Expansion of Provisional Unlawful Presence Waivers of Inadmissibility

Contributed by Aaron Hall, Partner

More than eight months after President Obama announced his intention to expand the provisional waiver program, the Department of Homeland Security (DHS) has issued proposed regulations on the expansion of the I-601A provisional waiver program.  I-601A provisional waivers allow an applicant to waive a ground of inadmissibility triggered by unlawful presence if they are statutorily eligible for a waiver, are seeking such a waiver in connection with an immigrant visa application, and meet other conditions.

The provisional waiver process currently allows a qualifying applicant to get his inadmissibility waived prior to leaving the United States, saving the applicant from many months or even years outside of the country waiting for his waiver to be adjudicated. 

The new regulations would expand the provisional waiver process (1) by eliminating the requirement that provisional waiver applicants be certain immediate relatives of U.S. citizens and instead opening the process to all who qualify for the unlawful presence waiver under the applicable statute and meet certain other conditions; and (2) by allowing the requisite “extreme hardship” be shown to any U.S. citizen or lawful permanent resident spouse or parent instead of limiting the extreme hardship to U.S. citizen spouses. 

The proposed regulations are not final yet and are open for written comment by interested parties until September 21, 2015.  If the proposed regulations are implemented, they will greatly expand the number of applicants who can consular process with a provisional waiver.

Further Reading:

Proposed Regulations

Previous Posts on Provisional Waivers:

Provisional Waivers Mean Less Family Separation During Consular Processing (8/27/2013)

USCIS Officially Begins Accepting I-601A Provisional Waivers of Unlawful Presence (3/4/2013)

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The Beginning of the End to Family Detention

Contributed by Koby Polaski, Senior Attorney, Edwards office

In 2014, millions of families from El Salvador, Honduras and Guatemala fled unspeakable violence in their home countries to seek safety in the United States. In response to this refugee crisis, the Department of Homeland Security made the tragic decision to open temporary detention facilities in New Mexico and Texas to house thousands of mothers and children. The government tagged the families in these detention facilities as number one priorities for removal from the United States. Their cases were accordingly rushed through the system, in many cases without access to counsel and without bond. It quickly became clear that the government’s goal was to remove these women and children – with complicated and viable asylum claims – from the United States as quickly as possible.

Although the detention facility in Artesia, New Mexico closed, the one in Texas remains open and continues to detain families arriving daily. This month, however, DHS announced its determination that reconsideration is appropriate for custody decisions of arriving families who have established eligibility for asylum or other relief under United States immigration laws. Going forward, ICE will generally not detain mothers with children, absent a threat to public safety or national security, if they have received a positive finding for credible or reasonable fear and the individual has provided a verifiable residential address. DHS will also be releasing eligible family units after reviewing their cases for these same requirements.

There is still much work to be done in defending and representing the rights of the families detained at these facilities, but we hope this development marks the beginning of the end to family detention.

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Is DAPA Dead?

Contributed by Koby Polaski, Senior Attorney, Edwards Office

Today, the Fifth Circuit will hear oral arguments in the ongoing litigation over President Obama’s executive actions on immigration. The arguments today, and the Court’s subsequent decision, will address the federal government’s challenge to an injunction issued several moths ago by Texas District Court Judge Andrew Hanen.

If the federal government prevails, the Department of Homeland Security will be able to resume implementation of DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals). If the twenty-six plaintiff states prevail, the programs will remain stalled.

Two judges in today’s three-judge lineup served on an earlier panel that refused to stay the lower court’s injunction while the present appeal is pending. That panel held that the federal government failed to make a sufficiently strong argument that the states lack standing. In other words, the Court held that the suing states probably met their burden of proving a concrete injury by showing that it would be costly for Texas to issue driver’s licenses to DAPA recipients. This finding was enough for the Court to refuse to stay the injunction.

We expect that these judges who, just weeks ago, refused to stay the injunction will again rule against DAPA and uphold the injunction for the duration of the litigation. This means that the United States Supreme Court will likely hear the case, following an appeal by the federal government. In this case, we likely won’t have a decision until the summer of 2016. Stay tuned!

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TPS DESIGNATION FOR NEPAL

Contributed by Aaron Hall, Partner

The Department of Homeland Security (DHS) has announced that Nepal will be designated for Temporary Protected Status (TPS) for 18 months due to the on the conditions resulting from the April 25, 2015, earthquake. The TPS designation is effective June 24, 2015, through December 24, 2016. 

Noncitizens from Nepal who are residing in the United States will be able to apply for TPS with U.S. Citizenship and Immigration Services (USCIS) during the 180-day TPS registration period beginning June 24, 2015 and running through December 21, 2015.

Applicants must have been continuously present and continuously residing in the United States since before June 24, 2015 and will have to go through security checks to make sure that they do not have disqualifying criminal records.  Those who have been convicted of a felony or two or more misdemeanors in the U.S. will not qualify for TPS.

If you or someone you know would like to discuss TPS eligibility, contact our office to schedule a consultation with one of our immigration attorneys.

Further Reading:

Information on TPS from Joseph Law Firm

USCIS Announcement of Designation of TPS for Nepal

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DOS Gradually Restoring Worldwide Visa Systems

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

The US Department of State (DOS) continues to experience technical problems with its visa systems worldwide. As of June 23, 2015, DOS reported that “39, representing more than two-thirds of our normal capacity, are now online and issuing visas.” The main problem with the system was biometric data processing, but DOS reports that the “biometrics clearances has been rebuilt and is being tested.” A backlog of both nonimmigrant and immigrant visa applications have resulted, and prioritizing issuance of visas for urgent and humanitarian travel needs, as well as temporary agricultural workers.

The DOS technology team is working 24/7 to restore all visa systems. As of June 22, 2015, 22 posts had been reconnected and about 24 hours later 17 more posts were restored. On June 23, 2015, DOS issued more than 45,000 visas, including 15,000 visas out of the Beijing post alone. Currently reconnected posts include the following: Paris; Monterrey; Ciudad Juarez; Guangzhou; Beijing; Shanghai; Tijuana; Nuevo Laredo; Mexico City; Guadalajara; Mumbai; New Delhi; Sao Paolo; Chennai; Manila; Bogota; Buenos Aires; Rio de Janeiro; Tel Aviv; Merida; Hermosillo; Karachi; Seoul; Lima; Santo Domingo; Kingston; Shenyang; Chengdu; DPT; Lagos; Guayaquil; London; Brasilia; Moscow; San Salvador; Quito; Ho Chi Minh; Hanoi; and Kyiv.

In mid-June, many posts were cancelling or not scheduling appointments for applicants who had filed applications after a certain date. DOS reports that several posts are now rescheduling interviews, and “[i]n some cases, interviews will be available as soon as June 24.” Applicants should continue to check the appropriate post’s website for interview availability.

Initially the technology problems included issuance of US passports in overseas posts. However, except for delays in a few cases, passport issuance capability has been restored. In those cases where the technology may delay regular processing, the posts are still able to issue passports in emergency situations.

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The Doctrine of Consular Nonreviewability Lives-On

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

On June 15, 2015, the US Supreme Court published a plurality opinion in Kerry v. Din which reviewed the doctrine of consular nonreviewability. Kerry v. Din, No. 13-1402, slip op. (June 15, 2015). In particular, the respondent, Fauzia Din, argued that she, a US citizen, was owed a more detailed explanation as to why her husband’s Immigrant Visa application was denied other than a summary reference to the relevant statute under which the consulate refused his Immigrant Visa. The plurality opinions essentially upheld the doctrine on different grounds and denied that Ms. Din had any right to a more detailed explanation of the denial.

As a plurality opinion, Din holds no more weight in the matter of consular nonreviewability than the authoritative opinions of each group of justices. It leaves the question of consular nonreviewability open to further interpretation. However, the majority of the opinions in Din preserve the Court’s decision in Kleindienst v. Mandel, a majority decision published in 1972. Kleindienst v. Mandel, 92 S.Ct. 2576 (1972). Justice Kennedy noted in his "view . . . that, even assuming [the petitioner had a protected liberty interest], the notice [the petitioner] received regarding her husband's visa denial satisfied due process." Justice Scalia’s opinion echoed the same conclusion as well as that Ms. Din had not been “deprived of ‘life, liberty, or property’” in the government’s denial of her husband’s visa application and “there is no process due to her under the Constitution.”

Justice Kennedy’s opinion preserved the Court’s decision in Kleindienst v Mandel that the Executive has “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden,” and “enforced exclusively through executive officers, without judicial intervention, [which] is settled by [the Court’s] previous adjudications.” In Kleindienst, the respondents, all US Citizens, argued that the summary denial of a nonimmigrant visa for a lecturer’s visit to the United States was a violation of the First Amendment right to free speech and association. In particular, the respondents demanded a reason upon which a discretionary waiver of a ground of inadmissibility had been denied. The Court’s decision in Kleindienst held that “when the Executive exercises [it’s plenary] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing” constitutional interests. Justice Kennedy added in his opinion that “[a]bscent an affirmative showing of bad faith on the part of the consular officer,” an applicant is not due an explanation of the “facts underlying [the] determination.”

In his opinion, Justice Scalia focused more on whether Ms. Din had a fundamental procedural right to due process of the law in the matter of her the government’s denial of her husband’s Immigrant Visa application. He summarizes that “There is no such constitutional right.” Ms. Din has not been prohibited from marrying her husband nor has the government inhibited her freedom to live with her husband “anywhere in the world that both individuals are permitted to reside.” On this point the justices appear to agree. In contrast, according to Justice Scalia, the “dissent [Justice Breyer et al] supplements the fundamental right to marriage with a fundamental right to live in the United States in order to find an affected liberty interest.” In his conclusion, Justice Scalia simply states that the government has denied the applicant’s visa application because the applicant “engaged in terrorist activities within the meaning of the Immigration and Nationality Act,” and the government has no further obligation to Ms. Din in the matter: “To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required.”

The dissenting opinion, written by Justice Breyer, holds that Ms. Din not only had an “implicit” due process right, but also “an expectation” based on nonconstitutional law to not be deprived of her “liberty without fair procedures.” The institution of marriage and the right to live with ones spouse are implicit and central to “most individuals ‘orderly pursuit of happiness,’” and therefore warrants due process. In individual adjudications, “a fundamental element of due process” is “notice” or a “kind of statement” to “understand why the government acted as it did” and provides the applicant, “who suffered a ‘serious loss,’ a fair ‘opportunity to meet’ ‘the case’ that has produced separation from her husband” such as “an appeal, internal agency review, or . . . an opportunity to submit additional evidence and obtain reconsideration.”

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Background and Updates on EB-5 Regional Centers

Contributed by Koby Polaski, Senior Attorney, Edwards Office

Congress enacted the EB-5 program in 1990. The program granted lawful permanent resident status to immigrant investors who directly invested in and managed job-creating enterprises. In 1992, Congress implemented the regional center pilot program, which allowed potential immigrant investors the option to invest via EB-5 regional centers. The regional center program is presently authorized through September 30, 2015.

On April 27, 2015, Jeh Johnson, the current Secretary of Homeland Security, sent a letter to Congress proposing multiple changes in connection with the upcoming EB-5 Regional Center reauthorization process.

In Secretary Johnson’s letter, he states his support for the reauthorization of the EB-5 program, but he also requests significant changes and increased police powers. The most problematic suggestion is Johnson’s call to authorize USCS to “sanction regional centers with fines or temporary suspensions where appropriate.” He asks the committee to give USCIS exclusive authority to terminate a regional center’s designation when it suspects criminal activity or national security concerns. It is very concerning that one  branch of the Department of Homeland Security might possess both adjudication and enforcement authority.

Following Secretary Johnson’s letter, on June 3, the committee introduced S. 1501, the “American Job Creation and Investment Promotion Reform Act of 2015.” S. 1501 would make the following changes to the EB-5 program:

EB-5 Regional Center Program Extension

The bill proposes reauthorization of the EB-5 regional center program until September 30, 2020.

Redefined Target Employment Area

Currently, the statue defines a targeted employment area as a rural area or an area that has experienced high unemployment of at least 150 percent of the national average. The statute defines a rural area as an area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more.

Under S. 1501, the statutory definition of a TEA would include a rural area, a closed military base, or an area consisting of a single census tract that has 150 percent of the national average unemployment rate. For TEAs in a metropolitan statistical area, at least fifty percent of a project’s job creation would have to be within that area to qualify. For areas not within the metropolitan statistical area, at least fifty percent of the projected jobs would have to be within the county in which the TEA is located.

The goal, here, is clearly to create more EB-5 projects in rural areas; however, howe will USCIS determine that the project would create fifty percent of indirect jobs in the relevant county.

Required Investment

Under the current statue, EB-5 investors must invest $500,000 if their investment is in a TEA and $1 million if not in a TEA. S. 1501 would increase the required investment to $800,000 for TEA investments and $1.2 million for non-TEA investments. Furthermore, the minimum investment amount would increase automatically, based on the consumer price index, every five years.

As discussed above, we think this investment increase will be problematic for many reasons.

Direct and Indirect Jobs

Currently, the regional center program does not require that the immigrant investor’s enterprise directly employ ten US workers. A regional center project can count both direct and indirect jobs. Under S. 1501, indirect jobs count for no more than ninety percent of all the jobs counted for EB-5 purposes.

Source of Funds

S. 1501 will require the investor to provide at least seven years of tax returns, compared with the five years of return that the law currently requires.

Next, the proposed legislation will limit the use of gifts as the source of EB-5 investments. Gifted funds may only be used if gifted by a spouse, parent, child, sibling, or grandparent.

Concurrent Filing for Adjustment of Status

The bill contemplates concurrent filing of an I-526 petition (for EB-5) and I-485 adjustment of status application of a visa number is immediately available. Also, an EB-5 investor who ha been out of status for less than 180 days would nevertheless be able to adjust status.

Congress has not yet scheduled a hearing to discuss this bill; however, expect one soon because the EB-5 program needs to be extended by September 30. Stay tuned to our blog for updates.

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USCIS Extends TPS Registratoin for Somalis

Contributed by Kim Tremblay, Associate Attorney

On June 1, 2015 DHS announced that it was extending Temporary Protected Status (“TPS”) for Somalis in the United States.  DHS first announced the availability of TPS for Somalis in 1991.

If you currently have TPS and have maintained your status, you must reregister during the reregistration period.  This period will be between June 1 and July 31, 2015.    Your status will be extended until March 17, 2017 once your application is approved.  It is important to file in a timely manner. 

If you do not currently have TPS or if you did not reregister during earlier reregistration periods, you may register now if you meet certain conditions. For example, if you could not register because of compelling circumstances, you may be eligible to do so now.  You should consult an immigration attorney to determine whether you meet the conditions for late initial registration or late reregistration.

For more information, see:

http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/tps-designated-country-somalia/temporary-protected-status-designated-country-somalia

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ICE Issues FAQs on Executive Actions

Contributed by Aaron Hall, Partner

Immigration and Customs Enforcement (ICE) has published Frequently Asked Questions relating to Executive Action on Immigration.  The FAQs contain important guidance on the implementation of the executive actions announced on November 20, 2014.  Some of the takeaways:

For those with BIA Appeals Denied After January 1, 2014

The 11/20/14 memorandum states that those who received final orders of removal on or after 1/1/14 will be an enforcement priority for ICE (Priority 3).  However, the FAQs note that those who (1) were ordered removed by an immigration judge before 1/1/14; (2) timely appealed the immigration judge’s order; and (3) then received a denial of their appeal after 1/1/14 (making the official date that their removal order became final post-1/1/14) will not necessarily be considered enforcement priorities.  Rather, these individuals “will be evaluated on a case-by-case basis to determine whether their removal would serve an important federal interest.”

For those with convictions for Colorado DWAI

Convictions for DUI trigger Priority 2 treatment by ICE.  However, the FAQs state that to be considered a DUI for purposes of the 11/20/14 memo, the offense must require, as an element of the offense, either a finding of impairment or a blood alcohol content of .08 or higher.  Because Colorado DWAI only requires a blood alcohol content of .05, it should not count as a DUI for purposes of the 11/20/14 memo and should not trigger Priority 2 treatment.

For those with convictions for identity theft-related crimes

While such crimes may trigger Priority 1 or 2 treatment depending on the offense, the FAQs indicate that ICE should be sensitive to overall circumstances of the arrest and conviction, including, “whether DHS was the agency that presented the case for prosecution, whether there is a victim in the case, the nature of any loss or harm experienced by the victim as a result of the crime, the sentence imposed as a result of the conviction (including whether the conviction was subsequently reclassified as a misdemeanor), whether there is any indication that the conviction has been collaterally challenged based on allegations of civil rights violations, and the nature and extent of the individual’s criminal history.”

For those with convictions with a Domestic Violence tag

The FAQs clarify that for purposes of the 11/20/14 memo, the definition of “domestic violence” includes only crimes are crimes of violence (as defined in section 16 of title 18).  This means that convictions that have a domestic violence tag but are not crimes of violence should not be considered domestic violence crimes which trigger Priority 2 treatment under the 11/20/14 memo.

