{00036145} 1. Openers ................................................................................................................................................................. 2 2. ABCs of Immigration: I-601A Provisional Unlawful Presence Waiver ........................................... 3 3. AskVisalaw.com.................................................................................................................................................. 7 4. Border and Enforcement News ..................................................................................................................... 9 • The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship ...................9 • Validity of Work Permits Extended for Asylum Applicants ...................................................... 13 5. News from the Courts .................................................................................................................................... 13 • Uniform Standard Set to Determine When a Conviction Involves Moral Turpitude ......13 6. News Bytes ........................................................................................................................................................ 14 • USCIS Announces Final Rule Adjusting Benefit Application and Fees ................................14 • USCIS Offers Immigration Relief to Those Affected by Hurricane Matthew ....................15 • USCIS Extends Public Comment Period for Draft Form I-765V ............................................ 15 7. Washington Watch .......................................................................................................................................... 16 • TPS Extended for Nepal........................................................................................................................ 16 8. In the News at ABIL ....................................................................................................................................... 16 • U.S. Supreme Court Denies Rehearing in U.S. v. Texas ......................................................... 17 Table of Contents
4. Border and Enforcement News ..................................................................................................................... 9
• The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship ................... 9
• Validity of Work Permits Extended for Asylum Applicants ...................................................... 13
5. News from the Courts .................................................................................................................................... 13
• Uniform Standard Set to Determine When a Conviction Involves Moral Turpitude ...... 13
• USCIS Announces Final Rule Adjusting Benefit Application and Fees ................................ 14
• USCIS Offers Immigration Relief to Those Affected by Hurricane Matthew .................... 15
• USCIS Extends Public Comment Period for Draft Form I-765V ............................................ 15
7. Washington Watch .......................................................................................................................................... 16
• TPS Extended for Nepal ........................................................................................................................ 16
8. In the News at ABIL ....................................................................................................................................... 16
• U.S. Supreme Court Denies Rehearing in U.S. v. Texas ......................................................... 17
Table of Contents
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• ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule .................................. 17
9. Updates from the Visalaw.com Blogs ...................................................................................................... 18
10. State Department Visa Bulletin: November 2016 ............................................................................ 19
1. Openers Dear Readers:
This is our last issue before the 2016 presidential election. This publication has reported on five previous presidential elections and in no instance, has the contrast between the two major party candidates been as stark as this year. Mrs. Clinton does not have a perfect pro-immigration record or platform, but most in the pro-immigration community support her. She once opposed drivers’ licenses for undocumented immigrants in New York State. She was in the Obama Administration during the height of the record-setting deportations. When thousands of children from Central America were fleeing hideous violence in their home countries, Clinton was hardly advocating opening our arms as a country to these kids.
But as a candidate, she has embraced a robustly pro-immigration comprehensive reform plan. She supports dramatically increasing legal immigration – both family and employment – and in putting undocumented immigrants on a path to citizenship. She also supports the enforcement provisions that were included in the Senate’s 2013 immigration reform bill. The one area she has hinted at changing from that bill regards the H-1B visa program which has come under fire in recent months for perceived abuses by the staffing industry. Clinton has promised that immigration will be one of her “First 100 Days” issues. Presidents traditionally have taken advantage of their honeymoon period to pass a signature bill. So if she wins, it is very likely immigration reform will come up very early in 2017 as a major legislative action.
Mr. Trump, on the other hand, has made his anti-immigration positions the centerpiece of his campaign. It started with his early speech labeling undocumented immigrants as being rapists and criminals and advocating for the building of a massive border wall. His position on legal immigration are someone vaguer, but on various occasions he has invoked protectionist rhetoric accusing immigrants of taking jobs from Americans. The fact that Senator Jeff Sessions, one of the most anti-immigrant members of Congress, is his main advisor on immigration issues, readers should be worried. Sessions opposes all immigration – both illegal and legal. Very clearly, if Mr. Trump wins, pro-immigration advocates will have a major fight on our hands.
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As always, we invite you to contact us if our firm can be of assistance. Please visit our web page at www.visalaw.com for information on reaching the firm or scheduling a consultation.
2. ABCs of Immigration: I-601A Provisional Unlawful Presence Waiver It’s a common scenario: Laura enters the United States from Mexico without permission. Eventually she meets a United States citizen, John, falls in love, and gets married. John files a petition for Laura, and Laura is now ready to become a Lawful Permanent Resident. However, there’s an obstacle in her way to gaining legal status: Laura is “inadmissible” to the United States because she has been “unlawfully present” for over 6 months. She cannot become a Lawful Permanent Resident unless she can waive this ground of inadmissibility.
