To End The “Catch And Release,” The Attorney General Ordered “No More Bond For Asylum Seekers.”

IMMEDIATE RELEASE – No More Bond for Asylum Seekers.

The Trump administration on Tuesday, April 16, 2019, took another significant step to discourage migrants from seeking asylum, issuing an order that could keep thousands of asylum seekers in jail indefinitely while they wait for resolving their asylum requests.

The decision follows a decision by a federal judge in Seattle who ordered the government to provide prompt bond hearings with basic procedural protections to these same individuals. The court gave the government until May 6, 2019, to implement that order. The case is Padilla v. ICE.

The order attempted to deliver on President Trump’s promise to end the “catch and release” of migrants crossing the border hoping to escape persecution in their home countries.

Attorney General William Barr ruled that individuals with valid protection asylum claims who entered between ports of entry no longer are eligible for release on bond by an immigration judge. The decision could unnecessarily detain thousands of more individuals each year, despite the enormous financial and human costs.

A migrant seeking asylum could still ask the Department of Homeland Security to be released under a grant of parole, but that is entirely at the discretion of the department, which under Mr. Trump has sharply cut back on such releases. Attorney General William Barr delayed implementation of his decision for 90 days to allow DHS to conduct operational planning for additional detention space and parole decisions.

For information on bonds, parole, and asylum applications, please visit our website at,  or call the Law Offices of Norka M. Schell, LLC at (212)258-0713.

How People Get Placed in Removal Proceedings

Anyone in the United States in violation of immigration law is vulnerable to being placed in removal proceedings. Some of the most common methods of the Department of Homeland Security (“DHS”) identification and enforcement are:

  • Arresting a person at or near a border point just after he or she has entered;
  • At courthouses;
  • Picking up a person from jail or prison after an arrest or after the individual has completed his or her criminal sentence;
  • Through cooperation with parole and probation officers following a criminal sentence;
  • Transferring people from local jails who were arrested by state and local enforcement through INA Sec. 287(g) agreements;
  • Traffic stops by state and local enforcement that then lead to those officers choosing to call Immigration and Customs Enforcement (“ICE”);
  • Home, community, or workplace enforcement actions, or raids;
  • Placing a noncitizen in proceedings after he or she unsuccessfully applied for some immigration benefit before the United States Citizenship and Immigration Services (“USCIS”); and
  • A DACA request that reveals a “Statement of Fraud” or certain types of criminal history in the records.

Juana, from Mexico, entered the United States on July 1, 2008, without inspection. She has no driver’s license but drives to her job every day. Juana was stopped by a police officer for a broken taillight; when it was discovered that she had no driver’s license, she was arrested by the police. Under the INA Sec. 287(g) jail enforcement program, ICE learned of her state arrest, issued a detainer, and transferred her to ICE custody.

When DHS apprehended Juana, it interviewed her and records information on Form I-213, Record of Deportable/Inadmissible Alien. Much of the data collected establishes her identity, country of birth, country of citizenship, gender, date of birth, marital status, prior immigration history, and the circumstances of her apprehension. In removal proceedings, ICE OCC often relies on Form I-213 to establish alienage and prove removability grounds. However, the Form I-213 must be “probative” and its use “fundamentally fair” to be admitted as documentary evidence to support establishing alienage. A Form I-213 that contains information that is incorrect or was obtained by coercion or duress cannot meet this standard and should not be admissible as evidence to prove alienage or removability. Matter of Barcenas, 19 I&N Dec. 609, 611 (citing Matter of Toro, 17 I&N Dec. 340 (BIA 1989)).

AILA Policy Brief Trump Shutdown Bill Full of Extreme Restrictionist Provisions

January 22, 2019

On January 22, 2019, Senate Republicans released a new spending bill that was written to reflect
President Trump’s January 19 speech outlining a proposal to end the shutdown. The “End the Shutdown
and Secure the Border Act” bill contains extreme provisions and should be rejected outright as
representing hardline restrictionist views, rather than a genuine attempt at compromise. Among other
provisions, the bill would provide fragile protections for a narrow segment of DACA and TPS holders,
ramp up funding for interior  and border enforcement, and all but eliminate asylum for minors from
Central America. The bill:

Fails to Include Real Protections for Dreamers: The bill would protect a fraction of all Dreamers and
would not provide permanent protection from deportation. Instead, it would allow people who currently
have DACA to apply for a 3-year, one-time temporary status subject to new eligibility standards. Because
of newly added restrictions in the text, the number of Dreamers who qualify for protection under the bill
would actually be smaller than the number of people who are currently protected. The bill would also
more than double the current fee.

Fails to Protect All TPS holders: The bill would only protect individuals with Temporary Protected
Status (TPS) from Honduras, Nicaragua, El Salvador, and Haiti. The individuals in those four countries
would be able to apply for a 3-year, one-time temporary status. The application fee would be doubled.
The bill also makes changes to the eligibility provisions, again reducing the overall number of people who
would qualify for protection compared to today. It does not include protections for people with Deferred
Enforced Departure (DED) from Liberia or those with TPS from Nepal, Sudan, South Sudan, Yemen,
Somalia, and Syria.

Adds New Restrictions to DACA and TPS, Increasing the Number of People Who Could Be
Deported: The bill contains additional restrictions on DACA and TPS and would prevent anyone who
has been ordered removed in absentia from qualifying for protection, no matter how long ago the order
was issued. That means that if a child missed a court date and was ordered deported, they would not be
able to qualify for DACA or TPS relief. DACA and TPS grantees would also be required to earn an
income at 125% of the poverty level or be enrolled in school.

Virtually Eliminates the Availability of Future TPS Protections: The bill would rewrite current law to
restrict eligibility for future TPS designations to those who are lawfully present. Thus, if someone is
undocumented when their home country suffers a natural disaster or armed conflict, they will not be
eligible if TPS were designated.

Bans Asylum for All Central American Minors and Eviscerates the Trafficking Victims Protection
Reauthorization Act for Unaccompanied Kids: Nationals of Honduras, Guatemala, and El Salvador
who are under the age of 18 would be categorically barred from applying for asylum at the border or
within the United States if they were outside of the country at the time of enactment. The bill would
remove TVPRA protections and authorize the government to forcibly return unaccompanied children if
they request asylum unless it is “more probable than not” that they would win asylum or trafficking
protections. All arriving children could be removed quickly without review except in extremely limited,
exceptional cases.

Creates a Sham CAM Program The only way a Central American minor can qualify for asylum would
be through a new Central American Minors (CAM) program that would be established within eight
months of enactment. To qualify, children would have to have a parent or guardian in the U.S. and no
more than 15,000 minors could receive asylum. Most concerning, because Central American minors
arriving to the U.S. would immediately become ineligible for asylum, the program essentially eliminates
all asylum protections for these minors for at least eight months. Children in the program would be
subject to a non-reviewable decision by DHS and would never see an immigration judge.

Builds the Wall and Creates a Slush Fund for Enforcement: The bill would authorize $5.7 billion for
President Trump’s border wall and add hundreds of millions of dollars in additional enforcement funding
that can be used for almost any kind of enforcement. Some of these funds would come from a new $500
fee imposed on each applicant for DACA or TPS relief, which would be in addition to the full cost of
adjudicating the application.

Dramatically Increases the Number of ICE Detention Beds: The bill includes a 20% increase in funds
for ICE detention and removal – from $4.11 billion to $4.99 billion. This new funding allows ICE to jail
on average 52,000 people a day, nearly 12,000 more people than current funding levels.

Hires New Border Patrol and ICE Agents. The bill includes funding for 750 Border Patrol agents and
2,000 ICE agents.

Makes Permanent and Reprehensible Changes Aimed at Reducing Asylum Grants: These changes

  • Creating a new crime punishable by up to five years in prison for making false statements on the
  • Expanding the definition of a frivolous asylum application and preventing attorneys from
    objecting or disputing claims that the application was frivolous.
  • Declaring all asylum applications that are “clearly foreclosed” such as applications filed after the
    one-year asylum deadline are “frivolous.”
  • Requiring applicants to waive their rights and take voluntary departure if they decide to withdraw
    their asylum application, or risk having their application deemed frivolous.

