Breaking News 04.30.2018

Federal Court Orders DACA Program to be Fully Reinstated, with 90 Day Pause

On April 24, Judge John D. Bates for the U.S. District Court for the District of Columbia found that President Trump's "virtually unexplained" rescission of the Deferred Action for Childhood Arrivals (DACA) Program last fall was done so in an "arbitrary and capricious" manner, and ordered that USCIS begin accepting new applications for DACA benefits in 90 days.

The ruling goes further than two previous Court orders that forced the Trump administration to continue accepting DACA renewal applications; Judge Bates' order requires USCIS to accept new applications for individuals who never before applied or qualified for the DACA program. However, the implementation of the order was stayed for 90 days. In the intervening three months, the executive branch "may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority". If the President fails to provide such a reasoned explanation, the DACA program will "be restored in full" and the government will be ordered to "resume accepting initial DACA applications and applications for advanced parole".

DHS Terminates TPS Designation for Nepal Effective June 24, 2019

On April 26, Secretary of Homeland Security Kirstjen M. Nielsen terminated the Temporary Protected Status (TPS) designation for Nepal after determining that the disruption of living conditions in Nepal from the April 2015 earthquake and subsequent aftershocks (which served as the basis for its TPS designation) have decreased, and Nepal can now adequately manage the return of its nationals.

However, to allow for an orderly transition for Nepalese TPS beneficiaries, the termination will be delayed for 12 months, until June 24, 2019. Nepali citizens with current TPS registrations may re-register for TPS and apply for Employment Authorization Documents until that date. This decision affects approximately 9,000 Nepali nationals currently enjoying TPS benefits.

USCIS to Dramatically Expand the Definition of "Public Charge"

The administration is expected to publish a proposed regulation soon that would radically alter the way USCIS officers screen for inadmissibility due to public charge, increasing the barriers to lawful status for low-income immigrants. The officers would scrutinize the intending immigrant's current and estimated income, job history, job skills, health status, assets, and any family history of receipt of public benefits.

The Immigration and Nationality Act allows USCIS and the State Department to conclude that an applicant for an immigrant visa or adjustment of status to permanent resident is inadmissible if he or she "is likely at any time to become a public charge." Immigrants can also become deportable from the US if they become a "public charge" within five years of immigrating. According to a 1999 agency memorandum, field guidance, and proposed rule, a non-citizen becomes a public charge for inadmissibility or deportability purposes if he or she has become primarily dependent on the government for subsistence, as demonstrated by either institutionalization for long-term care at government expense OR the receipt of public cash assistance for income maintenance (defined as (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance).

The proposed rule would nullify that interpretation and replace it with one that substantially broadens the term "public charge" to include a determination of whether he or she "is likely at any time to use or receive one or more public benefits." It also holds the intending immigrant accountable for any benefits received by children or other dependents who may have been legally entitled and even encouraged to receive them.

Travel Ban Updated to Exclude Nationals of Chad, Supreme Court Hears Oral Arguments

On April 10, President Trump amended Presidential Proclamation 9645 of September 24, 2017, commonly referred to as "Travel Ban 3.0". The amendent removes the visa restrictions imposed on nationals of Chad, effective Friday, April 13, 2018. All other visa restrictions outlined in P.P. 9645 remain in effect, including those affecting nationals of Iran, Libya, Yemen, North Korea, Somalia, Syria, and Venezuela.

On April 25 the U.S. Supreme Court heard oral arguments on Travel Ban 3.0. Afterward, most court-watchers agreed that a majority of the Court appears poised to uphold the ban. However, Justice Kennedy (often considered the swing vote) appeared to struggle with the government's argument that a candidate could make hateful statements on the campaign trail, take action post-election seemingly consistent with those statements, and then not be held accountable because the intervening election had washed the taint of those statements away. The Court is expected to render a decision by June.

USCIS Fills 2019 H-1B Cap, Reports Slight Drop in Petitions Received

On April 6, USCIS reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree quota, known as the master's cap. The agency will reject and return filing fees for all unselected cap-subject petitions. USCIS will continue to accept and process cap-exempt petitions, including:

  • Petitions on behalf of workers who have already been counted against the H-1B cap in the prior six years;
  • H-1B extensions, amendments and changes of employer;
  • H-1B petitions for concurrent employment;
  • Petitions filed by ACWIA institutions and entities (higher education, government research organizations, nonprofit research organizations, and nonprofit entities affiliated with one of the foregoing); and
  • Certain physicians admitted to the U.S. in J status for graduate medical education.

