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What Does The New USCIS Unlawful Presence Guidance Mean To YOU?

8/28/2018

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By: Erin Williams, Associate Attorney of Kirby Gamblin Joseph, ABIL Attorney
​Joseph Law Firm Immigration Blog

Are you a Student (F), Vocational Student (M) or Exchange Visitor (J) Principal or Family Member Nonimmigrant Visa Holder?  What does the new USCIS Unlawful Presence Guidance Mean to YOU?

With the creation of USCIS, many of the predecessor agency’s (INS) policies and procedures were maintained and continued.  Beginning in 1997, an INS policy found that individuals admitted to the United States in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) statuses for “duration of status” began accruing unlawful presence only after INS found a violation of nonimmigrant status or when the individual were ordered excluded, deported, or removed. Further, those in these categories admitted with a date certain expiration began accruing unlawful presence the day after the expiration date annotated on the entry document (Form I-94). This longstanding policy remained until an announcement this spring of change this month.

On May 10, 2018 USCIS posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status.  The new policy memo created questions and fear for those currently or previously in F, J, or M status and their derivative family members.
Under the new policy, which went into effect on August 9, 2018, nonimmigrants in F, J, or M status and their derivative family members were subjected to the following changes:

Failure to maintain F, J, or M status as a principal or derivative
  • An individual who has failed to maintain their F, J, or M status (and their derivative family) before August 9, 2018 will begin accruing unlawful presence on that day. There is no need for any formal finding by USCIS or an Immigration Judge.  If an individual is no longer pursuing the course of study or authorized activity, has completed the course of study or authorized activity (including any grace period) or engaged in unauthorized activity, as of August 9, 2018, unlawful presence is accruing.
  • An individual who fails to maintain F, J, or M status (and their derivative family) on OR after August 9, 2018 will begin accruing unlawful presence on: the day after the individual is no longer pursuing the course of study or authorized activity, has completed the course of study or authorized activity (including any grace period), engages in unauthorized activity, or has a formal finding by USCIS or an Immigration Judge.
  • Family members in derivative status will be out of status with any of the above at the same time of the principal F, J, or M status holder – with or without explicit knowledge of the principal nonimmigrant visa holder’s violation of status.
USCIS posted a revised policy memorandum on August 9, 2018 regarding the unlawful presence calculations for these categories. This revision did not change the above, but provided additional guidance on calculating unlawful presence for those who timely file a request for a reinstatement with the appropriate adjudicating body and the effect of an approval or denial on the calculations. See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf
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Unlawful presence can have life altering effects on individuals and their families.  An individual present in the U.S. for more than 180 days (accrued 181+ days of unlawful presence) will trigger a 3 year bar to returning to the U.S. at their departure.  The outcome is even more detrimental if an individual remains longer than 1 year and departs.  That departure will trigger a 10 year bar to return to the United States.
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Assisted Reproductive Technology and Transmission of American Citizenship: Is There Any Need For A Biological Link After Jaen v. Sessions?

8/27/2018

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By: Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog
When a child is born abroad to a US citizen parent, the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has always insisted on a biological relationship with a US citizen parent in order to acquire U.S. citizenship from that parent. This has always meant a genetic relationship, but with the advancement of Assisted Reproductive Technology (ART), the DOS and USCIS have made an exception for a gestational mother who is recognized as the child’s legal parent who used a donor egg but still carried and gave birth to the child.

While including the gestational mother who may not have a genetic relationship to the child is a worthwhile exception, it deprives the mother who may neither be the gestational mother nor have a genetic relationship with the child from passing US citizenship. For instance, when a US citizen mother is medically unable to bear a child and needs to use a surrogate mother overseas to carry the child to birth, and the egg is not hers and the sperm is from a non-US citizen father, US citizenship cannot be passed onto the child. It is acknowledged that commercial surrogacy has generated controversy as a result of instances of unethical and exploitative practices, and is banned in many countries.  India, until recently, was the hub of commercial surrogacy, but is also proposing a law to completely ban it. In the interim, foreign nationals have not been allowed to enter India for surrogacy arrangements on medical visas as of November 3, 2015 and they are also not allowed to take the child out of India after its birth. Still, countries such as Georgia and Ukraine are emerging as new international surrogacy hubs, and even if other countries have banned commercial surrogacy, altruistic surrogacy exceptions exist.  Thus, under current US policy, such a mother who for medical reasons is unable to establish a biological link to her child, and also cannot serve as the gestational mother herself, is unable to transmit US citizenship to her child. This is unfair for such mothers.

Fortunately, federal courts are adopting a broader view of who a parent can be in order to transmit US citizenship. The Court of Appeals for the Second Circuit in Jaen v. Sessions  recently held that a U.S. citizen who is a parent of a child as a result of marriage can also pass along U.S. citizenship to that child notwithstanding the prevalent DOS and USCIS policy that insists on a biological or genetic relationship for passage of US citizenship.  David Isaacson’s blog, Jaen v. Sessions: The Government Reminds Us That Government Manuals Aren’t Always Right, correctly points out that US government policy or guidance may not actually be the law, and federal courts need to step in to point this out. “But this will only happen if attorneys, and their clients, ask the federal courts to do so,” he adds.

In Jaen v. Sessions, Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  But Jaen’s Panamanian birth certificate indicated that his father was another man named Liberato Jaen. Jaen moved to the US at the age of 15 as a nonimmigrant in 1988 and lived with the Boreland family. In 2008, Jaen was placed in removal proceedings based on controlled substance violations and he moved to terminate proceedings on the ground that he was a US citizen. The Immigration Judge denied the motion, and the Board of Immigration Appeals affirmed. The Second Circuit reversed.

David Isaacson’s blog nicely summarizes the Second Circuit’s reasoning in finding that Jaen was a US citizen even if there was no biological link with his US citizen parent:
The government had sought to interpret this language as referring only to biological “parents”.  As the Second Circuit pointed out, however, the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes even if it were not also the case, as it was, that he would have been recognized as Levy Jaen’s father under New York law.

The government urged the Court of Appeals to follow the guidance in the DOS Foreign Affairs Manual (FAM) and USCIS Policy Manual, which required biological parenthood to qualify as a “parent”.  But as the Second Circuit noted in a footnote, those internal guidance manuals are not entitled to Chevron deference.  Jaen, slip op. at 11-12 n.4.  Nor did the Second Circuit evidently find them persuasive.

As the Second Circuit observed, it was not the first Court of Appeals to hold that the father by marriage of a child need not have a biological link to that child in order to transmit U.S. citizenship to that child.  The Ninth Circuit had held to the same effect in Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000).  Indeed, the Ninth Circuit in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), extended this holding to cover a man whose U.S. citizen mother was not his biological mother but had been married to his biological father at the time of his birth.  (It remains to be seen whether the Second Circuit’s holding in Jaen will be extended in the same way, as the Second Circuit did not have occasion to address this fact pattern.)
The reasoning in Jaen v. Sessions can be extended to a US citizen mother who uses a surrogacy arrangement as she is unable to bear her own child, and where the sperm donor spouse is not a US citizen. Although Jaen dealt with the term “parent” in old INA 301(a)(7), it is virtually identical to current INA 301(a)(g) other than requiring different periods of physical presence by the US citizen parent prior to the birth of the child.  The US citizen mother could potentially be considered a “parent” under INA 301(g), if she is married to the non-US citizen parent, notwithstanding the lack of a biological connection in the same way that there was no biological connection between Jaen and his US citizen father.  Indeed, the facts in Solis-Espinoza v. Gonzales, supra,  are more analogous to the example of a surrogacy arrangement as they involved a US citizen mother with no biological connection to the child. Though born in Mexico, Solis-Espinoza claimed citizenship by virtue of the U.S. citizenship of the woman he knew as his mother whose name was Stella Cruz-Dominguez.   Cruz-Dominguez, who was married to Solis-Espinoza’s biological father, a Mexican national, at the time of his birth, acknowledged Solis-Espinoza from his infancy as a member of her family and raised him as his mother, though he did not in fact have a biological connection with Cruz-Dominguez.  His biological mother, a Mexican citizen, had abandoned him. The Ninth Circuit nevertheless held that Solis-Espinoza had acquired US citizenship through Cruz-Dominguez, his US citizen mother, even though there was no biological connection with her, as she was married to his father, and both had accepted Solis-Espinoza into their family. The Ninth Circuit quite correctly observed that “[i]n every practical sense, Cruz-Dominguez was [Solis-Espinoza’s] mother and he was her son.  There is no good reason to treat [Solis-Espinoza] otherwise.   Public policy supports recognition and maintenance of a family unit.   The Immigration and Nationality Act (“INA”) was intended to keep families together.   It should be construed in favor of family units and the acceptance of responsibility by family members.”

Notwithstanding these decisions in the Second and Ninth Circuits, the DOS will likely still adhere to its existing policy. If the US citizen is unable to show a biological link to the child, and she was also not the gestational mother, the DOS will most likely deny an application for Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA). In such a situation, if there is a biological link with the child’s non-US citizen father as the sperm donor, the US citizen mother may file an I-130 petition for the child as her step child for permanent residence. If the step child wishes to become a US citizen after the grant of permanent residence, the parent would have to adopt the child or the child would need to naturalize upon reaching the age of 18. However, this will be more time consuming than obtaining a CRBA in the child’s name In the event that there is also no biological link with the other parent, such as where the father is not the sperm donor, or the other parent is also female (and assuming her egg was not used), then even an I-130 petition cannot be filed unless the child is adopted. This may entail spending 2 years with the child abroad to get around the restrictions in the Hague Convention, if the child is born in a country that is a party to the Convention. Moreover, even a same sex marriage between two males will result in the same sort of problem if they resort to a surrogate arrangement, and the US citizen cannot use his sperm with the donor egg that is implanted in the surrogate overseas who would also not be a US citizen.

A direct challenge to a consular officer’s determination in federal court seeking a declaratory judgment can be attempted. Although in Rusk v. Cort, the Supreme Court allowed a native born US citizen whose citizenship had been revoked while living overseas to directly challenge the revocation in federal court, a recent 2018 Fifth Circuit decision, Hinojosa v. Horn, a three judge (2-1) panel  held that a person claiming US citizenship while outside the US must first apply for a certificate of identity under 8 USC 1503(b) in order to come to the US to seek entry as a US citizen. If the application is denied, then the child may be permitted to challenge the denial in federal court.” No other circuit thus far has issued a decision similar to Hinojosa that negates a direct challenge under Rusk v. Cort.

While there might be many cumbersome and circuitous ways to ultimately bring a child denied a CRBA into the US, it would be far simpler for the DOS and the USCIS to modify it policy so that it would be in line with Scales, Solis-Espinoza and Jaen. The DOS as recently in 2014 made an exception for a gestational mother to transmit US citizenship to a child born abroad, even though there was no biological link. It would not be a stretch for DOS to issue a new policy that would allow transmission of citizenship by a US citizen parent, without any reference to any genetic or biological link, based on a common law definition of “parent” through marriage. Such a definition would not only be consistent with the common law meaning of “parent” in the INA, especially INA 301(g), but it would also be in keeping with public policy that supports the recognition and maintenance of a family unit.

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Current Events in Immigration Law: Judge Orders Return of Two Asylum-Seekers to U.S. and Threatens to Hold Attorney General Sessions in Contempt of Court

8/23/2018

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By: Charles Kuck, Past ABIL President
​Musings on Immigration
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U.S. immigration law and policy is notoriously complicated and is characterized by frequent changes. Since President Trump took office in January 2017, there’s been an emphatic uptick in changes to immigration law and policy. It seems that every week brings another, if not several, changing developments to the U.S. immigration law landscape. At the immigration law firm of Kuck | Baxter Immigration Partners, we painstakingly keep up with all these twists and turns in order to provide timely and knowledgeable legal services to our clients.

Here’s one of the latest, newsworthy events in U.S. immigration law:

On Tuesday, August 7, 2018, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of multiple plaintiffs over efforts to keep immigrants from obtaining asylum due to domestic violence and gang violence in their home country. U.S. District Court Judge Emmet G. Sullivan was presiding over the case. The lawsuit was seeking to invalidate Attorney General Sessions’ June 11, 2018 decision in Matter of A-B-, which restricted the types of cases that would qualify an immigrant for asylum.

On Wednesday, August 9, 2018, head attorney for the ACLU, Jennifer Chang Newell, said at a Wednesday, August 9, 2018 hearing that the administration promised that no one would be deported until midnight on Thursday, August 10, 2018. However, during a recess during court on that Thursday, she received an email from attorneys on the ground in Texas that her client and two of the plaintiffs in the case, Carmen (a pseudonym) and her daughter, had been taken from their Texas detention center that morning and deported back to their home country of El Salvador. Newell then informed the government attorneys and Judge Sullivan what had happened.

Upon learning about Carmen and her daughter’s deportation, an irate Judge Sullivan said, “Oh, I want those people brought back forthwith. … I’m not asking, I’m ordering.” Judge Sullivan then threatened to hold Sessions in contempt of court if Carmen and her daughter were not returned to the U.S. Sullivan said in court, “This is pretty outrageous, that someone seeking justice in U.S. court is spirited away while her attorneys are arguing for justice for her.”

The Department of Homeland Security complied with the judge’s order. On Thursday, August 9, 2018, Carmen and her daughter’s plane landed in El Salvador but they did not disembark. But rather, DHS flew them back to the United States.

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Jaen v. Sessions: The Second Circuit Reminds Us That Government Manuals Aren’t Always Right

8/21/2018

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By: David Isaacson, Partner of Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog
For many years, the policy guidance of the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has required that a child show a biological relationship with a U.S. citizen parent in order to acquire U.S. citizenship from that parent.  Initially, this meant a genetic relationship; recently, an exception was made for gestational mothers who were recognized as the legal mothers of the children to whom they gave birth even if they had used a donor egg to do so, but the government continued to insist that some biological relationship was required in order for a child to acquire citizenship at birth from a parent recognized as such by applicable local law.  The Court of Appeals for the Second Circuit, in its decision issued last week in Jaen v. Sessions, has now become the second Court of Appeals to point out that this policy has no basis in the Immigration and Nationality Act.  Rather, under the law, a U.S. citizen who is a parent of a child as a result of marriage can also pass along U.S. citizenship to that child.

Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  According to Levy Jaen’s Panamanian birth certificate, however, his father was another man named Liberato Jaen.  Levy Jaen was initially raised by his grandparents in Panama, but then came to the United States on a nonimmigrant visa at age 15, in 1988, and lived here with the Boreland family.

After Levy Jaen was convicted of controlled substance violations in 2008 and 2014, Immigration and Customs Enforcement (ICE) sought to remove him from the United States.  He moved to terminate the proceedings in 2016 on the basis that he was a U.S. citizen, but the Immigration Judge (IJ) in his case denied the motion and the Board of Immigration Appeals (BIA) affirmed.  He remained detained as a purported non-citizen until April 13, 2018, when the Second Circuit granted his petition, ordered his release, and indicated that an opinion would follow.

In its opinion, the Second Circuit held that Jaen had acquired U.S. citizenship at birth from Jorge Boreland, his U.S. citizen parent, under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7).  That provision is similar to current INA § 301(g), except that it required a different period of physical presence in the United States prior to the birth by the U.S. citizen parent (then ten years, at least five of which had to be after the age of fourteen, as opposed to the current requirement of five years, at least two of which have to be after the age of fourteen).  Like current INA § 301(g), former 301(a)(7) referred to one “born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States”.

The government had sought to interpret this language as referring only to biological “parents”.  As the Second Circuit pointed out, however, the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes even if it were not also the case, as it was, that he would have been recognized as Levy Jaen’s father under New York law.

The government urged the Court of Appeals to follow the guidance in the DOS Foreign Affairs Manual (FAM) and USCIS Policy Manual, which required biological parenthood to qualify as a “parent”.  But as the Second Circuit noted in a footnote, those internal guidance manuals are not entitled to Chevron deference.  Jaen, slip op. at 11-12 n.4.  Nor did the Second Circuit evidently find them persuasive.

As the Second Circuit observed, it was not the first Court of Appeals to hold that the father by marriage of a child need not have a biological link to that child in order to transmit U.S. citizenship to that child.  The Ninth Circuit had held to the same effect in Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000).  Indeed, the Ninth Circuit in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), extended this holding to cover a man whose U.S. citizen mother was not his biological mother but had been married to his biological father at the time of his birth.  (It remains to be seen whether the Second Circuit’s holding in Jaen will be extended in the same way, as the Second Circuit did not have occasion to address this fact pattern.)