Hires Additional Immigration Judges: The bill includes $563 million in funding for the immigration
court that would enable the hiring of 75 more immigration judge teams and upgrades to an electronic case
management system. The bill does not include any reforms necessary to improve the court’s ability to
ensure fair and efficient review of all cases. Despite decrying the extensive case backlog, the Trump
administration has hampered the immigration courts by denying immigration judges the use of case
management tools and by reopening 350,000 low priority cases.


AILA Doc. No. 19012241.



The U.S. government is using detention with increasing frequency as a means of dealing with undocumented or otherwise removable immigrants after their arrest. Upon the apprehension of a foreign national or the issuance of a Notice to Appear (NTA), the Department of Homeland Security (DHS) determines whether to take the individual into custody; release the individual on his or her own recognizance or subject to conditions, such as an ankle monitor; or to issue a bond amount under which the individual can secure his or her release.
Mandatory Detention
Individuals with certain types of criminal histories are subject to mandatory detention, which means they cannot be released pending removal proceedings, even if they are a lawful permanent resident (LPR).
The Supreme Court, in  Demore v. Kim, held by a 5-4 vote that the mandatory detention provisions are constitutional, even applied to LPRs. This decision came after many federal courts, including the U.S. Courts of Appeals for the Third, Fourth, Ninth, and Tenth Circuits, have held that the mandatory detentions were unconstitutional, particularly as applied to LPRs. Still, challenges to mandatory detention continue to be filed specifically because of the Supreme Court’s decision was based, in part, on an understanding that removal proceedings for detained respondents are typically concluded within 90 days. Some of these challenges have been successful.
The Individual Does not Pose Danger to the Safety of the Other Person or Property 
Moreover, persons subject to mandatory detention still may be released if the Attorney General (AG) decides that release from custody is necessary to provide protection to a witness or potential witness, a person cooperating with an investigation into a major criminal activity, or an immediate family member of such a person. Before any release takes places, however, the AG also must decide that persons subject to mandatory detention will not pose a danger to the safety of other person or property and are likely to appear to any scheduled proceedings.
Whether your needs involve immigration family members or defending yourself or family member against deportation or removal hearings, we can help. We have the years of experience necessary to meet all your immigration needs.

The 2019 Government Shutdown

Contribution of Aaron Reichlin-Melnick 

Part of the federal government is closed since December 22, 2019, after President Trump declared his intent to veto any funding bill that didn’t contain five billion dollars for building his wall along the U.S.-Mexico border. Over two weeks later, much of the government remains on a shutdown, with Republican Senate leadership currently refusing to move forward any bill that Trump won’t sign. As both sides dig further, the prospects of the shutdown ending any time soon seem distant.

The partial government shutdown, which affects multiple government agencies including the Department of Homeland Security (DHS), the Department of Justice (DOJ), the State Department, and the Treasury Department, is largely seen as the president’s last opportunity to secure funding for his promised border wall now that Democrats have retaken the House of Representatives.

Before the shutdown began, the Senate passed a bipartisan proposal to keep the government open without any additional funding for the wall. This plan was scuttled after the president unexpectedly opposed it at the last moment following criticism from immigration hardliners such as Rush Limbaugh and Ann Coulter.

Because DHS, DOJ, and the State Department are affected by the shutdown, many immigration functions of those agencies have been affected:

  • Many employees working along the border and at airports are considered “essential employees” required to continue working, but that means that many Customs and Border Protection and Transportation Security Agency employees are going without pay.
  • Although U.S. Citizenship and Immigration Services is mostly fee-funded and immune to the shutdown, its federally funded “E-Verify” program, which allows employers to determine if a new employee is eligible to work, has been shut down.
  • The DOJ has shuttered all non-detained immigration courts, a decision which will add thousands of cases to a backlog already at 810,000 cases. While the non-detained courts remain shuttered, immigration judges can neither grant relief from removal nor issue any orders of deportation, putting people in limbo.
  • Because the State Department’s visa and passport services are largely fee-funded, they are currently unaffected by the shutdown. However, should the shutdown last for weeks, the State Department could start cutting those servicesas funds run dry.

Since the shutdown began, the president has met with Congressional leaders several times but those discussions have yielded no progress. Negotiations broke down even further on Friday.

