Blog Archives - ABIL-Immigration-Updates

LEVELING UP… HOW TO HANDLE THE H-1B LEVEL I WAGE ISSUE.

1/30/2018

By: Richard Yemm, Partner of Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog

On January 25, 2018, the Administrative Appeals Office (AAO) published two non-precedent decisions, Matter of B-C, Inc and Matter of G-J-S-USA, Inc relating to H-1B petition denials based on the Petitioner’s classification of the proffered position as a Level I (entry-level) wage. The decision provides vital guidance to help resolve the “carnage” resulting from inconsistent interpretation and implementation of the Level 1 wage issue.

At the crux of both decisions was the issue of whether USCIS erred in comparing the Petitioner-indicated duties directly with the Department of Labor’s (DOL) generic definition of a Level I wage, i.e. “wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment.” In these non-precedent decisions, the AAO determined that, according to DOL guidance, the proper comparison should be between the Petitioner-indicated job duties and requirements and those associated with the appropriate Occupational Information Network (O*NET) occupation.

Moreover, the AAO stated that “there is no inherent inconsistency between an entry-level position and a specialty occupation,” asserting that every case must be judged on its own merits. The AAO clarified that “for some occupations, the ‘basic understanding’ that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty…. Likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent.”

We have previously discussed strategies to deal with such requests for evidence stemming from this issue and we remain hopeful that these decisions, while non-precedent, will help to clarify H-1B adjudications as we swiftly approach the FY 2019 H-1B filing season.

A Timeline: The Status of DACA from its 2012 Inception to Present Date

1/30/2018

By: Charles Kuck, Past ABIL President
Musings on Immigration Blog

What is the DACA Program? The Deferred Action for Childhood Arrivers program (commonly called by its acronym “DACA”) is an immigration program that grants temporary protection for qualified individuals who entered the U.S. illegally as children—it provides administrative relief from deportation, protecting the recipients from deportation from the U.S. for two years, subject to renewal. DACA also typically gives the approved individuals temporary work authorization. President Trump has rallied against DACA since the first day of his presidential campaign. The status of DACA recipients in this country has always been somewhat precarious, but now it is completely up in the air with DACA in possible queue for the chopping block.

With twists and turns, firings and hirings, and rapid-fire reversals of Obama-era policies, the Trump Administration is worryingly resembling a “Lost Season” of a fictional, political television show such as The West Wing or House of Cards. With DACA’s status constantly teetering, it’s hard to get your bearings. To help you get oriented and make sense of the winding path of DACA since its 2012 inception, here’s a timeline with key dates:

August 15, 2012: President Obama directed the Department of Homeland Security (“DHS”) to exercise discretion to grant deferred action to qualified immigrant youth. Following this directive, on August 15, 2015 DHS announced that U.S. Immigration and Citizenship Service (“USICS”) has begun accepting applications for DACA.
June 16, 2015: Trump launches his presidential campaign. In his campaign speech on this day, Trump says “I will immediately terminate President Obama’s illegal executive order on immigration, immediately.”
August 31, 2016: Trump gives a campaign speech in Arizona, stating that part of his plan if elected president is to “immediately terminate President Obama’s two illegal executive amnesties, in which he defied federal law and the constitution to give amnesty to approximately 5 million illegal immigrants.”[1]
Sept 15, 2017: Trump administration rescinds DACA; the then-acting Homeland Security Secretary Elaine Duke announced on September 15, 2017 that DACA would be phased out for current recipients and that no new requests for temporary protection from deportation under DACA would be granted.
January 9, 2018: A federal judge in California issued a nationwide preliminary injunction on Trump’s rescission of the DACA program—“The preliminary injunction on Trump’s cancellation of DACA requires the Department of Homeland Security to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing those who already benefit from DACA to apply to renew their status.”[2]
January 13, 2018: Due to the January 9, 2018 federal court order for preliminary injunction, USICS announced on January 13, 2018 that the agency, “has resumed accepting requests to renew a grant of deferred action under DACA. Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.”[3]
January 16, 2018: The U.S. Justice Department officially appeals to the Supreme Court, appealing the Supreme Court’s earlier ruling that allowed Dreamers[4]to extend their work permits. This appeal fulfills the promise Trump made earlier in January to challenge the ruling. This appeal adds fuel to the fire, further fracturing the government and causing increasing hostility and partisan tensions.
January 20, 2018: After much infighting, the government officially shuts down. DACA is a major point of contention in the arguments between Democrats and Republicans who are unable to reach an agreement on the issue.
January 23, 2018: After a contentious 69 hour U.S. government shutdown, the shutdown finally ends. The breakthrough in the impasse finally came after Defendants reluctantly voted to provide temporary pay for resumed government operations through February 8, 2018. Democrats relented on this issue in return for Republican leaders promises to soon address the issues of the currents struggle of Dreamers and other hot-button issues. Congress has until February 8, 2018 to find a solution to these issues or the government will shut down again.
Now What? Stay tuned to the blog. We will be closely monitoring the situation and after the February 8th deadline occurs, we will immediately recap any news about DACA and changes go any immigration laws, policies, or programs in a new blog post.

The recent, rapid fire immigration law changes and uncertainties will undoubtedly put many parties in life-changing, difficult positions. If you are an individual who was granted temporary protection from deportation under DACA and DACA is revoked without the government implementing a replacement immigration policy offering similar protections, you could be prime for serious repercussions such as deportation and losing your temporary work permit authorizations.

