New Guidance to Impact Legal Immigration of Foreign Students and Exchange Visitors

U.S. Citizenship & Immigration Services (USCIS) has issued revised policy guidance with respect to the accrual of unlawful presence by F, M and J nonimmigrants.  Under this guidance, effective August 9, 2018, F-1 students, M-1 vocational students and J-1 exchange visitors will begin to accrue unlawful presence upon failing to maintain the terms of their status.  Previously, unlawful presence only began to accrue upon a formal finding by a government agency, such as a denial of an immigration benefit, that the visa holder violated his/her status, or in the rare instance of overstaying the period of admission granted by the immigration authorities.  F, M and J visa holders are typically admitted to the U.S. for the duration of status (“D/S”) which means that technically, they cannot overstay their admission period; there is no admission end date.  However, under the new policy F, M and J visa holders can be deemed unlawfully present (and thus, inadmissible to the U.S. in the future) even where there is no overstay and no formal finding by a government agency.  In other words, certain acts – from the new guidance, it is unclear which acts in particular – can trigger unlawful presence unbeknownst to the visa holder.  Coupled with other recent revised policy guidance issued by this administration, practitioners expect that F, M and J nonimmigrants will be placed into removal proceedings more readily upon the denial of an immigration benefit in an overt effort by the current administration to curb legal immigration.

To understand and appreciate the impact of this new policy, it might be helpful to understand the unlawful presence ground of inadmissibility.  Unlawful presence can bar a visa holder from returning to the U.S. in any visa status.  Specifically, when one is unlawfully present for 6 months and up to less than 1 year, and then departs the U.S., s/he can be barred from returning to the U.S. for 3 years.  Unlawful presence for 1 year or more followed by a departure can cause a person to be barred from returning the U.S. for 10 years.  Moreover, the practical reality is that once a foreign national has been unlawfully present in the U.S. for any period of time, there is a chance that their subsequent visa applications will be unsuccessful at the discretion of the consular officer.

Pursuant to the new policy guidance, unlawful presence for F, M and J visa holders can be triggered by status violations such as:

·       ceasing to attend the F or M school (dropping out of school)

·       leaving the J-1 program

·       staying in the U.S. beyond the grace period at the end of the approved course of study,              practical training period or J-1 program

·       engaging in “an unauthorized activity”

While the first three scenarios are more straightforward, the last scenario is quite vague and therefore seriously problematic.  The new policy memo does not define what these “unauthorized activities” are.  Practitioners speculate that these activities might include: applying for a green card or to change status to a work visa (which is inconsistent with the required temporary intent of F, M and J visas); working without authorization or outside the terms of an authorized training program; or, even something as harmless as submitting a self-evaluation for the STEM OPT training plan a day later than the permitted 10 day window.  F, M and J nonimmigrants are strongly encouraged to stay in close contact with their Designated School Official (DSO) or J-1 Program Sponsor and to consult an experienced immigration attorney to determine whether their activities in the U.S. will trigger unlawful presence thereby hindering their ability to remain in the U.S. legally and apply for immigration benefits in the future.

Pursuant to the new policy guidance, unlawful presence will begin to accrue on day 1 when the visa holder violates the terms of his/her status.  However, due to the lack of clarity regarding which activities in particular might trigger unlawful presence, it will be very difficult for the visa holder (even the more sophisticated ones) to remain compliant.  At the same time, USCIS officers are granted broad discretion to find status violations without clear guidance or framework.    

This policy guidance comes in the wake of several policy updates aimed at reducing the levels of legal immigration in the United States authorized by President Trump’s Buy American and Hire American (BAHA) Executive Order issued in April 2017.  These policy updates have included: the elimination of deference to prior adjudications; increased requests for evidence; increased scrutiny of H-1B specialty occupation petitions; extreme vetting at U.S. consular posts abroad; amendments to the interpretation  of temporary intent; increased employer site visits; mandatory in-person interviews for all employment-based adjustment of status applicants; greater discretion in issuing straight denials rather than requests for evidence; and increased authority by USCIS to issue Notices to Appear in immigration court.

LTF will continue to monitor the implementation of the F, M, and J unlawful presence policy guidance as well as further developments stemming from BAHA.

Team LTF Wins Bracket in NYC Cup

Team LTF Wins Bracket in NYC Cup

Lepore Taylor Fox LLP is proud to announce its sponsorship of a Street Soccer USA youth soccer team.  Street Soccer USA is a non-profit organization under the umbrella of HELP USA that promotes the development of a national network of soccer programs for social change. Its programs facilitate causes such as lifting individuals out of homelessness and giving underprivileged youth access to coach mentors, homework help, equipment and community festivals.  

This past weekend, our sponsored team of 13-16 year old boys from the Sunset Park Community Club competed in the NYC Cup in Times Square and won their bracket of the tournament in penalty kicks.  Go team LTF!  We are so excited to support this wonderful group of talented young men.

DHS Issues Fact Sheet on Zero Tolerance

In recent weeks, the Trump Administration's "zero tolerance" policy, announced by Attorney General Jeff Sessions in April 2018, has been a source of controversy. The policy relates to offenses under 8 U.S.C. § 1325(a), which sets forth monetary and criminal penalties for unlawful border crossings. While this provision grants immigration officers broad discretion to determine which cases warrant the imposition of the harshest punishment, through the "zero tolerance" policy, the Trump Administration seeks to strictly enforce 8 U.S.C. § 1325(a). As such, all individuals who cross the border illegally will be subject to criminal prosecution. This policy focuses on illegal crossings at ports of entry and across the U.S. border, focusing primarily on the Southwest Border. It applies to all individuals crossing the border with families as well as those seeking asylum. The stated need for the policy is the 203 percent increase in illegal border crossings from March 2017 to March 2018.

To date, the most drastic consequence of the "zero tolerance" policy has been the separation of families. Pursuant to Flores v. Reno, or the “Flores Settlement,” a child may not be held in custody by the Government for more than twenty (20) days. As a result, parents have been detained for criminal prosecution in facilities separate from their children who have been taken into Health and Human Services (HHS) custody. The separation of these families is yet another example of the Trump administration taking action through executive orders and/or policy changes without consideration for the practical implications.

In response to public outcry over the separation of families, the Department of Homeland Security (DHS) published a document entitled "Myth vs. Fact: DHS Zero Tolerance," on June 18, 2018. In the document DHS purported to clarify the circumstances under which children are being separated from their families. One of these circumstances that, according to the DHS, warrant separation, is when the parent or legal guardian is referred for criminal prosecution. As noted above, however, under the "zero tolerance" policy, presently, virtually all adults unlawfully crossing the border are being referred for criminal prosecution pursuant to 8 U.S.C. § 1325(a). As a result, in the event of capture, virtually all children crossing unlawfully with their families are facing separation.

On June 20, President Trump issued an Executive Order entitled "Affording Congress an Opportunity to Address Family Separation," which purports to end the practice of separation. The Executive Order addresses separation by mandating that families be kept together while in custody. However, the Executive Order does not end the "zero tolerance" policy and, more importantly, does not set clear standards or procedures for ending the separation of families at the border; detaining families as one unit; or reunifying the families who have already been separated.

In response to continued public criticism, on June 23, 2018 DHS published a document entitled “Fact Sheet: Zero Tolerance Policy and Family Reunification.”  Some key points shared with the public in this fact sheet are:

·       As of June 20, 2018, Health and Human Services has 2,053 separated minors being cared for in Health and Human Services (HHS) funded facilities.

·       Currently, only 17% of minors in HHS funded facilities were placed there as a result of the “zero tolerance” policy. The remaining 83% arrived in the U.S. without a parent or guardian.

·       The steps ICE has taken towards reunification include:

o   implementation of an identification mechanism to ensure on-going tracking of linked family members throughout the detention and removal process;

o   designation of detention locations for separated parents;

o   working closely with foreign consulates to ensure that travel documents are issued for both the parent and child at the time of removal; and,

o   coordination with Health and Human Services for the reuniting of the child prior to the parents’ departure from the U.S.

·       CBP has already reunited 522 minors in their custody who were separated from adults as part of the “zero tolerance” policy.

·       A parent who is ordered removed from the U.S. may request that their minor child accompany them.

·       ICE has posted information in all of its facilities advising detained parents who are trying to locate or communicate with a separated child to call the Detention Reporting and Information Line for assistance.

·       Within 24 hours of arriving at an HHS funded facility, minors are given an opportunity to communicate with a vetted parent, guardian or relative.  While in HHS funded facilities’ care, every effort is made to ensure minors can communicate with their parent or guardian at least twice per week.

·         Minors in HHS funded facilities are permitted to call both family members and sponsors living in the U.S. and abroad. Attorneys representing minors have unlimited telephone access.

As of the posting of this blog on July 11, 2018, the administration has yet to reunite all minors with their families who were separated as a result of the “zero tolerance” policy.

The American Immigration Lawyers Association (AILA), a professional body of immigration attorneys, recently issued a statement arguing that while separation of families was the most controversial issue, it is the "zero tolerance" policy which is the root problem because even if the Executive Order is implemented effectively to end separation, the result will be the detention of entire families, which implicates both moral and legal issues. 

As written, the Executive Order calls for children and families, including asylum seekers, to be jailed indefinitely. Separation of families as well as the detention of families seeking protection in our country is contrary to international refugee law, to our own asylum law, and to the integrity of this nation. Our laws are clear: if you express a fear of returning to your home country, you have a right to a credible fear screening. If the asylum officer finds you have a credible fear of persecution in your home country, then you have a right to have an Immigration Judge hear your case.

The Executive Order purports to fast-track family cases, but children and their families must have meaningful access to justice. They need time to find a lawyer and prepare their cases. Fast-tracking these cases in the way this Executive Order contemplates would deny due process to detained children and families.

Contrary to some claims, family detention is not the only alternative to separating families. Alternatives to family detention such as electronic monitoring are less expensive and have proven effective, but the administration has chosen to halt them and institute these inhumane policies instead.

Announcement

A partnership is an arrangement where parties, known as partners, agree to cooperate to advance their mutual interests.  In this season of Thanksgiving, we are pleased to announce the beginning of a new partnership and express gratitude for the force in this world that brings people together in cooperation.  The force that creates and sparks things new.  In this, our inaugural blog post, we announce Lepore Taylor Fox, a partnership between Filomena Lepore Taylor and Rosanna M. Fox.

Lepore Taylor Fox is a law firm dedicated exclusively to the practice of U.S. immigration and nationality law now servicing the Greater New York City area and beyond.  Over the next several weeks we’ll be working overtime to establish this our law firm and set down roots for it to grow and flourish.  Our blog, The Immigration Observer, will stand in parallel with our work as a useful resource on legal developments in the field, thoughts, musings, whatever strikes our fancy if it’s related to immigration law.

Immigration law has a certain panache these days.  Who knew!  And now we are here to add to the immigration conversation, gratefully so since 1) we actually have the expertise to add something important, and 2) people might actually pay attention to it.  What a perfect brew. 

Please stay tuned while we explore topics that have many of us thinking.  These could include very granular immigration topics such as Temporary Protected Status, the Diversity Visa Lottery, and the H-1B Visa; or, quite broad topics like immigration trends and anecdotal observations from our practice.  When you live immigration law, the options are endless.  Do we sound appealing yet?

This might also be a good time for us to ‘give thanks’ to our closest friends and family who have been there for us through this transition from big law to hanging out our own shingle.  Thank you all, you know who you are.  We’ll work hard to make you proud. 