Amid swirling rumors about the possibility of reopening negotiations to trade border wall funding for protections for Dreamers, the White House sent a letter to Congress. The letter repeated statements made by DHS Secretary Nielsen earlier in the week that called for a wall, increased use of family detention, and the elimination of protections for unaccompanied children. However, deterrence is not a substitute for reforms.

As we approach week three of the shutdown, both sides continue to blame the other for the ongoing shutdown. At an impromptu press conference on Friday, the president confirmed reports that he told Democratic leaders he would keep the government shut down for “months or even years” if they did not agree to his demands. However, new House Minority Leader Kevin McCarthy suggested that a broader immigration compromise might be possible.

The shutdown is affecting agencies across the U.S., but the three hit the hardest are Homeland Security, the Department of Justice, and the Department of Agriculture. Some EPA workers in Kansas said they fear projects that are put on hold too long could begin to endanger the public’s health.

Tonight, January 8, 2018, President Trump will make his case in his first speech from the Oval Office at 21:00EST (0200 GMT Wednesday),

  • 6 things that could topple Donald Trump’s border wall

The partial government shutdown, which began on 22 December, has affected 25% of the government. Some 800,000 federal employees have been temporarily laid off – or forced to work without pay.

While its repercussions ripple across the country, Mr Trump has also threatened to bypass Congress and invoke emergency powers to build the wall along half the 2,000-mile (3,100km) border.

White House press secretary Sarah Huckabee Sanders said in a tweet that Mr Trump would use his visit to the border on Thursday to “meet with those on the front lines of the national security and humanitarian crisis”.

Curbing illegal immigration was one of the main campaign promises Mr Trump made when he ran for president.

During the campaign for the midterm elections in November, he repeatedly agitated over a caravan of Central American migrants making its way towards the US border with Mexico.

Mr Trump deployed about 5,800 troops to the border and described the migrants as an “invasion”.



USCIS Announces Updates to Civics Test Answers

Civics Test Answer Updates

Are you preparing for the naturalization test? As you study for the U.S. history and government (civics) test, make sure that you know the most current answers to these questions.

Periodically, answers to the civics test change to reflect the results of federal and state elections and appointments or to clarify content and ensure consistency in terminology. The revised answers to the questions below are effective immediately.

Question Update
20. Who is one of your state’s U.S. Senators now? The answer to this question may change as the result of elections, appointments, or retirements.

Give the name of one of your state’s current U.S. senators. For a list of current members of the U.S. Senate, please visit

Answers will vary. [District of Columbia residents and residents of U.S. territories should answer that D.C. (or the territory where the applicant lives) has no U.S. senators.]

23. Name your U.S. Representative. The answer to this question may change as the result of elections, appointments, or retirements.

Give the name of your current U.S. representative. For a list of current members of the U.S. House of Representatives, please visit

Answers will vary. [Residents of territories with nonvoting delegates or resident commissioners may provide the name of that delegate or commissioner. Also acceptable is any statement that the territory has no (voting) representatives in Congress.]

43. Who is the Governor of your state now? The answer to this question may change as the result of elections, appointments, or retirements, depending on inauguration dates.

Give the name of your state’s current governor. For a list of current governors, please visit

Answers will vary. [District of Columbia residents should answer that D.C. does not have a governor.]

47. What is the name of the Speaker of the House of Representatives now? The House of Representatives generally elects the speaker of the House on the first day of every new Congress. The answer to this question may change after the election.

Give the name of the current speaker of the House. Visit the name of the speaker of the House of Representatives.

Supreme Court Says Hearing Time and Date Must Be on NTA (Removal Charging Document)

By: Jillian Blake, J.D.

Under a June 2018 Supreme Court decision, thousands of more people will qualify for a form of deportation relief known as cancellation of removal. The decision will affect certain people with removal orders and administratively closed removal proceedings, and potentially many more people facing deportation.

The Supreme Court held in Pereira v. Sessions that the time and date of the hearing must on be a key deportation charging document—the Notice to Appear (NTA)—to trigger the “stop-time rule.”

The “stop-time rule” governs how long a person is considered to have resided in the U.S. when he or she applies for cancellation of removal. People without permanent legal residence who are put in removal proceedings may apply for cancellation of removal if they have been living in the U.S. ten years, have U.S. citizen or legal permanent resident immediate relatives who would suffer “exceptional and extremely unusual” hardship if they were removed, can show good moral character, have not been convicted of certain crimes, and meet other requirements.

The time cancellation of removal applicants are considered to have resided in the U.S. is calculated starting from when they entered the U.S. and ending when the removal process legally begins—that is when served the NTA.

The NTA includes information such as the nature of the proceedings, factual allegations, and the charges of removability. The NTA may also include the time and place of removal proceedings but often does not.

In Pereira v. Sessions, the Supreme Court found that if an NTA does not include the time and place of removal proceedings it does not “stop the clock” for calculating the time of residence for cancellation of removal. The court reasoned that the legal definition of NTA includes time and date of hearing, so a document cannot be an NTA if it does not include this information. This ruling may be interpreted in immigration courts more narrowly, or could more wide-ranging implications.

People With In Absentia Removal Orders May Now Qualify for Cancellation of Removal

A major implication of the Pereira ruling is those within absentia removal orders may now have their cases reopened and apply for cancellation of removal. If, for example, you did not receive notice of your removal hearing and were ordered removed in absentia you may have your case reopened and apply for cancellation of removal if you have now been in the U.S. ten years and meet all other requirements for cancellation of removal. Previously, people in this situation would not have been able to apply for cancellation of removal if the original NTA was served less than ten years after they entered. If you are in this situation you must convince an immigration judge you didn’t receive notice of your hearing to have your case reopened and apply for cancellation of removal.

People With Administratively Closed Removal Proceedings May Now Qualify for Cancellation of Removal

If your case was administratively closed and your NTA did not include the time and date of your hearing, and you have now been in the U.S. ten years, you may have your case reopened to apply for cancellation of removal.

This could offer a new defense to deportation to people with administratively closed removal cases with Temporary Protected Status (TPS), which will end for many countries including El Salvador and Honduras in the coming years.

Those with Deferred Action for Childhood Arrivals (DACA) may also now qualify for cancellation of removal if their removal proceedings were administratively closed in the past and they have now been in the U.S. ten years and meet all other requirements. Many of these people did not qualify for cancellation of removal originally because they had not been in the U.S. ten years but have since accrued ten years of residency.

People With Less Than Ten Years’ Residence in the U.S. When Served an NTA May Qualify for Cancellation of Removal in Proceedings, During Appeal

If you had under ten years of residency in the U.S. when you were served an NTA, but that NTA states no time and place of the hearing, it will no longer trigger the “stop-time rule.”

This means you could potentially continue to accrue residency time towards the ten-year residency cancellation requirement while you are in removal proceedings. This may also apply to people with an appeal pending before the Board of Immigration Appeals (B.I.A.) or other court and complete ten years of residency during the process.

Court’s Decision Could Be Interpreted Broadly, to Allow for Termination of Removal Proceedings

Although the Supreme Court decision specifically states that its decision applies to the cancellation of removal “stop-time rule” it could have broader implications. Because the opinion states that a document is not an NTA if it does not include all its definitional elements–and the NTA is required to begin removal proceedings and give a judge the authority to decide the case—it could allow for termination of proceedings for people who received incomplete NTAs.

Because the Pereira decision is so new, no one can yet say how immigration judges will interpret it or how significant it will be. If you think you may qualify for cancellation of removal based on this decision, contact an immigration attorney to understand the benefits and risks or pursuing this form of relief.

Effective Date: Posted on June 21, 2018, at




Held: 1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular no reviewability or any other statutory no reviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8–9. 2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9–24.

Why is the decision important? The decision is important for few reasons:

1.         Chief Justice Roberts wrote in the majority opinion that the ban “does not exceed any contextual limit on the President’s authority.”  Further, the Court held that The Court held that Section 1182(f) of the INA exudes deference to the President in every clause.  This means the Supreme Court found that a President banning indefinitely (as the Court held the ban is constitutional if necessary) all citizens from a particular country is constitutional and within the authority of the executive branch.
2.         The decision also held that the ban did not violate the First Amendment by denying freedom of religion to Muslims as the ban, even though the President stated, “Donald J Trump is calling for a total and complete shutdown of Muslims entering the United States.” The Court held that the only prerequisite of Section 1182(f) of the INA is that the “President ‘find’ that the entry of the covered aliens would be detrimental to the interests of the United States.’” the Court was satisfied that the President’s travel ban was based on the finding that denying entry to foreign nationals who could not be vetted with adequate information was in the national interest and that the travel ban is facially neutral toward.