When you are dealing with complex, constantly changing issues whose outcome may have a significant effect on your life, it is prudent and strongly recommended that you don’t go at it alone but rather have an expert at your side. If you are facing an immigration law issue, we urge you to consult with an immigration attorney/DACA attorney about the potential impact of upcoming changes to immigration law and policies and to find out the best options for dealing with any present or anticipated immigration law issues. It is better to prepare now and get all your ducks in a row than be blind sighted by a change to an existing immigration law or policy, such as the repeal of DACA.

The American Dream is for Everyone

1/29/2018

By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They were granted authorization to remain in the United States under an Obama-era program known as Consideration of Deferred Action for Childhood Arrivals (DACA). The Trump White House has stated that they are willing to provide a pathway to citizenship for Dreamers in exchange for fewer family-based immigration categories, the elimination of the Diversity Visa Program, and $25 million in funding for the infamous wall. President Trump had previously cancelled DACA on September 5, 2017.

DACA recipients have strongly opposed the White House’s proposal, arguing that they refuse to benefit from a bill that will disrupt the lives of millions. A pathway to citizenship for Dreamers is desperately needed, but even Dreamers realize that they’re not the only ones whose lives remain in the balance. H-4 spouses are set to lose their ability to work, and H-4 dependents could age out if their parent continues to be stuck in the employment-based backlogs. TPS recipients are being forced to return to countries where poverty and violence remain the norm. Foreign nationals of banned countries anxiously await the ability to come to the US and join their families or begin working in their fields. Foreign students nearing graduation fear the H-1B lottery cap and USCIS’s increased scrutiny of level one wages and IT-related positions. Skilled workers from India and China stuck in the backlogs recently feared being sent back home while they await their green cards. Although this proposal has been pulled back, the fact that it was made heightens the fragility of an immigration system that keeps skilled workers waiting for decades on end because of the unavailability of immigrant visas. Undocumented populations are increasingly fearful of the lack of ICE enforcement priorities and the increased number of non-criminal immigrants being arrested on buses, at schools, or courthouses. Although Dreamers stand to gain from the White House proposal, they do not, in good conscience, accept the trade-offs. At the same time, it would be perfectly understandable if a DACA recipient wanted to accept the Trump Administration’s deal so long as it would benefit her. It is natural for each group of immigrants to want to get their own benefit without regards to whether the enactment of legislation would improve the immigration system as a whole. However tempting this might be, it would clearly be in the interest of all immigrants, including Dreamers, if they united and steadfastly demand an immigration deal that fixes the immigration system to help everyone, which in turn benefits the national interest. Otherwise, what may seem to benefit you but hurt others, will come back to also ultimately hurt you.

The Trump Administration’s proposal is cruel and nothing short of xenophobic. While fixing DACA is urgently needed, such a fix will not resolve all the other problems in the immigration system. It is not worth getting a fix for DACA, without other urgently needed fixes, in exchange for immigration restrictions that would fulfill the wish list of a nativist. America has nothing to gain, and much to lose, from such a limited immigration policy. We have repeatedly argued that immigration is a net positive for the economy and society . Immigrants keep America competitive in STEM fields and other industries. Closing the doors to talented immigrants will undoubtedly make the US less competitive globally.

In stark contrast to the Trump Administration’s xenophobic wish-list is the Immigration Innovation (“I-Squared”) Act of 2018, introduced by two Republican Senators, Orrin Hatch (R-UT) and Jeff Flake (R-AZ). The bill would increase the H-1B visas from 65,000 to 85,000 a year and proposes lifting the existing cap of 20,000 additional H-1B visas reserved for those with master’s degrees if their employers agree to sponsor their green cards. The bill includes a “market-based escalator” so the supply can meet increased demand. That means granting up to 110,000 additional visas (a total of 195,000), and prioritizing visas for those with master’s degrees, foreign Ph.D.’s or U.S. STEM bachelor degrees. The bill would also eliminate per-country caps on employment-based green cards and allow H-4 visa holders the ability to work. It will also not count derivative family members, which if implemented upon enactment, will quickly drain the decades long backlogs in the employment-based preferences. The bill does not address Dreamers, but rather focuses on employment-based visas. Although imperfect, the bill serves as a proper starting point when discussing sensible immigration policy. Specifically, the bill acknowledges the utility and benefit of foreign skilled workers, especially in the IT field. Hatch and Flake have both realized that these workers not only benefit US industries, but also help create jobs for American workers. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The people who run immigration policy in the Trump administration care about American workers but do not effectively express such concern. Instead, they have created policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. I-Squared does provide the opening salvo. This bill has all the right ingredients – elimination of per country limits, not counting derivative family members that have till now clogged up the employment-based preferences and increasing the H-1B visa cap. We need I-Squared as much as a fix for DACA recipients.

Congresswomen and men need to similarly create a comprehensive bill that provides a pathway to citizenship for Dreamers without throwing other immigrant populations under the bus. Even requiring Dreamers – who only know America as their country – to wait 10-12 years on a probationary basis before they can apply for permanent residence and citizenship is unnecessary and cruel. Although Dreamers are under no obligation to prove their worth, as their humanity alone entitles them to respect, we nevertheless see DACA recipients thriving in the respective fields and substantially benefiting the United States. The proposed legislation should also not undermine family immigration since family unification has been the cornerstone of US immigration policy since its inception. Family members of the principal immigrant support each other, and thus create more stability and bring about more prosperity. It is also not necessarily the case that a skilled immigrant in a STEM field will only benefit the United States. The nation’s immigration history is replete with examples of immigrants from all walks of life succeeding in the country through their hard work, grit and determination. Objecting to family-based migration, including cutting off the ability of a US citizen to sponsor a parent, means that you are advocating a total shut-down of immigration and the cruel separation of families. It is also immoral to do so.

