A new Department of Justice interim rule, effective August 26, 2019, and published on the same day, makes significant changes to several components of the Executive Office for Immigration Review (EOIR) and its lines of authority. The immigration judges' union immediately protested.
USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled into the United States
The policy guidance includes a list of positive and negative factors an officer may consider when "balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion."
The Departments of Homeland Security and Health and Human Services announced a final rule, effective October 22, 2019, to terminate the Flores settlement agreement and "ensure the humane detention of families." Many advocates and others expressed concern.
The Visa Bulletin for August 2019 notes a steadily increasing level of employment-based applicant demand since late May for adjustment-of-status cases filed with USCIS, although the State Department is hoping to return priority dates to what they've been before July 2019 after the new fiscal year begins in October.
USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers.
The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis' H-1B petition on behalf of the data analyst.
Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody.
The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.
USCIS has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding "credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid."
1. New DOJ Interim Rule, Effective Immediately, Makes Significant Changes to EOIR
A new Department of Justice interim rule, effective August 26, 2019, and published on the same day, makes significant changes to several components of the Executive Office for Immigration Review (EOIR) and its lines of authority.
Among other things, the interim rule:
- Outlines the functions and roles of the new Office of Policy and transfers the Office of Legal Access Programs (OLAP) to a division in the Office of Policy.
- Delegates authority from the Attorney General to the EOIR Director when appeals pending before the Board of Immigration Appeals (BIA) have not been “timely resolved in order to allow more practical flexibility in efficiently deciding appeals.” Specifically, the rule states that with limited exceptions, appeals assigned to a single Board member must be adjudicated within 90 days of completion of the record, and appeals assigned to a three-member panel must be completed within 180 days after assignment. Appeals not completed within these time limits that are not subject to an exception will be assigned by the BIA Chairman either to him- or herself or to a Vice Chairman for a final decision within 14 days, “or the Chairman shall refer them to the Attorney General.”
- Distinguishes functions performed by the Office of Policy and the Office of the General Counsel (OGC). Specifically, the rule transfers some of OGC’s current programs to the Office of Policy. The rule explains that the General Counsel, subject to the supervision of the Director, remains the chief legal counsel and supervisor of legal activities related to specific categories of issues, but expressly provides that the General Counsel “does not have authority to influence the adjudication of specific cases under the [Immigration and Nationality Act (INA)], including as an advisor on disciplinary matters related to the adjudication of cases under the cases under the It also explains that the General Counsel may continue to advise on matters of immigration law, provided that the advice does not direct or influence specific adjudications under the Act.”
- Changes the titles of members of the BIA. Specifically, the rule provides that members of the Board will also be known as “Appellate Immigration Judges.”
The rule states that it is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because it is an “internal delegation of administrative authority.” The DOJ said it is providing an opportunity for “post-promulgation comment” before the final rule is issued. Written comments must be received by October 25, 2019.
Reaction. Ashley Tabaddor, president of the National Association of Immigration Judges (NAIJ), called the new interim rule “an unprecedented attempt at agency overreach” and said that it “ends any transparency and assurance of independent decision making over individual cases.” Characterizing the new rule as a “wolf in sheep’s clothing,” Ms. Tabaddor said that although the rule is “couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators.” She said NAIJ would “provide a more detailed analysis in the days ahead,” noting that NAIJ received notice of the action on the same day the press was advised.[Back to Top]
2. USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled into the United States
U.S. Citizenship and Immigration Service (USCIS) recently issued policy guidance on its discretion to grant employment authorization to foreign nationals paroled into the United States, including those who are otherwise inadmissible.
The agency noted that employment authorization for such parolees is not automatic and that the agency “will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted.” The policy guidance includes a list of positive and negative factors an officer may consider when “balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion.”
USCIS said the policy update does not affect individuals paroled into the United States under the International Entrepreneur Rule. Such parolees are authorized to work based on their parole under current Department of Homeland Security regulations governing the International Entrepreneur parole program.[Back to Top]
3. Controversial New Rule Allows Indefinite Detention of Minors, Families
The Departments of Homeland Security (DHS) and Health and Human Services announced a final rule, effective October 22, 2019, to terminate the Flores settlement agreement and “ensure the humane detention of families.”