To win a waiver, Laura must show extreme hardship to her US citizen or Lawful Permanent Resident spouse or parent if the waiver is not granted.
Until 2013, Laura would have had to leave the United States and apply for an I-601 waiver at the US consulate in Mexico. This would mean separation from her husband for months or sometimes over a year. And if the waiver was denied, Laura was out of luck - she had no legal way to return to the United States for ten years (if she had spent more than a year in the US unlawfully) or three years (if she had spent between 180 days and 1 year in the US unlawfully).
Attorneys often recommended against this process in all but the most extreme cases, because the risk of “getting stuck” outside the country was too high. Families like Laura and John often had no solution.
In January of 2013, USCIS announced the I-601A Provisional Unlawful Presence Waiver, allowing the spouses and children of United States citizens to apply for the waiver within the United States. Laura can now wait for USCIS to make a decision on her waiver, and only leave the country for her appointment at the consulate once she knows that the waiver is approved.
At first, the I-601A provisional waiver was only available to spouses and children of US citizens. Spouses and children of Lawful Permanent Residents still had to file the regular I-601 waiver applications at the consulate abroad. In 2016, USCIS expanded the provisional waiver program to include the relatives of Lawful Permanent Residents.
Who is eligible to apply?
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To apply for the I-601A waiver, you must:
• Be physically present in the United States; • Have an approved I-130 Petition (by a relative), I-140 Petition (by an employer), or
I-360 Petition (certain other special categories); • Be inadmissible to the United States because you have spent more than 180 days
unlawfully present here after your 18th birthday; • Have a qualifying relative who would suffer extreme hardship if the waiver is not
granted. o The qualifying relative must be a US citizen or Lawful Permanent resident; o The qualifying relative must be a spouse or parent (NOT your child, though
hardship to a child can be part of the argument for hardship to the qualifying relative);
o The qualifying relative does not need to be the person who filed the I-130 petition for you (in other words, if your wife petitions for you, the qualifying relative can still be your mother).
o You can have more than one qualifying relative; USCIS will “add up” their hardship in order to determine whether the overall level of hardship is “extreme.”
Who cannot, or should not, apply?
• If you entered the United States on a visa and overstayed (even if the visa was fake, or was in someone else’s name), you may be able to adjust status within the United States, without a waiver and without an appointment at the consulate abroad. You should consult an attorney before filing an I-601A waiver and before departing the United States.
• If you may be inadmissible for some other reason (for example, because of your criminal history, because you have committed fraud, because you have falsely claimed to be a US citizen, or because you have health problems such as a history of alcoholism), you must consult with an immigration attorney before filing a waiver. Even if your unlawful presence waiver is granted, the consulate can deny your visa if you are inadmissible for other reasons.
• If you have ever been in removal (deportation) proceedings, or if you have previously been ordered deported, you must have your removal proceedings reopened and terminated before applying for an I-601A waiver.
• If you are subject to the “permanent bar,” you are not eligible. The “permanent bar” applies to people in two scenarios:
o You have been unlawfully present in the United States for a total period of more than one year after 1996, and have then re-entered or attempted to re-enter the United States unlawfully. For example, if Laura entered the United States unlawfully in 1997, went back to Mexico in 2000, then entered unlawfully again in 2002, she is subject to the permanent bar and not eligible for the provisional waiver.
o You have been ordered removed from the United States, and then re-entered or attempted to re-enter the United States unlawfully. For example, if Laura entered the United States in 1997, was caught at the border and given an
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expedited order of removal, then re-entered unlawfully in 1998, she is subject to the permanent bar and is not eligible for the provisional waiver.
What is “extreme hardship”?
To win a waiver, the applicant must show that their US citizen or Lawful Permanent Resident spouse or parent would suffer “extreme hardship” if the waiver is not granted. USCIS has recently released guidelines for how it interprets the “extreme hardship” scenario.
In short, “extreme hardship” must be something beyond the normal difficulties of family separation (if the qualifying relative would not go with the applicant to his or her country) or relocation (if the qualifying relative would leave the US to live with the applicant). The analysis is highly individualized and holistic.
Common scenarios where USCIS is likely to find “extreme hardship” include, but are not limited to:
• The qualifying relative is an active member of the US armed forces; • The qualifying relative suffers from a serious illness, and treatment would not be
available in the applicant’s country; • The qualifying relative has a serious disability that would make life difficult in the
applicant’s country; • The qualifying relative would risk violence or persecution in the applicant’s country,
for example, because the qualifying relative is a same-sex spouse and the applicant’s country has outlawed same-sex relationships.
If my provisional waiver is granted, do I still have to leave the United States in order to become a Lawful Permanent Resident?
Yes. A common misunderstanding is that the new waiver process eliminates the requirement to apply for a visa at the consulate abroad. The waiver can reduce the time period you have to spend abroad (from over a year, to just a few weeks or months). However, if you are not eligible to adjust status within the United States, you will still have to leave in order to obtain your immigrant visa from the consulate abroad.
If I have been granted Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS), can I apply for the I-601A provisional waiver?
Yes. As long as you meet all of the other requirements of the program, you can apply. However, just like any other applicant, you must make sure that any prior deportation proceedings are reopened and terminated, and that you are not subject to other grounds of inadmissibility.
However, people with DACA and TPS who would be eligible for the 601A waiver also may have other options for gaining legal status within the US, without having to travel to a consulate and without having to prove extreme hardship to a relative. If you have DACA or TPS, and a US citizen or LPR parent or spouse, talk to an attorney about the possibility of traveling on advance parole and then adjusting status within the United States. This may be a less expensive and less risky option for people who qualify.
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How long will it take USCIS to decide a provisional waiver application?
As of October 2016, we are receiving decisions for cases filed between five and nine months ago. We anticipate that the waiting period could get longer now that the waiver has been expanded to include the relatives of Lawful Permanent Residents.
What is the filing fee for the I-601A Unlawful Presence Waiver?
The filing fee is currently $585. However, on December 23, 2016, the filing fee will increase to $930.
If my provisional waiver application is approved, does that guarantee that I will be granted an immigrant visa at the U.S. Consulate?
The approval of an I-601A Provisional Waiver does not guarantee that the U.S. consulate will grant an immigrant visa. The applicant must still show the consular officer that they are otherwise eligible for the immigrant visa. If the consular officer determines that the applicant is inadmissible on grounds other than previous unlawful presence, they will deny the visa. This is why it is important to have an experienced immigration attorney understand your full immigration history and criminal history (if any), and screen for other possible problems with your application before you “get stuck” outside the United States.
If my waiver application is denied, can I file it again in the future?
Yes, especially if your circumstances have changed (for example, if your qualifying relative has joined the military or has been diagnosed with an illness). However, you will need to pay the filing fee again. USCIS will expect an applicant who is applying a second time to provide additional evidence of extreme hardship or changed circumstances, above and beyond what was provided in the first application.
If my provisional waiver application is denied, can I still apply for a hardship waiver at the consulate?
Yes, if your provisional waiver application is denied, you can still leave the United States and submit a regular I-601 waiver at the consulate. However, USCIS is often more generous than consulates, and there is no appeal of a consular official’s denial. Therefore, if your I-601A waiver is denied, you should consult with an attorney and think carefully about the risks before departing the United States.
If my provisional waiver application is denied, will I be deported?
The Department of Homeland Security recognizes that it does not have the resources to deport every person who is present in the United States without authorization. For this reason, DHS focuses on deporting people who have connections to terrorism or gangs, who have criminal records, or who have entered the United States illegally since January 2014. If none of these categories apply to you, and if you have never been ordered deported before, it is unlikely that DHS would start removal proceedings against you when your waiver is denied.
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If you have ever been arrested, even if all the charges against you were dismissed, you should consult an attorney before submitting any application to USCIS.
If I have already applied for my immigrant visa, have been scheduled for an interview at the consulate, but have not left the United States, can I apply for a provisional waiver?
If your immigrant visa interview at the U.S. Consulate was scheduled by a consular officer before January 3, 2013 (even if the actual interview was scheduled for a date after January 3, 2013), you are not eligible to apply for a provisional waiver. This is also true for applicants who did not show up for their interview, cancelled their interview, or rescheduled their interview.
However, if you had an interview that was scheduled by the U.S. Consulate before January 3, 2013 and you are now applying for a visa based upon an I-130 Immediate Relative Petition filed by a different relative, you may be eligible to apply for the I-601A Provisional Waiver.
What type of information should I gather for my application?
When you consult an attorney about an unlawful presence waiver, you should be prepared to share the following information:
• Your immigration history (how many times you have entered the United States, what applications have been filed for you in the past, whether you have ever been in immigration court proceedings). Please bring written records, if you can.
• Your criminal history (how many times you have been arrested and when, what you were charged with, what your sentence was). Please bring court records, if you can.
• Think about how your qualifying relative would suffer if s/he had to stay in the United States without you, or if s/he had to leave the United States to go back to your home country. Consider your relative’s financial situation, medical needs, any history of mental health challenges or emotional trauma, educational history, etc.
The more information and documentation you can share with an attorney, the better she can analyze your case, explain the strengths and weaknesses, evaluate any risks, and get started preparing your case.
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3. AskVisalaw.com In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
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1) Question: I have been sponsoring an employee for an H1b for 3 years. He has a bachelor’s degree and he had 2 years of experience before he came to work for me. Since he now had a bachelor’s degree and 5 years experience, can I sponsor him for an EB2 petition? I have been told that his experience working for me does not count towards the 5 years, but intuitively it doesn’t make sense. That would mean that someone else can sponsor him for an EB2 but I can’t. Can you please explain this to me?
Answer: It is not only an issue of him using his experience. It is a question of what is the actual minimum requirement to perform in the position. In order to sponsor him under the EB2 category, the position has to have a minimum requirement of a master’s degree or the equivalent (generally a bachelor’s and 5 year of post degree experience) to be able to perform the duties of the position. Since your employee has been working in the position for the past 3 years without a master’s degree or the equivalent, then clearly the job can be done without a master’s degree or the equivalent.
Under certain circumstances you may be able to sponsor the employer for a different position if a master’s degree is required to perform the duties of the new position. And yes, other employees may be able to sponsor this foreign national for an EB2 for this position, if they can show that a master’s degree is a requirement to perform the duties of the position at their company.
In the meantime, if you file the PERM application early enough, you should be able to continue extending his H-1B until he is eligible to apply for the green card under the EB3 category.
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2) Question: I am a U.S. citizen and my husband is in the U.S. illegally. I filed an I-130 and it was approved. It is my understanding the visa is available to him but my attorney advised me not to move forward with filing the Affidavit of Support or the DS-230 or go for the interview abroad. Why is this? The laws will not change for a longtime. Isn’t it better for my husband to go home and follow through with everything and appeal than to sit here in the U.S. and do nothing?
Answer: This is one of those tough questions that do not have a one-size-fits-all answer. I meet couples like this all the time, where the foreign national is married to a U.S. citizen, but because they entered the U.S. without inspection, and are not eligible to be grandfathered under the 245(i) “amnesty” or one of the other possible exceptions, they are not eligible to apply for a green card by filing for Adjustment of Status (Form I-485) in the
U.S. Also, since the foreign national has been unlawfully present in the U.S. for more than 6 months, they would be subject to a 3 or 10 year bar of inadmissibility if they leave the U.S.
This is one of those situations where you absolutely need an experience immigration lawyer that you trust. This is because some couples are eligible to apply for a waiver of inadmissibility based upon extreme hardship to the foreign national’s U.S. citizen or Permanent Resident spouse or parent. But extreme hardship is more than just the usual hardship caused when a married couple is separated from each other. There has to be other factors there in order for an adjudicator to determine that there is extreme hardship. Examples of additional hardship that would be considered are health issues, financial considerations, loss of opportunity for education, personal considerations such as close relatives in the U.S. and age of the parties, and other factors such as cultural, religious and ethnic obstacles. These are just some examples and as there is no limit to the type of hardship that can be shown to explain how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or permanent resident relative. The point is that each couple needs to have their particular situation assessed for the possibility of showing extreme hardship by a competent attorney they trust. So it may be that your attorney does not feel you currently have a strong enough case for extreme hardship required for the waiver.
Also, if the foreign national has entered the U.S. without inspection more than once, or has entered the U.S. without inspection after having accrued one year or more of unlawful presence, or has entered the U.S. without inspection after being removed by the U.S. government, then it may be that the foreign national is permanently barred from receiving a visa to reenter the U.S. In such a case the I-601 or I601A waiver may not be available as an option.
These are all factors that need to be discussed with your attorney. If you are not sure that your attorney is giving you the best advice, or you feel that you have a stronger case for hardship than your attorney says, then you always have the option to get a second opinion.
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4. Border and Enforcement News
Questions and Answers:
The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship
By Lily S. Axelrod Last Friday, US Citizenship and Immigration Services (USCIS) revised its Policy Manual, publishing new guidelines for its officers applying the “extreme hardship” standard in waiver applications. Read on for questions and answers about the new guidelines.
1. What are these new guidelines for? To enter the United States or become a Lawful Permanent, most applicants must meet a list of requirements collectively called “admissibility.” If an applicant is “inadmissible,” for example, because she has a disqualifying criminal conviction or past immigration violation, she may still succeed in her application if she can show that she is eligible for a waiver of inadmissibility. Several common waivers of inadmissibility require the applicant to show that denial of the waiver would cause “extreme hardship” to the applicant’s US citizen or Lawful Permanent Resident relative. Our laws and regulations do not clearly specify what “extreme hardship” is, or how a decision maker should evaluate whether a waiver applicant has proven her case. USCIS’ updated Policy Manual explains how its officers should interpret the standard and adjudicate individual cases. For the most part, the new guidelines are not a substantial departure from previously-released information about how USCIS officers and appellate courts understand the “extreme hardship” standard.1 For more information about the waivers of inadmissibility affected by these guidelines, please see Chapter 1 of the new guidelines, and some of our past articles:
• The Provisional Unlawful Presence Waiver • More information on Unlawful Presence Waivers:
o AskVisalaw.com o Previous Deportation or Unlawful Presence
2. When do the new guidelines take effect?
On December 5, 2016. USCIS has not announced whether it will only apply the new standards to applications submitted after December 5, or whether it might also apply the standard to applications submitted earlier, but adjudicated after December 5.
3. What’s new in the guidelines?
1 The following resources offer more detailed information on how USCIS has been interpreting the standard:
• 2012 internal USCIS training materials for the I-601 waiver: http://www.aila.org/infonet/uscis-presentation-extreme-hardship-discretion
• 2013 internal USCIS training materials for the I-601A provisional unlawful presence waiver: http://www.aila.org/infonet/uscis-training-slides-on-i-601as-extreme-hardship
• AAO decisions on “extreme hardship” in the I-601 context: http://www.aila.org/infonet/aao-decisions-on-extreme-hardship
• USCIS also looks to BIA precedent cases for interpretation of “extreme hardship” in the Suspension of Deportation context: https://www.justice.gov/eoir/bia-precedent-chart-ref-end#TOC2_165
The biggest change is that applicants can now focus on the most likely scenario if the waiver is denied: either a “relocation” scenario where the qualifying relative leaves the United States to live with the applicant, or a “separation” scenario where the qualifying relative remains in the United States. Currently, applicants must show that the qualifying relative would likely suffer extreme hardship in both scenarios. For example, if the applicant is Mexican and the qualifying relative is her father, the applicant currently must show that her father would suffer extreme hardship if he is forced to move to Mexico with her, and that he would also suffer extreme hardship if he remains in the United States without her. Under the new policy, the daughter can submit evidence about what her father would actually choose (for example, a “credible statement” from her father explaining that he would definitely move to Mexico with rather than remain in the United States without his daughter). Her application can then focus on the hardship to her father if he moves to Mexico. Practically speaking, this is not a large change, because the USCIS officer still has broad discretion to request additional evidence about the alternative scenario if the application does not convince her that the father would, in fact, move to Mexico. Unless there is an obvious reason that one scenario is dramatically more likely than the other (for example, the qualifying relative has a serious medical condition requiring treatment which would be completely unavailable in the applicant’s country, or the qualifying relative serves in the armed forces and is not free to travel), applicants and advocates should still thoroughly document both the “relocation” and “separation” scenarios to avoid unnecessary delays and requests for evidence.
4. What’s disappointing about the new guidelines? While USCIS recognizes that family separation or relocation to a foreign country is nearly always challenging, the agency continues to insist that applicants must show “more than the usual level of hardship.” Advocates had hoped USCIS would recognize that although some types of hardship are very common, they can still be “extreme.” However, the agency maintains that “common consequences” of denied waivers cannot, alone, rise to the level of extreme hardship. These consequences include family separation, economic difficulties, challenges “readjusting to life in the new country,” “the quality and availability of educational opportunities abroad,” “inferior quality of medical services and facilities,” and challenges finding a job in the qualifying relative’s chosen profession. Advocates including the American Immigration Lawyers Association had also hoped the agency would decide that certain situations would lead to a “presumption” of extreme hardship. For example, AILA suggested that when the qualifying relative is a spouse and
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the couple has been married for over three years, or the couple has a US citizen child, USCIS should presume that there is extreme hardship. USCIS declined to delineate any “presumptions” of hardship, instead designating a list of “particularly significant factors” which would “weigh heavily in support of finding extreme hardship.” These factors are:
• The qualifying relative was previously granted certain statuses for vulnerable groups such as Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status for victims of trafficking, or asylum or refugee status for victims of persecution;
• The qualifying relative or another family member has a severe disability; • The qualifying relative is a member of the US armed forces; • The Department of State has issued a severe travel warning for the applicant’s
country of origin, suggesting that dangers there are so serious that US citizens should not travel anywhere in the country;
• The applicant’s children, regardless of their citizenship or immigration status, would suffer serious disruption in their care.