With the exception of descendants of indigenous peoples, every American is a descendant of immigrants. Everyone’s mother, grandmother, great-grandmother, etc. came to the United States from a foreign land in the hopes of creating a better life. The American Dream is for everyone, whether your family has been here for generations or if your family just arrived yesterday. It is senseless to close the doors to immigrants seeking opportunity in a nation whose identity is intimately intertwined with migration.

Colorado DMV May Communicate With ICE

1/29/2018

By: Courtney Sommer, Associate of Kirby Joseph, ABIL Lawyer
Joseph Law Firm Blog

Colorado is one twelve states that allows undocumented immigrants to obtain driver’s licenses. If an individual cannot show lawful permanent residence or U.S. citizenship, that person may still be able to obtain a Colorado driver’s license using his or her Individual Taxpayer Identification Number (ITIN) issued by the IRS, or showing proof of temporary lawful presence.

According to a recent report, however, Colorado is also one of a few states with policies in place to share personal information regarding a person’s immigration status with ICE. The state does not require that ICE provide a warrant for this information, but it does determine what information to provide on a case-by-case basis. ICE claims the agency only requests this information during an ongoing criminal investigation or in attempting to locate individuals who pose a national security risk, and not simply to target individuals for deportation. But the risk is something to be aware of when applying for a new license or renewing an expiring one.

Providing licenses to individuals regardless of their immigration status helps keep roads safer, and in Colorado it is a class B traffic infraction to fail to update an address with the DMV within 30 days of moving.

Potential Adjustment of Status Options After the Termination of TPS

1/22/2018

By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS comprehensively provides tips on how to represent TPS recipients whose authorization will soon expire with respect to asylum, cancellation or removal and adjustment of status.

I focus specifically on how TPS recipients can potentially adjust their status within the United States through either a family-based I-130 petition or an I-140 employment-based petition for permanent residency. A September 2017 practice advisory from the American Immigration Council points to two decisions from the Ninth and Sixth Circuit, Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), holding that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a).

In both these cases, the plaintiffs previously entered the United States without inspection, and then became recipients of TPS grants and subsequently married US citizens. At issue in both those cases was whether they were eligible for adjustment of status under INA 245(a) as beneficiaries of immediate relative I-130 petitions filed by their US citizen spouses. Both the decisions answered this question in the affirmative.

A foreign national who enters the United States without inspection does not qualify for adjustment of status even if married to a US citizen since s/he does not meet the key requirement of INA 245(a), which is to “have been inspected and admitted or paroled into the United States.” However, both Ramirez and Flores held that as a matter of statutory interpretation, Congress intended TPS recipients to be considered “admitted” for purposes of INA 245(a). Thus, even if the foreign national entered without inspection, the grant of TPS constituted an admission thus rendering the TPS recipient eligible for adjustment of status. Of course, the other conditions of INA 245(a) must also be met, which is to be eligible to receive a visa and not be inadmissible as well as have a visa that is immediately available. The disqualifications to adjustment of status in INA 245(c)(2) such as working without authorization, being in unlawful status or failing to maintain lawful status since entry are not applicable to immediate relatives of US citizens, who are spouses, minor children and parents.

The courts in Ramirez and Flores relied on INA 244 (f)(4), which provides:

(f) Benefits and Status During Period of Protected Status – During a period in which an alien is granted temporary protected status under this section-

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant

Both courts read the above phrase, especially “for purposes of adjustment of status under section 245 and change of status under section 248” to be in harmony with being “admitted” for purposes of adjustment of status. As INA 244(f)(4) bestows nonimmigrant status on a TPS recipient, an alien who has obtained nonimmigrant status is deemed to be “admitted.” Thus, at least in places that fall under the jurisdiction of the Sixth and Ninth Circuits, TPS recipients who have been granted nonimmigrant status under INA 244(f)(4) could potentially adjust status to permanent residence as immediate relatives of US citizens.

The next question is whether a TPS recipient can also adjust status to permanent residence if s/he is the beneficiary of an approved I-140 petition under the employment-based first, second, third and fourth preferences. The answer arguably is “yes” provided the applicant resides in a place that falls under the jurisdiction of the Sixth and Ninth Circuits. INA 245(k) will come to their rescue, which applies to the employment-based first to fourth preferences.

A TPS recipient from El Salvador who is concerned that her TPS designation will terminate on September 9, 2019 may wish to request her employ to file a labor certification on her behalf. If the labor certification is approved, after an unsuccessful test of the US labor market for her experience and skills, the employer may file an I-140 petition and potentially a concurrent I-485 adjustment of status application. The EB-2 and EB-3 priority dates for a person born in El Salvador are current in the February 2018 visa bulletin, and likely to remain current over the foreseeable future.

INA 245(k) exempts applicants for adjustment who are otherwise subject to the INA 245(c)(2) bar based on unauthorized employment or for not maintaining lawful status provided they are present in the United States pursuant to a lawful admission and subsequent to such admission have not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. Thus, even if the TPS recipient may have not been in lawful status prior to the grant of TPS, the grant of TPS resulted in the individual being admitted into the US. If this person files within the TPS validity period, 245(k) should allow this person to adjust to permanent residence.

