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.

News Updates (01/28/2021)

February 2, 2021 § Leave a comment

January 27, 2021: The Biden administration has ended former President Donald Trump’s “zero-tolerance” policy, which provided the underpinnings for family separation by seeking to prosecute every migrant who crossed the border without authorization.

https://www.vox.com/policy-and-politics/2021/1/27/22252294/biden-zero-tolerance-family-separation-trump

January 27, 2021: Fact Check: Ohio Rep. Jim Jordan claimed on Facebook and Twitter on Saturday that Biden issued a new order to release “all” undocumented immigrants. Similarly, Jordan said in a Monday interview with Fox News host Maria Bartiromo that Biden “has decided he’s going to release 14,000 illegals.” Jordan’s source for these assertions was a viral article on conservative website Breitbart News–which has been shared tens of thousands of times on Facebook alone–about an email sent on Thursday morning by an ICE official in Houston. The email included the words “release them all, immediately.” But Breitbart and then Jordan took the words way out of context.

https://www.cnn.com/2021/01/27/politics/fact-check-biden-order-release-immigrants-ice-jim-jordan-breitbart/index.html

January 26, 2021: A federal judge on Tuesday barred the U.S. government from enforcing a 100-day deportation moratorium that is a key immigration priority of President Joe Biden.

https://apnews.com/article/joe-biden-immigration-texas-barack-obama-51688033e490d50867e52ef9c8ec574f

January 21, 2021: The White House has issued a memorandum asking federal agencies to halt the regulatory processes for several last-minute immigration rules and policies issued under the Trump Administration. The freezes are for 60 days (through March 21), to allow the Biden Administration to review the proposed rules from the previous government. These included the rule to replace the annual H-1B random cap selection (lottery) process with a salary-based selection process, the final wage rule, and the change in the employer-employee definition and requirement cast on clients of IT service companies and staffing companies to file H-1B visa applications and labour condition applications.

https://m.timesofindia.com/world/us/white-house-freezes-recent-draconian-immigration-rules/articleshow/80387530.cms?utm_source=twitter.com&utm_medium=social&utm_campaign=TOIMobile&s=03

January 21, 2021: CDC order requiring a negative pre-departure COVID-19 test or documentation of recovery from COVID-19 for all airline or other aircraft passengers arriving into the United States from any foreign country, effective 1/26/21.

https://www.aila.org/infonet/cdc-order-requiring-negative-covid-19-test?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: On his first day in office, President Biden announced his plans to send a bold immigration bill to Congress in the coming weeks. The bill includes four key components:

  • An eight-year pathway to citizenship for all 11 million undocumented immigrants.
  • Eliminating the three- and ten-year bars and expanding legal immigration.
  • Expanding existing immigration channels.
  • Untangling immigration enforcement from comprehensive solutions.

However, Roll Call reports that the bill faces a difficult path in the Senate as several Republican senators have called the plan “mass amnesty” and “far too radical.”

https://www.americanimmigrationcouncil.org/news/new-vision-immigration-creates-welcoming-and-inclusive-immigration-system?emci=ed4f359a-2e5b-eb11-a607-00155d43c992&emdi=ea000000-0000-0000-0000-000000000001&ceid=%7b%7bContactsEmailID%7d%7d

https://www.rollcall.com/2021/01/19/bidens-immigration-bill-faces-difficult-path-in-senate/?emci=c127e38e-f55c-eb11-a607-00155d43c992&emdi=b9c80ac7-5d5e-eb11-a607-00155d43c992&ceid=4497694

January 20, 2021: President Biden issued an executive order revoking prior presidential actions that sought to exclude undocumented immigrants from the apportionment base following the 2020 census. The order directs the Commerce Secretary to ensure that the apportionment base and state-level tabulations include all inhabitants.

https://www.aila.org/infonet/president-biden-issues-executive-order-revoking?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: President Biden issued proclamation 10141 “Ending Discriminatory Bans on Entry to the United States” revoking Executive Order 13780 of March 6, 2017; Proclamation 9645 of September 24, 2017; Proclamation 9723 of April 10, 2018; and Proclamation 9983 of January 31, 2020. The proclamation directs the DOS secretary to direct embassies and consulates, consistent with applicable law and visa processing procedures, including any related to COVID-19, to resume visa processing in a manner consistent with the revocation of the executive order and proclamations specified.