5. What’s reassuring about the new guidelines?
The policy manual reinforces and elaborates on the core idea that adjudicators should take a holistic, individualized look at the entire application in context, and apply generous standards in determining whether the applicant has met the burden of showing “extreme hardship” to her qualifying relative. First, USCIS has confirmed that it uses the generous “preponderance of the evidence” standard. In other words, the applicant must only convince the adjudicator that it is “more likely than not” that the qualifying relative would suffer extreme hardship, not that extreme hardship is certain or extremely likely. USCIS has also confirmed that it will follow a line of Ninth Circuit cases holding that, when there is more than one qualifying relative (for example, a spouse and a parent), adjudicators should “add up” their hardship. This allows USCIS to approve a waiver application where neither relative’s hardship alone rises to the level of “extreme hardship,” but considered in the aggregate, the total level of hardship is extreme. USCIS has reminded us that while “common factors” such as lack of educational opportunities or lower quality medical care in the applicant’s home country cannot alone merit a finding of “extreme hardship,” “common hardship” factors considered in the aggregate and with other factors in context can still contribute to a finding of “extreme hardship.” Finally, Siskind Susser commends USCIS for continuing to recognize the challenges facing same-sex couples and gender-nonconforming individuals by including an example scenario of a same-sex couple. In its hypothetical, USCIS notes that same-sex couples may face extreme hardship when relocating to a country where “same-sex
marriages are not recognized . . . same-sex conduct is illegal” and “societal discrimination and harassment . . . based on sexual orientation or gender identity” is common.
6. How do these guidelines affect the “extreme hardship” standard in removal proceedings?
The USCIS policy applies only to Department of Homeland Security officials, who adjudicate waiver applications within the United States, as well as from individuals applying for visas at consular posts abroad. Immigration judges, who are employees of the Department of Justice, also adjudicate waivers in removal (deportation) proceedings. While USCIS’ policy manual does not bind immigration judges, they may still look to the manual for guidance in interpreting the “extreme hardship” standard consistently.
7. How will these guidelines affect me? If you are interested in coming to the United States or applying to be a Lawful Permanent Resident, a consultation with an attorney can help you evaluate whether you are inadmissible, and if so, whether there is a waiver available for your situation. ***
Validity of Work Permits Extended for Asylum Applicants
USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. The change went into effect on October 5, 2016. It applies to all applications that were pending as of October 5 and all applications filed on or after October 5.
Uniform Standard Set to Determine When a Conviction Involves Moral Turpitude
On October 12, 2016, the Board of Immigration Appeals (BIA) released a decision regarding the methodology for determining when a conviction is for a crime involving moral turpitude. The decision was rendered based on the Matter of Cristoval SILVA-TREVINO, Respondent. The case revolves around a Mexican citizen who came to the U.S. as a lawful permanent resident in 1962. In 2004, he was convicted of sexual misconduct with a minor. The Department of Homeland Security decided that this conviction was grounds for removability.
The respondent applied for adjustment of status but the presiding immigration judge found that he was ineligible because he had been convicted of a crime involving moral turpitude, rendering him inadmissible according to the Immigration and Nationality Act (INA). The respondent appealed the decision and the BIA ruled that he was not inadmissible because the Texas Penal Code criminalized some conduct that did not involve moral turpitude and the record of conviction did not contain any information about the precise conduct that the respondent was guilty of. In 2007, the Attorney General vacated the BIA’s decision and set forth a framework for determining when a conviction is for a crime involving moral turpitude with regard to this specific case. Based on this framework, the presiding immigration judge concluded that the respondent had indeed been convicted of a crime involving moral turpitude and was ineligible for adjustment of status. But when the respondent filed a petition for review with the United States Court of Appeals for the Fifth Circuit, the court vacated the decision because it had been made based on evidence outside the record of conviction and specific phrasing suggested that this was prohibited. The case was remanded for further proceedings. Finally, in 2015, the Attorney General decided that in light of the disagreement amongst the courts it was necessary to develop a new framework for determining when a crime involves moral turpitude. This new framework would be a nationally uniform standard. He vacated the results of the case before this point and remanded the record for the BIA to develop the new framework. The BIA concluded that the categorical and modified categorical approaches provide the appropriate framework for evaluating whether a conviction is one that involves moral turpitude. Because in this particular case the respondent was not convicted of a crime that categorically involved moral turpitude, and there was no basis to apply the modified categorical approach, the BIA ruled that he was not inadmissible under the INA clause of a crime involving moral turpitude, and is therefore eligible for adjustment of status. To view the case in full, please click here. *****
6. News Bytes
USCIS Announces Final Rule Adjusting Benefit Application and Fees
USCIS announced a final rule adjusting the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016. USCIS receives most of its funding from the fees paid by applicants and petitioners for immigration benefits. As a result, they are legally required to conduct fee reviews every two
years to determine the funding level necessary to administer immigration laws, process benefit requests, and provide infrastructure to support those activities. Fees will increase for the first time in six years by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. For more information, please click here. ***
USCIS Offers Immigration Relief to Those Affected by Hurricane Matthew
USCIS offers the following immigration relief measures to people affected by natural disasters, such as Hurricane Matthew:
• Change of nonimmigrant status or extension of nonimmigrant stay for an individual currently in the U.S., even if the request is filed after the authorization period of admission has expired
• Re-parole of individuals previously granted parole by USCIS • Expedited adjudication of requests for off-campus employment authorization for F-1
students experiencing severe economic hardship • Expedited adjudication of employment authorization applications, where appropriate • Consideration of fee waivers due to an inability to pay • Assistance for those who received a Request for Evidence of Intent to Deny but were
unable to appear for an interview, submit evidence, or respond in a timely manner • Replacement of lost or damaged immigration or travel documents issued by USCIS,
such as a Permanent Resident Card • Rescheduling of a biometrics appointment
For more information, please click here.