I would posit that this person would be eligible under 245(k) to apply for adjustment of status within 180 days from the expiration of the TPS status. This may well be the case if there is a delay in the processing of the labor certification or if there is a retrogression in the priority date. Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted her into the United States. The fact that she was once admitted through the TPS grant cannot vanish just because she is no longer a TPS recipient, and she ought to be eligible to adjust status under 245(k) so long as she has not stayed in the US greater than 180 days from the termination of TPS designation. Once a person has been admitted, the person is still considered to have been admitted for 245(a) purposes even if the period of stay under TPS expires. I would argue that this should apply to a INA 244(f)(4) implied admission as much as it does to any other kind of admission. If you are necessarily admitted because you have gone from having entered without inspection to being in nonimmigrant status, that does not cease to have been the case because your nonimmigrant status later goes away.

A person who was previously admitted in a nonimmigrant status, but who then fell out of status prior to the grant of TPS, may also arguably be considered admitted once again under 245(k) upon receiving a grant of TPS. One could argue that the TPS is the last admission for 245(k). However, the argument is probably stronger for one who entered without inspection, since traditionally only the granting of status to someone previously not admitted is a new “admission”—going out of status and back in doesn’t have the same tradition of being characterized that way.

Note that 245(k) is only applicable to I-485 applications filed under the employment-based first, second, third and fourth preferences. With respect to family-based preference petitions, USCIS has taken the position that anyone who has ever failed to maintain continuously a lawful status will not be eligible for adjustment of status. Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will not be able to adjust status if he was not in status prior to the grant of TPS. The AIC practice advisory cites Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017), which held to the contrary that TPS cures the prior lack of status for a family preference beneficiary, but since this is a decision from a district court it has no precedential value and should not be relied upon. Of course, if his spouse becomes a US citizen, then he qualifies as an immediate relative and also eligible to adjust status if admissible despite having not maintained status prior to the TPS grant, or even if the TPS terminates, as immediate relatives are exempt from the 245(c)(2) bar.

Those who do not reside in the Sixth and Ninth Circuit can also adjust by availing of Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under this decision, a departure under advance parole does not trigger the 3 and 10-year unlawful presence bars pursuant to INA 212(a)(9)(B). Thus, a TPS recipient may apply for advance parole, leave the United States and be paroled back into the United States (although beware that under the Trump administration, CBP could deny entry to one with advance parole). The departure would not trigger the unlawful presence bars and the parole would be recognized for purposes of adjusting under INA 245(a) as having been “inspected and admitted or paroled.” Note, though, that the entry into the United States under parole would only render one eligible for adjustment of status as an immediate relative, and not under an approved I-140 preference petition since INA 245(k) only applies to one who has been admitted rather than paroled into the United States. The parole entry would also not help a preference beneficiary under an approved I-130. Although parole could be considered a lawful status (as the INA 245(c)(7) bar only applies to employment-based I-140s that are not subject to the 245(k) exception) for purposes of adjustment of status based on a family preference I-130, the applicant must demonstrate that s/he never previously violated lawful status. Proceeding overseas for consular processing, where filing an adjustment of status application may not be possible, may trigger the 3 and 10-year bars if the TPS recipient previously accrued unlawful presence prior to the grant of TPS. Even if the TPS recipient departs the United States pursuant to a grant of advance parole, it is not clear whether the US Consulate will recognize Matter of Arrabelly and Yerrabelly in situations where the person departs under advance parole but intends to return on an immigrant visa. Thus, those who plan to proceed for consular processing who have accrued the requisite unlawful presence to trigger the 3 and 10-year bars should only proceed if they can obtain a provisional waiver of the bars based on extreme hardship to a qualifying relative.

What is quite certain presently is the ability to adjust status as an immediate relative if the TPS recipient resides within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). It is also important to note that the Eleventh Circuit in Serrano v. Unites States Attorney General, 655 F.3d 1260 (11th Cir. 2011) held that TPS was not an admission for purposes of adjustment under INA 245(a). As David pointed out in his blog, those who reside outside those two Circuits, except in the Eleventh Circuit, might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials. An applicant can litigate by bringing an action under the Administrative Procedure Act, 5 U.S.C. 701 in federal district court. Alternatively, if the applicant is placed in removal proceedings, s/he can argue these theories before an Immigration Judge, and if unsuccessful to the Board of Immigration Appeals and subsequently in a Court of Appeals. Further details on various litigation strategies may be provided in a subsequent blog. Even if a TPS recipient resides within the jurisdiction of the Sixth or Ninth Circuit, it is not clear whether the USCIS will accept an argument for adjustment of status through an I-140 employment-based petition under INA 245(k). This uncertainty gets exacerbated where the TPS grant has already expired and the I-485 is being filed within 180 days of its final expiration date. Hence, the TPS recipient planning to deploy an adjustment of status strategy under 245(k) must also be prepared to litigate even if residing within the jurisdiction of the Sixth or Ninth Circuit. Under the Trump administration, when immigration benefits have suddenly been curtailed for long time TPS recipients, it may be worth adopting creating adjustment of status strategies, and if USCIS does not accept them, to consider litigating until there is success as was the case in the Ramirez and Flores decisions.

(This blog is for informational purposes only and should not be considered as a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.)

USCIS Announces TPS Re-Registration Applications Now Being Accepted For Haiti And El Salvador

1/19/2018

By: Jennifer Howard, Associate of Kirby Joseph, ABIL Lawyer
Joseph Law Firm Blog

After announcing the termination of Temporary Protected Status (TPS) for Haitians on November 20, 2017, and for Salvadorans on January 8, 2018, United States Citizenship and Immigration Services (USCIS) announced yesterday that it would begin accepting re-registration applications for Haitians and Salvadorans who already have TPS and want to maintain their status through the effective termination date of July 22, 2019, and September 9, 2019, respectively. Per USCIS guidelines, eligible applicants from both countries must re-register between January 18, 2018, and March 19, 2018.