Many advocates and others have expressed concern. Among other things, in addition to concerns about potentially lengthy detentions of noncriminal immigrants, including children, commenters said DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. Legal advocates have filed a notice to challenge the rule in court.
Details: Joint agency rule is here. DHS statement is here. DHS press conference is here. Flores settlement agreement is here. Human Rights Watch comments on related proposed rule is here. Notice to challenge rule is here.[Back to Top]
4. State Dept. Establishes, Retrogresses August Employment-Based Final Action Dates
The Department of State’s Visa Bulletin for August 2019 notes a steadily increasing level of employment-based applicant demand since late May for adjustment-of-status cases filed with U.S. Citizenship and Immigration Services, with no indication that this increase will end in the near future. Therefore, the bulletin states, “it has been necessary to establish or retrogress many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the respective FY-2019 annual limits.”
The implementation of these dates is expected to be temporary. For October, the first month of fiscal year 2020, the agency said, “every effort will be made to return these final action dates to those which applied for July.”
Details: Visa Bulletin for August 2019 is here.[Back to Top]
5. USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address
U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that as of August 5, 2019, it is rejecting Form I-129 nonimmigrant worker petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form.
USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers. USCIS said it recognizes that in certain circumstances, the person signing Part 8 of Form I-129 may be an employee of the petitioning entity and have the same address as that of the petitioner named in Part 1 of the form. In such a case, USCIS would not reject the I-129 because of the duplicate addresses.
Details: USCIS notice is here.[Back to Top]
6. Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case
The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs and denied defendants’ motion to dismiss in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, U.S. Citizenship and Immigration Services (USCIS); the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.
The government responded to the H-1B petition with a request for evidence (RFE) related to whether the data analyst position was a specialty occupation, finally denying the petition after LexisNexis sent documentation. Plaintiffs filed suit, but shortly before they filed their opening motion, the government reopened the petition without notifying defendants or providing a reason. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had reopened the case.
Among other things, the court noted that an agency’s failure to set forth its reasons for a decision constitutes arbitrary and capricious action, and the court must undo the agency action. The court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Also, upon imminent expiration of the data analyst’s F-1 visa, she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship,” the court observed. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening “highly suspect and contrary to the regulations.” Finding that the LexisNexis position was “a distinct occupation which required a specialized course of study,” as supported by a “mountain of evidence” that “more than meets the preponderance of the evidence standard,” the court concluded that the agency’s decision to deny the H-1B petition was not based on a consideration of the relevant factors, was a clear error of judgment, and that USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the data analyst.
Details: Case text is here.[Back to Top]
7. ICE Conducts Secretive Workplace Raids in Mississippi
U.S. Immigration and Customs Enforcement (ICE) conducted mass raids on workplaces in the first week of school in Mississippi. According to reports, the operation was conducted without much advance notice, even to the White House. Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody. About half of those detained were released the next day, as they were determined not to be a public threat, and some were taken back to their workplaces with a summons to appear later in immigration court. The action drew criticism because of the timing—just days after a mass shooting in El Paso, Texas, targeting Hispanic immigrants.[Back to Top]
8. USCIS Plans to Close 13 International Field Offices and Three District Offices
U.S. Citizenship and Immigration Services (USCIS) has announced plans to close 13 international field offices and three district offices between now and August 2020. The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.
USCIS said that many functions currently performed at international offices “will be handled domestically or by USCIS domestic staff on temporary assignments abroad.” As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. USCIS said it is working closely with DOS “to minimize interruptions in immigration services to affected applicants and petitioners.”
USCIS said it plans to maintain operations at its international field offices in Beijing and Guangzhou, China; Nairobi, Kenya; New Delhi, India; Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador.
Details: USCIS notice is here.[Back to Top]
9. USCIS Extends Comment Period for Tip Form
U.S. Citizenship and Immigration Services (USCIS) has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding “credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid.” The estimated total number of respondents is 55,000.
Details: Federal Register notice is here.[Back to Top]
10. KLASKO NEWS
On September 14, 2019, AILA will host its annual Citizenship Day, which is a nationwide event that provides free naturalization assistance to eligible lawful permanent residents. This year, Klasko Immigration Law Partners will serve as the site sponsor for the Montgomery County clinic in Colmar. AILA and Klasko are looking for several volunteers to assist in various ways. Please click here to sign up.
IN THE NEWS
Daniel B. Lundy Quoted in Law 360 Article about EB-5 Compliance Checks
In this article, Dan is quoted about the lack of expertise in compliance reviews due to lower-level overseers.
Ronald Klasko Spoke with Bloomberg Law about Application Backlogs
Ron spoke with Bloomberg Law about immigration backlogs reaching crisis proportions.
William A. Stock Quoted in Forbes.com Article Regarding Increase in H-1B Visa Denials
Bill addressed the legality of new USCIS standards applied to H-1B petitions in an interview, which was quoted in forbes.com.
RECENT SPEAKING ENGAGEMENTS
Ron led a panel entitled The Journey from an E-2 Visa to an EM-5 Green Card: A Fast Track via webinar presented by the AILA Education Department On August 6th.
UPCOMING SPEAKING ENGAGEMENTS
William A. Stock
Bill will be presenting on a panel titled Recent Trends in Immigration Criminal Enforcement against Employers for the 2019 AILA Fall Conference on September 13th.
Elise A. Fialkowski
Elise will be a featured speaker during a workshop entitled Drafting Your Own I-9 and E-Verify Compliance Policy at the 2019 LawLogix I-9 Palooza, which is being held at the Huntington Convention Center in Cleveland, Ohio, on September 16th.
Michele G. Madera
On September 19th, Michele will host a webinar entitled How to Manage Cross-Border Data Governance and its Impact on Immigration in the GDPR Era with Jordan Fischer.
Lisa T. Felix
Lisa will be speaking to students on September 21st at Binghamton University about immigration law at the school’s Thurgood Marshall Pre-Law Society Conference in New York.
Ronald Klasko | William A. Stock | Elise A. Fialkowski
Three firm partners were recognized in the annual Best Lawyers in America© publication.
ICYMI: RECENT BLOG POSTS AND ALERTS
What You May Have Missed in the New EB-5 Regulations
Ron Klasko translates easy-to-miss updates to the EB-5 regulations.
Navigating the Green Card Process through Employment-Based Immigration
This blog features an infographic to help visualize the green card process for employees and sponsoring employers.
Comparing E-2 & EB-5 Investor Visas
The infographic in this blog is a snapshot of some of the requirements and differences between E-2 and EB-5 investor visas, provided to help your pathway to a future in the United States.
Common Issues for Third-Country Treaty Investor (E-2) Visa Cases
Oliver Yang addresses E-2 Visa confusion for employers, providing guidance to help build a better rapport with the employee and the attorney.
CLIENT ALERT: Employers Prepare For STEM OPT Worksite Visits
Karuna Simbeck warns employers of upcoming worksite visits and possible loss of F-1 student workers and offers preparation tips.
Statutes of Liberty BONUS EPISODE: Impact of New EB-5 Regulations on Regional Centers, Developers, and Investors
Ron Klasko, Dan Lundy, Anu Nair, and Jessica DeNisi provide insights and analysis on the new regulations and how they will impact regional centers, developers, investors, and professionals working in the EB-5 industry.
Every month, the firm holds a Celebration Day to celebrate that month’s staff birthdays and work anniversaries. Earlier this year, the firm’s social committee introduced the monthly Ronny Award. In August, the award went to legal assistant, Laura Juhas, for her efforts in pitching in with a large project.
On September 14th, Klasko will be an onsite sponsor for AILA’s Citizenship Day. Leading the effort is Klasko associate Lauren Berkowitz, who will conduct volunteer training and recruiting prior to the event. There are various ways to get involved. Please click here for more information and to sign up.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.