ysidro3_t800-300x150On November 9, 2018, President Trump issued a broad Presidential Proclamation drastically changing when individuals who enter the United States through Mexico may apply for asylum. The new restrictions are scheduled to last 90 days, at which point the President has the authority to renew the restriction

Under current U.S. law (and in compliance with numerous international treaties that the U.S. is a party of), all individuals who enter the United States (either legally through an official port of entry, or illegally), are entitled to apply for asylum within a year of entering the United States. Under President Trump’s proclamation, all asylum seekers who cross into the United States across the U.S./Mexico border must apply for asylum at an official point of entry. Individuals who cross the U.S./Mexico border illegally (without going through an official point of entry), will be barred from applying for asylum.

The new policy has some important limitations. First, it only applies to individuals who cross into the United States along the U.S./Mexico border. Individuals who legally enter the United States through another avenue (such as an airport), still have the right to apply for asylum within a year of entering the United States. These individuals can continue to file for asylum by filing an asylum application with U.S. Citizenship and Immigration Services, or in immigration court (if they are served a Notice to Appear in immigration court.

united-states-flag-1423259-300x223On September 22, 2018, the U.S. Department of Homeland Security (“DHS”), announced a proposed rule that would deny green cards to almost all immigrants who accept public benefits while in the United States. The public will have 60 days to provide comments on the proposed rule. After the sixty day comment period is over, the final rule will be published, and will go into effect 60 days later.

Starting with the Immigration Act of 1882, the United States has had a policy of denying green cards to potential immigrants who are likely to become “public charges”. Under current law (INA § 212(a)(4)), any immigrant who is “likely at any time to become a public charge”, is inadmissible to the United States. In determining whether an individual is likely to become a public charge, USCIS and the U.S. Department of State, are supposed to examine the potential immigrant’s: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.

Under the current rule dating back to 1999, immigrants who rely on certain public benefits are automatically deemed to be public charges, and therefore, inadmissible to the United States. Individuals are deemed to be public charges if two things are met. First, individuals must accept cash public benefits such as welfare. Under the current rule, public benefits that are not cash benefits such as food stamps and Medicare, do not make an individual inadmissible to the the United States. Second, the cash benefits an immigrant receives must account for 50% or more of the immigrant’s total income for the individual to be considered a public charge.

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.