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  1. Does Anybody Really Know What Time It Is? Not If You're Using the Asylum Clock (+ Some Other EAD Updates)

    If you're reading this blog, and presumably you are, you probably already know about the "Asylum Clock." The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (ďEADĒ). The Clock ďstopsĒ if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.

    The official Asylum Clock, kept in a secure vault at DHS.

    First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications--people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.

    To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The "Asylum Clock" counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it's often been a mess.

    EOIR--the Executive Office for Immigration Review--has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other--unspecified--delays can also cause the Clock to stop in the Asylum Office or in Court.

    Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.

    Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop--that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office--

    Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicantís case.

    Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office's point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.

    Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.

    Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, "An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General"). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.

    Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.

    So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.

    Originally posted on the Asylumist:
  2. Trump's "Nuremberg Laws" for Brown Immigrants: End Most Legal Immigration; Take US Citizenship Away From Millions of Americans. Roger Algase

    Update: July 19 at 1:32 pm:

    Just in case anyone wonders what could happen to thousands, or perhaps millions, of non-white children who now have the precious benefit of US citizenship through birth in this country to parents who happen to have been immigrants themselves, or who became US citizens through naturalization of their immigrant parents, if they have their citizenship yanked away from them by Donald Trump and the white supremacist zealots in his regime, one can read what is happening to the non-white, non-citizen children who are being locked in ice boxes and dog cages in Trump's America in the latest horrifying July 19 America's Voice report:

    More Damning Details of How Trump Administration is Treating Immigrant Children

    My earlier comment follows:

    As I have made clear in many previous comments, I have never even remotely suggested that Donald Trump is a Nazi sympathizer or supporter of Adolf Hitler, that he does advocates genocide, or that he is anti-Jewish. He is quite obviously none of the above, not even by the wildest stretch of the imagination.

    But it is no longer possible to ignore the fact that just as Hitler's attacks on the Jews blaming them for all of Germany's problems, which many people at first tried to downplay as only talk, ultimately led to anti-Jewish measures such as the Nuremberg laws which took German citizenship away from the Jews in 1936, Trump's relentless race-baiting and demonization of brown immigrants as "criminals", "rapists" "drug dealers", "gang" members" and "terrorists" are rapidly leading to actions which could not only cut off the chances of legal immigration for millions of people who might now be eligible under our laws, but could take away US citizenship from millions of other people based on little more than their ancestry or the color of their skins.

    First, there is the "shock and awe" of two new USCIS memos relating to the issuance of NTA's and RFE's which I will discuss in more detail in an upcoming comment. These two memos are described in detail, with links to the memos themselves, in a July 16 America's Voice article:

    USCIS Methodically Transforming From Immigration Benefit Agency to an ICE Deportation Feeder Operation

    I do not have a direct link to this article, but it is available through Google.

    But it would be a serious mistake to think that Trump's agenda, and that of his white supremacist supporters, is limited to making it harder, much harder, for brown people to become legal immigrants in the first place and scaring them away from even applying immigration benefits that they may be eligible for, as is the obvious purpose of these two memos (and of Trump's frenetic attacks on family and Diversity green cards which have been going on since late last year).

    We can be sure without any possible doubt that Trump's ultimate goal is taking away US citizenship from millions of Americans whose only problem (as he and his supporters see it) is that they, or their forbears, do not happen to come from "Countries like Norway" (to quote Trump's January 11 widely reported statement made at a White House meeting).

    The first prong of this two-prong attack involves setting up a USCIS "Denaturalization Force" to revoke citizenship of thousands, or potentially millions, of people who have become American citizens since 1990, but whose naturalization applications may have have had technical or other minor omissions or defects, as Professor Ruth Ellen Wassem describes in an article in The Hill:

    Not surprisingly, as Wassem reports, funding for this task force would not come from additional Congressional appropriations, but from diverting funds received from USCIS user fees away from processing applications for immigration benefits, such as work permits and green cards, over to the new task force, This would cause long additional delays in processing legal immigration (and citizenship) applications.

    There was a time, not so long ago, when denaturalization was regarded as a drastic measure, used only against Nazi war criminals who had tried to conceal their past in order to enter the United States. Now, in Donald Trump's America, it is no longer necessary to be a Nazi to lose citizenship. Now ordinary naturalized US citizens can do this too - and very likely will - if they have the "wrong" ancestry or skin color.

    But that is only the first prong of Trump's very likely upcoming assault on non-white American citizens The second, and even more potentially devastating prong of this attack is aimed at taking away birthright citizenship from millions of Americans by overturning or promoting an utterly bogus interpretation of the leading US Supreme Court case upholding birthright citizenship, US v. Wong Kim Ark 169 U.S. 649 (1898).