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USCIS Extends Public Comment Period for Draft Form I-765V
USCIS is allowing an additional 30 days for public comments regarding a new form, Application for Employment Authorization for Abused Nonimmigrant Spouse. Form I-765V will be used to collect information that is necessary to determine if an applicant is eligible for an initial Employment Authorization Document (EAD), a new EAD, or an interim EAD as a qualifying abused nonimmigrant spouse. Comments will be accepted until November 17, 2016 and should address the following points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility
• Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used
• Enhance the quality, utility, and clarity of the information to be collected • Minimize the burden of the collection of information on those who are to respond
For more information, including instructions on how to submit comments, please click here.
To view a draft version of Form I-765V, please click here.
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7. Washington Watch
TPS Extended for Nepal
The Secretary of Homeland Security has extended Temporary Protected Status (TPS) for eligible nationals of Nepal for an additional 18 months. The extension also applies to individuals without nationality who last habitually resided in Nepal. It goes into effect on December 25, 2016 and ends June 24, 2018. Current TPS Nepal beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period beginning October 36, 2016 and ending December 27, 2016. The extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). The new EAD will have an expiration date of June 24, 2018. Some re-registrants may not receive their new EAD until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Nepal EADs with a December 24, 2016 expiration date for six months. These existing EADs are now valid through June 24, 2017. For more information, including instructions on how to re-register, please click here. *****
8. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
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U.S. Supreme Court Denies Rehearing in U.S. v. Texas
The U.S. Supreme Court denied rehearing of United States v. Texas on October 3, 2016. The Court's refusal to reconsider the case, on which it was deadlocked 4-4 in June, means that several Obama administration deferred action programs remain blocked by the U.S. Court of Appeals for the Fifth Circuit's order. The programs include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The original DACA program is unaffected and has continued since 2012. President Barack Obama's nomination of Merrick Garland to the Supreme Court has languished for more than 200 days as Senate Republican leaders have refused to take up the matter, holding out for the next presidential election. In its petition for rehearing, the Obama administration had argued that the Court should grant rehearing to provide for a decision when the ninth Justice is appointed, rather than leaving in place "a nationwide injunction of such significance": Vol. 12, No. 10B ▪ October 15, 2016 Unless the Court resolves this case in a precedential manner, a matter of "great national importance" involving an "unprecedented and momentous" injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States. Other litigation is progressing or may be taken now that the Supreme Court has decided not to take up the case again. Meanwhile any efforts toward comprehensive immigration reform continue to languish. Stay tuned. The petition for rehearing is at http://www.scotusblog.com/wp-content/uploads/2016/08/15-674- Petition-for-Rehearing.pdf. For more information on DAPA and DACA, see https://www.ice.gov/daca. For more on U.S. v. Texas, see http://www.scotusblog.com/casefiles/cases/united-states-v-texas/.
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ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule
The Alliance of Business Immigration Lawyers (ABIL) recently submitted comments on the Department of Justice's proposed rule, "Standards and Procedures for the Enforcement of the Immigration and Nationality Act." Among other things, the proposed rule would provide a new definition of the phrase "citizenship status," amend a discriminatory intent requirement for employers, expand the time periods for investigation and deadlines to file discrimination complaints, and change the definition of "charging party." ABIL's comments note: [T]he proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices.
These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer's actions were not motivated by immigration related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO). ABIL member Angelo Paparelli wrote the comments on behalf of ABIL and submitted them to Attorney General Loretta Lynch and the Department of Justice on October 13, 2016. The proposed rule is at 81 Fed. Reg. 53965, with deadline extended at 81 Fed. Reg. 63155.
