In recent weeks, it has made headlines that the Trump Administration is forcibly separating minor children from their parents when detained at the border. The Trump Administration has stated that the law requires this, but that is a lie. The Administration has also stated that this practice is a product of the previous administration and that the Democratic Party enacted these rules. This is also a lie. This practice is not required by U.S. law – and is dramatically different than the approach of past administrations. The separation of children is a side-effect of the Trump Administration’s decision to implement a “zero-tolerance policy” in prosecuting border crossings. Our firm wholeheartedly believes that this practice is reprehensible and counter to American values and must be stopped.
In the past weeks, the Trump Administration has also taken a hardline against many facets of the immigration system in place, either by law or through case law. Some of our clients have noticed this hardline stance in the form of Requests for Evidence for H-1B cases which have seen a dramatic increase since last August. However, this level of scrutiny has also been occurring in other types of immigration cases, and generally with more frequency.
Notably, the Administration continues to renegotiate the North American Free Trade Agreement (NAFTA), but after disagreements with Canada after the G7 the President has again suggested numerous times that he will unilaterally withdraw the U.S. from NAFTA. A withdrawal would adversely affect any foreign nationals who are in the United States under the TN visa, which is authorized by NAFTA. The renegotiation of NAFTA would be disastrous not only for TN employees, but also for the larger trade implications for the countries involved.
Last week, Attorney General Jeff Sessions overturned Bureau of Immigration Affairs (BIA) precedent that previously allowed victims of domestic violence to seek asylum based on that persecution. The Attorney General also overturned a case that allowed immigrant children seeking relief in the form of a Special Immigrant Juvenile visa to obtain administrative closure in immigration court while they wait for their visa to become current. The Attorney General is using his office as a means to dismantle the foundational humanitarian principles of the American immigration system that allow for the protection of children and victims of domestic violence.
The Trump Administration has also been focused on searching for fraud in all cases, even the most mundane. Specifically, USCIS has been looking “behind” prior approvals to search for fraud in order to deny current applications. We recently have seen two cases where issues that occurred over a decade ago, and were not the fault of our clients, have been used in an attempt to deny current status applications. We have heard similar reports from colleagues and at the AILA Annual Conference last week in San Francisco. Given this new tactic, it is extremely important that all of our foreign national clients raise any concerns that may exist regarding prior applications when preparing for a new filing so that we can properly address any adverse facts that may be present in a case. As a general reminder, all foreign workers should ensure that they keep copies of all prior filings so that they may be referenced at a later date.
The Trump Administration has also announced plans to open a department to specifically look for fraud committed by naturalized U.S. citizens in the course of their immigration process. If any fraud is found, they plan to strip the individual of their citizenship. USCIS has never before specifically created a task force to search out fraud in these instances, previously only seeking to prosecute and strip individuals of their citizenship when it comes to light in other matters, such as a criminal case.
We understand that fraud does occur in the U.S. immigration system, but recognize that there is no perfect method to prevent it. We have been supportive of fraud reduction efforts in the past, but this approach is different. This specific task force provides an excuse to deny or overturn cases without being held to a high standard of proof. For example, in a recent decision regarding one of clients, a lone officer claimed that our client acted fraudulently without questioning the client about the fraud they were accused of during their interview, meaning there was no opportunity to refute or discuss the government’s concern before the officer made a decision and denied the petition. Perhaps most concerningly, this approach to uncovering fraud may allow the Administration to use the “data” they produce to champion reductions in immigration and portray immigrations in a negative light.
We appreciate our clients’ patience and continued support as we continue to navigate our ever-changing field. We hope that all of our clients recognize the unique position they are in to be able to advocate on behalf of immigrants by contacting their federal representatives to express their opinions and share their experiences. We know the benefit of immigration and its importance to our culture and the successes we have all shared. It is only through collective action that we will see the policy direction we are currently witnessing tempered to a reasonable approach that supports the needs of our democracy.
As of June 13th, USCIS has announced that it is experiencing delays with the initial data entry for Form I-751, Petition to Remove Conditions on Residence – in some cases individuals have waited 6-7 weeks for a receipt confirmation. Since initial data entry must be completed before a receipt notice can be issued, petitioners and their dependents are experiencing delays in receiving the initial receipt notice automatically extending their Green Card, and thus employment authorization.
USCIS anticipates completing initial data entry by the end of this month and they urge individuals to not file a duplicate petition unless they have received a rejection notice or have been instructed to do so by the California Service Center. We will continue to monitor our I-751 filings and discuss how delays impact specific clients.
USCIS is no longer accepting petitions filed under the temporary final rule increasing the FY 2018 numerical limit on H-2B nonimmigrant visas. USCIS will reject and return any petition received after June 6, 2018 that was not selected in the lottery, as well as any cap-subject petitions. Petitions accepted for processing will have a receipt date of June 11, 2018. Premium processing service for these petitions begins on that receipt date. Only employers whose petitions were accepted will receive receipt notices. USCIS will reject and return unselected petitions with their filing fees, as well as any cap-subject petitions received after June 6, 2018.
USCIS continues to accept H-2B petitions with start dates for FY 2018 that are exempt from, or not counted towards, the congressionally mandated cap. USCIS will also consider petitions requesting an employment start date on or after Oct. 1, 2018, towards the FY 2019 cap. These petitions will be subject to all eligibility requirements for FY 2019 H-2B cap filings.
The July 2018 visa bulletin is virtually unchanged from June. EB-1 dates for China and India remain at January 1st, 2012. EB-2 dates for China and India have advanced; China moving up to September 1st, 2014 and India moving up to December 26th 2008. EB 3 dates for China and India have advanced; China moving up to June 1st, 2015 and India moving up to May 1st, 2008. EB-3 Philippines remains at January 1st, 2017. Please access the current visa bulletin here.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **