Tag: deportation

Employment-Based Petitions Exempt (at Least for Now) Under New NTA Policy

Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.

The NTA policy authorizes immigration officers to issue NTAs and thus initiate the first step in removal (deportation) proceedings for those deemed to be removable from the United States after the denial of an immigration benefit. USCIS deployed the NTA policy in July 2018 but then later put it on hold while it developed additional guidance for the policy’s application.

In a recent announcement and during a September 27, 2018, stakeholder teleconference, USCIS offered additional details about the policy’s implementation and highlighted the following information:

  • The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change nonimmigrant status (Form I-539), among others.
  • Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial rollout, nor are humanitarian applications and petitions.
  • Generally speaking, USCIS will not immediately issue an NTA upon the denial of an immigration benefit. It will wait for the expiration of the motion or appeal period before issuing an NTA—though it is worth noting that USCIS reserves the right to issue an NTA at any point during the adjudication period, where appropriate.
  • The NTA policy does not affect motions to reconsider or reopen, or appeals. If USCIS ultimately approves an application after an NTA has been issued, it will coordinate with U.S. Immigration and Customs Enforcement (ICE) to make sure that ICE is aware of the favorable outcome. USCIS cannot cancel or withdraw an NTA that it has issued.
  • The NTA policy does not include initial requests for deferred action for arrivals (DACA), renewals, or requests for DACA-related benefits.
  • USCIS may, in its discretion, issue an NTA at the request of a removable foreign national so that he or she may seek lawful status or other relief during removal proceedings.
  • As USCIS begins implementing the NTA policy, it will create a public-facing web page that will provide additional guidance on the policy and examples of scenarios that may trigger the issuance of NTAs.

USCIS has not provided a timeline for any additional implementation measures.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Read more on Immigration on the National Law Review’s Immigration Type of law page.

Recent Developments In Case Law And Policy Applicable To Immigrants And Their Employees

In these turbulent times for immigrants, we would like to signal a few recent developments in case law and policy that apply to immigrants and/or their employers.

1. Deportation and Removal

In the case of Pereira v. Sessions decided on June 21, 2018, the U.S. Supreme Court ruled that individuals with prior deportation orders may now apply to reconsider/ reopen their cases if they were served with a written notice to appear in removal proceedings that did not specify the “time and place at which the removal proceedings will be held”. It is worth noting that most notices to appear served before June 2018 DID NOT SPECIFY the required time and place for the removal proceedings, hence many individuals would be eligible to reopen their removal orders under the Pereira case. The Pereira case would benefit in particular those who have been continuously present in the U.S. for 10 years or longer and have a spouse, child(ren) or parent(s) who are U.S. citizens or permanent residents. To take advantage of the path to legalization that this case offers, it is imperative that you contact our office no later than September 21, 2018, which is the deadline for filing motions to reconsider/ reopen under the Pereira case.

2. Employment-Based Immigration

USCIS announced that it is extending the temporary suspension of premium processing for April 2018 cap-based H-1B petitions and, beginning September 11, 2018, will be expanding this suspension to include ALL H-1B petitions filed at Vermont and California Service Centers (and CT falls under the jurisdiction of the Vermont Service Center) except H-1B petitions for extension of status to continue on with the same employer and certain cap-exempt filings. The suspension is expected to last until February 19, 2019. The practical effects on employers will be felt in the areas of April 2018 cap-subject petitions and H-1B transfers which will now take several months to adjudicate. H-1B employees may be impacted in their ability to travel abroad while the H-1B is still pending and we highly recommend consulting us before any international travel. We advise employers looking to petition for H-1B transfers to use premium processing, if desired, no later than September 10, 2018.

In other employment-based immigration categories we are seeing increased processing times for work permits (EADs) from 3 to 6 months, a much higher incidence of Requests for Evidence (RFEs) on most work visa and green card categories, a higher incidence of fraud investigations on a wide range of cases, and as a consequence a spike in the need for highly skilled immigration counsel to ensure strict compliance with applicable laws and policies.

3. Family-Based and Naturalization

Processing times have increased – in some cases dramatically – for most family-based categories and naturalization cases. For example, in CT the I-751 removal of the condition application now takes 18 months instead of 11-13 months and naturalization cases are currently projected at 8.5 to 19 months instead of the 4-6 months previously.

4. DACA Applications and Advance Parole

Ongoing federal litigation in DACA continues to create confusion with regards to DACA applications, and pending litigation means there will likely be changes to the process in upcoming months. At present, USCIS is not considering first-time filings based on DACA, or requests for Advance Parole based on an approved DACA application. It is, however, processing renewals for those who currently have DACA status, as well as accepting initial DACA applications for those who had DACA status in the past. DACA renewal applications should be filed six months before the expiration of current DACA status so as to minimize the likelihood of having a gap in employment authorization.

