Presidential Memorandum on Asylum

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On April 29, 2019, President Trump issued a memorandum ordering changes to the U.S. asylum policies. The memo orders the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would dramatically alter how asylum seekers obtain protection.

Among the changes, the proposed regulations would:

  • Require asylum seekers to pay a fee just to apply for protection. The regulations would also require applicants to pay a fee to apply for work authorization for the first time. Right now, asylum applicants – who must wait 180 days before qualifying for work authorization – can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.

  • Place people who have shown a credible or reasonable fear of being persecuted or tortured into limited removal proceedings that would restrict the judges’ ability to consider any forms of relief aside from asylum or withholding of removal.

  • Prohibit anyone who has entered or attempted to enter the U.S. unlawfully from qualifying for work authorization until their asylum applications are approved.

  • Give immigration courts a 180-day limit to adjudicate asylum claims “absent exceptional circumstances.” The White House memo fails to address the 800,000 case immigration court backlog that causes years-long delays to asylum cases and will make it impossible for the government to meet this deadline.

This proposed change would be the first time in U.S. history that asylum seekers would have to pay to apply for asylum. People fleeing violence and persecution are among the most vulnerable in the world, and often leave their homes with little more than the clothes on their backs. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, leaving unable to access protections that they are entitled to under both international and domestic law.

Putting asylum seekers into special, limited proceedings means that the Administration is blocking people – including people who have been victims of crimes or trafficking, or the children that have been abused, abandoned, or neglected – from applying for relief that Congress has made available to individuals in these vulnerable situations.

USCIS issues Policy Alert on Controlled Substances

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USCIS issued policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

Social Security Mismatch Letters

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According to recent reports, the Social Security Administration (SSA) is carrying through on its recent announcement to send Employer Correction Request Notices (EDCOR) to employers who file one or more 2018 W-2 forms that contain a name and social security number mismatch.  The SSA letters may cause confusion to employers related to potential illegal employment and anti-discrimination issues under the Immigration & Nationality Act.  For example, the SSA notice states that a mismatch is not an indication of an employee’s immigration status and the employer should not take actions such as requesting certain documentation of the employee with a mismatch.   SSA advises the employer to utilize its Business Services Online tools to view and correct name and SSN errors:  https://www.ssa.gov/employer/notices.html

If you are concerned because your business has received a SSA mismatch letter, or, if you are interested in a review of your I-9 procedures and wish to conduct a self-audit, please contact attorneys at ID&C.

Immigrants’ Taxes Help Save Social Security System

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The American Immigration Council has reported that immigrants’ taxes are helping to save the US social security system. As older workers enter retirement and draw upon Social Security, the continued tax payments of younger workers keep the system solvent and ensure that it will still be there when they, too, reach retirement age.

In this system, the taxes paid by all workers—immigrant and native-born alike—are critical. As taxpayers, immigrants—including those who are unauthorized—add billions of dollars to the nation’s retirement system each year.

L-1 Pilot Program for Canadians Extended

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USCIS and U.S. Customs and Border Protection (CBP) are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA) through April 30, 2020. Last year, the USCIS California Service Center and the CBP Blaine, Washington, port of entry (POE) announced this pilot program, which was scheduled to run from April 30, 2018, through Oct. 31, 2018, and was later extended for six months.

This pilot program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their employer’s petition prior to their arrival or when they arrive at the Blaine POE. Over the next year, USCIS and CBP will continue to work together to determine the efficiency of the program, identify shortcomings, and look for ways to improve it.

New E-2 Visa Eligibility for Israel

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On April 22, USCIS announced that beginning this May 2019, the E-2 Treaty Investor Visa may be available to Israeli citizens wishing to make a substantial investment in or set up a business in the United States.  The E-2 investor visa is a non-immigrant temporary visa that allows foreign nationals from participating countries to invest in the creation of a new business, or in an existing business.

If you have questions about E-2 eligibility please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

Check-in with Department of State’s Charlie Oppenheim regarding the May 2019 Visa Bulletin

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EB-1: The Final Action Dates for both EB-1 China and EB-1 India hold at February 22, 2017 in the May 2019 visa bulletin. In Section D. of the bulletin, "China-mainland born and India Employment-Based First (E1) Preference Visa Availability", Charlie specifically mentions that the extremely high EB-1 number usage worldwide "may require the retrogression of this final action date in an effort to limit future number use." He further added that any such action would be temporary, with a full recovery of the Final Action Dates for India and China by October 2019, the first month of the new FY. At this time Charlie is unable to determine when this retrogression might occur. As a result, practitioner are advised to file I-485 applications for eligible clients as soon as possible.

Charlie further cautions AILA members to not expect any forward movement for the EB-1 China and EB-1 India categories for the remainder of FY 2019. It would be an unexpected and pleasant surprise to find the worldwide demand dissipating, not only preventing any retrogression, but allowing for some forward movement in these categories as well.

We should expect movement of anywhere from "no movement up to one month" for EB-1 Worldwide. For May 2019, these categories advance one full month for a Final Action Date of March 1, 2018.

EB-2 Worldwide: Charlie continues to predict that based on current demand levels the EB-2 Worldwide will remain current throughout FY 2019. That continues to bear out as the category remains current in May 2019.

EB-2 and EB-3 India: In May 2019 the EB-2 India category advances a total of four days, to a Final Action Date of April 16, 2009. EB-3 India remains ahead of EB-2 India, advancing one week for a Final Action Date of July 1, 2009. While Charlie is starting to see increased demand for EB-2 India numbers, he indicated that this category will move up to one week if this increased demand does not continue.

Keep in mind that last year Charlie used up all of the numbers from his EB-3 India pending demand file that dated back to the summer 2007 adjustment of status filings. Based on the availability of large amounts of "otherwise unused" EB-3 numbers in recent years, and early indications this would hold true for FY-2019, he has advanced this India category at a faster pace. As filings continue and Charlie gets a sense of the potential worldwide demand levels through September, it could influence the pace of forward EB-3 India movement.

Since it has only been a few months since the Final Action Date for EB-3 India has surpassed that of EB-2 India, and since the delta between them is relatively small (only 2.5 months in May), Charlie has yet to see any significant EB-3 downgrade demand. If that materializes, it could alter the demand patterns and bring the Final Action Dates for these two categories closer together. Until or unless that happens, Charlie's projections for date movement remain the same. He might modify projections in the June or July Visa Bulletin based on new reports he expects to receive from the National Benefits Center in early May.

EB-2 and EB-3 China: In May 2019 the EB-2 China Final Action Date advances six weeks to May 15, 2016, and EB-3 China again advances three weeks for a Final Action Date of August 22, 2015. Charlie expects the EB-2 China category to continue to advance at a pace of up to several months unless demand dramatically increases. Members should expect EB-3 China to continue to advance at a pace of up to three weeks. Charlie noted that USCIS demand in this category dropped in February and March 2019, and thus far in April 2019 USCIS demand in EB-3 China is at about the same level as last month's number usage.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

May Visa Bulletin

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Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For May 2019, there continues to be a worldwide backlog for all applicants for the EB-1 "Priority Worker" preference category. As in previous months, the final action dates remain steady. This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is March 1, 2018. China and India are backlogged to February 22, 2017, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved. DOS predicts that there will be little movement in first quarter of 2019 for EB-1 China, EB-1 India and EB-1 Worldwide. Based on the information provided by USCIS, it appears that there is sufficient EB-1 demand to reach the annual limits this year, which would prevent EB-1 Worldwide from returning to “current” status on October 1, 2019, the start of the government’s new fiscal year. 

While, in the EB-2 preference category, there is currently no backlog for the worldwide numbers (except for China and India). China EB-2 numbers are backlogged to May 15, 2016 and India EB-2 is backlogged to April 16, 2009.  EB-2 India and EB-3 India according to the Final Action Date Chart are almost identical which is a significant turn of events as traditionally the EB-3 category has a much longer backlog. Some employers may want to consider “downgrading” their Indian employees from EB-2 to EB-3 in the near future if EB-3 continues to move more quickly.

These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.

Massachusetts District Attorneys file groundbreaking suit against ICE over Courthouse Arrests

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Similar to actions taken in New York earlier in April 2019 prohibiting Federal immigration agents from detaining anyone in NY State Courts without a judicial warrant, on April 29, 2019, Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services (CPCS), and the Chelsea Collaborative filed a groundbreaking lawsuit demanding an end to federal immigration enforcement in and around Massachusetts courthouses.

For the last two years, officers from U.S. Immigration and Customs Enforcement (ICE) have frequented Massachusetts courthouses, surveilling, arresting and detaining immigrants. The degree to which these civil arrests are occurring in courthouses is unprecedented in American history and have severely undermined the administration of justice and access to judicial redress in the Commonwealth.

The lawsuit seeks a declaration from the court that ICE’s policy and practice of arresting people while coming to, attending, or returning from court is illegal. The suit also asks the court to immediately enjoin ICE from conducting any more courthouse arrests.