USCIS will also issue new Employment Authorization Documents (EADs) with a July 22, 2019, expiration date to eligible Haitian TPS beneficiaries and a September 9, 2019, expiration date to eligible Salvadoran TPS beneficiaries who timely re-register and apply for EADs. In addition, USCIS has automatically extended for 180 days the validity of EADs issued and currently valid (non-expired) under the TPS designation of Haiti, through July 21, 2018, and under the TPS designation of El Salvador, through September 5, 2018.

Haitians and Salvadorans with TPS should consult with a qualified immigration attorney about their eligibility for TPS re-registration and about possible eligibility for another immigration status or benefit that would allow you to remain in the United States legally after the effective termination of TPS for these countries in 2019.

Vietnam EB-5 Demand Exceeds Expectations – U.S. State Department Predicts April 2018 Final Action Date – What Does That Mean For the EB-5 Waiting Line?

1/17/2018

By: Bernard P. Wolfsdorf, ABIL Lawyer; Joseph Barnett, Partner; and Robert Blanco, Senior Associate Attorney
Wolfsdorf Immigration Blog

We previously blogged about the growing demand for EB-5 visas from Vietnam in October 2017. Now, recent analysis from the U.S. Department of State (“DOS”) and from IIUSA, confirms this reality. IIUSA recently indicated:

The EB-5 visa usage for Vietnamese applicants jumped 190% year-over-year from October to December 2017. Since almost half of the annual EB-5 visa allocations for Vietnam (approximately 700) has already been used in the first quarter of the current fiscal year, the Visa Office predicts that Vietnam will face oversubscription by April [2018], at which time a Final Action Date will be required. After this happens, Vietnamese EB-5 visa applicants will subject to the same FAD [Final Action Date] established for Chinese EB-5 visa applicants for the rest of FY2018.

Since the mainland Chinese category is backlogged, presently to July 22, 2014, it appears Vietnam will initially be subject to a sudden EB-5 backlog.

This chart shows that nearly 45% of EB-5 visas available to Vietnamese nationals in Fiscal Year (F)2018 (312 out of 697) had already been issued by the end of the first quarter, that is from October 1,2017-Decmebr 31, 2017.

The DOS has indicated in the February 2018 Visa Bulletin that the Vietnam EB-5 category “will become subject to a Final Action Date no later than April. The China-mainland born, and Vietnam employment fifth preference dates would be the same.” The China Final Action Date is currently July 22, 2014, meaning Chinese investors who filed before this date can get final green card interviews, or file to adjust status. Once Vietnam becomes subject to the same date as China, any of the demand for EB-5 visas from Vietnamese nationals that cannot be allocated for the remainder of the fiscal year (based on DOS’ predictions) will be held in “pending” status.

The annual limit for each country is only 7.0% of the EB-5 allocation of 9,940 or 696.8 visas. Therefore, each country has less than 700 visas available annually (for Vietnam and India this is only about 200-250 families). When one country uses all its available visas (like China for EB-5), applicants from those countries may be allocated unused visas available from the worldwide limit. Any excess EB-5 visas available to oversubscribed countries will be issued based on an investor’s priority date. Unfortunately, because there are so many Chinese investors with earlier priority dates, the Vietnamese will need to wait for those Chinese investors to clear first, or until the new annual limit becomes available at the beginning of FY 2019 (October 1, 2018).

However, unless an increase in the minimum investment amount slows demand, or Congress increases the number of EB-5 visas available, this problem will get exponentially worse as more Vietnamese investors file I-526 petitions. If this level of demand continues, Final Action Dates for Vietnamese EB-5 investors can be expected for the foreseeable future. The critical difference between the backlogged China quota and the Vietnam Final Action date is that demand from Vietnam isn’t as large, so that, when the new annual visa allocation becomes available at the beginning of FY 2019 (October 1, 2018), the Vietnam Final Action Date will likely be later than the Chinese one. Some good news is that the DOS has informally advised that based on current indications, all Vietnamese applicants with priority dates through the end of 2017 will likely be processed to conclusion within the next 4 ½-5 years.

October 2018 (FY2019 Q1) Visa Bulletin Guesstimate

Chinese Final Action Date Guesstimate September 19, 2014

Vietnam Final Action Date Guesstimate 2015 or 2016 (most likely 2015)

There are several significant issues arising from this surge. First, Vietnamese applicants may have to learn how the Child Status Protection Act (“CSPA”) works. CSPA allows the child to deduct the I-526 petition processing time, which is presently about two years, from the child’s actual age. However, this calculation is not done until the time an EB-5 visa is available. Then, the child must “seek to acquire” a visa by paying the National Visa Center fee bill and filing the DS-260 form. This action “locks” the child’s CSPA age. If the child’s age is “locked” then the child can derivatively obtain a green card, even if the child’s biological age is over 21 years old. Recently, our office successfully obtained an EB-5 green card for a 24-year-old child.

Vietnamese investors with teenage children should learn from the Chinese EB-5 wait line. Unfortunately, derivative children stuck in a waiting line, where the visa number is not current at the time of approval, are unable to lock in their age under CSPA until their Final Action Date is “available”.