Although the Second Circuit’s decision did not “break . . . new ground” in finding Jaen to be a citizen through his U.S. citizen parent Jorge Boreland, Jaen, slip op. at 19, the government had nonetheless detained Jaen for nearly two years while the proceedings were ongoing.  Judge Pooler filed a separate concurring opinion in which she noted that she was troubled by this, as well as by the government’s decision to seek summary affirmance of the IJ’s erroneous decision that Jaen was not a U.S. citizen.  It appears that the government may have been blind to the possibility that its internal manuals were legally incorrect.

In a world where USCIS and DOS decisions often cite to the USCIS Policy Manual, the USCIS Adjudicator’s Field Manual (now gradually being replaced by the Policy Manual), or the  DOS Foreign Affairs Manual, it can be easy to forget that those guidance manuals are not the law.  While it can be appropriate to hold the agencies to the terms of their published manuals when those terms are advantageous, it is not appropriate to assume that an adverse statement of the law in an agency manual is necessarily accurate.  When USCIS or DOS get the law wrong in their manuals, federal courts can and will step in to correct them.  But this will only happen if attorneys, and their clients, ask the federal courts to do so.

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How Acquiring Dual Citizenship By Investment Can Be An Important Part Of A Successful U.S. Immigration Strategy

8/14/2018

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By: H. Ronald Klasko, Partner of William A. Stock, ABIL Lawyer
Klasko Immigration Law Partners, LLP

A number of years ago, our office was chosen as the North American regional representative office of the Geneva-based Investment Migration Council. Subsequently, I was selected to be on the Governing Board of that organization. I did not know at that time that investment to acquire citizenship in other countries would become an important part of my U.S. immigration practice. It has. Here is why:

Fact: Acquiring citizenship by investment in Grenada (and soon a second country) can enable nationals of countries that do not have a bilateral investment treaty with the U.S. to obtain the coveted 5-year renewable E-2 treaty investor visa. Since the spouse of the E-2 investor can work anywhere without sponsorship, having an employee’s spouse be the principal investor can be an immigration strategy for an existing or prospective employee.

Fact: The Trump Administration’s Muslim travel ban does not apply to dual citizens of a banned country and another country. Obtaining dual citizenship by investment in any of ten countries can enable nationals of such banned countries who are in the U.S. studying; working at our companies, universities and hospitals; applying for EB-5 immigrant status; and otherwise lawfully residing in the U.S. to be able to travel, which they are presently unable to do. It also enables such individuals who are presently outside of the U.S. to enter the U.S.

Fact: Many foreign nationals in the U.S. running businesses, employed in companies, teaching, doing research or providing medical services at our universities and hospitals, and even U.S. citizens, are burdened by having passports that do not allow for visa free travel to many countries around the world. Obtaining citizenship by investment may greatly expand the ability of such foreign nationals and U.S. citizens to travel the globe visa free.

Fact: Recent developments in the U.S. have created a degree of discomfort among certain groups of U.S. citizens and permanent residents who feel increasingly uncomfortable or unwanted in the U.S. because of their race, religion, ethnic background, immigrant background or political views. Some of such individuals are exploring having an alternative country of citizenship or residence through investment; so that they can relocate on short notice if their concerns heighten in the coming months or years.


We are presently advising and representing clients in each of these categories. In advising our clients, we have to evaluate multiple third country citizenship options and sometimes third country residence options based on investment. In performing these analyses, we have to consider at least the following criteria, all of which vary country by country and each of which has a priority that differs for each client:
  • ​Does the country offer citizenship or just residency?
  • What is the minimum investment amount? (The range is from $100,000 to in excess of $2 million)
  • What type of investment is required? Is the investment a donation with no expectation of return? Is the investment in a residence? Is the investment in a government bond? Is the investment in commercial property?
  • What is the processing time required to obtain the benefit? (The range is between a few months and periods in excess of one year)
  • What are the residence requirements? (In some countries there are no residence requirements; in other countries there are lengthy residence requirements)
  • What are the tax benefits or obligations?
  • Does the passport offer visa free travel to many countries? (Many third country passports offer visa free travel to in excess of 120 countries, including many countries for which U.S. citizens do not have visa free travel opportunities)
  • What family members are included? (This varies by country and sometimes includes even adult children and parents of the applicant)
  • How extensive are the due diligence, source of funds and security clearance issues?
  • Does the country have a bilateral investment treaty with the U.S.? (Presently only one citizenship by investment country – – Grenada – – has such a treaty, although one or more countries with treaties will be added to that list in the near future).
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USCIS Finalizes Unlawful Presence Policy Putting F, J And M Nonimmigrants In Great Jeopardy

8/13/2018

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

The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1).

Prior to August 9, 2018,  foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the policy memo, the USCIS officer should consider information relating to the alien’s immigration history, including but not limited to:

  • Information contained in the systems available to USCIS;
  • Information contained in the alien’s record; and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny, if any.
The final policy purports to make one concession from the draft policy, which is that if a nonimmigrant in F, J or M nonimmigrant classification makes a timely filing for reinstatement of status, then unlawful presence will not accrue during the pendency of this request. In the case of students in F-1 status, a reinstatement application will be considered timely filed if the applicant has not been out of status for more than 5 months at the time of filing for a request for reinstatement under 8 CFR § 214.2(f)(16).  If the reinstatement request is approved, then the period of time an F-1 nonimmigrant was out of status prior to filing the application, along with the period of time during the pendency of the request, will not be counted as unlawful presence. If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Unfortunately, most students may never know that they fell out of status until it is too late and they may never have an opportunity to file for reinstatement. Students will also likely be found to have violated status if they pursued practical training that is perceived as not being consistent with the regulations.

Esteemed colleague and immigration law expert Stephen Yale-Loehr has compiled a list of 50 examples how an international student might inadvertently or unknowingly fall out of status and start to accrue unlawful presence under the new guidance. Many of these examples arise from mistakes by the school.  For instance, a designated school officer (DSO) may mistakenly complete a record, which will indicate to a USCIS officer that the student has remained in the United States beyond the end date of the program, and may have also worked on campus in violation of F-1 status. Status violations can also result from inadvertent miscommunications between school officials. An undergraduate student receives permission from an academic advisor (but not the DSO) to drop a course. The student is now registered for 11 rather than 12 semester credit hours. Later, the USCIS deems her to be in violation of status and accruing unlawful presence.

The USCIS has already begun to lay traps in order to nab students who may have unwittingly violated status. Recent RFEs issued after the filing of a change of status request from F-1 to H-1B require a student to meticulously demonstrate that he or she maintained status during post-completion practical training, including proving that the student was not unemployed for more than the requisite amount of time. The student must also prove that the employment, including an unpaid internship, was related to the major field of study.  Here is one example inquiring whether a student maintained status during a routine period of optional practical training:

F-1 OPT: Students engaging in initial F-1 post-completion Optional Practical Training (OPT) may not accrue an aggregate of more than 90 days off unemployment during the initial post-completion OPT period. Students granted the 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period including any initial OPT and the 17-month OPT extension. Students granted the 24-month OPT extension may not accrue an aggregate of more than 150 days of unemployment during the total OPT period including any initial OPT and the 24-month OPT extension. Further, students engaging in F-1 post-completion must engage in at least 20 hours or more per week of employment that is directly related to the student’s U.S. major of study. Lastly, unpaid internships may meet the OPT employment requirements if the internship is directly related to the student’s U.S. major of study and the internship complies with all labor laws. Please provide evidence that the beneficiary maintained the beneficiary’s F-1 status during post-completion OPT. Evidence may include but is not limited to the following:

-A list of all employers the beneficiary has worked for under post-completion OPT and the periods the beneficiary worked for those employers;

-Copies of all pay records/stubs for the beneficiary from the starting date of post-completion OPT to the present time; and

-Evidence that the beneficiary worked at least 20 hours or more per week in a position is directly related to the beneficiary’s U.S. major of study.

Similarly, maintaining status through Curricular Practical Training (CPT) is frequently challenged in RFEs by asking for evidence that the CPT was an integral part of the beneficiary’s degree program. The regulation at 8 CFR § 214.2(f)(1)(i) leaves undefined “curricular practical training program that is an integral part of an established curriculum” thus leaving it open for a subjective interpretation.  Also, where the CPT commenced immediately upon the student’s enrolment in the program, the USCIS questions whether immediate participation in CPT was required for the beneficiary’s studies.

A student can also be found to have violated status due to an ambiguity in the rules providing for the maximum amount of time in practical training. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. 8 CFR § 214.2(f)(10)(i) further provides that “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” This could be interpreted to mean that a student can receive more than one year of CPT, and such CPT is routinely granted by DSOs through the SEVIS system that is administered by ICE. But USCIS is now interpreting this to mean that the total time that a student is entitled in any sort of practical training is 12 months even though ICE, its sister agency, authorized more than 12 months of CPT. USCIS is disregarding the suggestion in 8 CFR § 214.2(f)(10)(i) that a student may be entitled to more than 12 months of CPT.

Upon receiving such an RFE, it is important to submit evidence to overcome USCIS’s doubts. Still, it may be difficult to challenge USCIS’s interpretation that the regulation at 8 CFR § 214.2(f)(10) only authorizes a total of 12 months of practical training, even though 8 CFR § 214.2(f)(10)(i) appears to suggest that CPT can be granted in excess of 1 year. It may also be difficult to demonstrate to the USCIS’s satisfaction that the CPT was an integral part of an established curriculum. If the request for a change of status is not granted, the F-1 nonimmigrant would have started accruing unlawful presence as of August 9, 2018. In the event of the student departing later than February 5, 2020, he or she will be barred from entering the US for 3 years. After February 5, 2020, there will be no such grace period, and prior status violations that were in excess of 180 days will result in 3 year or 10 year bars to reentry upon the student departing the United States. The student may not be able to change or adjust status in the United States, and thus will be caught in a federally imposed Catch-22 situation.

The unlawful presence policy compounds the plight of the nonimmigrant who may also receive a Notice to Appear and be placed in removal proceedings under yet another USCIS policy designed to make life more difficult for law abiding nonimmigrants. Some are deciding to withdraw the request for change of status, upon receiving difficult to overcome RFEs, and leave the United States, prior to February 5, 2020, so that they can process their H-1B visas at a US consulate abroad. While such a strategy may allow the applicant to escape being issued a Notice to Appear, it could cause issues at the US consulate where a consul may still want the applicant to justify whether the CPT program was bona fide. On the other hand, if the applicant is placed in removal proceedings, and if voluntary departure is issued by an Immigration Judge prior to the accrual of unlawful presence of one year or more, then there is an escape hatch pursuant to INA § 212(a)(9)(B)(i)(I). The 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence (as there is explicit language to this effect in the provision). If the voluntary departure order is issued after 1 year of unlawful presence,  then the ten-year bar would trigger under INA § 212(a)(9)(B)(i)(II) would apply. There is no escape hatch to the 10 year bar as there is to the 3 year bar whilst in removal proceedings. Further ethical and strategic considerations regarding representing beneficiaries of denied requests in removal proceedings can be found in my blog here.

The final policy will not just cause havoc to nonimmigrants snared with technical or perceived violations of status, but schools will also face liability for errors by DSOs. Challenging the policy in federal court is indeed the need of the hour, and there is an urgent need for universities, hospitals and research institutions to come forward as plaintiffs! The 3 and 10 year bars, or the permanent bar under INA § 212(a)(9)C), are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under INA § 212(a)(9)(B)(ii), which provides:

“…an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien 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 new policy blurs the difference between being out of status and unlawfully present, and thus violates INA § 212(a)(9)(B)(ii). If the USCIS wanted to so radically change its prior interpretation of unlawful presence for F, J and M nonimmigrants, it ought to have promulgated a rule through a more formal notice and comment under the Administrative Procedure Act. Finally, the policy violates the due process rights of these nonimmigrants as it imposes draconian penalties, 3 and 10 year bars, for status violations for which they never received formal warning and notice. All these are ripe grounds, among many others, for a successful challenge to this flawed policy in federal court!


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7 New Things to Know about EB-5 Visa Waiting Lines

8/8/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer
​Wolfsdorf Immigration Blog
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On April 23, 2018, Mr. Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting, Department of State (“DOS”) spoke at an EB-5 Industry Conference regarding visa waiting lines for EB-5 investors.  He indicated that applicants chargeable to mainland China and Vietnam now face visa backlogs for the foreseeable future, and that visa backlogs for nationals of India, Brazil, South Korea, and Taiwan are expected by the summer of 2019.

Mr. Oppenheim’s estimates, as he always carefully indicates, are based on the “best available information.”  He also bases his estimates on “known facts” and not what could happen in the future.  When predicting beyond what is clearly visible, Mr. Oppenheim cannot and does not speculate based on legislative, administrative, or other factors and variables which often impact the waiting lines. For this reason, Mr. Oppenheim must frequently revise these estimates. Therefore, this information, while helpful for some planning, cannot be quoted as fact unless published in the Visa Bulletin.  Additionally, these estimates do not consider other factors such as the big four “D’s” – denial, dropout, death and divorce –  which affect waiting lines.

Confusion over the detailed aspects of this technical area of U.S. immigration law is common.  Numerous variables influence the length of EB-5 visa waiting lines, and attorneys should be sure the investor client understands that many variables are involved making predictions impossible. Nevertheless, it is important immigration attorneys attempt to keep themselves up-to-date in this highly complex area.   It is also critical to plan ahead regarding the interaction between non-immigrant visa status and the EB-5 application to ensure complications do not occur.

                                               Here are seven new things to know about EB-5 visa waiting lines:
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1. Mainland China. Oppenheim stated that cases filed in April 2018 could take “about 15 years” before a visa would become available for a mainland Chinese born applicant. The USCIS Ombudsman estimated in its 2017 Annual Report that an EB-5 investor from China may need to wait 10 years to obtain a visa to enter the U.S., though reform to the EB-5 program can and hopefully will modify this.

Mr. Oppenheim explained, “that if a China applicant were to file a new EB-5 petition that day [i.e. April 23, 2018] the applicant would have a 15 year wait before their priority date would be reached for visa issuance.” Mr. Oppenheim indicated, however, that there “might [be] a different way to calculate the wait time for a newly filed petition.” Furthermore, he emphasized, “[t]he important thing for applicants to remember is that if they already have an approved/filed petition, their wait time could be much less than either of our estimates.”

Accordingly, the fuller context of Mr. Oppenheim’s remarks shows that the referenced 15-year wait might apply to cases filed in April 2018 but not apply to cases filed before that time.  Indeed, the wait time could be much less for approved cases. Furthermore, Mr. Oppenheim indicated that his estimate assumes that only 2,000 EB-5 visas would be issued to Chinese nationals in a fiscal year. Data for the first three quarters of FY2018 (October 2017-June 2018) shows over 4,049 EB-5 visas were issued to Mainland Chinese nationals this year, taking a bigger bite out of the visa wait line for Chinese applicants than estimated.

Nevertheless, as demand for EB-5 visas from outside China – the rest of the world (“ROW”) – grows, every visa issued to a ROW applicant (excluding those nationals with their own EB-5 visa backlogs, like Vietnam right now) is one less visa that can be issued to a Chinese applicant.  Mr. Oppenheim estimates that the number of visas issued to Chinese applicants will gradually decrease to a maximum of 3,500 EB-5 visas in FY 2019, and 3,000 EB-5 visas in FY2020.  It’s possible that Mr. Oppenheim’s estimates regarding the Mainland Chinese EB-5 waiting line will increase as additional data about ROW EB-5 applicants comes to light.

As a result, the anticipated China EB-5 Final Action Date in October 2018 will be, “August 8 or 15, 2014.”

2. Vietnam. Oppenheim confirmed that the EB-5 Final Action Date for Vietnam will advance to January 1, 2016 when FY 2019 begins on October 1, 2018.  However, Mr. Oppenheim anticipates that the entire 7% of EB-5 visas allocated to Vietnamese nationals will be allocated by the spring of 2019, likely earlier in the year than May, when the cap was reached in 2018.  At this point, the Final Action Date for Vietnam EB-5 applicants will match that of Mainland China EB-5 applicants, as occurred in May 2018.  Industry data suggests that Q2 of FY 2018 is the first time in which Vietnamese EB-5 investment outpaced Chinese EB-5 investment, and the industry will likely continue to see high demand from Vietnam.

3. India. 375 EB-5 visas have been issued to Indian nationals from October 2017 to June 2018. Yet industry data and anecdotal evidence confirms that Indian EB-5 investment has increased significantly over the past year. India should end the year using approximately 520 EB-5 numbers, versus 174 during FY-2017. Moreover, demand from Indian nationals in EB-5 remains high because of the extremely long visa backlogs for other employment-based categories like EB-2 and EB-3. Oppenheim anticipates a final action date for India EB-5 “no later than June 2019” and likely earlier.

4. South Korea. 423 EB-5 visas have been issued to South Korean nationals from October 2017 to June 2018. As a result, “[a]t some point during the summer of 2019” it may be necessary to establish a Final Action Date and that will likely be the same as the China Final Action Date.

5. Taiwan. 335 EB-5 visas have been issued to Taiwanese nationals from October 2017 to June 2018. Mr. Oppenheim predicts that “possibly” Taiwan may have a Final Action Date, “[a]t some point during the summer of 2019.”

6. Brazil. In addition to the above-mentioned countries, currently Brazil “is the only other one where number use raises availability concerns for FY-2019” and may also see a Final Action Date at some point during the summer of 2019.  Although Hong Kong was previously on the list of countries to possibly have a backlog, it appears there is no imminent danger of a Final Action Date being established. All other countries are expected to remain current.

7. Self-Fulfilling Prophecy? Oppenheim predicted a China Final Action Date “during the summer of 2015” which became reality in May 2015.  For Vietnam he predicted a Final Action Date starting in April 2018, which became reality in May 2018.  Because Mr. Oppenheim has pointed out that his public comments are “likely to guarantee that they will occur, and most likely earlier than expected,” countries with high EB-5 demand should expect a Final Action Date sooner rather than later.  Additionally, EB-5 investors and their legal counsel must now factor in both long adjudication and visa waiting lines. These factors increase the risk of the investment term being much longer than anticipated, and the possibility of age-out and family separation become real.



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California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ “FDNS” Enforcement Officers

8/7/2018

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By: Angelo A. Paparelli, Past ABIL President
Nation of Immigrators
The State of California won and lost bigly last July 4th. But what if the state’s biggest loss could be salvaged because the primary federal immigration enforcement agency performing worksite visits – the Fraud Detection and National Security Directorate (FDNS) in U.S. Citizenship and Immigration Services (USCIS) – has never been lawfully authorized to conduct such investigations.

Three Clear Victories for California
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In the wins column, as I recently reported, Federal Judge John A. Mendez in U.S. v. California refused to enjoin two California laws and part of another — all enacted by the state to inhibit cooperation with U.S. Attorney General Jeff Sessions and the Justice Department in their mission to apprehend and deport thousands of undocumented California residents.

​Still in full force and effect are:
Senate Bill (SB) 54, which prohibits California law enforcement authorities from sharing with federal immigration authorities a wide variety of information on all but the most dangerous or felonious noncitizens in state custody (including the detainee’s release date), and
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AB 103 which directs the California Attorney General to review county, local, or private locked detention facilities housing noncitizens who are held within the state for civil violations of federal immigration laws, and report on the conditions of confinement at each facility, the due process and care accorded to detainees, and the circumstances leading to their apprehension and placement in the facility to the California legislature, Governor and the public by March 1, 2019.
Part of AB 450,  the “Immigrant Worker Protection Act” (IWPA), also escaped the federal court’s preliminary injunction, viz., those involving required employee-notification provisions. IWPA requires employers served with a Notice of Inspection (NOI) of Forms I-9 (Employment Eligibility Verifications):
(A) to disclose in writing, within 72 hours, to each current employee at the worksite and any labor union representing members there that U.S. Immigration & Customs Enforcement  (ICE) will be conducting I-9 inspection, and

(B) to follow-up any affected employee or authorized union rep – also within 72 hours of receiving any subsequent immigration enforcement agent’s notices –  “of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 . . . forms or other employment records”

​A Partial California Loss?
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California appeared, however, to have suffered bigly with the Federal Court’s preliminary injunction barring much of IWPA. The temporarily stricken portions reflect the state’s attempt to make California workplaces mandatory safe zones, free of federal immigration intrusions, except where judicial warrants authorize entry to nonpublic worksite areas, or judicial or administrative subpoenas mandate access to employee records.

Unless the injunction is lifted, IWPA may no longer operate to bar employers in California from:
  • reverifying the employment eligibility of any current employee (unless required by federal law); and
  • voluntarily (a) granting immigration enforcement agents entry to any non-public areas of a worksite (unless the agents present a judicial warrant), or (b) allowing the agents to access, review, or obtain any employee records (unless the agents present an NOI, an administrative or judicial subpoena, or a judicial warrant requiring compliance)(the no-voluntary-access provisions).
Practical Effects on Employers in California. In real-world practice, however, IWPA’s enjoined sections have had little impact on federal immigration enforcement activities – except for one immigration enforcement agency, FDNS, whose unlawful provenance and frequent misbehavior have been little reported.

IWPA’s Reverification Ban. The ban on employer reverification of a current employee’s right to work in the U.S. could never have operated as the state intended because the exception (unless required by federal law) always

Federal Law Requires Reverification. The only practical and lawful reasons why an employer might be required or motivated to reverify employment eligibility would be if:

  • the employee had time-limited work permission which was about to expire, and the employer needed to complete Section 3 of the I-9 requiring reverification in order to confirm that the individual continue to be authorized for employment,
  • the employer decided to conduct a lawful, nondiscriminatory I-9 compliance audit,
  • an employer had constructive knowledge of suspicious circumstances that must be investigated in order to see whether or not a current employee in fact was authorized to work, or,
  • the employer lost, failed to fully complete, or never completed an I-9 for that worker.

​Reverifying the employment eligibility of current employees is a continuing legal obligation.  This duty stems from Immigration and Nationality Act (INA) § 274A which imposes on employers the ongoing, affirmative obligation to refrain from continuing to employ a worker if the employer has “knowledge” (which by USCIS regulation may be actual or constructive knowledge) that the employee is not authorized to work in the United States. This continuing duty can only be fulfilled if the employer makes sure that it has a fully executed, and undoubtedly correct I-9 for the worker:

  • A fully executed I-9 requires the worker to declare his or her status (U.S. citizen, national, permanent resident [etc.], or a noncitizen holding temporary work authorization) in Section 1 of the I-9, and to select from the I-9 Lists of Acceptable Documents and present to the employer an original document or set of documents verifying identity and employment eligibility ; it also requires the employer examine the original(s) in the presence of the worker and then certify in Section 2 that the document(s) appear(s) to be genuine and relate to the employee. As long as the I-9 cannot be located, was never completed initially, or remains partially incomplete, it is not undoubtedly correct.
  • An undoubtedly correct I-9 is one as to which the employer has not become aware of any credible facts calling into question the right of a current employee to work in the United States.​
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​The Injunction Barring IWPA’s No-Voluntary-Access Provisions Helps Only FDNS
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The preliminary injunction prohibiting enforcement of IWPA’s no-voluntary-access provisions will have little practical consequence in most cases. Save for FDNS – a unit of USCIS, the immigration benefits-granting agency in the Department of Homeland Security (DHS) – federal immigration enforcement agencies (except in legally permissible situations) have mostly refrained from conduct likely to disturb, or intrude on, the rights of employees at California worksites. None of them but FDNS makes surprise visits and demands access to nonpublic areas of an employer’s worksite or to any employee records without first presenting a judicial order or other source of legal authority.

The primary federal immigration enforcement agencies – the Homeland Security Investigations (HSI) unit in ICE, the Justice Department’s Immigrant and Employee Rights section (IER), and the Labor Department’s immigration enforcers, the Wage and Hour Division (WHD) and the Office of Foreign Labor Certification (OFLC) – routinely provide written notice in advance and cite to binding legal authority authorizing them to inspect records, and, in some cases, interview employees (although often such interviews are conducted away from the business).

Therefore, the Judge Mendez’s preliminary injunction, for all practical purposes, leaves only FDNS’s investigators free to disrupt California worksites without benefit of legal formality. If the purpose of the IWPA is to avoid federal immigration intrusions at California worksites, and provide protection to undocumented workers in the state, then surely FDNS’ surprise workplace swoops cause disruptions, and frighten and intimidate both documented and undocumented workers on the premises.

In California (and for that matter, throughout the United States), FDNS officers always appear unannounced at businesses and demand that employers provide them with access to nonpublic worksite areas and access to specific employees, while proffering nothing more “official” than the enforcement agent’s business card.  As countless employers can confirm, FDNS agents claim they are there merely for a “site visit” in order to confirm the accuracy of statements made in an immigration form submitted to USCIS by an employer petitioning USCIS for an employment-based immigration benefit, such as a work visa or, an employment-based green card.  FDNS investigators have substantial leverage to induce an employer’s cooperation.  Failure to cooperate would ordinarily lead to a negative report by the investigator to and immigration service officer within USCIS.  That officer has the power to reopen a previously approved petition issue a notice of intention to revoke an approved work-visa petition, and notwithstanding any written evidence submitted by the employer, issue a revocation notice.  The revocation has the effect of requiring the employer to terminate the employment of the sponsored employee.  It also causes the employee and immediate family members to lose lawful immigration status, and be obliged to depart the United States unless an avenue exists to obtain a new authorization to remain.

FDNS’ innocuously-sounding “site visits” at employer locations in the United States, as the Ombudsman of USCIS recently confirmed in her 2018 Annual Report to Congress (p. 9), are of two types, “administrative site visits,” which have occurred continuously since 2004 (when what would become FDNS was initially known as the Fraud Detection and National Security Office), and “targeted” worksite visits under the new “Targeted Site Visit and Verification Program,” established in 2017.  (Both the Ombudsman’s 2018 report, and DHS in its December 16, 2014 Privacy Impact Assessment for FDNS (FDNS PIA) provide a wealth of additional data on the internal and external machinations of FDNS.)

FDNS – The Unauthorized Immigration Enforcers
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Although it may shock the reader, FDNS officers have no legal authority to engage in immigration-related investigation and enforcement activities.  Their actions, and those of FDNS itself, clearly violate the express terms of the Homeland Security Act of 2002 (HSA), the statute that abolished the former Justice Department agency, the Immigration and Naturalization Service (INS), and established in newly-created DHS three immigration agencies, now known as ICE, USCIS, and U.S. Customs & Border Protection (CBP), each with distinct and separate statutory responsibilities.

This division of immigration authority resulted from a prior history of INS dysfunctions.  Long before the HSA came into effect, many INS critics had assailed its schizophrenic and contradictory missions, i.e., on one hand, to protect the border and deport unauthorized noncitizens, and on the other, in the same agency, to adjudicate (approve or deny) requests for immigration and naturalization “benefits.”  These benefits are wide-ranging – from the power to grant, change, or extend nonimmigrant visa status, award asylum status, or declare individuals as U.S. lawful permanent residents (green card holders), to the authority over determinations of U.S. citizenship through the naturalization process.

Contemporary criticisms of INS in the years leading to enactment of the HSA included Demetrios G. Papademetriou, T. Alexander Aleinikoff, & Deborah Waller Meyers, Reorganizing the U.S. Immigration Function: Toward a New Framework for Accountability (1998) (describing the need for a demarcation between immigration enforcement and immigration services), and “Reconcilable Differences? An Evaluation of Current INS Restructuring Proposals,” Demetrios G. Papademetriou and Deborah Waller Meyers, Migration Policy Institute, Policy Brief (June 2002) (analyzing two legislative and two Executive Branch INS-restructuring proposals proposals).

Given these several restructuring proposals, it is not surprising that the Senate report on S. 2452, a bill that would ultimately be meshed into the HSA, acknowledged that the bill’s proposed statutory “division of INS programs into ‘enforcement’ and ‘service’ components tracks an administrative reorganization plan that is already underway.”

In ultimately enacting the HSA, however, Congress deviated from S.  2452 by creating a new Department of Homeland Security to house the enforcement and service components of the former INS rather than follow the plan envisioned in the Senate bill (“the law enforcement pieces transferred from INS . . . would necessarily need to maintain close coordination with the service programs that would remain in the Justice Department”).  Nonetheless, the HSA maintains this clear separation of immigration enforcement and benefits functions.  (For a discussion of the further administrative restructuring that occurred after the HSA’s enactment, including the formation of USCIS, ICE, and CBP, see, David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An Early Agenda for Practical Improvements,” Migration Policy Institute, Insight, April, 2003, No. 1.)

A review of the HSA reveals the clear intention of Congress to separate into distinct agencies the inconsistent demands that had been placed on INS.

Specifically, HSA § 451(b) (“Transfer of Functions from [INS] Commissioner”) “transferred from the [INS] Commissioner to the Director of the Bureau of Citizenship and Immigration Services [now known as USCIS] the following functions . . .
“(1) Adjudications of immigrant visa petitions.

“(2) Adjudications of naturalization petitions.

“(3) Adjudications of asylum and refugee applications.

“(4) Adjudications performed at service centers.
​
“(5) All other adjudications performed by the [INS] immediately before the effective date specified in [the HSA].”  (Emphasis added.)

Another provision in the HSA, § 441, created two new DHS law enforcement agencies – now known as ICE and U.S. Customs & Border Protection (CBP) – and transferred to them the former INS authority over:
“(1) The Border Patrol program.

“(2) The detention and removal program.

“(3) The intelligence program.

“(4) The investigations program.

“(5) The inspections program.” (Emphasis added.)
​Although HSA § 1502 granted the President the authority to reorganize the new DHS by submitting to Congress a plan of reorganization which “shall contain, consistent with this Act(emphasis added), such elements as the President deems appropriate,” another provision, HSA § 471, now codified at 6 USC § 291(b), expressly limited the president’s power to restructure DHS. It enacted the following “PROHIBITION [capitalization in original] [:]”
​
​The authority provided by [HSA §] 1502 [codified at 6 USC § 542] may be used to reorganize functions or organizational units within the Bureau of Border Security or the Bureau of Citizenship and Immigration Services, but may not be used to recombine the two bureaus into a single agency or otherwise to combine, join, or consolidate functions or organizational units of the two bureaus with each other.  (Emphasis added.)

​Despite the allocation of exclusive authority conferred on ICE and CBP over “investigations” in HSA § 441(1), and the prohibition in HSA § 471 against combining, joining, or consolidating functions, the first Secretary of DHS, Thomas Ridge, soon violated this prohibition. On June 5, 2003, he issued Department of Homeland Security Delegation Number: 0150.1, “Delegation to The Bureau of Citizenship and Immigration Services [BCIS], (Delegation)” in which he delegated to BCIS (now USCIS) the following power:
​
Authority to investigate alleged civil and criminal violations of the

immigration laws, including but not limited to alleged fraud with respect to

applications or determinations within the BCIS and make recommendations for

prosecutions, or other appropriate action when deemed advisable.  (Delegation § II-I; emphasis added).
​The 2014 FDNS PIA, seeming to reflect conscious awareness of this HSA violation, tried to paper over the statutorily-prohibited authority over investigations and wordsmith a meaningless, hair-splitting distinction at footnote 3 (“USCIS [through FDNS] conducts administrative inquiries, ICE conducts criminal investigations”). USCIS is more candid and forthright, however, in its job announcements which place emphasis on the duties of investigation, prosecution and law enforcement as clearly as the image from a Blu-ray disc in this FDNS job description, Fraud Detection & National Security Directorate, District 13:
​

Responsibilities
  • . . .
  • Identify, articulate, and pursue suspected immigration benefit fraud, public safety, and national security concerns.
  • Conduct administrative investigations and site visits to obtain documents, conduct interviews, perform system checks, and make determinations regarding potential administrative and/or criminal violations.
  • Serve as a liaison to law enforcement and intelligence agencies and participate in inter-agency task forces and partner-agency investigations to combat fraud and deter and detect national security and public safety threats. . . .
  • Serve as an expert witness and represent USCIS in related court proceedings. (Emphasis added.)
USCIS obviously understands the difference between investigations and its normal bread-and-butter work of adjudications. Just compare the foregoing FDNS job announcement (which closes on October 8, 2018) with a contemporaneous USCIS Immigration Services Officer job description: 

Responsibilities
​
  • . . .
  • Grant or deny complex and highly sensitive applications and petitions for immigration benefits based on electronic or paper applications/petitions.
  • Research, interpret and apply appropriate statutes, regulations, and precedent decisions to make adjudicative decisions.
  • Interview applicants and petitioners to elicit statements, assess credibility, and analyze information to identify facts that form the basis for a decision concerning eligibility for immigration benefits.
  • Conduct security checks and provide assistance to Federal law enforcement agencies to identify individuals who are ineligible for immigration benefits due to national security, public safety, or other legal grounds.
  • Use electronic systems to provide verification of any number of established data points to make adjudicative decisions, determine appropriate level of adjudicative review, and update databases with appropriate information and decisions. (Emphasis added.)
Common dictionary definitions also make plain the distinction between investigations and adjudications:
​
The Cambridge Dictionary:

investigate

​. . . to examine a crime, problem, statement, etc. carefully, especially to discover the truth:

Police are investigating allegations of corruption involving senior executives.

We are of course investigating how an error like this could have occurred. 

The Merriam-Webster Dictionary:

investigate. . .

: to observe or study by close examination and systematic inquiry

: to make a systematic examination; especially: to conduct an official inquiry

The Cambridge Dictionary:

adjudicate
. . .

​: to act as judge in a competition or argument, or to make a formal decision about something:

He was asked to adjudicate on the dispute.

He was called in to adjudicate a local land dispute.

The game was adjudicated a win for Black.

The Merriam-Webster Dictionary:

adjudicate
. . .

: to make an official decision about who is right in (a dispute): to settle judicially.

The school board will adjudicate claims made against teachers.
. . .

: to act as judge

The court can adjudicate on this dispute.
Despite the dictionary consensus, two colleagues, one, an FDNS officer at USCIS headquarters, and another, a former counsel to the Senate Judiciary Committee, have tried to suggest to me that this obvious HSA violation has been remedied by later congressional action. They point to a Conference Report to accompany H.R. 4567 [Report 108-774], “Making Appropriations for the Department of Homeland Security for the Fiscal Year Ending September 30, 2005” (Conference Report), which states:
​
BENEFIT FRAUD The conferees have agreed to the Administration’s request to increase the resources available for benefit fraud enforcement by decreasing the funds available to Immigration and Customs Enforcement (ICE) from the examinations fee account, and leaving those resources available to [USCIS], as proposed in the House report. These resources are to fund the Office of Fraud Detection and National Security (FDNS) Unit, as called for by the Government Accountability Office. The FDNS unit is responsible for developing, implementing, directing, and overseeing the joint [USCIS]-ICE antifraud initiative, and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting any immigration benefits. [USCIS] is to report by July 1, 2005, to the House and Senate Committees on Appropriations on the progress in implementing the joint anti-fraud initiative.  (Emphasis added.)
​
The simple retort to their argument is that no subsequent Congress can appropriate funds to a federal agency or component (here, FDNS) that has not been lawfully constituted by pre-existing or contemporaneous legislation, and whose very existence expressly contravenes the agency’s foundational enabling statute. See Congressional Research Service reports, “Overview of the Authorization [/] Appropriations Process,” by Bill Heniff, Jr., Analyst on Congress and the Legislative Process, November 26, 2012 (No. RS20371) (“Authorizing legislation  . . .  authorizes, implicitly or explicitly, the enactment of appropriations for an agency or program. . . . An appropriations measure provides budget authority to an agency for specified purposes.”), and “Authorization of Appropriations: Procedural and Legal Issues,” by James V. Saturno, Specialist on Congress and the Legislative Process, and Brian T. Yeh, Legislative Attorney, November 30, 2016 (No. R42098)(“ Under congressional rules, when making decisions about the funding of individual items or programs, . . . Congress may be constrained by the terms of previously enacted legislation” [emphasis added]).

Moreover, if FDNS already existed through authorizing legislation, why then would Rep. Bob Goodlatte, Chair of the House Judiciary, Homeland Security Education and the Workforce Committee – a former immigration lawyer before his election to Congress – have any reason or need to propose a bill, H. R. 2407, dubbed the “United States Citizenship and Immigration Services Authorization Act,” containing a seemingly superfluous Section 2 which would amend the HSA to include a new provision, HSA § 451(g)(“There is established within United States Citizenship and Immigration Services a Fraud Detection and National Security Directorate”)?

One can only infer that the chairman belatedly realized that FDNS had never been duly authorized (or this author can wistfully imagine that perhaps a supporter of FDNS directed Rep. Goodlatte to “A Cancer within the Immigration Agency,” in which I first assailed the unauthorized status of FDNS back in 2011).

​
 What’s in It for California?


Even if FDNS was never lawfully established, and indeed, if its existence as an immigration investigation and enforcement unit in USCIS violates HSA § 471 (the prohibition against combining, joining, or consolidating functions of the old INS), how does this help California resurrect IWPA’s no-voluntary-access provisions?

As I explained in a prior piece (“AB 450: California’s Law of Unintended Immigration Consequences”), the IWPA does not define the term “immigration enforcement agent.”

USCIS, however, clearly offers a broad regulatory definition (8 CFR § 1.2) of agency employees designated as “immigration officer[s].”  The definition includes immigration officials sporting these titles: “immigration enforcement agent, . . .  immigration agent (investigations), immigration enforcement agent, . . . investigator, . . . investigative assistant, and special agent.” (emphasis added).

Recall that in U.S. v. California, Judge Mendez declined to rule that the principle of federal primacy over immigration preempted IWPA’s no-voluntary-access provisions, ruling (at pp. 23-24) that the preemption cases cited by the DOJ did not “establish that Congress has expressly or impliedly” “authorized immigration officers to enter places of labor on employer consent  . . . [or authorized] immigration enforcement officers to wield authority coextensive with the Fourth Amendment.” Rather, the Court issued a preliminary injunction barring California’s enforcement of the no-voluntary-access sections of the IWPA because it determined that the federal government “is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine.” Finding California’s arguments unpersuasive, the Court held (at p. 26):

Given that immigration enforcement is the province of the Federal Government, it demands no stretch of reason to see that [IWPA’s no-voluntary-access provisions], in effect, target the operations of federal immigration enforcement. The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government. The law and facts clearly support [the Justice Department’s] claim as to these [provisions] and [the DOJ] is likely to succeed on the merits.

Implicit in the Court’s ruling, however, is the premise that in every case federal immigration enforcement authority is lawful, i.e., duly established by statute or regulation. As has been shown, this premise falls flat when evaluated in the context of an administrative or targeted worksite investigation by FDNS. To the contrary, FDNS’s purported authority violates the express prohibition in HSA § 471 against combining, joining, or consolidating the immigration enforcement and services functions of the former INS.

Thus, even though USCIS characterizes FDNS investigators as “immigration officers,” its regulations define this phrase to include immigration enforcement agents and immigration agents (investigations), and its job postings make abundantly clear that FDNS officers “[conduct] administrative investigations and site visits” in order to “make determinations regarding potential administrative and/or criminal violations (emphasis added).”

Therefore, as proceedings in U.S. v. California continue, consider whether the Federal Court’s interpretation of the term “immigration enforcement agent” in IWPA’s no-voluntary-access provisions might view the imposition on employers of a ban on FDNS access to nonpublic business premises and employee records in the absence of a subpoena as a proper exercise of the California legislature’s traditional police powers. After all, the Court recognized that “[when] Congress legislates in a field which the States have traditionally occupied, [Federal Courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress [citing Arizona v. United States, 567 U.S. 387, 400 (2012), which quoted Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(internal quotations omitted, and emphasis added)].”

The “clear and manifest purpose of Congress” in enacting HSA § 471 (a statute prohibiting any future re-amalgamation of the investigation and enforcement authority of legacy INS with that agency’s service and adjudicative functions) leads to no other conclusion than that FDNS is an unlawfully constituted investigative and enforcement arm of the benefits-adjudication agency, USCIS.  In addition, USCIS holds FDNS out in its job postings as an immigration investigations agency whose work product can lead to criminal prosecution of employers and employees.  For purposes of IWPA’s no-voluntary-access provisions, therefore, FDNS officers conducting site visits in California should be viewed as a “immigration enforcement agents.”  Accordingly, this writer urges the California Attorney General to file a motion for reconsideration of the Federal Court’s preliminary injunction and seek an order allowing IWPA’s no-voluntary-access provisions to continue in effect during the pendency of U.S. v. California.

What Might Happen Next?
​
Were the Court to release IWPA’s no-voluntary-access provisions from the constraints of the preliminary injunction, FDNS may or may not continue its site visit program without change.  USCIS, however, fearing that FDNS might be forever stripped of its fig leaf of apparent legal authority, may decide to revisit the agency’s admittedly-reasonable concern for benefits-program integrity.