Much Ado About TPS

As we sit down with our loved ones to give thanks this Thursday and as we turn the corner to the next holiday season, we also reflect on the developments in immigration policy in the last 30 days. November 2017 brought several important changes including a reversal of the long-standing policy on deference to prior adjudications and the 30/60/90-day rule for intent analysis.  This blog post, however, focuses on the changes to the TPS program. 

TPS - Temporary Protected Status – is a special designation of certain foreign countries where, due to some special conditions, nationals of these countries who, at the time of the designation, are physically located in the United States and are prevented from returning home safely. In the past, TPS designation has been granted where there was an ongoing armed conflict (i.e. civil war), a natural disaster/force majeure (such as an earthquake or a tsunami), or an epidemic.  The TPS designation is at the sole discretion of the Secretary of Homeland Security and is granted for a limited period depending on the nature of the condition and how quickly the dangerous condition is expected to persist. The designation can be renewed if the US government determines that the dangerous condition persists.

The TPS designation enables eligible foreign nationals to remain in the United States for the duration of the designation (i.e. to live in the U.S. legally) and also to apply for work authorization.  To take advantage of TPS benefits, the foreign national must register with U.S. Citizenship and Immigration Services (USCIS) by filing Form I-821, Application for Temporary Protected Status.  Foreign nationals with criminal convictions or those subject to security-related grounds of inadmissibility are not eligible for TPS.  Upon receipt of work authorization issued by the USCIS, TPS beneficiaries are able to work legally.

There are presently 10 countries designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen.  On November 6, 2017, Acting Secretary of Homeland Security Elaine Duke announced the termination of the TPS designation for Nicaragua effective January 5, 2019 and Honduras effective July 5, 2018.  On November 20, 2017, it was announced that TPS for Haiti will end effective July 22, 2019.

Nicaragua and Honduras were initially designated for TPS on January 5, 1999, in the wake of a hurricane that devastated the area.  The designation was repeatedly renewed for the last 17 years due to the Secretary of Homeland Security’s findings that persistent dangerous conditions in the region continued to preclude a safe return of tens of thousands of Nicaraguans and Hondurans in TPS status. What this means in practical terms is that these individuals have spent almost two decades building a life in the U.S. legally and becoming law-abiding, English-speaking, educated, gainfully employed, tax-paying members of our society. With the impending termination of their TPS designation, they may be forced to abandon the life they have built for themselves and return to a country which continues to present the same or possibly even more severe dangers it did at the turn of the century.  Families also face the possibility of separation between foreign-born parents and U.S. citizen children.  It’s reported within Nicaraguan and Honduran communities that many individuals may choose to go ‘underground’ rather than depart the U.S., adding an additional layer to the overarching issue of illegal immigration. 

Haiti was initially designated for TPS on January 21, 2010 after an earthquake which devastated the country.  Haitian nationals who have held TPS status since 2010 face similar issues to Nicaraguans and Hondurans.  In its statement, the Department of Homeland Security (DHS) stated that ‘Based on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable statute, the current TPS designation must be terminated.’  Questions remain however as to whether country conditions have really improved in Haiti and whether this declaration by DHS will simply prompt Haitian TPS holders to go underground.

In its statement, DHS said that by gradually phasing out TPS for Nicaragua, Honduras and Haiti, it creates an opportunity for TPS beneficiaries to pursue other visa options.  This of course may be true for some, and immigration counsel should be sought to comb through any viable family or employment-based visa options.  But the fact remains that many uneducated, lower skilled workers may not have any options.  And of course, there is the fact that there is an ever-growing list of visa categories that are presently under direct attack by the current administration curtailing the incentive to apply in the first place.  Thus, while the administration has vouched to eliminate illegal immigration, it is evident that it is also heavily targeting “legal immigration” – law-abiding individuals who have followed the law yet are either being forced out of the country or finding it more difficult to maintain legal visa status.  This attack on legal immigration will be further explored by this blog in future posts.