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This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.
During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer "prosecutorial discretion" or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court's calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.
Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17's and P-52's; now, they're messing with I-765's.
Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.
If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document ("EAD") based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still "alive" for purposes of renewing the EAD.
Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.
One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client's case so she could file her case with the Asylum Office. Before the case was closed, I "lodged" her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).
When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:
An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.
But this is not what the regulation says. USCIS inserted the phrase "or closed" into the language of the actual regulation. The full sentence in the regulation actually reads:
An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.
Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client's case because it had been administratively closed. The actual language of the regulation states that only denied--not closed--cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone--a UAC no less--their work permit is shocking and distressing.
I have already escalated the issue to the USCIS Ombudsman, an office within USCIS that can assist with delayed or difficult cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).
If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.
Originally posted on the Asylumist: www.Asylumist.com.
By Bruce Buchanan, Sebelist Buchanan Law
On February 14, 2017, the USCIS finally released the new “Handbook for Employers – Guidance for Completing Form I-9” (also referred to as M-274). In a comical note (at least for immigration compliance gurus), the USCIS backdated the handbook with the date of January 22, 2017.
As you probably know, the M-274 Handbook for Employers is the USCIS’s guidance on how to complete and retain the I-9 form. Additionally, this M-274 handbook captures policy and regulatory changes since 2013, explains guidance regarding automatic extensions for certain Employment Authorization Documents, features more current sample documents, and provides an overview of unlawful discrimination due to citizenship status or national origin, document abuse, and retaliation. (These prohibited practices are not enforced by the USCIS; rather, they are enforced by the Immigrant and Employee Rights (IER) of the Department of Justice’s Civil Rights Division, which was formerly entitled Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)).
A new M-274 handbook was necessary due to USCIS’s introduction of the new I-9 form (eff. date 11/14/2016), which became mandatory for use for new hires on January 22, 2017. (This date explains the USCIS’s interest in backdating the M-274). As explained in a previous blog entry, the new I-9 form added a number of new features, including: modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both; replacing the “Other Names Used” field in Section 1 with “Other Last Names Used”; requiring “N/A” be entered instead of blanks in certain fields in Section 1; providing a box for employees to check if they did or did not use a preparer or translator; modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators; and adding an area in Section 2 to enter additional necessary information, such as for TPS extensions, OPT STEM extensions and H-1B portability. The new M-274 handbook offers guidance on how to utilize the new features of the I-9 form.
The 64-page handbook is an important tool for Human Resource employees, who handle I-9 compliance, as well as immigrant attorneys, who want the latest guidance from the USCIS. Many of its explanations are repetitive from the instructions that accompany the I-9 form or information available on I-9 Central – an Internet-based website that answers many I-9 related questions. However, the M-274 handbook is a convenient go-to document that answers many questions.
I recommend all individuals involved in I-9 compliance read the new handbook. For non-immigration compliance gurus, the reading of the handbook may be the answer for insomnia.
by Chris Musillo
The H-1B and L-1 Visa Reform Act of 2017, which was proposed recently in the Senate by Sens. Grassley (R-IA) and Durbin (D-IL) has now been offered in the House. The text of the House version of the bill has not yet been made public but it is expected to mirror the Senate version of the bill. The House version has four co-sponsors, Bill Pascrell, Jr. (D-NJ), Dave Brat (R-VA), Ro Khanna (D-CA), and Paul Gosar (R-AZ).
The Senate version of the bill has yet to attract many co-sponsors – no Senators have co-sponsored it since the initial four co-sponsors were announced on January 20. This is not surprising. The 2015 version of the bill only ever attracted six Senators co-sponsorship. One of which, Jeff Sessions, is no longer in the Senate and is now the embattled Attorney General.
Nonetheless, Sen. Grassley has long been a foe of the H-1B visa. While his version of the bill may not get passed into law, it would not be surprising if many of the ideas and concepts that underlie the bill make up a future revision to the H-1B visa.
