On May 17, 2017, U.S. Attorney General Jeff Sessions, issued an order to prevent immigration judges from administratively closing immigration court cases in most circumstances. The Attorney General’s decision will have a major impact on many immigration courts, as well as many immigration cases.

Administrative closure is a procedure regularly used by immigration judges to temporarily halt immigration proceedings. When a case is administratively closed, an immigration judge removes the case from the active docket. Cases are usually administratively closed so that an immigrant can obtain an immigration benefit that is not available while an immigration case is active. Examples of this include adjusting status to a lawful permanent resident (Form I-485), or filing an I-601A waiver. Generally, either the immigrant or the Government may move to administratively close a case. Once a case is administratively closed, the case can be re-opened by a motion of either the Government or the immigrant.

On January 4, 2018, the Attorney General directed the Board of Immigration Appeals to refer Matter of Castro-Tum (27 I&N Dec. 271 (A.G.2018)) to the Attorney General, so that he could review and rule on the decision. In Mater of Catro-Trum, an immigration judge ordered a case administratively closed over the objection of DHS. In his decision, the Attorney General held that immigration judges and the Board of Immigration Appeals, do not “have the general authority to suspend indefinitely immigration proceedings by administrative closure”.  Id. at 271. Instead, the Attorney General found that a case may only be administratively closed where either: (1) a previous regulation; or (2) a court settlement allows. Id.

white-house-1225488-300x185Since the Trump Administration announced an end to Deferred Action for Childhood Arrivals (“DACA”) on September 5, 2017, members of Congress have been negotiating a path forward to keep Dreamers from being deported. In recent weeks, as March 5 has gotten closer (the day that “DACA” is slated to end), members of both parties of Congress, have floated various plans to address the end of DACA. While many plans have been discussed, the White House has been silent on what needed to be in any DACA related legislation for President Trump to sign a bill into law. On January 25, 2018, the White House finally laid out what President Trump wants in any immigration bill addressing the end of DACA, in a one page policy memo. In return for protecting Dreamers, the Trump Administration wants widespread changes to U.S. immigration law, which would lead to a dramatic decrease in legal immigration.

A Path to Citizenship for Dreamers

The White House has stated that it is open to providing legal status to 1.8 million foreign nationals in the United States without legal status. This figure would include  Dreamers as well as close to a million other individuals (though the White House has not indicated who these individuals would be). The Trump Administration not only is willing to provide these individuals with legal status, but is also willing to provide them with a potential path to citizenship. Under the White House’ plan, these individuals would be able to become citizens after a period of 10 to 12 years, if certain eligibility requirements are met (which the administration has not yet laid out).

hunters-race-408744-300x200Until very recently, USCIS routinely waived in-person interviews for employment based adjustment of status cases. Instead, USCIS only conducted interviews in about 5-10% of all employment based adjustment of status cases. On August 28, 2017, USCIS announced that it would be dramatically expanding its use of interviews in employment based adjustment of status cases. Under the new guidelines, USCIS announced that beginning October 1, 2017, all employment based adjustment of status applicants would have to complete an in-person interview. The new guidelines apply to all applicants who have had (or have filed) a Form I-140 petition after March 6, 2017.

How will Form I-140 Petitions be Adjudicated?

The new interview guidelines do not change how USCIS adjudicates Form I-140 petitions. USCIS service centers will continue to adjudicate Form I-140s. Form I-485s filed concurrently with Form I-140s will continue to be filed with the service centers. Once the underlying Form I-140 is approved, an interview will be set up with a local USCIS field office.

Photo of HaitiOn November 20, 2017, Acting Secretary of  the U.S. Department of Homeland Security, Elaine Duke, announced the termination of Temporary Protected Status (“TPS”) for Haitians living in the United States. The decision to end TPS for Haitians will affect approximately 60,000 Haitians currently living in the United States.

TPS is a program overseen by the U.S. Department of Homeland Security (“DHS”), which allows citizens of particular countries, to temporarily remain in the United States, because of poor conditions in their home countries. In general, DHS has the authority to designate countries for TPS based on three factors: (1) war or other armed conflicts; (2) Natural disasters; or (3) other extraordinary conditions. During the time period where a country is designated for TPS, its nationals already in the United States, who meet all the eligibility requirements,

2F180A5A-1DD8-B71B-0BFE39F9778DF6D3-large-300x200On October 31, 2017, eight people were killed in a terrorist attack in New York City. Because the suspect originally came to the United States through the Diversity Visa Immigrant Program, there has been a lot of discussions regarding the future of the Diversity Visa Immigrant Program. Most prominently, U.S. President Donald Trump, has called on Congress to repeal the program.

Since the attack, there has been a lot of false reporting on what exactly the Diversity Visa Immigrant Program is. This blog post is intended to provide a brief overview of what exactly the Diversity Visa Immigrant Program is.

The Diversity Visa Immigrant Program is designed to allow a certain number of individuals to immigrate each year from countries with low rates of immigration to the United States. Under Section 203(c) of the Immigration and Nationality Act, a certain number of visas (currently set at 50,000 visas a year) is set aside for the program. Under the program, the visas are distributed among six regions. In addition, no more than seven percent of the visas issued each year may go to nationals of the same country. Further, citizens of countries with high rates of immigration to the United States, are not eligible  to apply for a visa through the program. (Please see the attached link for a list of countries where citizens are not currently eligible.)

474805022-300x129Earlier today, Attorney General Jeff Sessions, announced that the Trump administration will begin phasing out Deferred Action for Child Arrivals (“DACA”). The decision to begin to unwind DACA will affect approximately 800,000 individuals (also known as “Dreamers”), who have benefited from DACA.

The Obama administration announced the implementation of DACA on June 15, 2012. Under DACA, children who came to the United States without valid immigration status were given the ability to stay in the United States without being deported. These individuals were also eligible to apply for work authorization, allowing them to work in the United States.  In order to be eligible for DACA, individuals had to have:

  • Come to the United States before their 16th birthday;

On August 21, 2017, the U.S. Department of State announced a temporary suspension of nonimmigrant visa services in Russia. The move comes after Russian President Vladimir Putin announced on July 30th, 2017, thaunited-states-flag-1423259-300x223t he was expelling 755 employees of the U.S. diplomatic mission in Russia from the country, effective September 1, 2017. The move to expel American diplomats was made in retaliation for Congress passing new sanctions against Russia on July 27, 2017, for Russia’s interference in the 2016 United States Presidential Election.

As a result of having to send 755 employees out of Russia, the State Department has announced that from August 23, 2017, through August 31, 2017, the processing of nonimmigrant visas in Russia will be suspended. All individuals with nonimmigrant visas interviews scheduled in Russia during this period are being contacted by the United States Embassy in Moscow to have their interviews rescheduled.

On September 1, 2017, processing of nonimmigrant visas is scheduled to resume at the United States Embassy in Moscow only. The State Department will no longer process nonimmigrant visas at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostock. Because of how large Russia is, this will cause a significant burden on many visa seekers who will now have to travel long distances to Moscow. In addition, because the U.S. Embassy in Moscow will be the only location where nonimmigrant visas will be processed, the normal wait time to obtain a nonimmigrant visa interview in Russia is expected to increase significantly. Therefore, individuals thinking about obtaining a nonimmigrant visa in Russia should plan accordingly, and allow themselves additional time to obtain a visa. In addition, individuals who are eligible to apply for a nonimmigrant visa at a U.S. facility outside of Russia should strongly consider doing so.

chef-cooking-1383480-300x199On July 19, 2017, the U.S. Department of Homeland Security (“DHS”), along with the U.S. Department of Labor (“DOL”), published a final rule increasing the number of H-2B visas available for the 2017 fiscal year by 15,000 visas. H-2B visas are non-immigrant visas which allow United States businesses to hire non-agricultural workers for temporary or seasonal employment. Currently, there is a statutory limit of 66,000 H-2B visas (33,000 visas for the first half of the year,  and 33,000 visas for the second half of the year) which can be issued each fiscal year. Certain H-2B workers are exempt from the cap such as workers who change employers or extend their employment.

As part of the FY 2017 Consolidated Appropriations Act passed by Congress, DHS Secretary John Kelly was given the authority to increase the number of H-2B visas to be issued during the 2017 fiscal year. On July 19, it was announced that an additional 15,000 H-2B visas (on top of the 66,000 visas already allotted) would be issued. In order for businesses to take advantage of these additional H-2B visas, there are several stipulations.

First, like all H-2B petitions subject to the cap, U.S. Citizenship and Immigration Services (“USCIS”) will review petitions for these 15,000 visas on a first come first served basis. Because there is a high demand for H-2B visas, employers looking to hire H-2B workers should get their application into USCIS as soon as possible.

people-1-1163730-1-209x300President Trump ran his presidential campaign on a pledge to protect the jobs of American workers. As part of this pledge, President Trump routinely on the campaign trail said that he wanted to limit legal immigration to the United States. President Trump further, routinely stated that he wanted to make sure that current paths for workers to immigrate to to the United States were not being abused by employers.

On April 3, 2017, the Trump administration took its first steps towards limiting business immigration by stepping up enforcement efforts against company’s seeking to employ foreign workers on H-1B visas. The H-1B visa category allows American employers to temporarily employ foreign nationals in jobs that normally require at least a bachelor’s degree (known as speciality occupations).  Individuals who enter the United States on an H-1B visa are allowed to stay in the United States for up to six years.

On April 3, 2017, USCIS and the Department of Justice announced new enforcement efforts to prevent what the Trump administration perceives as “fraud and abuse” of the H-1B visa category. Since 2009, USCIS has conducted random site inspections of H-1B employers. On April 3, USCIS announced that while it will still continue to conduct random site inspections, USCIS will now focus on making site inspections in three situations.

waiting-1476663-225x300On January 27, 2017, President Trump signed an executive order banning individuals from seven predominantly Muslim countries (Sudan, Somalia, Iran, Iraq, Libya, Yemen, and Syria) from entering the United States. On February 3, 2017, a federal judge in Washington issued a temporary restraining banning the Federal Government from enforcing the order. The temporary restraining order was later upheld by the Ninth Circuit Court of Appeals on February 9, 2017.

Based on the Ninth Circuit’s ruling, President Trump withdrew the executive order, and signed a new executive order on March 6, 2017. Among other things, the new order bans foreign nationals from six of the original countries listed in the first order (Iraq is excluded), from entering the United States if they do not currently have a valid visa to enter the United States. In addition, unlike the first order, which had a blanket ban against travel from citizens of those countries, citizens of the six affected countries may travel to the United States if they: (1) are U.S. lawful permanent residents; (2)  are traveling on a diplomatic visa;  or (3) are traveling after already being granted asylum in the United States, withholding of removal, or protection under the Convention Against Torture.

On March 8, 2017, the State of Hawaii, along with a United States citizen of Egyptian descent, filed a motion with the U.S. District Court in Hawaii, seeking a temporary restraining order against enforcement of the travel ban. In their filing to the Court, Plaintiffs claimed that the travel ban discriminated against Muslims, in violation of the Establishment Clause of the First Amendment.