September 7, 2021 § Leave a comment
Between January and June 2021, three memos were issued: the Pekoske Memo (01/20/2021), the Johnson Memo (02/18/2021), and the Maher Memo (05/27/2021). These memos set interim guidelines for immigration enforcement, including providing guidance to ICE ERO officers on prioritizing enforcement actions, custody decisions, the execution of final orders of removal, and other actions.
On May 27, 2021 the Office of the Principal Legal Advisor (OPLA) issued the Trasvina Memo, directing all OPLA attorneys to exercise prosecutorial discretion at all stages of the enforcement process. Prosecutorial discretion would consist of a range of actions including administrative closure, whether to issue a Notice to Appear (NTA), cancellation of a NTA, stipulation to relief, termination, and continuances.
On August 19, 2021 U.S. District Judge Drew Tipton issued a preliminary injunction prohibiting the implementation of the Pekoske and Johnson Memos nationwide. On August 23, 2021, the court granted a stay on the preliminary injunction for a week. On August 25, 2021, the Fifth Circuit Court of Appeals extended the district court stay on the preliminary injunction until further notice from the court.
Within a day of the preliminary injunction, OPLA announced that it was suspending its reliance on the Trasvina Memo. However, the notice directed noncitizens and their legal representatives to contact local OPLA offices regarding the exercise of prosecutorial discretion in individual cases. It was reported that some ICE offices were still willing to consider traditional prosecutorial discretion requests based on ICE’s longstanding, general authority to exercise its discretion in individual cases.
Following the August 23 stay, OPLA’s website restored most of the information on prosecutorial discretion. OPLA’s website removed references to the memos cited in the injunction and instead referred to its “longstanding authority” to engage in prosecutorial discretion.
- Continue Requesting Discretion Based on Longstanding ICE Authority. ICE ERO and OPLA had authority to exercise prosecutorial discretion prior to the memos mentioned above. Therefore, practitioners should continue to advocate for the exercise of discretion in clients’ cases. Requests should not make explicit reference to the memos cited in the injunction.
- Pursue Relief Directly with the Court: Practitioners should still pursue relief directly with the court. The court has the authority to administratively close cases without OPLA agreement. Practitioners should request closure pursuant to Matter of Avetisyan (BIA 2012), Matter of W-Y-U- (BIA 2017), and Matter of Cruz-Valdez (A.G. 2021).
- Submit Requests to Court Even When ICE Has Not Responded: Prior to the August 19 injunction, practitioners were already reporting that OPLA offices were slow to respond to PD requests. Therefore, it may be a good strategy in some cases to continue to submit PD requests to OPLA prior to submitting a request to the Court in which you advise that a request was made to OPLA but no response was received.
- How to Submit Requests to ICE: Practitioners should verify where to submit requests, possibly using previously established duty-attorney email boxes, eservice, or the emails noted on OPLA’s restored webpage. See AILA’s Practice Alert: Local OPLA Guidance on Prosecutorial Discretion for instructions provided by OPLA offices prior to the injunction.
August 1, 2021 § Leave a comment
While immigration remains a divisive topic among Americans, one thing is for certain: year after year, and poll after poll, Americans overwhelmingly support a path to citizenship for unauthorized immigrants. This bipartisan support is evident in a recent poll by Quinnipiac University in February 3, 2021 in which two-thirds of Americans favored allowing all unauthorized immigrants to obtain legal status and apply for citizenship. In that same poll, there was even more support for Dreamers and agricultural workers receiving citizenship.
Despite this widespread support among Americans, Congress has made little progress in its efforts of codifying a legal pathway to citizenship for unauthorized immigrants. Currently, there are a handful of major pieces of legislation sitting idle in Congress that would offer extensive immigration reform and provide a comprehensive pathway to citizenship for unauthorized immigrants who work hard, contribute to our country’s prosperity, and often know of no other home. And while these legislative solutions remain in limbo, current patchwork solutions, such as the Deferred Action for Childhood Arrivals (DACA), continue to be dismantled and invalidated in the U.S. Judiciary system. It is for this exact reason that Congress must move forward in passing these reform bills that Americans overwhelmingly support.
Here is a current list of pending immigration legislation in Congress:
Both of these Acts would provide a permanent solution and a path to citizenship for Dreamers whose fate remains unclear due to ongoing litigation. H.R.6 would also provide a path to citizenship to beneficiaries of two humanitarian programs: Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). H.R.6 would also repeal the 1996 law which penalizes states that grant in-state tuition to undocumented students on the basis of residency and would allow Dreamers to access federal financial aid. Lastly, H.R.6 would allow eligible Dreamers deported under the Trump administration to apply for relief from outside the country. H.R.6 passed in the House of Representatives with bipartisan support, and S.264 was introduced in the Senate in February 2021 where it has yet to see a vote.
The Farm Workforce Modernization Act, FWMA, (H.R.1603)
The FWMA would offer a pathway to citizenship for undocumented agricultural workers, revise the H-2A agricultural worker program and impose mandatory employment verification through the E-Verify program in agriculture. These improvements would stabilize the farm labor force and ensure greater food safety and security for the country. This Act passed in the House of Representatives with bipartisan support and awaits a vote in the Senate.
The U.S. Citizenship Act of 2021 (H.R.1177)
The U.S. Citizenship Act of 2021 hews closely to the outline that Biden sent to Congress on his first day in office. The proposal includes an eight-year path to citizenship for most of the estimated 11 million immigrants living illegally in the U.S., bolsters the nation’s refugee and asylum systems, reforms the immigrant visa system, addresses the root causes of migration and responsibly manages the Southern border. This Act was introduced in February, 2021.
March 30, 2021 § Leave a comment
March 29, 2021 § Leave a comment
This is an updated version of the December 19, 2020 article: https://globalthinkers.wordpress.com/2020/12/19/update-on-public-charge/
What is Public Charge?
Public charge is a ground of inadmissibility and is currently defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.” A ground of inadmissibility is a reason a person is denied a visa, permanent resident card, or admission into the United States. Immigration officers often consider whether an immigrant will become dependent upon government assistance in the future, thus making them a “public charge.” The public charge test does not apply to several classes of immigrants such as U visa holders, T visa holders, asylees, and refugees. The public charge test mainly impacts those seeking permanent resident status through family-sponsored petitions.
Why is Public Charge Controversial?
The public charge rule has sparked much controversy because it makes the green card process much harder for low-income immigrants. The public charge rule, implemented by the Trump Administration, was supposed to ensure that green cards only go to “self-sufficient” and economically independent immigrants. As a result of the rule, many immigrants have opted out of government programs and resources they so desperately need—such as food stamps, SNAP, and even medical treatment during the COVID-19 pandemic—for fear that they might trigger public charge.
The controversial public charge rule has undergone a complicated litigation process as it has been struck down and reimplemented multiple times throughout the past two years. Here is a summarized timeline:
- August 14, 2019: The Department of Homeland Security (DHS) published the final public charge rule, effective 10/15/2019.
- October 11, 2019: The Department of State
- (DOS) published the interim final public charge rule, effective 10/15/2019.
- October 11-14, 2019: Multiple federal courts issued preliminary injunctions of the August DHS final rule, thus prohibiting the rule from going into effect.
- January 27, 2020: The Supreme Court lifted the last of the remaining injunctions. DHS said the rule would take place everywhere except Illinois, effective 02/24/2020.
- February 24, 2020: DOS and DHS final public charge rules went into effect nationwide.
- July 29, 2020: The DHS rule was enjoined nationwide due to the declared national emergency related to the COVID-19 pandemic. The DOS rule was enjoined nationwide indefinitely.
- August 12, 2020: The Second Circuit limited the DHS nationwide injunction to New York, Connecticut, and Vermont. Thus, the public charge rule could take effect in all but the three aforementioned states.
- September 11, 2020: The Second Circuit granted the government’s motion to lift the DHS nationwide injunction. Thus, the public charge rule could take effect nationwide.
- December 2, 2020: The Ninth Circuit enjoined the DHS final rule in various regions.
- February 2, 2021: President Biden issued Executive Order 14,012, directing the Secretary of DHS to review the actions of the DHS related to the implementation of the public charge rule.
- March 9, 2021: In its review, DHS determined that continuing to defend the public charge rule is neither in the public interest nor an efficient use of limited government resources. DHS announced that DOJ will no longer pursue appellate review of judicial decisions invalidating or enjoining its enforcement.
As of now, the public charge rule is no longer in effect and the former regulatory text prior to the 2019 rule has been restored. However, USCIS may be required to implement the Final Rule once again if enough states intervene in cases calling for the reinstatement of the rule. President Joseph Biden has made it clear that he opposes the reinstatement of the public charge rule.
Noncitizens residing in the United States deserve the care they need during the current public health crisis. Hopefully, with the rule no longer in effect, immigrants in the United States will feel a sense of relief that they may get the medical attention they need—including a vaccination for COVID-19—without fear of triggering public charge. However, Even after the COVID-19 pandemic subsides, we must continue to ensure that all immigrants have access to adequate healthcare and the necessary economic tools to build a more prosperous life in the United States.
February 24, 2021 § Leave a comment
Close to the end of its term, the former Trump Administration had attempted to enforce a series of H-1B rules that had the potential to drastically impact H-1B employers and employees. On October 6, 2020 the Department of Labor (DOL) and the Department of Homeland Security (DHS) announced two interim final rules which would, among other restrictions, significantly raise minimum wage requirements and limit eligibility for prospective H-1B employers and employees. Both rules have since then been challenged in court, and on December 1, 2020 a federal judge in California blocked both interim final rules, ruling that the Trump administration did not have “good cause” to issue them without a notice and comment period. On January 14, 2021, DOL republished its modified final rule on the prevailing wage increase, with the rule set to take effect on March 15, 2021 (although there is now a pending proposal by DOL for the rule to be delayed until May 14, 2021). The rule contains a phased implementation plan in which wage level adjustments would not begin until July 1, 2021. A third H-1B rule, announced in November 2020 that was supposed to go into effect in March 2021, was designed to replace the H-1B lottery system with a wage-based selection system under which H-1B candidates with higher salaries would receive selection priority. This rule has now been delayed until December 31, 2021.
Background and Current Status
- Department of Labor Prevailing Wage Rule (“Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”). The rule had gone into effect in October 2020 but was initially struck down in December 2020. DOL republished a modified rule in January 2021, set to go into effect in March 2021, pending a further proposal by DOL to delay its effective date for 60 days in compliance with the Biden Administration’s request to further review the rule. The rule will over time dramatically raise the minimum required wages for all visa categories that require labor certifications, including H-1B nonimmigrant specialty occupation visas and EB-2 and EB-3 permanent employment-based visas. The new wage rates are set to be implemented gradually over the period between July 2021 and June 2022, with the full prevailing wage levels becoming fully effective starting on July 1, 2022. The new rates will reflect a significant increase from the current rates, up to a 90% increase.
- Department of Homeland Security’s H-1B Rule (“Strengthening the H-1B Nonimmigrant Visa Classification Program”). The rule was set to go into effect on December 7, 2020 but was struck down on December 1, 2020. The rule had sought to be more restrictive with H-1B employers and employees. H-1B candidates would need to possess an educational background that is more specific to the H-1B position such that, for instance, a candidate for an accounting position would not qualify if his/her degree was in a more general subject such as mathematics. The rule also sought to limit the amount of H-1B time for an employee placed at a third-party job site, from three years down to one. In conjunction with this rule, DOL had previously published bulletins, later withdrawn, that would have required both an H-1B employer (e.g. a staffing company) placing an H-1B worker with a secondary employer, as well as the secondary employer, to both file Labor Condition Applications (LCAs) with DOL as well as file H-1B petitions with the United States Citizenship and Immigration Services (“USCIS”). All H-1B petitioners must file LCAs; therefore, some H-1B workers could have multiple, simultaneous LCAs and petitions. Under current rules applicable to H-1B applications involving a job placement at a third-party worksite, the primary employer would serve as the H-1B worker’s employer for payroll and tax purposes, while the secondary employer would manage the worker’s day-to-day work. However, secondary employers have so far not been required to file LCAs or H-1B petitions.
- USCIS H-1B Lottery Rule (“Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions”). This third rule would have eliminated the H-1B visa lottery and prioritized H-1B petitions in which H-1B workers would receive higher wages. USCIS would then select H-1B petitions based on salary-level, starting with the highest and working down. Originally published on January 8, 2021 and set to be effective on March 9, 2021, this rule has now been delayed to allow for notice and comment and is set to take effect on December 31, 2021. The H-1B lottery system will remain in place this year. On February 2, 2021, USCIS announced that the initial registration period for the Fiscal Year 2022 H-1B cap will open at noon (ET) on March 9, 2021, and will run through noon (ET) on March 25, 2021. During this time, petitioners and representatives can fill out petitioner and beneficiary information and submit their registration.