Immigration in 2020

The past year has arguably been the Trump administration’s most successful one in its quest to restrict asylum at the U.S.-Mexico border, overhaul the nation’s legal immigration system, crack down on undocumented immigrants, alter America’s status as a safe haven for refugees and challenge decades of bipartisan consensus that robust immigration is key to America’s economic and social prosperity.

The 2020 promises to be a big year for employment-related immigration developments.

Here are the top five to watch.

USCIS Fees

Applying for a visa will get a lot more expensive. That’s if the final version of U.S. Citizenship and Immigration Services’ new fee schedule looks anything like its proposal—and it likely will. And that fee increase will be especially acute for employers of temporary foreign workers.

The USCIS also is proposing to increase the fee for named workers on H-2A agricultural guest worker visas and H-2B nonagricultural, seasonal guest worker visas while limiting the number of named workers who can be listed on each petition. That means employers seeking large numbers of guest workers will be on the hook for potentially hundreds of thousands of dollars each season.

The proposed rule is a sweeping attack on the United States immigration and naturalization system designed to limit immigration, asylum, and naturalization, with a disproportionate impact on communities of color and non-wealthy immigrants. The proposal includes a plan to transfer over $100 million of USCIS funds to Immigration and Customs Enforcement (ICE), the agency responsible for enforcement.

H-1B Changes

Electronic preregistration for the H-1B lottery becomes official March 1, 2020. Authorized by a January 2019 regulation, the new process will allow employers to enter the lottery for the 85,000 visas that become available Oct. 1, 2020, without having to prepare a full petition and supporting documentation.

Preregistration has the potential to streamline the H-1B application process, but also could cause problems for smaller employers trying to compete for the visas.

Also expect to see a new proposed rule from the USCIS that would redefine an H-1B “specialty occupation” to restrict eligibility to the “best and brightest” applicants. The proposal likely will reflect how the agency already is treating H-1B petitions, but codifying the practice would make it more difficult for businesses to challenge visa denials in court.

DACA Decision

The U.S. Supreme Court likely will rule in June on whether the Trump administration legally ended the Deferred Action for Childhood Arrivals program, which provides deportation protections and work permits to young, undocumented immigrants who came to the U.S. as children.

The justices’ reaction to oral arguments Nov. 12 appears to indicate that the court will back the administration’s curtailment of the seven-year program.

One report by pro-immigration groups estimated that ending DACA will result in an average of 30,000 DACA recipients losing their jobs every month. Another report concluded that removing DACA workers from the economy would cause a $460.3 billion drop in the national gross domestic product over the next decade.

The question remains whether Congress would be willing to pass legislation providing legal status to DACA recipients so close to the election. The House passed such a bill in June, but the Senate hasn’t made any move to take it up.

Optional Practical Training

Optional practical training, which allows foreign graduates of U.S. colleges and universities to work in the U.S., could see big changes next year.

A federal judge in Washington has indicated a willingness to entertain a lawsuit by a group of U.S.-born tech workers who say OPT is illegal and harms their job prospects. The potential for the case to upend OPT recently prompted a wave of amicus briefs.

“Without OPT and STEM OPT, employers would suddenly find fewer STEM-educated persons to take positions in the United States for jobs that cannot be filled with native employees alone,” according to one brief filed by 52 businesses and 11 industry associations.

Immigration and Customs Enforcement, which manages OPT, also has revived its plan to overhaul the regulations governing the program. That change, combined with another proposal to limit how long international students can remain in the U.S., could upend how the program operates in the future—if the courts allow it to continue.

H-4 Work Permits

A longtime Trump administration promise to rescind a program providing work permits to certain H-4 spouses of H-1B workers likely will come to fruition in 2020.

A Homeland Security Department proposal has been under review at the White House Office of Management and Budget since February 2018. The agency now anticipates a spring 2020 release for public comment, which would mean a summer or early fall implementation of the final regulation.

A lawsuit against the program brought by U.S.-born tech workers also recently gained traction when a federal appeals court in Washington said the workers showed that it’s causing them to face increased job competition. Now back with the federal district court, the case could result in a finding next year that the program is illegal.

That would put more than 120,000 H-4 spouses, mostly women from India, out of work.

By Laura D. Francis Bloomberg Law.

By Camilo Moyntoya-Galvez Dec. 31, 2019/ 6:59 AM/ CBS News

USCIS Reaches H-2B Cap for First Half of FY 2020

Release Date: 
U.S. Citizenship and Immigration Services has reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2020.

Nov. 15 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2020. USCIS will reject new cap-subject H-2B petitions received after Nov. 15 that request an employment start date before April 1, 2020.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct.1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

For more information, H-2B petitioners can visit the Cap Count for H-2B Nonimmigrants page.

 

Proposed Two New Rules for Immigrants and Asylum Seekers

On November 14, 2019, the Trump Administration published two proposed rules that will detrimentally impact individuals who are seeking to legally live and work in the United States. One would adjust USCIS’s fees by a weighted average increase of 21 percent, add new fees, and make other changes.

  1.  DHS proposed rule which would make multiple changes to the regulations governing asylum applications and eligibility for employment. See Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Proposed Rules.

2. DHS proposed rule which would make changes to the USCIS fee schedule. DHS proposes to adjust fees by a weighted average increase of 21 percent,             add new fees, and make other changes, including form changes and the introduction of several new forms. See Federal Register / Vol. 84, No. 220 /               Thursday, November 14, 2019 / Proposed Rules.

Comments on these proposed rules are due December 16, 2019.

U.S. SUPREME COURT WILL HEAR ASYLUM SEEKERS’ RIGHTS IN EXPEDITED REMOVAL CASES

What occurs when a person subject to expedited removal has fled their country of origin due to fear of persecution?

A noncitizen seeking asylum to flee persecution in their country of origin are not subject to expedited removal. If a noncitizen states to a CBP officer that they fear returning to their country or origin, or that they intend to apply for asylum, the officer must refer the noncitizen to an asylum officer, who will then conduct an interview of the noncitizen to determine whether he or she has a “credible fear” of persecution or torture if returned to his or her country of origin. If the noncitizen satisfies the credible fear standard, the applicant will be taken out of the expedited removal process and will then be placed in removal proceedings before an immigration judge, who ultimately will determine whether the migrant has a valid asylum claim. If the immigration judge determines that the noncitizen does have a credible fear of persecution, the detainee may apply for asylum.

The Supreme Court said Friday, October 18, 2019, it will review a lower court decision that hinders the Trump administration’s desire to more quickly deport undocumented immigrants after their requests for asylum have been denied.

The case centers on Vijayakumar Thuraissigiam, a native citizen of Sri Lanka who’s a member of an ethnic minority group. He was arrested 25 yards north of the US-Mexico border and placed in expedited removal proceedings. That fast-track deportation procedure allows immigration authorities to remove an individual without a hearing before an immigration judge.

Thuraissigiam applied for asylum, citing fear of persecution in Sri Lanka, and an asylum officer determined he had not established a credible fear of persecution. A supervising officer and an immigration judge affirmed the decision. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding.

 Thuraissigiam went to federal district court, arguing that the expedited removal violated his constitutional rights. A district court said the law did not authorize the court to hear his claims. The 9th US Circuit Court of Appeals agreed, but said the law violates the Suspension Clause, which, the court held, requires Thuraissigiam, even as a noncitizen, to have a “meaningful opportunity” to demonstrate that he is being held against the law.

 The Trump administration argued in briefs that the law — which sharply limits judicial review to final orders of removal — was passed so that the asylum system would not be abused. The law offers some exceptions, but they were not met by Thuraissigiam.

 

 

Enhancing State and Local Involvement in Refugee Resettlement

President Document 

Federal Register / Vol. 84, No. 190 / Tuesday, October 1, 2019/ President Document

Executive Order 13888 of September 26, 2019

Enhancing State and Local Involvement in Refugee Resettlement

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

” Section 1. Purpose. In resettling refugees into the American communities, it is the policy fo the United States to cooperate and consult with State and local government, to take into account the preferences of State governments, and to provide a pathway for refugees to become self-sufficient. These policies support each other. Close cooperation with State and local governments ensure that refugees are resettled in communities that are eager and equipped to support their successful integration into American society and the labor force.

The Federal Government consults with State and local governments not only to identify the best environments for refugees but also to be respectful of those communities that may not be able to accommodate refugee resettlement, State and local governments are best positioned to know the resources and capacities they may or may not have available to devote to sustainable resettlement, which maximizes the likelihood refugees places in the area will become self-sufficient and free from long-term dependence on public assistance. Some States and localities, however, have viewed existing consultation as insufficient, and there is a need for closer coordination and a more clearly defined role for State and local governments in the refugee resettlement process. My Administration seeks to enhance these consultations.

Section 6(d) of Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), directed the Secretary of the State to determine the extent to which, consistent with applicable law, State and local jurisdictions could have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and to advise a proposal to promote such involvement.

I have consulted with the Secretary of State and determined that, with limited exceptions, the Federal Government, as an exercise of its broad discretion concerning  refugee placement accorded to it by the Constitution and the Immigration and Nationality Act, should resettled only in those jurisdictions in which both State and local governments have consented to receive refugees under the Department of State’s Reception and Placement Program (Program)….”

Immigration Law Experts Debriefed Press on “Port Courts” and Due Process Concerns

WASHINGTON, DC – Earlier this year, the Department of Homeland Security (DHS) announced the Migration Protection Protocols (MPP), a policy also known as “Remain in Mexico,” which requires individuals seeking asylum at our southern border to remain in Mexico while their U.S. removal proceedings are pending. DHS recently expanded this program into Laredo and Brownsville, TX and built massive new temporary tent facilities to adjudicate hearings via video conference for MPP asylum seekers. To date, little information has been confirmed by DOJ or DHS, but hearings in the new port courts began on September 11th in Laredo and September 12th in Brownsville.

There are many due process concerns with these secretive port courts, and as established, it is unlikely that migrants will have meaningful access to counsel for these life and death hearings. On a telephonic briefing for the press, immigration law experts shared insights relating to these port courts, the MPP program, and the due process disaster in the making.

Denise Gilman, Director, Immigration Clinic, University of Texas, Austin: “The Remain in Mexico program places asylum seekers in incredible danger in northern Mexico only to call them back for asylum hearings that are a sham. Video hearings within tents carried out without access to counsel do not respect minimal due process norms. The entire program is set up to turn away asylum seekers seeking desperately-needed protection in this country under U.S. and international law. There is no way to fix this shameful program; it must be ended.”

Ashley Huebner, Associate Director of Legal Services, National Immigrant Justice Center: “The port courts exemplify the massive problems with the Remain in Mexico policy and the sham hearings and non-refoulement interviews that this administration has established. A court system that is hidden from view does not allow attorneys to access their clients, and forces individuals to present their asylum claims while constantly under duress is not a court at all.”

Jodi Goodwin, Immigration Attorney, Harlingen, TX: “Running rough-shod overdue process is the name of the game for the Port Courts and MPP. Despite repeated attempts to garner information about how cases will work and even where they will be allowed to go, attorneys are left out of the process, and access to counsel for those in MPP is abysmal. I cannot overstate the difficulties of providing counsel to people located in a Level 4 Security Threat Assessment zone, as per the Department of State, similar to Aleppo, Syria, and Kabul, Afghanistan. Asylum seekers represented by attorneys are much more likely to be successful but the government is throwing up every possible obstacle to counsel, and thus to justice.”

Kate Voigt, Associate Director of Government Relations for the American Immigration Lawyers Association (AILA) who moderated the call concluded, “Since the start of the Remain in Mexico policy, more than 42,000 vulnerable asylum seekers have been forced to wait for their proceedings in some of the most dangerous locations in Mexico, most without any access to legal representation. The rollout of these port courts has been shrouded in secrecy. The government has provided almost no public information to attorneys or other stakeholders about even the most basic logistics related to the courts’ operations, despite their apparent launch this week. AILA will continue to fight for the due process rights of asylum seekers.”

 

 

The 1997 Flores Settlement Agreement Under the Trump Administration

Settlement agreements are contracts.  A fundamental component of a contract is the existence of mutual assent.  This means all of the parties are on the same page when it comes to what is being agreed upon.

In essence, a settlement agreement equates to “We pay you money and you stop suing us.  Plus, we don’t admit liability.” However, as simple as that sounds, there is a lot more to a tight settlement agreement.

The 1997 Flores Settlement Agreement (Flores) is the result of a 1985 class-action lawsuit brought on behalf of all immigrant children detained in the United States. The agreement set national standards regarding the detention, release, and treatment of all children in immigration detention and underscores the principle of family unity.

Flores requires that:

  1. Juveniles be released from custody without unnecessary delay, and in order of preference to the following: a parent, legal guardian, adult relative, individual specifically designated by the parent, a child welfare licensed program, or, alternatively when family reunification is not possible, an adult seeking custody deemed appropriate by the responsible government agency.
  2. Where they cannot be released because of significant public safety or flight risk concerns, juveniles must be held in the least restrictive setting appropriate to age and special needs, generally, in a nonsecure facility licensed by a child welfare entity and separated from unrelated adults and delinquent offenders.

The Trump administration announced a new regulation on Wednesday allowing for the indefinite detention of immigrant children. If allowed to go into effect, the administration’s new rule would terminate the 1997 Flores Settlement Agreement and its requirements 60 days after publication.

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CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS

Cancellation of removal is a form of discretionary relief from removal (deportation). There are four forms of cancellation of removal relief: cancellation of removal for LPRs, cancellation of removal for non-permanent residents, cancellation for battered spouse or child, and cancellation of removal pursuant to section 203 of the Nicaraguan Adjustment of Status and Central American Relief Act.

If you are a foreign-born person living in the U.S. without legal status for a long time, and you have been placed into removal (deportation) proceedings, you may be eligible for what’s called “Non-LPR Cancellation of Removal” and a green card. To eligible for this form of relief from deportation,

  1. You have been living (“continuously physically present”) in the U.S. for at least ten years,
  2. Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs),
  3. You can show you have “good moral character,” and
  4. You have not been convicted of certain crimes or violated certain laws.

A big part of this process is convincing the Immigration to cancel the removal and adjust your status as a lawful permanent resident.

Nationwide, immigration judges can approve only 4,000 cancellation applications per year from non-LPRs (people without green cards). The cap is often reached quickly.

Once the annual cap on grants of suspension and cancellation is reached, immigration judges and the BIA will only reserve cases for consideration in the next fiscal year where relief would otherwise have been granted during the current fiscal year had the cap not been reached. In any case where the immigration judge or BIA determines that relief should not be granted, the application will be denied rather than reserved.

An alien in immigration proceedings should always consult with an experienced immigration attorney expeditiously and retain an attorney throughout the process. An experienced attorney will be able to assess the case and determine which avenues the alien may have for relief.

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 www.lawschell.com,  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)).