In summary, the US Supreme Court has held that the executive branch has deference on immigration matters if the government can produce reasoning that is not discriminatory, even if there is contrary evidence.
Justice Sotomayor articulated the case for overturning the ban in her dissenting, stating:

“The United States of America is a nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle…”

Zero Tolerance Immigration Prosecutions – Families

The risks of crossing the Rio Grande and desert terrain, or hiding in stash houses or tractor trailers, are high for adults and even more deeply concerning for children.  Individuals who seek to enter the United States should do so at ports of entry.

The Attorney General directed United States Attorneys on the Southwest Border to prosecute all amenable adults who illegally enter the country, including those accompanied by their children, for 8 U.S.C. § 1325(a), illegal entry.

Children whose parents are referred for prosecution will be placed with the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR).

The information below provides information about:

  • Care for children
  • Family communication processes
  • The removal process

Prosecution/Removal Proceedings

Individuals who are apprehended by Border Patrol are taken to stations for processing.

  • All individuals, including both adults and children, provide biographical information and, in many cases, fingerprints.
  • Border Patrol agents enter information into appropriate electronic systems of records, including information about the claimed or confirmed family relationship.

Individuals who are believed to have committed any crime, including illegal entry, will be referred to the Department of Justice and presented before a federal judge.

After the conclusion of any criminal case, individuals will be transferred to U.S. Immigration and Customs Enforcement (ICE) for appropriate immigration proceedings.

Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.

Alien children may also present an individual claim for asylum and depending on the circumstances, may undergo separate immigration proceedings.

Communication and Coordination for Families

Children in HHS ORR custody are provided with appropriate care, including medical care, mental health care, and educational programs. Children are normally held in a temporary shelter or hosted by an appropriate family.

While in HHS care, ORR begins the process of locating a sponsor for the child for discharge from federal custody.

  • A sponsor can be a parent, adult sibling, relative, or appropriate home that meets criteria for the safety of the child and continuation of any immigration proceedings.  A parent who is prosecuted and later released can be a sponsor and ask HHS to release his or her child back into his or her custody.
  • In Fiscal Year 2017, 90 percent of the children were released to a sponsor who was either a parent or close relative.

HHS and DHS work to facilitate communication between detained parents and their children in HHS care.

  • ICE is dedicating a facility as its primary family reunification and removal center.
  • Parents and legal guardians who have been criminally prosecuted and are awaiting removal will normally be detained there.
  • All ICE facility staff who interact with parents will receive trauma-informed care training.
  • ICE is augmenting mental health care staffing, to include trained clinical staff, to provide mental health services to detained parents who have been separated from their children.
  • ICE will work with detained parents to provide regular communication with their children through video teleconferencing, phone, and tablets.

HHS and ICE can take steps to facilitate family reunification for purposes of removal, consistent with federal law where the parent or legal guardian is capable of providing for the physical and mental well-being of the child and comports with the wishes of the parent or legal guardian.

DHS Announces Additional Visas for Foreign Workers to Assist American Businesses at Risk of Failing

Secretary of Homeland Security Kirstjen M. Nielsen announced on May 25, 2018, that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for the Fiscal Year 2018. In this determination, Secretary Nielsen determined there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY18. This allocation is in addition to the 66,000 visas already issued this year. Secretary Nielsen made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.

“The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed,” said Secretary Nielsen. “I call on Congress to pass much-needed reforms of the program and to expressly set the number of H-2B visas in the statute.  We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program.  As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

The H-2B temporary nonagricultural worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is available starting April 1 through September 30.

On February 27, 2018, USCIS determined that it had received sufficient H-2B petitions to meet the full FY 2018 statutory cap of 66,000.

In the FY 2018 Omnibus, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 Omnibus. In the intervening time since the enactment of the FY 2018 Omnibus, the Secretary consulted with the Secretary of Labor on the issue, in accordance with Congressional requirements, and developed this rule.