U.S. Citizenship and Immigration Services (USCIS) issued updated policy
guidance on July 5, 2018,
PM-602-0050.1
, that aligns its policy for issuing Form I-862, Notice to Appear, with the
immigration enforcement priorities of the Department of Homeland Security
(DHS).
A Notice to Appear (NTA) instructs a person to appear before an immigration
judge on a certain date. The issuance of an NTA starts removal proceedings
against the person. Under the new guidance, USCIS
notes
that its officers will now issue NTAs “for a wider range of cases where the
individual is removable and there is evidence of fraud, criminal activity,
or where an applicant is denied an immigration benefit and is unlawfully
present in the United States.”
Although it has always been possible for the USCIS to issue an NTA when an
applicant is denied a benefit, it has generally not done so in the past for
a number of sensible and practical reasons. Many applicants choose to leave
the United States on their own upon the denial of the benefit, or delay
their departure, if they legitimately seek to appeal the denial or seek
reconsideration. It therefore makes no sense to further burden the already
overburdened immigration courts with new cases, especially involving people
who may already be departing on their own volition.
Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”
USCIS recently announced in a Policy Memorandum,
PM-602-0050.1
, that it is changing the way it decides whether to issue an NTA placing
someone into removal proceedings in immigration court. In all cases other
than those involving Deferred Action for Childhood Arrivals (DACA), which
is the subject of
separate NTA guidance
, this new memorandum supersedes
the previous USCIS NTA guidance that had been in effect since 2011
.
The new NTA guidance in
PM-602-0050.1
is said to be intended to implement the Trump Administration’s enforcement
priorities as set out in the
January 2017 Executive Order “Enhancing Public Safety in the Interior
of the United States.”
It lists a number of scenarios in which an NTA will generally be issued
absent high-level approval to do otherwise, but perhaps the most
significant is one buried at the bottom of page 7 of the memorandum, after
discussion of various scenarios relating to fraud or criminal cases. The
memorandum states there that “USCIS will issue an NTA where, upon issuance
of an
...
At first sight, one could be excused for thinking that this was an article
relating to cricket, after all With economic growth averaging 6 percent
over the last two decades, South Asia has one of the world’s most dynamic
economies. India is widely considered as the economic heavyweight in the
region, yet one cannot ignore the substantial influence Pakistan and
Bangladesh increasingly exert over South Asia.
Interestingly enough, despite being former colonies of the British Empire
and now all member states of the Commonwealth, the South Asian nations have
failed to reap the full benefits by developing strong commercial relations
with each other. Indeed, South Asia is one of the least economically
integrated regions in the world. According to the World Bank, the total
trade among the nations of the South Asian region is less than 5 percent of
their trade with the rest of the world. One might attribute the lack of
intraregional trade to high transport costs, protectionist policies and
political tensions. With trade barriers and the deep-seated enmity between
the nations in place, it naturally leads investors and entrepreneurs to
explore economic opportunities elsewhere.
One such hotspot is, obviously, the United States of America. The U.S. is
the Land of Dreams and Opportunities and embraces many High Net Worth
Individuals (HNWIs), of which India and Pakistan have a strong supply.
India has one of the largest populations of HNWIs in the world, boasting
...
The EB-5 visa has become a very popular way for obtaining permanent
residency in the U.S. for many Russian people. This type of visa does not
involve excessively long wait times for Russian nationals and requires no
labor certification to prove unavailability of U.S. workers, no close
family member in the U.S. to petition on behalf of immigrant, no assertion
of exceptional or extraordinary ability, no showing of persecution or
showing of fear that they will be persecuted on account of race, religion,
nationality, and/or membership in a particular social group or political
opinion, no business to operate directly on a daily basis, and no
employment
...
While President Trump’s rhetoric on stopping illegal immigration and his
administration’s discontinuation of the DACA program and Temporary
Protective Status for various Central American countries has dominated
discussions of immigration law, a little-known fact is that this
administration has been slowing, and in some cases, stopping even the legal
immigration pathway in the absence of Congressional action. What began as a
travel ban and deportation of illegal immigrants who commit crimes while in
our country has spread to a full blown anti-immigration policy that has led
to an extraordinarily high number of visa application denials and extended
...
When CIS finds one problem with an H1B petition, they tend to find more.
RFEs regarding multiple issues are common, and one of the most frequent
ones we've seen is the Specialty Occupation and Wage Level Double RFE.
This RFE deals with two H1B eligibility requirements:
1. The job in question must require a US bachelor's degree or higher or its
equivalent to meet specialization requirements.
2. The employer must pay the H1B employee the prevailing wage for that
position, in that industry, in that geographical location for companies of
that size.
...
Seven hundred thousand backlogged cases in Immigration Court is a
crisis for aliens entitled to relief, for detained aliens and the
taxpayers who are paying for their detention, for the reputation of the
US in the world community, and for the administration of justice.
Justice delayed is justice denied.
We have been counsel in various successful litigations where USCIS had
challenged EB-5 petitions either based on an investment not being “at
risk,” or based on the allegation that the investment was a “debt
arrangement”, or based on a “guaranteed redemption”, or some combination of
the three. Often USCIS uses the terms interchangeably as if they all relate
to the same concept. They do not.
The purpose of this blog is to distinguish between the three concepts,
distinguish between various scenarios in which these issues are raised and
distinguish between USCIS policy and our view of the law, which we advocate
both to USCIS and in federal court.
DISTINGUISHING BETWEEN THREE CONCEPTS
As mentioned, “at risk”, “debt arrangement” and “guaranteed redemption” are
three separate issues. The first issue is whether the investment
...
U.S. Citizenship and Immigration Services (USCIS) issued new guidance to
initiate deportation proceedings for thousands of applicants denied for any
immigration benefit. This policy change will have far-reaching implications
for many of those interacting with the agency, but also signals a major
shift in how USCIS operates.
USCIS was never meant to be tasked with immigration enforcement. Their
mandate has always been administering immigration benefits. With its
distinct mission, USCIS was created to focus exclusively on their
customer service function
, processing applications for visas, green cards, naturalization, and
humanitarian benefits.
The
new USCIS guidance
instructs staff to issue a Notice to Appear (NTA) to anyone who is
unlawfully present when an application, petition, or benefit request is
denied. This will include virtually all undocumented applicants, as well as
those individuals whose lawful status expires while their request is
pending
...
Earlier this year, we blogged about
AB 450
in California, the state law entitled “The Worker Protection Act” that
was part of legislation passed last year in response to the Trump
Administration’s enforcement-oriented stance on immigration. The law
aimed to provide California workers some notice and protection at the
work place regarding federal work-site enforcement programs.
AB 450 requires employers to deny federal immigration enforcement
agents access to the non-public areas of a business premises without a
judicial warrant. The law also penalizes employers who attempt to
re-verify I-9’s that are not expiring and requires certain notice to go
the workforce in the event of an I-9 audit.
In March 2018, US Attorney General Jeff Sessions sued the State of
California in federal court to enjoin the enforcement of AB 450 and two
other so called “Sanctuary State” laws. On the 4th of July,
US District Court Judge John Mendez in Sacramento, California
...
On June 26, 2018, the U.S. Supreme Court decided Trump V. Hawaii.
Chief Justice John Roberts, in a 5-4 ruling, held in favor of the Trump
Administration on what has become known as the Trump Travel Ban 3.0.
Specifically the Supreme Court majority acknowledged the President’s power
under the Immigration and Nationality Act to suspend entry of certain
classes of noncitizens into the United States. So, at this time, Trump
Travel Ban 3.0 restricts in various ways and in various degrees the
issuance of non-immigrant (temporary) and immigrant visas for citizens of
Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
Trump Travel Ban 3.0 was initially issued back in
...
With President Trump scheduled to nominate a Supreme Court Justice later
today, the high Court is on the minds of many. The new Justice will replace
Associate
Justice Anthony Kennedy
, widely identified as the key swing vote on the Court.
SCOTUSBlog has been running a
symposium on Justice Kennedy's jurisprudence
.
The contribution
by
Pratheepan Gulasekaram
critically analyzed immigration legacy. His conclusion: "Taken as a whole,
Kennedy’s immigration jurisprudence demonstrates that his bold strides
towards protecting the liberty and dignity of personhood were limited to
some vulnerable minorities, but did not extend to persons covered by
immigration laws and policies." This analysis is persuasive.
In addition,
as I have commented
, Justice Kennedy wrote few important immigration opinions, a fact that
seems odd given that he came from the Ninth Circuit, which long has had
many immigration
...
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