Breaking News 08.27.2018

Denied a Benefit? The ICE Man Cometh...

On June 28, USCIS issued a new Policy Memorandum that instructs USCIS adjudicators to refer individuals to removal proceedings in a broad range of situations, including when their applications for extension/change/adjustment of status (and other benefits) are denied. Previously, USCIS adjudicators had discretion whether or not to refer individuals to removal proceedings upon the denial of benefits, but did not typically do so absent a significant history of criminal conduct, security concerns, or fraud.

The Policy Memo has not yet gone into effect, but specifically provides that USCIS will issue a Notice to Appear (NTA) to initiate removal proceedings in the following situations:

  • "Egregious Public Safety" (EPS) cases. Where a foreign national has been under investigation for, arrested for, accused of, or convicted of committing the following crimes (regardless of final disposition), USCIS will issue an NTA and refer to ICE prior to or following adjudication of the benefit requested:
    • Murder, rape, sexual abuse of a minor
    • Illicit trafficking in firearms or destructive devices, or related offenses
    • Crimes of violence for which the sentence imposed (or potential sentence if the case remains pending) is at least one year
    • offenses relating to ransom, child pornography, peonage, slavery, involuntary servitude, human trafficking, or alien smuggling
    • Human Rights Violators, known or suspected street gang members, or Interpol hits
    • Illegal re-entry following order of exclusion/deportation/removal subsequent to a felony conviction
  • Non-EPS criminal cases. USCIS will issue an NTA in all cases after adjudication if the benefit is denied and the individual is removable where an individual is convicted of, charged with, or commits acts that constitute any chargeable criminal offense. USCIS will refer the individual to ICE prior to final adjudication if the criminal conviction appears to render the individual removable.
  • N-400 denials. USCIS will issue an NTA and refer to ICE if the N400 is denied on good moral character grounds due to a criminal conviction that also renders the individual removable. USCIS may issue an NTA and refer to ICE when a criminal conviction renders the individual removable (even if it does not preclude eligibility for naturalization), or where the individual was inadmissible at the time of admission or adjustment to lawful permanent resident status.
  • Fraud/misrepresentation/abuse of public benefits. USCIS will issue an NTA upon denial of the petition or application, or other appropriate negative eligibility determination (e.g., withdrawal, termination, rescission), even if the petition or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, the application or petition is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as the alien is removable and USCIS has determined there is fraud in the record.
  • Not lawfully present or subject to removal. USCIS will issue an NTA and refer to ICE any case where an application for benefits is denied, and the individual is not lawfully present in the U.S. or subject to removal. In addition to any application for immigrant and nonimmigrant benefits, the Policy Memo specifically references issuing an NTA to applicants for benefits previously reserved special discretionary protection, including applicants for U Visas (crime victims), T Visas (trafficking victims), I-360 self-petitions (whether Special Immigrant Juveniles or battered spouses under the Violence Against Women Act), or adjustment of status based on these types of petitions.

Note: although this memo advised that USCIS will announce an implementation policy within 30 days, the agency has not issued any timetable. Therefore, this memo is not in effect at the moment, but its future effective date is uncertain. If you have applied for immigrant or nonimmigrant benefits with USCIS and your application gets denied, contact a qualified immigration attorney right away to assist you in determining whether you may be subject to removal proceedings.

F, M, J Revised Unlawful Presence Memo Now in Effect: Plaintiffs Needed!

On August 9, USCIS issued a final policy memorandum substantially modifying the manner in which USCIS calculates unlawful presence for individuals in the U.S. in F, J, and M status (including dependents). The memo, which took effect immediately, clarifies that an individual begins accruing unlawful presence beginning on the day they fail to maintain status. Note that there are over 50 ways in which such nonimmigrants can violate status.

Previously, F, J, and M visa holders would only begin to accrue unlawful presence when USCIS made a written finding of a status violation, when a date-certain I-94 expired, or when ordered excluded/deported/removed by an immigration judge due to a status violation, and that order became final. Now, an individual begins accruing unlawful presence on the earliest of the following:

  • the day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity
  • the day after the F, J, or M nonimmigrant engages in unauthorized activity
  • the day after the F, J, or M nonimmigrant completes the course of study or program (including any grace period)
  • the day after the F, J, or M nonimmigrant's I-94 expires, or
  • the day after an immigration judge orders the F, J, or M nonimmigrant excluded/deported/removed, regardless of whether the decision is appealed

Once an individual accrues over 180 days of unlawful presence, they are barred from readmission to the U.S. after departure for three years. Once an individual accrues a year or more of unlawful presence, they are barred from readmission to the U.S. for 10 years. A waiver of the three- and 10-year bars is available, but only if the individual can show (1) they have a spouse or parent who is a US citizen or lawful permanent resident; and (2) that relative would suffer "extreme hardship" if the waiver is not granted.

The American Immigration Lawyers Association (AILA) seeks plaintiffs who may be affected by the implementation of this memo, including hospitals and healthcare organizations who sponsor or administer programs for recipients of these visa classifications. If you are interested or know someone who is, contact Greg Siskind: [email protected] or call at 901-682-6455.

European Union Adopts ESTA-like Process for Visa Waiver Countries, Effective 2021

Following the imposition of increased formalities EU citizens are obliged to follow when entering the U.S., the EU parliament has adopted reciprocal procedures for U.S. travelers visiting the EU, which are similar to our ESTA registration for visa waiver entrants to the US. The U.S. has visa-waiver treaties with all EU Member States for visits not exceeding 90 days for tourism or business.