The press release offered by the four House members says that the bill would modify the H-1B and L-1 visa programs by:
Requiring employers to make a good faith effort to recruit and hire American workers before bringing in foreign workers and prohibits employers from replacing American workers with H-1B and L-1 workers or giving preference to H-1B visa holders when they are filling open positions.
Modifying existing H-1B wage requirements, and establishes wage requirements for L-1 workers.
Prohibiting employers from outsourcing H-1B and L-1 visa holders to other sites unless the employer obtains a waiver which is available only in limited circumstances when the rights of American workers are protected.
Giving more authority to the Departments of Homeland Security and Labor to investigate fraud and abuse in the H-1B and L-1 programs by requiring the two departments to audit employers and share information, ensuring visa petitions are more effectively scrutinized.
Prohibiting companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B and L-1 visa holders.
Creating a new H-1B visa allocation system that gives top priority to workers who have earned advanced science, technology, engineering or mathematics (STEM) degrees from U.S. institutions.
Increasing penalties on those who violate the law, and provides visa holders with a list of rights before they enter the U.S. to ensure they are better protected against mistreatment or underpayment of wages.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Updated 03-08-2017 at 01:11 PM by CMusillo
I appeared on FOX & Friends. Here is the footage for those who missed it:
Updated 03-03-2017 at 08:51 AM by MKolken
Donald Trump's February 25 executive order directing the Department of Homeland Security to publish a list of crimes committed by immigrants, and his February 28 speech calling on DHS to create an office dealing with the victims of immigrant crime, recall some of the darkest periods in both American and world history when members of targeted ethnic groups, such as African-Americans in the US and Jews in Germany were stigmatized as "criminals" by the media and/or the government.
A comprehensive report in The Atlantic entitled: Trump Turns Unauthorized Immigrants into Scapegoats takes us back to some of this infamous history of racial attacks which most Americans thought we had put behind us, until Trump began his presidential campaign by demonizing Mexican immigrants as "criminals", "drug dealers" and "rapists" and calling for U.S. entry ban on Muslims from everywhere in the world (now reduced to seven countries - for the moment) as "terrorists". See:
In the above article, The Atlantic, citing historical information provided by a professor at the Harvard Kennedy School of Government, Khalil Gibran Muhammad, and which information is also familiar to many Americans, especially those who had already reached adulthood at the beginning of the 1960's civil rights era, reminds us that:
"Using crime to incite hatred has a long history in the United States...for at least a century after the end of slavery, northern newspapers generally identified African-Americans accused of committing crimes as 'negro' or 'colored'. "Southern newspapers generally referred to the offender as a 'negro criminal' in bold.
African-Americans were not the only group stigmatized as criminals in America.
The Atlantic continues:
"Government crime statistics reflected ethnic and racial fears too. In the late 19th and early 20th centuries, notes Muhammad, when native-born Americans were growing alarmed by mass immigration from Southern and eastern Europe, big city police forces broke down crime statistics by European nationality."
At this point it is worth noting that several studies, including one mentioned in the above article, show that crime rates among immigrants are lower than among native-born Americans. While there has been some unsubstantiated speculation that these studies may be "incomplete", see:
no one has convincingly refuted their conclusions.
The most disturbing historical precedent of all, however, was in the Nazis' attempt to single out and demonize Jews as criminals, especially in the notorious Der Stuermer publication, whose publisher, Julius Streicher, was later convicted and executed as a war criminal after the end of WW2.
The Atlantic reports:
"...the Nazi newspaper Der Stuermer ...published readers' accounts of Jewish crimes...Hitler's ministry of Justice ordered prosecutors to forward every criminal indictment against a Jew so the ministry's press office could publicize it."
Of course, no one could rationally accuse Donald Trump of advocating either anti-Semitism or genocide, and it is not my purpose to make any such suggestion.
But there is a very troubling similarity between using accusations of crime to stigmatize and scapegoat targeted groups of people in the past, and Trump's attempt to stir up animosity against immigrants in America by doing what amounts to the same thing today.
Attorney at Law
Updated 03-23-2017 at 04:38 AM by ImmigrationLawBlogs