https://www.aila.org/infonet/ending-discriminatory-travel-bans?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: On 1/20/21, President Biden issued Executive Order 13993 “ Revision of Civil Immigration Enforcement Policies and Priorities” revoking Executive Order 13768 of January 25, 2017, Enhancing Public Safety in the Interior of the United States, and directing the DOS Secretary, the Attorney General, the DHS Secretary, and other government officials to review any agency actions developed pursuant to Executive Order 13768 and to take action, including issuing revised guidance, as appropriate and consistent with applicable law.

https://www.aila.org/infonet/president-biden-issues-executive-order-revising?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: President Biden issued a proclamation terminating the national emergency declared by Proclamation 9844, and continued on 2/13/20 and 1/15/21. The proclamation directs officials to pause work on construction on the southern border wall and to develop a plan to redirect funds and repurpose contracts. https://www.aila.org/infonet/presidential-proclamation-terminating-emergency?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: Acting DHS Secretary Pekoske issued a memorandum directing DHS components to conduct a review of immigration enforcement policies, and setting interim policies for civil enforcement during that review. Beginning 1/22/21, DHS will pause removals of certain noncitizens ordered deported for 100 days.

**Update as of 01/27/2021: The moratorium on deportations has been barred by a federal judge (see January 26 update).

https://www.aila.org/infonet/dhs-acting-secretary-issues-memorandum?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: President Biden issued a memo deferring through 6/30/22, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who was under a grant of DED as of 1/10/21. The memo also allows for continued employment authorization. https://www.aila.org/infonet/president-biden-issued-memorandum-on-reinstating?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) Program and will cease adding individuals into the program effective 1/21/21. DHS advised current MPP participants to remain where they are, pending further information.

https://www.aila.org/infonet/dhs-suspends-new-enrollments-mpp?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 20, 2021: President Biden issued a memorandum directing the DHS Secretary, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.

https://www.aila.org/infonet/president-biden-issues-memorandum-on-preserving?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 19, 2021: CBP issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Mexico and Canada into the United States at land ports of entry along the United States-Mexico-Canada border through 2/21/21 due to COVID-19.

https://www.aila.org/infonet/cbp-86-fr-4967-1-19-21?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

https://www.aila.org/infonet/cbp-86-fr-4967-1-19-21?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 19, 2021: (Former) President Trump issued a memorandum directing the DHS and DOS Secretaries to take action to defer, with certain exceptions, for 18 months the removal of any Venezuelan national, or individual without nationality who last habitually resided in Venezuela, who is present in the U.S. as of 1/20/21.

https://www.aila.org/infonet/president-trump-issues-memorandum-ded-venezuelans?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Daily

January 18, 2021: A district court judge issued a nationwide stay of the effective date of the December 18, 2020, EOIR final fee rule and a preliminary injunction to enjoin most of its implementation. The rule was set to go into effect January 19, 2021. Accordingly, fees will stay the same for BIA appeals from IJ decision (EOIR-26), BIA appeals from decision of DHS officer (EOIR-29), BIA motions to reopen, applications for LPR cancellation (EOIR-42A), applications for non-LPR cancellation (EOIR-42B), and applications for suspension of deportation (EOIR-40).

January 14, 2021: A district court granted a temporary restraining order and preliminary injunction halting the implementation of a final rule regarding procedures for individuals who apply for asylum and withholding of removal, which was set to go into effect 1/15/21.

New Public Charge Rule Announced by USCIS Following the US Supreme Court’s Stay of Nationwide Injunction

February 4, 2020 § Leave a comment

USCIS will soon begin to use a much heightened standard to determine admissibility when reviewing nonimmigrant visa and adjustment of status green card applications.

On and after Feb. 24, 2020, U.S. Citizenship and Immigration Services (USCIS) will implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”), except for in the State of Illinois where the rule remains enjoined by a federal court as of Jan. 30, 2020. Under the Final Rule, USCIS will look at the factors required under the law by Congress, like an alien’s age, health, income, education and skills, among other criteria, in order to determine whether an alien is likely at any time to become a public charge. Foreign nationals who are applying for nonimmigrant visas such as H-1B and green cards from within the United States — through a process known as “Adjustment of Status” — will soon be affected by the new rule.  Immigration officials will soon start to review several more factors to determine whether someone should be granted a visa or a green card. A green card applicant who is relatively educated, healthy and productive, doesn’t carry a lot of debts, for example, will be a lot more likely to be approved for a green card compared with someone who’s retired and has health problems.

USCIS emphasized that this new rule is to encourage immigrants’ “self-sufficiency”, a core American value, and to protect American taxpayers.

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