The EU resolution will lead the Council of EU Ministers to enact new travel legislation applicable to all non-EU travelers coming from visa-waiver countries (such as the U.S., Canada, Australia, Japan, Brazil, Argentina, etc.) for any travel to the EU which will not exceed 90 days. Concrete implementation of the new system is scheduled for 2021, requiring visitors to register on a dedicated EU portal, and be "authorized" to enter EU territory prior to travel. The system should be very similar to the U.S. Electronic System for Travel Authorization (ESTA) which EU citizens must use before travelling to the U.S.

Automatic Extension of Work Authorization for Certain Haitian TPS Holders

USCIS has authorized an automatic extension of work authorization of 180 days for certain Haitian TPS holders whose work authorization expired on Saturday, July 21 and who have not yet received their new employment authorization document, or EAD. If you are a TPS beneficiary under the Haiti designation with an EAD based on your TPS status, your EAD may now be valid through January 17, 2019 if:

(1) your EAD includes a category code of A12 or C19,

(2) you have not received your new EAD, and

(3) either:

  • Your EAD expired on January 22, 2018, and you applied for a new EAD during the last re-registration period; or
  • Your EAD expired on July 22, 2017, and you applied for a new EAD on or after May 24, 2017.

You may continue to use your current EAD as evidence of your work authorization through January 17, 2019. Because you have a pending EAD application, USCIS will mail you an individual Notice of Continued Evidence of Work Authorization that provides additional evidence of this automatic extension of your EAD through January 17, 2019 to show to your employer. If you did not receive the Notice of Continued Evidence of Work Authorization within a week of July 22, 2018, please contact USCIS at 202-272-8377.

All Unselected
Cap-Subject H-1B Petitions
Now Returned

USCIS announced on July 30 that it had returned all fiscal year 2019 H-1B cap-subject petitions that were not selected in the computer-generated random selection process, completed on May 15.


If you submitted an H-1B cap-subject petition that was delivered to USCIS between April 2 and April 6, 2018, and you have not received a receipt notice or a returned petition by August 13, contact the agency or your immigration attorney for assistance.

Worldwide Retrogression and Limited Future Movement for Certain Employment-Based Visa Categories

Due to the extremely high rate of demand for employment-based (EB) visa numbers, the State Department's September 2018 Visa Bulletin imposes immediate final action dates for EB Second (E2), Third (E3), and Third Other Worker (EW) preference categories for nationals of El Salvador, Guatemala, Honduras, Mexico, Philippines, and All-Charge (Worldwide) classifications. Final Action Dates for the month of September will be imposed immediately for new requests for visa numbers from the date of the announcement (August 7, 2018). This means that even if you were interviewed prior to August 7, you may not be approved for permanent residence for several months.

The Visa Bulletin projected future movement likely to happen on a monthly basis through January in the EB categories as follows:

  • Employment First:
    • WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.
  • Employment Second:
    • Worldwide: Current for the foreseeable future, beginning in October.
    • China: Slow movement pending receipt of demand from recent advances.
    • India: Up to two weeks per month.
  • Employment Third:
    • Worldwide: Current, beginning in October.
    • China: Up to three weeks froward movement per month.
    • India: Slow movement pending receipt of demand from recent advances.
    • Mexico: Current, beginning in October.
    • Philippines: Minimal movement.
  • Employment Fourth: Current for most countries
    • El Salvador, Guatemala, and Honduras: Little, if any forward movement.
    • Mexico: Up to three months per month.
  • Employment Fifth: The category will remain "Current" for most countries.
    • China-mainland born: Up to one week per month.
    • Vietnam: Steady forward movement each month.

The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

18 Month TPS Extension for Yemen

The Secretary of the Department of Homeland Security has announced an extension to the Temporary Protected Status (TPS) designation for Yemen. Yemenis with TPS status will be eligible to re-register for an extension of their status for 18 months, through March 3, 2020. The 60-day re-registration period runs from August 14, 2018 through October 15, 2018.

There are approximately 1,250 Yemeni TPS beneficiaries. This 18-month extension of Yemen's designation for TPS permits current Yemeni TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 3, 2020. Yemeni individuals present in the U.S. since the time of the previous designation may be eligible to seek other forms of immigration relief.

DHS Confirms Intent to Roll Back Employment Authorization for H-1B Spouses

On August 20, DHS reiterated that it plans to rescind work authorization for the spouses of highly skilled immigrants. The Obama-era rule allows H-4 spouses to apply for work authorization in the U.S. if the H-1B principal is the beneficiary of an approved I-140 immigrant petition for alien worker but is not yet eligible for permanent resident status due to visa backlog. Obviously, this policy primarily benefits persons from China and India, as the most common employment-based categories are perpetually backlogged for persons subject to the China or India quota.

While no formal notice of rescission has been made at this time, DHS stated that its proposal to scrap the H-4 visa rule is in "final clearance review" and that "senior levels of the department's leadership" are "actively" reviewing the agency's notice of proposed rulemaking for approval.

Rescission of the H-4 visa rule would disproportionately affect women. Over 90,000 individuals have applied for employment authorization under the H-4 visa rule since 2015, and over 93% were women.

This measure is another brick in the "invisible wall", a multi-pronged effort by the Trump administration to discourage legal immigration to the U.S.