NYT FOIA Request Findings: Upsurge in Deportations Following Minor Offenses

Contributed by Aaron Hall, Partner

The Obama administration has publicly professed to be focusing deportation resources on “criminals, gang bangers, people who are hurting the community,” and not on students or “folks who are here just because they’re trying to figure out how to feed their families.” 

But a New York Times analysis of internal government records obtained through a Freedom of Information Act request shows that two-thirds of the 2 million deportees during the Obama presidency had only committed minor infractions, including traffic violations, or had no criminal record at all.

The largest increase under Obama’s presidency from that of President Bush has been the quadrupling of those deported whose most serious offense was a traffic violation.  The Department of Homeland Security under President Obama has also more than doubled the use of expedited removal proceedings and reinstatements where the noncitizen is deported without the right to a hearing and cut back the number of people caught trying to cross the Mexican border illegally who are allowed to return voluntarily without a formal deportation on their record.

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March Madness: Scrambling to Have those H-1B Petitions in the Mail by March 31st

Contributed by Kim Tremblay, Associate Attorney

March is a busy time of year for immigration attorneys who handle H-1B visas, as USCIS starts accepting the petitions on April 1^st.  Employers who desire to employ foreign workers with highly specialized knowledge and skills must apply starting April 1^st for employment starting on October 1^st.  The majority of H-1B visas are granted to foreigners who have a bachelor’s degree or higher in the STEM fields: science, technology, engineering, and math.   The visa helps retain the talent of workers educated in the U.S. and/or enables companies to fill positions for which there aren’t many qualified U.S. workers.

There is pressure to file these petitions early as there is a limited number of visas available.  By law, there are only 65,000 visas available every fiscal year in this category for individuals with bachelor’s degrees and 20,000 visas for individuals with United States master’s degrees or PhDs.  Last year,  over 124,000 petitions were filed during the first week of April.  This year, the visas are expected to run out by April 7^th.  USCIS will accept petitions between April 1^st and April 7^th and will conduct a lottery thereafter to determine which petitions will be accepted and reviewed.   Thus, despite their eligibility, some applicants will not receive visas due to the cap on their number.

Thus, most attorneys and employers aim to mail their petitions by March 31^st so that USCIS receives them on April 1^st.  This March madness is no April fool’s joke; good luck to all the applicants and USCIS mailroom personnel who will be handling over 100,000 pieces of mail next week!

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USCIS Reopening Previously Denied I-601A Provisional Waivers

Contributed by Amber Blasingame, Associate Attorney

Starting March 18, 2014, the US Citizenship and Immigration Services announced plans to reopen I-601A Provisional Waivers previously denied “solely of a prior criminal offense.” Pursuant to a USCIS memo published January 24, 2014, USCIS will reopen these cases “on its own motion.” Applicants who may benefit from reopening of a denied case and their representatives should receive notice “of this action within 60 days,” from March 18, 2014.

In January 2013, President Obama signed an executive order which was enacted on March 4, 2013, providing a “provisional waiver” of unlawful presence for certain Immigrant Visa applicants. Applicants over the age of 18 years old who were the beneficiary of an immediate relative visa petition, married to a United States citizen, and admissible, but for a period of unlawful presence in the United States, could apply for a waiver of the bar to admission in the United States and prior to any applicable consulate interview.

Upon review, USCIS had discretion to request additional evidence or deny an application if it had “reason to believe” the applicant was inadmissible to the United States on any other grounds save unlawful presence. Until July/August 2014, USCIS narrowly applied the “reason to believe” standard and denied most, if not all, applications which presented any adverse legal history, including minor criminal offenses and traffic violations. In most cases USCIS provided no opportunity to the applicant to provide evidence that these offenses would not render the applicant inadmissible and no opportunity for appeal. In late summer, upon petition from the American Immigration Lawyer’s Association and other advocates, USCIS suspended processing of provisional waivers which presented evidence of any criminal history.

On January 24, 2014, after much review, USCIS published field guidance concluding that “it should not find a reason to believe that the prior criminal offense would render the applicant inadmissible and deny an I-601A waiver application based on a prior criminal offense if the criminal offense falls under the petty offense or youthful offender exceptions or is not considered a crime involving moral turpitude.”

USCIS states that I-601A waiver applicants, previously denied on the basis of a criminal offense falling within the above parameters, should receive notice from USCIS within 60 days from March 18, 2014. Applicants who may benefit from this action may check on-line at [website] for status or visit www.uscis.gov/provisionalwaiver, or contact a licensed immigration attorney for assistance.

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Tick Tock, Tick Tock, DACA Grantees Still Waiting For Guidance on Renewal

Contributed by Aaron Hall, Senior Attorney

As explained last month in this space by Kim Tremblay, United States Citizenship and Immigration Services (“USCIS”) issued guidance for those initially granted Deferred Action for Childhood Arrivals (“DACA”) by Immigration and Customs Enforcement (“ICE”) between June 15 and August 15 of 2012.  This guidance does not apply to most people with DACA.  The vast majority of those with DACA filed their applications with USCIS after August 15, 2012 and has not yet received any guidance.