    Most recently, this attempt, which immigration restrictionists have been making in one form or another for many years, appears in a Washington Post column by a former Trump White Hose adviser with an anti-Muslim history, Michael Anton. See:

    I will discuss the Wong Kim Ark case in more detail in an upcoming comment. We are sure to be hearing more egregiously distorted interpretations of this landmark case, on which the entire foundation of America's birthright citizenship rests and is therefore one of the most important (and least understood) Supreme Court cases in our entire history, coming from Trump's white supremacist supporters in the very near future.

    Roger Algase
    Attorney at Law

    Updated 07-19-2018 at 08:46 PM by ImmigrationLawBlogs

  3. While Trump Grovels to Putin, Attacks on Non-White Immigrants Continue; Two USCIS Memos Threaten Future of Legal Immigration. Roger Algase

    The following comment has been revised as of July 17 at 10:06 pm.

    Donald Trump's obsequious "Thank You" to Vladimir Putin in Helsinki for election favors rendered (as alleged in the latest Mueller indictments of Russian agents), has earned him scathing condemnation across the spectrum of opinion in the US, including many of his own strongest supporters - even at Fox News, according to the latest reports. Even the word "treason" has appeared in some of the comments, and not only by liberal Democrats.

    While Trump's widely condemned groveling before the Russian tyrant, and what this may or may not mean for the world order and America's security are far beyond the scope of these comments, one cannot overlook the contrast between Trump's meekness in the face of a powerful foreign dictator who America's own intelligence professionals suspect may have caused incalculable damage to our election system and the functioning of our democracy on the one hand, and his savagery toward some of the most vulnerable and powerless people of all in American society- namely brown-skinned immigrants from what Trump has called "shithole countries" - and their even more vulnerable and defenseless children - on the other.

    In the face of the debacle caused by his kowtowing to the Russian dictator, will Trump go back to doing what he does best - demonizing, scapegoating and terrorizing immigrants who are not from "Countries like Norway" in order to divert attention away from his humiliating meeting with Putin and bolster the image of himself as America's Strongman?

    There are many signs that he will. Immigrant advocacy group America's Voice warns, for example, that after his "historically disastrous summit in Helsinki", Trump may try to recover by renewing his attacks on immigrants. According to the organization's Managing Director Pili Tobar, Trump's:

    "...playbook is as predictable as it is cynical, distract from the administration's harmful and dangerous actions by attacking immigrants and using fear-mongering as a diversion."

    Already there are signs that at least one commentator over at Trump's favorite mouthpiece, Fox News, is losing no time in following this strategy of diversion and demonization against a vulnerable immigrant - and American - group, namely Mexicans. quotes Fox News' Tucker Carlson as trying to equate Americans of Mexican descent voting legally on US elections with illegal Russian interference as follows:

    "Some do it more successfully than Russia like Mexico, which is routinely interfering in our elections by packing our electorate."

    In addition to this openly racist attack on Mexicans and Mexican Americans coming from a news outlet which is normally so pro-Trump that some have compared it to official state news organizations in dictatorships, the Washington Post reports that House Republicans are now busy boosting a plan to provide more money to the tune of $5 billion for Trump's favorite method of demonizing Mexican and other brown immigrants - his border Wall.

    And no matter how weak he may have been in his meeting with Putin, Trump is not afraid to project his twisted idea of "strength" by overseeing horrific abuses of immigrant children who were (or in some cases still are) separated from their parents in detention, as the Huffington Post reports:

    However, in one respect, comparing Trump with the Russian tyrant toward whom America's president is showing such great friendship and admiration is entirely justified in the context of America's legal immigration system. This is shown by the two latest USCIS memos relating to processing of petitions and applications for legal immigration benefits.

    These two memos together eliminate any vestiges of objectivity, fundamental fairness or due process of law which may now exist in the adjudication of either employment-based or family-based immigration petitions or applications, and instead turn the entire USCIS agency into a funnel for deportation.

    Instead of conducting legal immigration according to the rule of law and the clear intent of Congress, USCIS has now, acting entirely on its own, in effect made Donald Trump into the Vladimir Putin of America's legal immigration system, which is now threatened with destruction so far as any resemblance to the principles and procedures of democracy and a free and open society are concerned.

    With just two memos, issued without any Congressional sanction, hearings or input from America's elected representatives, USCIS has been transformed from an agency dedicated to carrying out the purpose of this country's laws relating to legal immigration which have been in effect for most of the past half century.

    Instead this agency is being turned into just another cog in a machine for carrying out Trump's authoritarian agenda of basing America's immigration system on the doctrine of white supremacy - or to put it in Trump's own words, as reported on January 11,"Countries like Norway."

    To be continued in my upcoming comment.