Significant abusers of the visa or visa waiver programs

Those found by the ICE Field Office Director, USCIS District Director, or USCIS Service Center Director to have “significantly abused the visa or visa waiver programs” trigger Priority 2 treatment by ICE under the 11/20/14 memo.  The FAQs clarify that the overstay of a visa or the visa waiver program by itself does not constitute significant abuse and that the length of the overstay is not generally a factor to be considered.  Rather, other relevant factors are prior and subsequent immigration violations and the commission of fraud when seeking an immigration benefit.  The determination should be made considering the totality of the circumstances.

Further Reading:

-ICE FAQs

-DHS 11/20/2014 Memo on Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants

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The US Supreme Court’s Decision in Mata v. Lynch

Contributed by Jennaweh Hondrogiannis, Associate Attorney

On June 15, 2015, the United States Supreme Court issued its decision in Mata v. Lynch, No. 14-185, holding that federal courts of appeals have jurisdiction to review the Board of Immigration Appeal’s (Board) decisions on motions to reopen.

A Motion to Reopen is a procedural measure that provides a party to the immigration proceedings in question an opportunity to present new facts that were not available at the time of the former hearing. A party is only allowed to file one Motion to Reopen and the motion must be filed within 90 days of the final administrative decision.

The petitioner in Mata v. Lynch, Noel Mata, filed a motion to reopen with the Board after the 90 day deadline and asked the Board to “equitably toll,” the time limit in his case. “Equitable tolling” is a legal principle under which courts have the authority to essentially waive a time limitation where the applicant acted diligently, but was still unable to meet the deadline. Mr. Mata was unable to meet the Court’s deadline due to the ineffective assistance of his previous counsel, who failed to file a brief with the Board setting forth grounds for reversal of the Immigration Judge’s decision. Because the brief was never filed, the Board dismissed Mr. Mata’s motion. With new counsel, Mr. Mata then filed a petition for review with the Fifth Circuit Court of Appeals, where his case originated.

Although nine different circuit courts have held that a motion to reopen deadline is subject to equitable tolling in some circumstances, this issue had not yet been decided by the Fifth Circuit. The Fifth Circuit court declined to address Mr. Mata’s argument with regard to equitable tolling and instead determined that in the Fifth Circuit, a request to the Board for equitable tolling is an invitation for the Board to exercise its discretionary authority to reopen the removal proceedings sua sponte - or on its own motion. The Fifth Circuit then relied on circuit precedent to determine that it did not have jurisdiction to review the Board’s decision not to exercise its sua sponte power to reopen cases.    

The Supreme Court reversed the Fifth Circuit’s jurisdictional decision and held that federal courts of appeals do in fact have jurisdiction to review the Board’s rejection of motions to reopen. The Supreme Court found that the court’s jurisdiction does not change, even if the Board rejects the motion as untimely, if the Board rejects the motion requesting equitable tolling, or even if the Board separately declines to exercise its sua sponte authority. The Supreme Court did not address the question of whether the 90 day deadline for motions to reopen can be equitably tolled. As such, the case has been remanded to the Fifth Circuit to make a decision with regard to whether equitable tolling is applicable to motions to reopen.

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Bill Introduced in Congress to Grant Citizens of Nepal Temporary Protected Status

Contributed by Kim Tremblay, Associate Attorney

Citizens of Nepal impacted by the recent earthquake who currently have status in the United States or are waiting to obtain status, may benefit from certain relief measures that the U.S. government has put into place.  Attorney Melanie Corrin blogged about these measures on May 6, 2015.

In addition to the measures announced to help Nepali nationals in the United States, a bill was introduced in Congress on April 27, 2015 to grant Nepali citizens Temporary Protected Status (“TPS”).  The government has historically granted temporary status to nationals of countries impacted by certain  natural and human-made disasters.  Usually these designations allow citizens of the designated country who have been physically present in the United States from a certain date to apply.  Most recent TPS designations include Haiti and Syria.  Individuals granted TPSreceive temporary status and work authorization that typically lasts eighteen months and must be renewed.  They can also apply for authorization to travel outside of the United States temporarily.  The bill introduced would permit Nepali citizens who have been in the United States since April 25, 2015 to apply.  Certain criminal convictions disqualify individuals from applying for TPS.  

The bill is currently under review by the Subcommittee on Immigration and Border Security. Thus, Nepalis should beware of claims that they are currently eligible for TPS and should look out for DHS updates on TPS for citizens of Nepal.   

Moreover, if you think you can benefit from the measures announced earlier this month, you should contact an immigration attorney for assistance. 

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