*** This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
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9. Updates from the Visalaw.com Blogs Greg Siskind’s Blog on ILW.com
• Guest Post: The USCIS Policy Manual’s Newly-Released Guidance on Extreme Hardship by Lily Axelrod
• USCIS Issues Long Awaited Extreme Hardship Guidance • Immigration and the Third Debate • My Comments on Parole for Entrepreneurs Proposed Regulation • Immigration Left Off the Questions List Again in Debates • Immigration Programs To Be Extended Through December • Immigrant Beauty Queen Suddenly Factors Into the Presidential Debate
Bruce Buchanan's Blog on ILW.com
• Consulting Firm Settles with DOL Concerning H-1B Workers • Company Agrees to Pay $195,000 to Settle Immigration Discrimination Claim • Judge Dismisses Claims Against Disney and Consulting Firms for Alleged Visa Abuse • Citizenship Status & National Origin Discrimination Claims Fail • IT Companies and Company Officials Indicted for H-1B Visa Fraud • Immigrant Personal Injury: Do You Have a Case?
10. State Department Visa Bulletin: November 2016 Number 98 Volume IX Washington, D.C A. STATUTORY NUMBERS This bulletin summarizes the availability of immigrant numbers during November for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center. Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin. 1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by October 11th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country
limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
A. FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)
Family- Sponsored
All Chargeability Areas Except Those Listed
CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 22OCT09 22OCT09 22OCT09 08APR95 01SEP05
F2A 22JAN15 22JAN15 22JAN15 08JAN15 22JAN15
F2B 15APR10 15APR10 15APR10 08OCT95 15FEB06
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F3 22JAN05 22JAN05 22JAN05 01DEC94 08AUG94
F4 01DEC03 01AUG03 15FEB03 08MAY97 08MAY93
*NOTE: For November, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 08JAN15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08JAN15 and earlier than 22JAN15. All F2A numbers provided for MEXICO are exempt from the per-country limit.
B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date. The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application. Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)
Employ- ment based
All Charge- ability Areas Except Those Listed
CHINA- mainland born
EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES
Other Workers 01JUL16 01SEP05 01JUL16 08MAR05 01JUL16 01APR11
4th C C 15JUL15 C C C
Certain Religious Workers C C 15JUL15 C C C
5th Non-Regional Center (C5 and T5) C 08MAR14 C C C C
5th Regional Center (I5 and R5) C 08MAR14 C C C C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of
{00036145}
notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date. The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application. Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.
Employment- based
All Chargeability Areas Except Those Listed
CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAR13 22APR09 C C
3rd C 01MAY14 01JUL05 C 01SEP13
Other Workers C 01AUG09 01JUL05 C 01SEP13
4th C C C C C
Certain Religious Workers C C C C C
5th Non-Regional Center (C5 and T5) C 15JUN14 C C C
6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on final action dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF NOVEMBER Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2017 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For November, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
AFRICA 13,500
Except: Egypt: 7,500 Ethiopia: 7,500
ASIA 3,000 Except: Nepal: 2,000
EUROPE 13,000
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NORTH AMERICA (BAHAMAS) 3
OCEANIA 475
SOUTH AMERICA, and the CARIBBEAN 575
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2017 program ends as of September 30, 2017. DV visas may not be issued to DV-2017 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2017 principals are only entitled to derivative DV status until September 30, 2017. DV visa availability through the very end of FY-2017 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN DECEMBER For December, immigrant numbers in the DV category are available to qualified DV-2017 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas Except Those Listed Separately
AFRICA 20,400
Except: Egypt: 8,700 Ethiopia: 9,000
ASIA 3,500
Except: Iran: 3,200 Nepal: 2,200
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EUROPE 14,000
NORTH AMERICA (BAHAMAS) 5
OCEANIA 525
SOUTH AMERICA, and the CARIBBEAN 650
D. EXTENSION OF TWO EMPLOYMENT VISA CATEGORIES An extension of both the Employment Fourth Preference Certain Religious Workers (SR) and Employment Fifth Preference Pilot (I5 and R5) Categories was signed into law in late September. As indicated in item D of the Visa Bulletin which announced the October final action dates, the extension has resulted in the immediate application of the following final action dates for the month of October:
SR: “Current” for all countries except El Salvador, Guatemala, and Honduras which are subject to a June 15, 2015 final action date for October.
I5 and R5: “Current” for all countries except China-mainland born for October. China-mainland born applicants are subject to a February 22, 2014 final action date for October.
E. ATTENTION DV-17 LOTTERY WINNERS Have you checked your Diversity Visa (DV) 2017 status recently? Additional entrants were added to “selected” status in September! Check your status using your unique confirmation number on the Entrant Status Check (ESC) website www.dvlottery.state.gov. Selected entrants are encouraged to complete the online DS-260 application immediately to schedule an interview appointment at the appropriate U.S. Embassy or Consulate. www.dvlottery.state.gov F. OBTAINING THE MONTHLY VISA BULLETIN To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:
To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:
[email protected] and in the message body type: Signoff Visa-Bulletin
The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on final action dates for the following month. Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:
