Massachusetts State Court Judge indicted
On April 25, 2019, U.S. Immigration and Customs Enforcement (ICE) announced that a Massachusetts State Court Judge and a Trial Court Officer were indicated in federal court on obstruction of justice charges for preventing an ICE officer from taking custody of a defendant while in the Courthouse.
USCIS Processing Delays Have Now Hit Crisis-Levels
New policies at U.S. Citizenship and Immigration Services (USCIS) are restricting legal immigration. The American Immigration Lawyers Association (AILA) conducted an analysis of and reported on recently published USCIS data revealing crisis-level delays in the agency's processing of applications and petitions for immigration benefits under the Trump administration. For example, one policy requires USCIS officers to conduct duplicate reviews of past decisions, adding unnecessary work to each case. Such inefficient policies help explain why processing times are increasing even as USCIS application rates are decreasing. Recent USCIS data shows that USCIS’s average processing time rose by 19 percent from FY2017 to FY2018, even while overall numbers of case receipts declined by 13 percent during that same period. On February 12, 2019, members of Congress cited this AILA report in a letter to USCIS Director Lee Francis Cissna to highlight the impact of the agency's processing delays on families, U.S. businesses, and vulnerable populations.
USCIS severely cutting back Customer Service Options
In addition to phasing out INFOPass Appointments, limiting the attorney’s and foreign national’s ability to seek direct assistance from USCIS, starting June 1, USCIS is ending the Forms Request Line service that allows customers to order forms by phone.
White House Issues Memo on Visa Overstays
At the end of April, the White House issued a memo on combating high nonimmigrant visa overstay rates. The memo directs the secretaries of state and homeland security to find effective ways to combat what the administration says is a rampant number of overstays. They are supposed to make recommendations within 120 days of the executive memo. Such actions may include:
suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas with overstay rates higher than 10 percent;
targeted suspension of visa issuance for certain nationals;
limits to duration of admission;
develop measures required for imposing admission bonds.
However, other nations not targeted also have large numbers of overstays, but their rate is lower than 10 percent because these countries send a much higher number of travelers to the United States. Moreover, US immigration law already imposes penalties on those who stay in the United States beyond the period authorized by the Secretary of Homeland Security. These penalties include bars for reentering the United States that range from 3to 10 years. Additionally, U.S. consular officers have discretion to deny visas to applicants deemed likely to stay longer than permitted.
New Form I-129 Required
United States Citizenship and Immigration Services (USCIS) released a new version for Form I-129, Petition for a Nonimmigrant Worker. Starting May 20, 2019, USCIS will only accept the January 31, 2019, edition of Form I-129. Until then, previous editions: 01/17/17, 12/23/16, 08/13/15, 03/26/15, and 10/23/14, can be used. The filing fee remains at $460.
Injunction Issued on Unlawful Presence Policy for F-1 and J-1 Visa Holders
The US Court grants an injunction, blocking the August 9, 2018 Policy Memorandum: “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Several colleges had filed a lawsuit in October 2018 against the Department of Homeland Security arguing that Unlawful Presence memo was unlawful because it did not go through the required regulatory process, the policy change was arbitrary and capricious, it conflicted with the 1996 Immigration and Nationality Act that created the concept of unlawful presence, and violated the Due Process Clause of the Fifth Amendment.
The Court therefore concluded that, under the circumstances of this case, a nationwide preliminary injunction is appropriate. Defendant United States Citizenship and Immigration Services (USCIS) shall be enjoined from enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit. With this injunction and until further order of the Court, we revert back to the previous rules which had been in operation for over 20 years. That is, in the event that USCIS formally finds a violation of F-1 status, the student would only begin accruing unlawful presence the day after the decision is made.
Temporary Protected Status (TPS) extended for several countries
USCIS announced the automatic extension of benefits for certain countries. Specifically, TPS beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador have their EADs auto-extended through January 2, 2020 while the Ramos v. Nielsen case proceeds and the preliminary junction remains in effect, but to continue to monitor the USCIS website for further updates related to that litigation and any action that may be required between now and the end of 2019.
And on March 8, 2019, former Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to extend the Temporary Protected Status for South Sudan for 18 months from 5/3/19 through 11/2/20.
L-1 Petition Processing issues at Canadian Border
There is a reported new Customs and Border Protection (CBP) policy of refusing to process subsequent L-1 petitions at certain Ports of Entry (POEs) presented by Canadians pursuant to NAFTA. A Canadian L-1 beneficiary seeking admission at a port of entry seeks only an extension of the petition validity period and not an extension of stay. CBP thus retains jurisdiction to process these petitions under NAFTA. Renewal and extension petitions will instead need to be filed with USCIS.
Iandoli Desai and Cronin, P.C. is monitoring this and will provide any updates as they become available.
INFOPass phased out
In place of INFOPass Appointments, USCIS has instituted its Information Services Modernization Program (InfoMod). Under the Information Services Modernization Program, individuals are required to first contact the USCIS Contact Center and if it is determined that an applicant needs in-person assistance, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots.
The Boston District Office will be one of the last district offices to move from INFOPass to InfoMod. For the Boston District, this InfoMod begins on Monday, April 15, 2019. This USCIS initiative limits the attorney’s and foreign national’s ability to seek direct assistance from USCIS.
New Data Shows H-1B Denial Rates Reaching Highest Levels
Forbes has reported new data from the USCIS H-1B Employer Hub reveals USCIS is denying H-1B petitions at high levels as compared to previous years. As reported: “Denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019 for new H-1B petitions for initial employment,” according to a National Foundation for American Policy (NFAP) analysis of USCIS data in the H-1B Employer Data Hub.