 180 days of unlawful presence, a person who departs the US generally is barred from reentry for 3 years.  More is the pity for a person whose unlawful presence is for a year or longer—that person is barred for a decade.  There are possible waivers, but the 3/10 year bars have proven to be quite an effective deterrent against being “unlawfully present”. 

 Of course, the next question is: How does that phrase apply in the context of lawful, business/employment based immigration?  

 As a general statement, nonimmigrants entering the US lawfully are inspected and admitted into the US and are given a specific amount of time by the CBP officer to remain in the US in that visa category.   For example, an H-1B worker entering the US from a trip abroad would receive a stamp and an I-94 record would be created to indicate entry on a certain date in H-1B status until a fixed duration or end date.  After the expiration date (plus 60 days for the H-1b visa holder in our example), if neither employer, nor employee files an application to extend the H-1B status or to change to another status,  the unlawful presence clock would begin to run. 

 Until the most recent Policy Memorandum, USCIS would not begin removal proceedings against this person if, for some reason his/her visa request was denied and the denial was after the I-94 expiration date.  But if, unexpectedly an H-1B extension is denied and USCIS institutes removal proceedings, the worker can no longer work, apply for permanent residence or any other visa.  Moreover, the worker cannot even depart the country: failure to appear before the Immigration Judge results in an “in absentia” order of removal.  And, the employer loses a valuable employee who may not be able to return to the US for a decade.

 That’s not all: when “unlawful presence” became the law, it didn’t apply to most students.  F-1, F-2, M-1, J-1 and J-2s  generally enter the US with permission to remain until they have completed their education, not until a specific date, through the duration of their status.  Entry on “Duration of Status” or “D/S” did not trigger unlawful status if, for some reason, the nonimmigrant stayed in the US beyond the period authorized by their program or otherwise violated their status—for example, not being able to find constant employment during a period of Optional Practical Training.  As of August 9, 2018 –unless enjoined by a court—any time a nonimmigrant with “D/S” is out of status, he/she is unlawfully present—and is at risk of being placed in removal.

 As of May 31, 2018, there was a backlog of more than 700,000 removal cases. The Immigration Court is overwhelmed with a docket that will take many years to clear.  When a person is put into removal proceedings, when the NTA issues, as mentioned that person is not free to depart the US without a resolution of the removal matter.  These new Policies could dramatically clog the Immigration Court system that is already overwhelmed. Just as importantly, these policies intimidate students and workers from coming to the US, deter employers from hiring skilled foreign workers and discouraging foreign employers from investing in the US.

 

 

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/.