    Roger Algase
    Attorney at Law

    Updated 07-18-2018 at 07:23 PM by ImmigrationLawBlogs

  4. Threefold Difference in Immigration Bond Amounts by Court Location

    by , 07-17-2018 at 07:02 AM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC:

    In recent years somewhat over one in four detained individuals were ultimately successful in obtaining an Immigration Court custody decision that allowed them to be released by posting a bond[1]. So far this year, this success rate has been 30.5 percent, up from 18.4 percent during FY 2014. See Figure 1. Percent of Detained Individuals Granted Bond in Immigration Court, FY 2014 - FY 2018.

    This increase occurred primarily because more and more of those detained are receiving custody hearings. Judges have been actually no more willing to grant bond at these hearings. During FY 2014 in slightly less than half the cases (48.8%) were bond motions granted. A slightly lower proportion (47.1%) have been granted during FY 2018.
    Nationally, for bond hearings thus far during FY 2018, the median bond amount set was $7,500. This amount is up by 50 percent from the median of $5,000 five years ago.

    A median bond amount of $7,500 means half of all individuals who were successful in having their motions granted had to post a bond of $7,500 or more. Nearly 40 percent had to post a bond of $10,000 or more. Five percent had their bond amount set at $25,000 or more. Only 1 percent were released without having to post a dollar bond. And only one in twenty had a bond amount that was less than $2,500. See Table 1 for details on bond amounts at the end of this report.

    Click here for more.
  5. Employers Beware! New USCIS Memos Could Upend Legal Immigration

    In June and July 2018, the publication of 2 important USCIS memos puts US employers at risk. Never during my 40+ years of practicing immigration law have I seen such drastic changes to our immigration system promulgated by an administrative agency.

    Employers need to be aware of the content of these USCIS memos, how they could be impacted and how best to remain in compliance.

    USCIS Memo re: RFEs and NOIDs (7-13-18)

    On July 13, the USCIS published a memo regarding Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).

    When an employer sponsors a person for a temporary working visa or a green card, if USCIS needs more evidence in order to decide whether to approve or deny the benefit, they usually send an RFE to the employer.

    Typical RFEs either request additional information about the employer (Ability to pay prevailing wage, need for the employeeís services, etc.) or the employee (Justification for requiring a certain level of education or experience, etc.). In 2017, the number of RFEs for H-1B petitions increased 44% over the previous year.

    The employer is given time to respond to the RFE. After the response, the USCIS examines the original petition/application and the employerís response to the RFE before deciding the matter. In some cases, the USCIS issues a NOID and grants the employer a chance to respond.

    The July 13th memo does away with many RFEs and NOIDs. It grants USCIS examiners, in many cases, with the power to simply deny requests for immigration benefits when they determine that the evidence is ďinsufficientĒ to grant an application.

    But if an application or petition for a temporary visa or green card is denied by the USCIS, couldnít the employer simply refile for the benefit using premium processing?

    Even this may no longer be an option in many cases.

    USCIS Memo re: NTAs Where Person has No Status (6-28-18)

    What complicates this is an USCIS memo issued on June 28 stating that if a denial renders the person ďout of statusĒ, the USCIS will issue a Notice to Appear (NTA) which will place him in deportation proceedings before an Immigration Judge.

    This worst case scenario is to be avoided at all costs. The employer would be forced to terminate the employee who was being sponsored for a temporary working visa or a green card.

    What can Employers do to Avoid the Penalties Imposed by the New USCIS Memos?

    Below are a number of strategies to help you in sponsoring employees for temporary visas and green cards:

    1. If you are sponsoring an employee for a green card, make sure to keep renewing his temporary work status until his green card application is approved. This way, even if a problem arises with the green card application, the fact that he is in a temporary working status will prevent the USCIS from initiating deportation proceedings.

    2. Apply for extensions of H-1B, L-1, O-1 and other types of temporary working status 180 days before the status expires, and consider using premium processing. This way, should there be a problem in extending the temporary status, the employee will still be in proper status, and you can reapply for an extension.

    3. Temporary status is employer-specific. If Employer B is petitioning for H-1B status for an employee who is currently working for Employer A, it is a wise idea to use premium processing and not to have the employee change employers until after the petition and the application for a change of employers is approved.

    4. Always overdocument a petition or application. Clearly document that you have complied with the prevailing wage and posting requirements, that you have the ability to pay the employee and the reasons a particular university degree and level of experience are required for the job. In general, it is not a good idea to include the ability to speak a foreign language in the job requirements.

    5. Make sure that you choose an immigration law firm to represent your company whose lawyers have many years of experience working for employers and who have successfully obtained thousands of approvals of temporary work visas and EB green cards.

    6. Take a look at the following online resources:

    7. If you are an employer, feel free to call one of our employment-based attorneys, Cheryl Gertler or Que Hirschi for advice on how to avoid the penalties contained in the new USCIS memos.

    Updated 07-16-2018 at 01:22 PM by CShusterman

    Tags: employer, l-2 Add / Edit Tags
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