Update Regarding Ongoing ICE Priorities Litigation (September 2021)

September 7, 2021 § Leave a comment

Background

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.

Suggestions

  1. 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.
  2. 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).
  3. 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.
  4. 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.

Legislation Watch

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:

The Dream Act of 2021 (S.264), and The American Dream and Promise Act of 2021 (H.R.6)

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.

Summary of 2020 H-1B Rule Changes and Current Status Updates

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.

Tips on How to Get InfoPass with Current USCIS Call System

February 5, 2020 § 1 Comment

With the Infopass online appointment system closed, this article gives you some tips on how to navigate the current USCIS Infopass scheduling system.

Not too long ago, if you needed to talk to an USCIS officer, Infopass through the online appointment system would have been one of the fastest ways to get your problem solved. However, if you searched Infopass nowadays, you would find that the website is no longer available. With the online appointment system closed, you could still theoretically make Infopass appointment by calling the USCIS hotline and follow this step-by-step guideline (subject to USCIS’s frequent changes):

  1. Call USCIS hotline 800-375-5283.
  2. Press 1 for English or 2 for Spanish.
  3. Press 2 for other information.
  4. Press 1 for Infopass information.
  5. Press 1 for Infopass appointment.
  6. Press 1 for Information for appointment in local office
  7. You will be in line to talk to a USCIS live agent. You may type in your actual case number at this time. If you don’t have a case number, press #.

The agent will likely take your request and information and let an actual USCIS officer call you back at a later time. The officer will determine whether your situation is eligible for Infopass and schedule the actual appointment for you based on your eligibility. The wait time for the officer to call back is uncertain and the eligibility criteria for successfully scheduling an Infopass appointment is unclear. With these added requirements to access Infopass, compared to the relative ease of scheduling an online appointment in the past, the current Infopass scheduling system can be challenging. However, this option technically still exists and may be worth a try depending on your specific situation. Good luck in getting your Infopass appointment and please share with us how you did it.

The Fate of the 11 Million Undocumented Is Yet Uncertain

March 31, 2013 § Leave a comment

Despite talks that a deal has been struck between the U.S. Chamber of Commerce and the A.F.L.-C.I.O. over the guest worker program for low-skilled immigrants over the weekend, allowing tens of thousands of low-skilled workers into the country to fill jobs in construction, restaurants and hotels, the reality is that there are still many details to be ironed out and the deal is not official yet. “We haven’t signed off,” said Sen. Lindsey Graham, R-S.C., as reported by The Associated Press in a Wall Street Journal article today. “I think we’re on track,” said Sen. Chuck Schumer, the New York Democrat who brokered the labor-business deal, “But…we have said we will not come to final agreement till we look at all of the legislative language and… that language hasn’t been fully drafted.”

According to the same article, included in the discussions was that the proposed measure would secure the border, crack down on employers, improve legal immigration and create a 13-year pathway to citizenship for the millions of illegal immigrants already here. Additionally, the new immigration bill also is expected to offer many more visas for high-tech workers, new visas for agriculture workers, and provisions allowing some agriculture workers already in the U.S. a speedier path to citizenship than that provided to other illegal immigrants, in an effort to create a stable agricultural workforce.

Although these talks certainly indicate a positive step in the right direction, lawmakers voice the need for caution so as to not get everyone’s hopes up prematurely as there is still much work to be done.

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