In addition to Vietnam, India has also seen a dramatic surge in EB-5 visa usage. EB-5 visa demand rose almost 500% from the first fiscal quarter of 2017 (October 1, 2016 – December 31, 2016) to the first fiscal quarter of 2018 (October 1, 2017 – December 31, 2017), proof that demand from India is skyrocketing. However, this 500% trajectory is already two years old and estimation of current I-526 filings is speculative. So, while India is very unlikely to use its annual visa quota in fiscal year 2019 (from October 2018-September 2019) according to unofficial State Department sources, we speculate that may change for fiscal year 2020, when India may also hit its annual quota, like Vietnam has now. Of course, this may not occur if there is a substantial increase in the minimum investment amount that slows demand, or Congress increases the number of EB-5 visas available

October 2020 Visa Bulletin Guesstimate

Chinese Final Action Date Guesstimate March 15, 2015

Vietnam Final Action Date Guesstimate 2016?

India Final Action Date Guesstimate 2016 or 2017?

South Korea or Brazil Guesstimate 2020 or 2021?

The key takeaway is that Indian nationals and Vietnamese nationals with children need to proceed as soon as possible to file their cases, or possibly face the tragic consequences of “aging-out” and be separated from their family. It appears 17-year old derivatives that file now should be safe and 18-year-old derivatives may be safe. But until we know how many cases have been filed for each nationality annually, precise calculations are difficult.

One way to guard against this is to file with the minor child as the principal applicant. Our office is now filing EB-5 applications for minor Chinese children as the principal investors using legal instruments such as UTMA, the Uniform Transfer to Minors Act and Chinese law. So far, the USCIS is open-mindedly approving these petitions. We have had approvals for children as young as 15 years old and will also be filing for children as young as 13 years old.

With almost 40,000 petitions filed in the last three fiscal years, representing about $20 billion in foreign capital investment, we can only anticipate increased waiting lines. Applicants chargeable to the “Big Five”, China, Vietnam, South Korea, Brazil and India are advised to plan years ahead. Unfortunately, there are too many variable factors to precisely determine each country’s waiting line. The variables include attrition through the 4D’s, denial, dropout, death, or divorce.

While we realize that the visa allocation system under the Immigration and Nationality Act is complicated, it is critical for potential and current EB-5 investors to understand the waiting line system to plan their immigration strategy. Regional Centers and EB-5 projects need this information to prepare for return of capital to new commercial enterprises and for the redeployment of funds in compliance with current USCIS policy guidance.

As the U.S. Congress contemplates immigration changes, it should correct the drafting error that occurred when enacting the EB-5 Visa via the Immigration Act of 1990. Clearly expecting to admit 10,000 investors annually, the drafters inadvertently counted both investors and their families against the annual limit. While for the first 27 years demand for this program has been low, this has now changed creating long waiting lines for Chinese applicants, and creating a shorter waiting line for Vietnamese applicants, and maybe even for Indians, South Koreans and Brazilians, in the near future unless we see changes to the program.

What Comes Next: Potential Relief Options After the Termination of TPS

1/17/2018

By: David Isaacson, Partner of ABIL Lawyer, Cyrus D. Mehta
The Insightful Immigration Blog

With the recent announcement that the Trump Administration will terminate Temporary Protected Status (TPS) for more than 200,000 citizens of El Salvador effective September 2019 after previously terminating TPS for Haiti, Nicaragua, and Sudan, it seems appropriate to examine alternate forms of immigration relief that may become available to those whose TPS is terminated. Of course, we may hope that Congress will provide some relief to TPS holders, but as things stand now, that appears to be an eventuality which should not be counted on at least in the short run.

One possibility for some TPS holders may be adjustment of status under INA §245. As explained in a September 2017 practice advisory from the American Immigration Council, the Courts of Appeals for the Sixth and Ninth Circuits have held that TPS constitutes an admission for purposes of eligibility for adjustment under INA §245(a). TPS holders who are immediate relatives of U.S. citizens can take advantage of this holding most simply, if they reside within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). Those who reside outside those two Circuits might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials. The situation with respect to applicants for adjustment based on other family relationships or employment is more complex, as explained in the linked American Immigration Council practice advisory, but that sort of adjustment of status will be potentially available to TPS recipients under at least some limited circumstances.

Another possibility for many TPS-holders, if they are placed in removal proceedings, might be seeking cancellation of removal for non-permanent residents under INA §240A(b). It has been reported that many TPS recipients from El Salvador have U.S. citizen children, for example: there are reported to be “nearly 200,000 US citizen children of Salvadoran parents with TPS.” Many TPS holders may be able to show that one or more of their U.S. citizen children (or Lawful Permanent Resident children or U.S. citizen or Lawful Permanent Resident spouses or parents) will suffer “exceptional and extremely unusual hardship” upon removal of the parent, although this is admittedly a very high bar. If such TPS holders, with qualifying relatives who would suffer such hardship, have been continuously physically present in the United States for ten years before being placed in removal proceedings – which El Salvadoran TPS holders, for example, generally will have been, since TPS for El Salvador commenced in 2001 – then, if certain other criteria regarding good moral character and lack of disqualifying criminal convictions are met, they can seek cancellation of removal in Immigration Court under §240A(b), which would result in Lawful Permanent Resident status.

It is important to note, in this context, that time in TPS counts towards the ten-year minimum for cancellation under INA §240A(b). It is only in the distinct context of cancellation of removal for lawful permanent residents under INA §240A(a) that INA §244(e) excludes from continuous presence one’s time in TPS, and there only “unless the Attorney General determines that extreme hardship exists.” A footnote on the USCIS webpage reproduction of this INA section suggests that the restriction was actually meant to apply to §240A(b) cancellation, but besides being contrary to the text of the statute, this would have little practical impact even if it were true: any case in which “exceptional and extremely unusual hardship” exists for purposes of §240A(b) cancellation would presumably be a case in which extreme hardship exists for the purposes of the exception.

Admittedly, some TPS holders will presumably be unable to establish a sufficiently high level of hardship to their children—although given the atrocious violence and other country conditions in El Salvador, where the State Department has notably advised U.S. citizens not to travel, it is not clear what proportion of U.S. citizen children could relocate there without suffering exceptional and extremely unusual hardship. Even so, however, one wonders how the Trump Administration thinks the already-overburdened immigration court system is going to deal with determining which of the nearly-200,000 U.S. citizen children involved will suffer such exceptional and extremely unusual hardship. Perhaps the answer is that they do not intend to place former TPS beneficiaries into removal proceedings. But that could give rise to the peculiar spectacle of a large population seeking to be placed into removal proceedings, where they can have the hardship to their children taken into account under the statutes enacted by Congress, while the Administration insists that the members of that population should leave, but refuses to commence the proceedings that under INA §240(a)(3) are the “sole and exclusive procedure” for compelling them to do so.

Some TPS holders may also be eligible for asylum under INA §208. Asylum is typically thought of as a form of relief available to those who fear persecution on a protected ground in their home countries, and some citizens of El Salvador and the other countries whose TPS is being terminated may indeed meet that description. However, while a fear of future persecution is the archetypical case for asylum, it is not the only one, under the governing regulations. As the BIA explained in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012), pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), asylum can be granted to one who has suffered persecution in the past and “has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”

While “other serious harm” must equal the severity of persecution, it may be wholly unrelated to the past harm. Moreover, pursuant to the regulation, the asylum applicant need only establish a “reasonable possibility” of such “other serious harm”; a showing of “compelling reasons” is not required under this provision. We also emphasize that no nexus between the “other serious harm” and an asylum ground protected under the Act need be shown.

Matter of L-S-, 25 I&N Dec. at 714. The BIA further explained that “adjudicators considering “other serious harm” should be cognizant of conditions in the applicant’s country of return and should pay particular attention to major problems that large segments of the population face or conditions that might not significantly harm others but that could severely affect the applicant.” Id. This may be particularly relevant to TPS recipients from countries like El Salvador which do, as discussed above, have major problems faced by large segments of the population, such as widespread violence.

It is important to note that this other-serious-harm asylum requires that an applicant have previously suffered qualifying past persecution on a protected ground. The full definition of such past persecution is beyond the scope of this blog, but it is a difficult threshold to meet. The Second Circuit has explained in Baba v. Holder that to constitute persecution “conduct must rise above mere harassment” and that persecution includes “threats to life or freedom” and also extends to “non-life-threatening violence and physical abuse.” The Second Circuit has also, as explained in Baba with a quotation of Guan Shan Liao v. U.S. Dept. of Justice, “found that persecution may also take the form of non-physical harm, such as ‘the deliberate imposition of a substantial economic disadvantage.’” As for the protected grounds, there are many subtleties, but the basic statutory requirement under INA 208(b)(1)(B)(i) (largely restating INA §101(a)(42)(A) with some added stringency per the REAL ID Act of 2005) is that “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”

However, such qualifying past persecution could have taken place many years ago, under very different political conditions than are now present. Moreover, the Court of Appeals for the Second Circuit has recognized that under some circumstances, children may suffer qualifying past persecution from actions primarily directed at other family or community members. In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the Second Circuit explained that massacres in a child’s persecuted ethnic Mayan community could constitute persecution of the child even if not directed at the child specifically:

Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community. He also offered substantial evidence of a pervasive campaign carried out by the army against Mayans in the area in which he lived. The CEH documented two 1982 army killings of persons named Tzoc in Jorge-Tzoc’s village. Further, while the family remained in their village, Jorge-Tzoc’s mother was afraid to go out of their home to obtain needed groceries, and Jorge-Tzoc viewed the bullet-ridden body of his cousin lying on the ground. The army’s campaign, according to Jorge-Tzoc’s testimony, resulted in his relocation, along with many family members to one room in Quiche where they struggled to survive. In addition, Jorge-Tzoc’s father lost his land and his animals as a result of the move. This combination of circumstances could well constitute persecution to a small child totally dependent on his family and community.

The Court of Appeals for the First and Ninth Circuits have similarly concluded that persecution of a child’s family can constitute persecution of that child, in Ordonez-Quino v. Holder and Hernandez-Ortiz v. Gonzales. The Second Circuit narrowed Jorge-Tzoc somewhat in Jiang v. Gonzales, requiring that the persecuted child “share – or [be] imputed to share – the characteristic that motivated the persecution.” (There is also additional discussion in Jiang, arguably nonbinding dicta, regarding how such persecution would “presumably” require that the child, as in Jorge-Tzoc, “was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.”) Nonetheless, there may be TPS recipients who would have a reasonable past-persecution claim based on events that occurred many years ago when they were children, which could then ground an application for asylum based on the reasonable possibility of other serious harm due to current country conditions.

Another issue in regard to a possible asylum application by a TPS recipient would be the one-year filing deadline of INA §208(a)(2)(B). Ordinarily, one who wishes to apply for asylum must do so within a year of their last arrival in the United States. However, INA §208(a)(2)(D) exempts from the one-year deadline cases in which an applicant can establish “extraordinary circumstances relating to the delay in filing the application within the period”, and the regulations at 8 C.F.R. §208.4(a)(5)(iv) clarify that such extraordinary circumstances may include maintenance of TPS or other lawful status “until a reasonable period before the filing of the asylum application”. As a recent AILA practice pointer has noted, this may not solve the one-year problem for those who were present in the United States for more than a year between the time the one-year deadline was created in 1997 and the onset of their TPS. However, the TPS exception it does mean that some TPS beneficiaries will not have a problem with the one-year deadline even if the events giving rise to an asylum claim occurred long ago.

Moreover, changed circumstances “materially affecting the applicant’s eligibility for asylum” can also excuse late filing under INA §208(a)(2)(D) and 8 C.F.R. §208.4(a)(4)(i) as long as the applicant files within a reasonable time given those changed circumstances. Where a claim is based on a combination of past persecution and a reasonable possibility of other serious harm in the future, there would be a strong argument that a change in circumstances materially affecting the other-serious-harm prong of eligibility would qualify under this exception even if the past persecution remained constant. Thus, some TPS recipients who had suffered past persecution might be able to excuse an otherwise untimely asylum claim based on changed circumstances relating to the other serious harm they would suffer if returned to their home country.

In cases where a reasonable asylum claim could be made under one of these various theories, it could also have the incidental effect of solving the problem discussed above of TPS recipients being left in limbo by a refusal to place them in removal proceedings. By regulation, pursuant to 8 C.F.R. §208.14(c)(1), where an affirmatively-filed asylum application is not granted and the applicant is considered to be inadmissible or deportable, the application will generally be referred into removal proceedings, where the applicant can renew the asylum application and also apply for other available relief (such as, if applicable, cancellation of removal for non-permanent residents). Such placement in removal proceedings is of course a dangerous outcome, but for some people it may be preferred to indefinite limbo.

Another defense against removal that might be available to TPS beneficiaries placed in removal proceedings would be to challenge, in federal court, the de-designation of their countries for TPS. This is difficult outside the context of removal proceedings, because INA §244(b)(5)(A) states that “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” There may be some argument that this jurisdictional bar should be interpreted to exclude bona fide constitutional claims as discussed in Calcano-Martinez v. INS, 533 U.S. 348 (2001) in the context of a different jurisdictional bar, although this is not completely clear. Once TPS becomes at issue in a removal order, however, the scope for federal court review would be broader, because a petition for judicial review of that order would fall under the protection of INA §242(a)(2)(D), which states that

Nothing in . . . any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

INA §242(a)(2)(D), 8 U.S.C. §1252(a)(2)(D) (referring to “this chapter” rather than “this Act”). Under this provision, a former TPS holder who was ordered removed ought to be able to challenge the de-designation of their country of nationality as legally inappropriate—perhaps, for example, on the basis that the de-designation, albeit nominally accomplished by DHS, had been inappropriately influenced by the views of the Chief Executive regarding people from “shithole countries.”

All of these potential courses of action are complex and fraught with risk, and TPS holders would be well advised to consult a qualified immigration attorney before proceeding with any of them. It is important to know, however, that the termination of TPS may not equate to the termination of all ability to remain lawfully in the United States.

U.S. Tax Delinquents: Travel Ban Implemented

1/17/2018

By: David Fullmer, Partner of Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog

Joining the ranks of parents who fail to pay child support and lose their passports, US Citizens with serious tax delinquencies will now risk losing their passports and the inability to renew them. In December of 2015 congress passed the FAST Act that among other things mandated that delinquent taxpayers would lose their passports. After a delay in implementation, the rule became effective on January 1, 2018. The following are some important aspects of the new program:

The IRS will certify that a taxpayer has a “seriously delinquent” tax debt, defined as an unpaid, legally enforceable and assessed federal tax liability of an individual greater than $50,000.
The IRS will notify the State Department of the delinquent status of the tax payer.
When the delinquent taxpayer applies for a passport, the applicant will be notified of the issue and will be given 90 days to resolve it with the IRS. In addition, the State Department may revoke or limit a passport that was previously issued.
Tax debt is not deemed to be seriously delinquent in some situations such as: if the debt is being paid through an installment agreement, an offer in compromise, a settlement agreement.
If a taxpayer feels that the certification of serious tax delinquency is incorrect, they have a right to judicial review in either US District Court or US Tax Court.

These new rules may come as a rude awakening to some US Citizens living overseas who marry and live abroad for long periods of time and do not stay current with their US tax obligations. These US Citizens may petition for an immigrant visa for their spouse only to be barred themselves from coming to the US.

The USCIS has long used a similar test to bar Green Card holders from becoming naturalized US Citizens if they are delinquent on their taxes. The lesson is pay your taxes or you may land-locked.

USCIS Announces DACA Renewal Applications Again Being Accepted

1/15/2018

By: Aaron C. Hall, Partner of Kirby Joseph, ABIL Lawyer
Joseph Law Firm Blog

After being ordered to resume accepting DACA renewal applications by a federal court, United States Citizenship and Immigration Services (USCIS) announced that it would begin accepting renewal applications immediately. The federal court order forcing this action is subject to appeal and it is unclear for how long USCIS will continue to accept applications. Individuals should consult with their lawyers to decide the best course of action for their particular case, but general guidance for three groups of DACA grantees is as follows:

(1) People whose DACA grant expired within the last year: Apply for renewal IMMEDIATELY.

(2) People whose DACA grant expires between now and June 2018: Apply for renewal IMMEDIATELY.

(3) People whose DACA grant expires more than 150 days from now:

Consider filing immediately. Previous USCIS guidance advised DACA renewal applicants to apply 120-150 days prior to expiration. However, previously published FAQs indicated that renewal requests received earlier than 150 days prior to expiration would be accepted. Because the court ordered USCIS to operate its DACA program according to the terms in place prior to the cancellation of the program, USCIS should accept early-filed applications per the FAQs.

Those who have never had DACA cannot apply now as USCIS is not accepting new applications. In addition, USCIS announced that it will not consider applications for advance parole (travel permission) for any DACA grantee.