No one can say how USCIS might respond.  Conceivably, the agency could:

  • Use its existing regulatory authority to conduct at its field offices in-person interviews of employer representatives and individual beneficiaries of immigration-benefits requests,
  • Propose to amend its regulations in compliance with the notice-and-comment procedures of the Administrative Procedure Act in order to create a procedural structure and approved protocols for site visits, that also comply with the HSA, perhaps modeled after its existing regulation on site visits to religious organizations under the R-1 nonimmigrant religious worker category, 8 CFR § 214.2(16)(describing the site visit as an “on-site inspection of the petitioning [religious] organization,” which “may include a tour of the organization’s facilities . . .”).
  • Modify its current approaches for gathering data and documentation through the issuance of requests for additional evidence, and the grant of opportunities to respond to USCIS notices of intention to deny a pending petition or to revoke an approved petition.
  • Decide to refrain from seeking a judicial subpoena or judicial enforcement of an administrative subpoena for access to nonpublic business premises or records until new authorizing legislation amending the HSA is enacted.
In addition, ICE, in conformity with the spirit and letter of the HSA, might at last see itself as obliged to take the laboring oar on immigration investigation and enforcement activities, and thereby essentially put FDNS out of the investigations and enforcement business.

It remains an open question, however, at a time when the hue and cry of “abolish ICE” is heard on the streets and in social-medialand, whether Congress will at last do its job and fix this dysfunctional mess of draconian and contradictory immigration laws by enacting common-sense, workable, and humanitarian immigration reforms that protect our borders, strengthen our economy, assure procedural due process, and promote our historic exceptionalism as a nation of immigrants.
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DACA Updates, And A Caveat: D.C. Federal Judge Orders Full Restoration Of DACA, With 20-Day Delay

8/7/2018

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

This week marks eleven months since the Trump administration announced the cancellation of the Deferred Action for Childhood Arrivals (DACA) program. However, the fate of DREAMers remains just as uncertain as that day in September when the program benefitting an estimated 800,000 was rescinded.

Just this past Friday, August 3, 2018, a U.S. District Court in Washington, D.C., reaffirmed its April 24th decision in NAACP v. Trump and ordered the full restoration of the DACA program, giving the U.S. Department of Homeland Security (DHS) 20 days to appeal the decision and seek a stay pending appeal.

The D.C. court held previously, on April 24, 2018, that DHS’s September 2017 decision to end the DACA program was “arbitrary and capricious” and gave the government 90 days to issue a new memo terminating DACA or to explain coherently its decision to end DACA, else the DACA program be reinstated fully. Although the court is now giving the government yet another 20 days to come up with a “coherent explanation of its legal opinion” or to “reissue[e] its decision for bona fide policy reasons that would preclude judicial review,” the court has made it clear in this last decision that DHS will not be given another chance to “remedy these deficiencies.”

At present, U.S. Citizenship and Immigration Services (USCIS) is only accepting applications for persons who had DACA prior to DHS’s September 5, 2017, rescission of the program. (Huge thanks to the multiple lawsuits filed against the government across the country which have challenged the termination of DACA and led to the partial restoration of DACA for the time being.)

What Friday’s decision means is that, if the government fails to provide a sound basis for the termination of the DACA program by August 23, 2018, then USCIS will again be required to accept all DACA applications for consideration – initial and renewal – from eligible applicants.

On the other hand, if the government does appeal this August 3rd decision and puts forth a “coherent explanation of its legal opinion,” or if the government issues a new DACA-rescission memo “for bona fide policy reasons,” either of these actions could, in effect, cancel out the D.C. District Judge’s decision to restore DACA in full. In this scenario, USCIS would not be required to resume accepting DACA applications from first-time applicants. Nevertheless, in either scenario, USCIS would still be required to accept and process DACA renewal applications until an appellate court determines otherwise or until the issue makes its way to the eyes and ears of the U.S. Supreme Court. (Another huge thanks to the nationwide injunctions issued in the Northern District of California and the Eastern District of New York earlier this year.)

Besides these cases challenging the termination of the DACA program, there is another case pending in the Southern District of Texas, Texas v. Nielsen, which was filed in opposition to the 2012 creation of the DACA program and the lawfulness of the program itself. The Texas case is set for a preliminary injunction hearing on Wednesday, August 8, of this week; and a decision by the Texas court to order USCIS to stop accepting DACA applications altogether could possibly, eventually result in USCIS not accepting any DACA applications, even for renewals.

Because the fate of the DACA program remains uncertain, and because any number of scenarios and timeframes are possible, all persons eligible for DACA are encouraged to consult with an experienced immigration attorney and submit their renewal applications as soon as possible.

As a reminder, to be eligible for DACA, an applicant must:

  • Have been under the age of 31 as of June 15, 2012;
  • Have come to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007, to the present time;
  • Have been physically present in the United States on June 15, 2012, as well as at the time of applying for DACA;
  • Have had no lawful status in the United States on June 15, 2012;
  • Be currently enrolled in school, have graduated or obtained a certificate of completion for high school, have obtained a general education development (GED) certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and not otherwise prose a threat to national security or public safety.

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7 Things New Zealanders Need to Know About the New KIWI Act

8/6/2018

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By: Bernard P. Wolfsdorf, ABIL Lawyer and Richard Yemm, Partner
​Wolfsdorf Immigration Blog
​
Picture

​Entrepreneurs, businesses and New Zealand companies with a global focus rejoice. While Australian investors and traders have been able to benefit from the E-1/E-2 visa for almost three decades (since December 1991), New Zealanders have been left out, until now. On August 3rd, 2018, President Trump signed the aptly named KIWI Act (the Knowledgeable Innovators and Worthy Investors Act) into law allowing eligible New Zealand nationals to join the 80+ countries that benefit from the American E-1/E-2 Treaty Trader/Investment visas.  The U.S. still has the largest economy in the world and opening the door to more trade and business with the U.S., is a huge step forward.
But what does this mean for New Zealanders? Here are seven things to know about the new KIWI Act:
  1. The E-1 visa specifically reduces the barriers for trading companies looking to establish in the United States to import and/or export goods between the two countries, thus helping ensure New Zealand businesses have success in the growing U.S. economy. This is long overdue. For example, the U.S. is currently New Zealand’s second biggest trade partner and the largest market for beef;
  2. The E-2 visa is an excellent option for individual investors who want to be buy or open a business in the U.S. It allows entrepreneurs who qualify to manage their investment in the United States and it allows multinational New Zealand companies looking to expand operations to the United States to do so quickly and effectively and it even allows New Zealand citizen employees in an executive or supervisory position or staff who possesses skills essential to the firm’s operations in the United States to be transferred to the U.S.
  3. Also while there is no statutory minimum investment amount nor is there a requirement to create a certain number of jobs, as a practical matter a stronger case will include a higher investment amount and proof that jobs are created or will be created for U.S. workers. In practice depending on the business this usually means about $150,000-$200,000 must be invested, although it may be possible to show a substantial investment if the business is not capital intensive and likely to succeed. The business plan is critical.
  4. In the past, we have discussed the increasingly restrictive steps being taken by USCIS to clamp down on many of the visa categories. As an alternative to USCIS based petitions, the E-1/E-2 visa options, which can be applied for directly with the U.S. embassy or consulate abroad, have been an increasingly welcome relief for entrepreneurs and businesses looking to invest in setting up a new company/office in the United States;
  5. Once a company is registered as a New Zealand E-1/E-2 treaty enterprise, it becomes much easier to transfer qualifying New Zealand national executive or managerial or specialized knowledge employees to the U.S. company. As an added benefit, spouses of E-1/E-2 visa holders can apply for unrestricted work authorization and dependent children can enroll in school. The E-1 & E-2 are one of the few visa categories that allow spouses to work anywhere;
  6. The E-1/E-2 visas is arguably the best option for nonimmigrant visa holders who wish to establish a business, or open a business in the U.S. This new law provides excellent new opportunities to New Zealand citizens and represents one of the few actions taken by this Administration to open the door to trade and investment by allies.
  7. While the E-2 is not a green card, in many instances it can be extended almost indefinitely if the bearer continues to operate the business. However, children who turn 21 will “age-out” so in some instance investors may have to look at green card possibilities for their children. We have previously discussed how certain E-1/E-2 visa holders can investigate options to convert their temporary visas into green cards.
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