In conclusion, we invite you to contact us to discuss and carefully plan the impact that these ever-changing immigration policies may have on your status, international travel, or your ability to hire and retain foreign labor. Please note the above-mentioned deadlines by which to act on your applications/petitions.

© Copyright 2018 Murtha Cullina
This post was written by Dana R. Bucin of Murtha Cullina.

Proposed Bill Would Create Safeguards Against Agricultural Worker Deportation

In early May, Senators Dianne Feinstein (D-Calif.), Kamala Harris (D-Calif.), Michael Bennet (D-Colo.), Mazie Hirono (D-Hawaii), and Patrick Leahy (D-Vt.) introduced the Agricultural Worker Program Act (AWPA), a piece of legislation that will provide undocumented workers with heightened protection from deportation and aid them in obtaining legal status and citizenship. Specifically, the AWPA allows farmworkers who have worked in agriculture for at least one hundred (100) days of the past two years to earn lawful “blue card” status. Farmworkers who maintain this “blue card” status for five years may then become eligible to adjust to permanent residency or to a “green card” status. In a press release, Feinstein stated, “By protecting farmworkers from deportation, our bill achieves two goals – ensuring that hardworking immigrants don’t live in fear and California’s agriculture industry has the workforce it needs to thrive.” Bennet remarked that, “The failure to fix our broken immigration system has had real economic consequences for our farmers and ranchers. This bill serves as a necessary step until we can enact a long-term solution by passing comprehensive immigration reform.”

Advocates for the bill include Arturo Rodriguez, United Farm Workers (UFW) President, stating that “the United Farm Workers strongly supports and cheers Senator Feinstein’s introduction of the Agricultural Worker Program Act of 2017 because the act recognizes that the people who feed our nation should be able to earn the opportunity to gain legal status.” Nonetheless, others remain less optimistic for the Act, and project that the Act is unlikely to be passed under the Trump administration. The Colorado Springs Gazette remarked that the bill “has virtually no chance of becoming law, however, with President Trump in the White House and his fellow Republicans in charge of the House and Senate.” The complete text of the bill is available on Feinstein’s website.

This post was written by Aaron M. Phelps of Varnum Law.

Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

Jackson Lewis Law firm

On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential   for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission.  Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

ARTICLE BY

Nicola Ai Ling Prall
OF
Jackson Lewis P.C.

Election-year Policy Change: Obama Decision Eases Undocumented Kids’ Turmoil

The National Law Review recently published an article by Susan Ferriss of Center for Public Integrity regarding President Obama’s Decision about Undocumented Children:

Thousands of 16- to 30-year-olds could benefit from relief that will let them work legally, and stop fearing deportation.

A profound change for immigrant youths with no way to seek legal status

President Barack Obama responds as he is interrupted while announcing that his administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives, Friday, June 15, 2012, during a statement in the Rose Garden of the White House in Washington Susan Walsh/AP

President Barack Obama responds as he is interrupted while announcing that his administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives, Friday, June 15, 2012, during a statement in the Rose Garden of the White House in Washington Susan Walsh/AP

In a sweeping policy change with political overtones, President Obama has announced that his administration will allow undocumented youths who grew up here to apply for work permits and spare them from deportation if they meet certain criteria.

The policy will not include a path to legal residency, a first step before applying for citizenship, so it differs from the proposed DREAM Act. That proposal once had bipartisan Congressional support but has repeatedly stalled in the face of Republican opposition. Even though the new policy falls short of the path to legal status that immigration activists would like, the change is likely to expand Obama’sappeal among crucial Latino voters in November.

Obama’s decision will also have tremendous personal impact on a population of young people who were brought here as children and have no way to pursue legal status, either here or back in birth countries, under current immigration rules.

Certain states, such as California, Arizona, Texas, New York and Florida, are home to significant numbers of these youths. And many of them have anguished over their predicament. They say they have been left with no option but to work with fake identification, or under the table, or drive without a license or not drive at all. Some have been admitted to college but barred from pursuing loans and grants. Others have given up such dreams.

Stories of ambitious students foiled by their status and with no way to fix it have become a staple of TV and newspaper coverage. A few years back, college students at Sacramento City College made a short fiction film about undocumented students who had grown up as Americans only to discover that they were illegal immigrants. Some of the actors were undocumented. The characters talked about their fear of getting stopped by police, as well as their complex feelings about their parents’ decision to bring them to the United States.

Secretary of Homeland Security Janet Napolitano explains the new criteria in this memo. The policy will be limited to youths who arrived before the age of 16, have lived here continuously for at least five years and who are not older than 30. Criminal backgrounds will disqualify youths from the benefit. Youths must also be in school, have graduated or obtained a GED.

Reprinted by Permission © 2012, The Center for Public Integrity®