Those granted DACA after August 15, 2012, have no guidance on how to renew the application.  USCIS may only accept DACA renewal applications within 120 days of the expiration date.  This will put a tight timeline on applicants to make sure that they apply at the beginning of this window to give themselves the best chance to not have a gap (or to minimize the gap) between the expiration of their current grant of DACA and the approval of the renewal.

USCIS has been encouraged to accept a receipt notice from the DACA renewal form as proof of the continuing grant of DACA pending a decision on the renewal application.  It is not yet clear whether they will implement this.  If not, many applicants applying for renewal may experience a gap in time between the expiration of their current grant of DACA and the approval of their renewal where they have no documentation.  For many, this will jeopardize school enrollment, employment, and the validity of driver’s licenses amongst other issues.

As of February 20, 2014, USCIS indicated that guidance would be issued regarding renewals for those granted DACA in “coming months.”  We hope that guidance will be coming shortly.  In the meantime, we continue to encourage those who anticipate having to renew DACA to put aside $465 for filling fees and to gather documents regarding their physical presence in the U.S. over the past two years.  They should also document their attendance in or graduation from any schools over the past two years.  In addition, DACA renewal applicants should contact their attorneys about six months before their status is set to expire.  Being prepared with the information and documentation likely to be required should make it easier to quickly apply for renewal when guidance is released.

 

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The Department of Labor Announces New Notice and Comment Period for H-2B Regulations

Contributed by Koby Polaski, Senior Attorney

The recent litigation and ongoing turmoil over the promulgation of new regulations governing the H-2B program are enough to make anyone’s head spin.

It all started in 2011 when the Department of Labor (DOL) issued a proposed rule that would change the wage methodology it uses to calculate H-2B prevailing wages. The 2011 rule came in in response to a ruling by the U.S. District Court for the Eastern District of Pennsylvania in Comite de Apoyo a los Trabajadores (CATA) v. Solis that ordered the DOL to promulgate new rules concerning the H-2B prevailing wage calculation within 120 days. Under the 2008 regulations, the DOL based prevailing wage determinations on four tier levels that link skill levels to Occupational Employment Statistics (OES) wage surveys. The proposed wage rule requires instead that the mean of the OES wage rates be used to calculate the prevailing wage.

The 2011 regulations have to be implemented, however, because they were enjoined by the U.S. District Court for the Northern District of Florida in Bayou Lawn & Landscape Services v. Hilda L. Solis. Bayou went before the 11th Circuit Court of Appeals, which affirmed the injunction and held - in Bayou Lawn and Landscape Servs v. Sec’y of Labor - that the DOL lacks independent rule-making authority under the Immigration and Nationality Act to issue legislative regulations implementing its role in the H-2B program.

As a result of the 11th Circuit’s ruling, the DOL and DHS together issued an Interim Final Rule revising the prevailing wage methodology in the H-2B program. The fact that both agencies together promulgated the final rule cured the defect identified by the 11th Circuit when it affirmed the injunction.

More recently, on January 17, 2014, the Consolidated Appropriations Act, 2014 was enacted. For the first time since the 2011 regulations, DOL’s appropriations did not prohibit implementation or enforcement of the 2011 wage rule, which means that the DOL can move forward to implement the final rule from 2011. Additionally, on Feb. 5, 2014, the 3rd Circuit held that DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H-2B program and that the 2011 rule was validly promulgated pursuant to that authority.

Because of so much litigation and confusion, DOL announced in March that recent developments in the H-2B program require consideration of the comments submitted in connection with the 2013 Final Interim Rule and that further notice and comment is appropriate. So DOL will now engage in further notice and comment rule-making in order to move toward implementation of the 2011 wage rule. In the meantime, DOL will continue to employ the H-2B wage methodology using the mean wage rate as the proper baseline for setting prevailing wage rates.

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E-2 Visas Closer to Reality for Israeli Citizens

Contributed by Melanie Corrin, Senior Attorney

On June 11, 2012 President Barack Obama signed the legislation that would add Israel to the list of treaty countries whose citizens can invest in United States businesses and apply for visa status to live and work in the United States.  Since that time, the two governments have been working diligently to agree on treaty terms and conditions.  It appears that Israel is close to ratification of the treaty, and once they are agreed upon the E-2 will be signed into effect.  Please contact an attorney with Joseph Law Firm, P.C. for additional information on this, or any other visa type.

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DHS Releases New Web-Based FOIA Request Form

Contributed by Melanie Corrin, Senior Attorney

Often times, the knowledge about an individual’s case that is in their immigration file is crucial to filing for relief in removal proceedings, or determining eligibility for status in the United States.  Freedom of Information Act requests are often the only way to obtain this information, and unfortunately can take up to eighteen months to receive in some instances.  Recently, the Department of Homeland Security has developed a consolidated, web-based form for FOIA requests.

The DHS Privacy Office has created a consolidated web-based form for submitting FOIA requests to DHS and any of its components.  Unfortunately, this form does not include CBP FOIA requests, however the site does provide a link to the CBP FOIA website.

If you believe you may benefit from this form, or need to speak with an attorney, please contact Joseph Law Firm, P.C.

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