Enforcement Measures Dominate Immigration Policy and Practice
Changes and enhancements to immigration enforcement measures continue to develop at a breathtakingly rapid pace. Three very recent changes through U.S. Citizenship and Immigration Services (USCIS) policy changes are important:
First, USCIS has changed its policy on when F-1 students accrue “unlawful presence” which can trigger 3 and 10 years bars to entry. Essentially, if they fail to maintain status, they will be unlawfully present. In the past, their D/S admission would not trigger unlawful presence unless there was an adverse decision on an application by USCIS or an immigration judge. It is essential for F-1 students to take responsibility for their status and keep informed.
Second, USCIS will start removal proceedings against any person who does not have legal status when an application is denied.
Third, USCIS officers are directed to deny applications rather than request more evidence. This combined with the directive to start removal proceedings will have far reaching consequences.
Currently front and center is the administration’s separation of family members on the southern border, which has finally pushed the border wall from the spotlight. Attorney General Jeff Sessions’ “zero-tolerance” policy for illegal border crossings resulted in directing his attorneys to pursue criminal prosecutions for any individual caught crossing illegally, sparked a national uproar. The President was forced to issue a new Executive Order on June 20, which continues to produce confusion, uncertainty and widespread criticism, never mind abhorrent conditions for those affected. The fate of some 2,300 children separated from their parents after crossing the southern border remains uncertain and bogged down in tremendous bureaucratic red tape, and 17 states have now sued the government over its family separation policy. Simply stated, the situation is a mess.
The Attorney General has also issued two precedential decisions that will produce major changes in the immigration courts. In Matter of Castro-Tum, AG Sessions effectively prevented immigration cases from being administratively closed unless required by statute or regulation. He also ordered that the 300,000+ cases that were administratively closed under President Obama be reopened. In the second decision, Matter of A-B-, AG Sessions took a broad step in unilaterally declaring that asylum claims based on gang violence or domestic violence were unlikely to qualify for asylum. When this decision is applied to credible-fear interviews for screening asylum applicants at the border, numerous people could be turned away at the door before being provided a chance to develop their claims. The Attorney General’s recent decisions are complemented by the completion quotas being imposed on immigration judges (700 per year), and the curtailing of continuances to allow the parties (or judge) more time to develop and try a case.
U.S. Immigration and Customs Enforcement (ICE) continue to be active in their enforcement actions against employers who hire undocumented workers and their employees using fraudulent identity documents. High-profile raids recently took place at a slaughterhouse in Tennessee and at two flower/garden centers in Ohio. In the Ohio raids, 114 workers were placed in detention but no company officials were arrested during the raids. At the same time the agency has increased I-9 audits by nearly 60 percent compared to the last fiscal year, and has plans for another wave of audits this summer, pushing the total to well over 5,000 by September 30, 2018. ICE has also developed a plan to create an Employer Compliance Inspection Center to centralize issuing and reviewing audits, with a goal of 15,000 audits issued per year. The point of this plan is to give the impression to employers that they are likely to be audited.
The Attorney General and the administration are continuing to take dramatic steps to enforce their anti-immigration agenda. Historically, such actions would simply be a temporary show of force to demonstrate confidence in the executive branch’s ability to enforce immigration laws as Congress prepares for reform. Under this administration, however, it is difficult to anticipate whether any immigration reform will be possible.
USCIS Extends I-829 and I-751 Receipt Notice Validity Due to Increased Processing Times
USCIS announced that EB-5 investors filing I-829 applications and marriage-based petitioners who file I-751 applications to remove the conditions on their green cards will be able to use the receipt notice as evidence of continued status for 18 months past the expiration date on their conditional green card. This increased validity period (up from 12 months) is the result of increased processing times for these petitions.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org