It should be noted that premium processing may be requested for any cap-exempt petition.

USCIS confirmed that it received 190,098 H-1B petitions during the filing period, a drop from the 199,000 submitted last year, the second time that the number of petitions has fallen. H-1B petitions reached a peak in 2016 at 236,000. President Trump's Buy American and Hire American Executive Order of April 2017 singled out the H-1B program for additional scrutiny, and USCIS vastly ramped up Requests for Evidence and denials, both of which may have contributed to the decrease in petition numbers.

U.S. State Department to Increase Social Media Scrutiny for 15 Million

The State Department wants to require all U.S. visa applicants, including those who want to come to the U.S. for business or education, to submit their social media history, vastly expanding the reach of the Trump Administration's "extreme vetting" of potential immigrants and visitors. The new rules would apply to virtually all applicants for immigrant and nonimmigrant visas, about 15 million persons annually, including an estimated 710,000 immigrant visa and 14 million nonimmigrant visa applicants.

In addition to their social media histories, visa applicants will be asked for five years of previously used telephone numbers, email addresses, international travel and deportation status, as well as whether any family members have been involved in terrorist activities. Previously, social media, email and phone number histories were only sought from certain applicants identified for extra scrutiny, such as those who have traveled to areas controlled by terrorist organizations (estimated 65,000 people per year).

Visa Bulletin Changes Affect Indian and Chinese EB Categories

The Visa Bulletin for April revealed a dramatic retrogression in the EB-1 "Priority Workers" category for nationals of India and China. Due to very high demand, a cutoff date of January 1, 2012 has been imposed for both EB-1 China and India. Visa numbers are not expected to become available in this category until Fiscal Year 2019. EB-1 includes Multinational Executives and Managers, Outstanding Professors and Researchers, and Persons of Extraordinary Ability or Achievement.

Ironically, the EB-3 category for Professionals and Skilled Workers is expected to advance dramatically for nationals of India this summer, potentially racing a year or two ahead of the EB-2 "Advanced Degree or Exceptional Ability Professionals" category for Indians. This move would place Indian nationals in a similar position to Chinese nationals, for whom the EB-3 category has moved more quickly than the EB-2 category in recent years. Contact a qualified immigration attorney if you believe this news could affect you.

USCIS Revises Third-Party Placement Rules for STEM OPT Recipients

USCIS recently announced changes for F-1 students working at staffing or temporary agencies on 24-month extensions of Optional Practical Training (OPT) employment authorization by virtue of STEM (science, technology, engineering, and mathematics) degrees.

The new USCIS/SEVP guidelines state that staffing and temporary agencies may employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business and they have a bona fide employer-employee relationship with the student. For instance, a student might possibly receive STEM-related training while working in such an entity's information technology (IT) department.

However, such entities may not assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. The employer signing the Form I-983 (Training Plan for STEM OPT Students) must be the same entity that provides the practical training experience to the student. Moreover, the student's practical training experience must be provided by the employer's own trained or supervisory personnel at the employer's own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements.

New Green Card Mailing System to Require Signature for Document Delivery

Beginning April 30, USCIS will begin phasing in use of the U.S. Postal Service's Signature Confirmation Restricted Delivery service to mail Green Cards and other secure documents (such as Employment Authorization cards and Travel Booklets), in an effort to "increase the security, integrity, and efficiency of document delivery."

As part of the new delivery method, applicants must present identification to sign for their documents upon delivery. They also have the option to designate an agent to sign on their behalf by completing the Postal Service's PS Form 3801, Standing Delivery Order (PDF) or PS Form 3801-A, Agreement by a Hotel, Apartment House, or the Like (PDF). Applicants can sign up for USPS Informed Delivery to receive delivery status notifications. Applicants will also have the option to arrange for pickup at a post office at a convenient date and time by going to the USPS website and selecting "hold for pickup."

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