Articles Posted in General Immigration Issues

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UPDATE: USCIS Releases New and Revised Forms associated with Inadmissibility on Public Charge Grounds Final Rule

February 19, 2020

U.S. Citizenship and Immigration Services (USCIS) has released new and revised forms which must be used for applications and petitions received on and after February 24, 2020. The change is associated with the February 24, 2020 implementation of the Inadmissibility on Public Charge Grounds Final Rule, which expands USCIS’ grounds to deny applications for permanent residence and petitions for nonimmigrant status based upon the beneficiary’s or applicant’s use of public benefit programs.

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Despite a federal judge’s order that his removal from the United States should be delayed, an Iranian student, Mohammad Shahab Dehghani Hossein Abadi, was deported on January 21, 2020. The Northwestern student attempted to return to the U.S. with a student visa when he was detained by Customs and Border Protection (CBP) at Logan Airport in Boston, MA.

American Civil Liberties Union of Massachusetts and other attorneys on Abadi’s behalf filed an emergency suite and U.S. District Judge Allison D. Burroughs issued an order delaying the student’s deportation for 48 hours. About an hour after the order was issues Abadhi was put on a plane bound for France.

Abadi’s legal team will file a motion that seeks to force the government to explain why it defied the judge’s instructions and deported Abadi.

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On January 12, 2020, in the case of Wagafe et al. v. Trump et al, U.S. District Judge Richard A. Jones decided that U.S. Citizenship and Immigration Services (USCIS) must provide over two dozen documents detailing how USCIS evaluates immigration applications.

The class action suit was filed in 2017 by the American Civil Liberties Union (ACLU) on behalf of individuals whose applications for citizenship and legal residency were delayed for long periods of time without being informed why. The lawsuit argues that government’s extreme vetting of people applying for citizenship and permanent residency under Trump’s January 2017 executive order suspending the issuance of visas and other immigration statuses to nationals of Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen, along with the existing Controlled Application Review and Resolution Program (CARRP) violate federal laws and due process protections. The ACLU argues the executive order and CARP are designed to delay and deny citizenship and permanent residency to Muslim immigrants and immigrants from Muslim majority countries, despite their eligibility under the law.

The documents that Judge Jones has ordered USCIS to turn over, after finding that the data is directly relevant to the case, include documents regarding USCIS’ scoring methodologies, risk factors and indicators of national security concerns. Judge Jones explained, “The withheld information regarding USCIS’s processes is directly relevant to plaintiff’s claims and does not appear to be obtainable from alternative sources.” USICS has three weeks to provide the documents.

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A U.S. District Judge in Oregon has temporarily blocked the Trump administrations’ healthcare mandate which would bar U.S. entry for any prospective immigrant who cannot prove they would be covered by qualifying health insurance within their first 30 days in the U.S. or have the financial means to pay for all “reasonably foreseeable” medical expenses.

The judge’s order, which was issued on November 2, will block the Trump Administration from implementing the healthcare ban for 28 days. On November 22, the judge will determine whether to issue a preliminary injunction in the case, which would last for the entire time the case is pending.

The lawsuit against the ban was filed by the American Immigration Council (AIC), an organization that utilizes litigation, research, and legislative and administrative advocacy to work towards a more and just immigration system. The lawsuit contends that the healthcare ban violates the law and will radically reduce the number of people who could enter the U.S. As many as two-thirds of all prospective immigrants (an estimated 375,000 people, annually) who would otherwise qualify for an immigrant visa would be banned.

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Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) published policy guidance regarding the responsibilities of F-1 students who are employed based on Optional Practical Training (OPT) and STEM OPT.  ICE reminds these students that they are responsible for providing a description of how their job relates to their major area of study to the Designated School Official (DSO) at their college or university.

OPT permits up to 12 months of temporary employment for certain foreign national students.  Science, technology, engineering and math (STEM) OPT permits an additional 24-month period of temporary employment with qualified employers of foreign national students who have graduated with degrees in approved STEM fields.

The DSO must review the student’s description, and determine whether there is a direct relationship between the job and the student’s major area of study.  The decision should be made on a case-by-case basis, and the DSO can request additional documentation if he or she has concerns.  The DSO must retain the description of the direct relationship and monitor and update the student’s records in the Student and Exchange Visitor Information System (SEVIS), the ICE web-based system that maintains information on foreign national students and exchange visitors in the U.S.

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Forbes reports that Immigration and Customs Enforcement (ICE) is conducting on-site inspections at worksites of students working on STEM OPT.  Science, technology, engineering and math (STEM) Optional Practical Training (OPT) employment is a 24-month period of temporary training for certain foreign national students, which directly relates to the students program of study in an approved STEM field.  Although this is a new practice, under the regulations ICE has the authority to conduct these compliance site inspections.

According to the Department of Homeland Security’s Study in the States website, the site inspection will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites.  The website states the following:

Site [inspections] will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

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The H-1B court case ITServe Alliance v. USCIS consolidates several cases of information technology (IT) companies whose H-1B applications have been denied or approved with short validity periods.  Judge Collyer’s ruling for this case could carry major implications for how U.S. Citizenship and Immigration Services (USCIS) directs adjudicators to decide H-1B cases.

According to Forbes, Judge Collyer addressed three key issues in the lawsuit.  “First, the government has yet to provide a good explanation for the disparate outcomes and adjudication processes for different types of employers—those with H-1B employees who perform work on customer sites and those who do not.  The denial rates for initial H-1B petitions in [fiscal year] (FY) 2018 were 1% for large technology companies and 34% to 80% for companies that place H-1B [petition] holders at third-party sites.”

“Second, USCIS has to explain why it must require specific work assignments stretching out for three years for contractors even though the law permits H-1B professionals to be in ‘nonproductive’ time so long as they are paid.”  “Third, Judge Collyer will decide whether discovery is warranted to find out what is behind the changes in USCIS adjudications of H-1B petitions.”

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, provides insight to the systemic nature of U.S. Citizenship and Immigration Services (USCIS) processing delays, and lists concrete steps you and the millions of other affected individuals and businesses can take in the face of USCIS backlogs.

Please contact our office at immigrationinfo@cornerlaw.com and refer to AILA’s handout for more information about processing delays.

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U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.

Background 

Since 1996, several states have enacted laws to decriminalize the cultivation, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their jurisdictions. However, Federal law continues to classify marijuana as a “Schedule I” controlled substance whose manufacture, cultivation, possession, or distribution may lead to criminal[1] and immigration consequences.  This guidance, contained in Volume 12 of the Policy Manual, is controlling and supersedes any prior guidance on the topic.

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, published fact sheets and resources with key data points, historical information, and background on hot topics in immigration.  These publications highlight various aspects of economic contributions immigrants, such as H-1B and Temporary Protected Status workers, provide to the U.S.

H-1B

H-1B is a temporary (nonimmigrant) classification that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent.

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