News from the Alliance of Business Immigration Lawyers Vol. 15, No. 7D • July 28, 2019

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Headlines:

1. Expedited Removal Expands to Interior of United States -With immediate effect, DHS issued a notice to dramatically expand the process of expedited removal. The ACLU has promised to file a suit challenging the action.

2. USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations -A long-anticipated final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.

3. Judges Rule on Third-Country Asylum Ban -Following a joint interim rule issued by DOJ and DHS that restricted asylum, with some exceptions, for migrants traveling through third countries to reach the United States (most notably for many Central Americans passing through Mexico), two judges issued rulings in separate cases.

4. H-2B Petitioners Must Include Temporary Labor Certification Final Determination With Form I-129 -USCIS said it will consider a printed copy of the final determination as the original and approved temporary labor certification.

5. USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA -The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and DOL to align with President Trump’s “Buy American and Hire American” executive order.

6. New Publications and Items of Interest -New Publications and Items of Interest

7. ABIL Member / Firm News -ABIL Member / Firm News

8. Government Agency Links -Government Agency Links

Details:

1. Expedited Removal Expands to Interior of United States

With immediate effect, the Department of Homeland Security (DHS) issued a notice on July 23, 2019, to place certain persons determined to be inadmissible in expedited removal, with limited exceptions. Affected individuals include those who have not been admitted or paroled into the United States and who have not “affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.”

The notice makes the following points, among others:

  • Currently, immigration officers can apply expedited removal “to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States, provided that the alien arrived by sea and the other conditions for expedited removal are satisfied.”
  • For those who entered the United States by crossing a land border, DHS permits the use of expedited removal “if the aliens were encountered by an immigration officer within 100 air miles of the U.S. international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter.”
  • The DHS Secretary has the “sole and unreviewable discretion” under the Immigration and Nationality Act “to modify at any time the discretionary limits on the scope of the expedited removal designation.”
  • The Acting DHS Secretary is exercising his statutory authority to designate several categories of aliens not previously designated for expedited removal:

1. Aliens who did not arrive by sea who are encountered anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and

2. Aliens who did not arrive by sea who are encountered within 100 air miles from a U.S. international and border and who have been continuously presenting the United States for at least 14 days but for less than two years.

  • Aliens otherwise subject to expedited removal who indicate either an intention to apply for asylum or a fear of persecution or torture will be given further review by an asylum officer, including an opportunity to establish “credible fear” and thus potential eligibility for asylum.
  • An alien otherwise subject to expedited removal is given a “reasonable opportunity to establish to the satisfaction of the examining immigration officer that he or she was admitted or paroled into the United States.” Aliens determined by immigration officers to be subject to expedited removal nonetheless “will receive prompt review of that determination if they claim under oath, after being warned of the penalties for perjury, that they have been admitted for permanent residence, admitted as a refugee, granted asylum, or are a U.S. citizen.”

This is a major expansion of expedited removal. An estimate of at least 20,000 additional immigrants per year may be subject to expedited removal under the new policy. The American Civil Liberties Union (ACLU) quickly put out a statement calling the policy “unlawful,” noting that under the plan, “immigrants who have lived here for years would be deported with less due process than people get in traffic court,” and vowing to “sue to end this policy quickly.” In the meantime, immigration lawyers are counseling clients of the need to be able to quickly document that they have been in the United States for at least two years, including carrying such documentation with them at all times.

Written comments may be submitted by September 23, 2019, via the method set forth in the DHS notice.

Details: DHS Federal Register notice; ACLU statement

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2. USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations

U.S. Citizenship and Immigration Services (USCIS) has published a final rule, effective November 21, 2019, amending the regulations governing the employment-based fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and “modernize” the EB-5 program. The final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.

Among other things, the final rule:

  • Clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed
  • Clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date
  • Retains the 50 percent minimum investment differential between a TEA and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 rather than $1.35 million, as DHS initially proposed (the minimum non-TEA investment will be $1.8 million)
  • Bases future inflation adjustments on the initial investment amount set by Congress in 1990 rather than on the most recent inflation adjustment
  • Modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas may qualify as a TEA, eliminates a state’s ability to designate certain geographic and political subdivisions as high unemployment areas, and gives the Department of Homeland Security responsibility for directly making TEA designations “based on revised requirements in the regulation limiting the composition of census tract-based TEAs”

Practitioners are expecting a rush on EB-5 investments in the months before the effective date of November 21, 2019, which could increase the already long waits for EB-5 visas for those from high-volume countries by years, assuming Congress does not allocate additional visa numbers or eliminate per-country caps.

Details: USCIS announcement; Final rule

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3. Judges Rule on Third-Country Asylum Ban

Following a joint interim rule issued by the Departments of Justice and Homeland Security on July 16, 2019, that restricted asylum, with some exceptions, for migrants traveling through third countries to reach the United States (most notably for many Central Americans passing through Mexico), two judges issued rulings in separate cases:

  • Judge Timothy Kelly, of the U.S. District Court in Washington, DC, declined to issue a temporary order to block the asylum ban.
  • Judge Jon Tigar, of the U.S. District Court in San Francisco, California, issued a preliminary injunction to block the ban until the arguments can be considered and a final decision can be issued.

Details: News reports: CBS News, Immigration Impact; DHS announcement of joint interim rule; interim final rule; ACLU complaint

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4. H-2B Petitioners Must Include Temporary Labor Certification Final Determination With Form I-129

U.S. Citizenship and Immigration Services (USCIS) announced on July 26, 2019, that employers who file an H-2B application for temporary labor certification in FLAG will only receive a temporary labor certification electronically, as of July 3, when the Department of Labor implemented its new Foreign Labor Certification Application Gateway (FLAG) system for the H-2B temporary nonagricultural worker program. Those whose applications for a temporary labor certification were processed in FLAG must include a printed copy of the electronic one-page “final determination” of their H-2B temporary labor certification approval when submitting the Form I-129, Petition for a Nonimmigrant Worker.

USCIS said it will consider a printed copy of the final determination as the original and approved temporary labor certification. Applicants must also ensure that the DOL Case Number identified on the final determination matches the ETA Case Number provided in Part 5, Item 2 of the I-129.

Details: USCIS announcement

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5. USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently released its 2019 Annual Report.

The report notes that requests for help related to employment authorization documents (EADs) constituted the single largest source of work for the Ombudsman’s Case Team in calendar year 2018—over a third of its total case load. During a four-month period between December 2017 and March 2018, the number of incoming EAD cases spiked 400 percent, most related to processing delays.

The Ombudsman also noted that it explored in depth the H-1B visa program. The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and the Department of Labor to align with President Trump’s “Buy American and Hire American” (BAHA) executive order.

Details: USCIS Ombudsman’s Annual Report for 2019; BAHA order

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6. New Publications and Items of Interest

How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish.

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See Immigration Justice and AILA.

CBP accountability. A new website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. Click here to view the website.

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

Organizations providing help at the southern border and seeking non-lawyer and lawyer volunteers. Cornell Law School’s Migration and Human Rights Program has compiled a list of organizations providing help at the southern border, and seeking donations and non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is available here.

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

Advisories and tips:

  • Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory is here.
  • How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
  • Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.

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7. ABIL Member / Firm News

Charles Kuck was quoted by the Atlanta Journal Constitution in “Georgia’s Immigration Court Judges Among Toughest in Nation for Asylum.” “I have never seen [immigration] courts as dire as these ones [in Georgia] in the context of granting asylum, which seem to be so far out of the mainstream, not just of other courts around the country but of the actual law itself of asylum,” he said.

Mr. Kuck was quoted by the Atlanta Journal Constitution in “New Details: ICE Detainee From Mexico Dies in South Georgia.” “It is unconscionable. It should be shut down,” Mr. Kuck said of the Stewart Detention Center.

Mr. Kuck recently discussed “the flawed logic of the new Expedited Removal reg, and 9 things we can do to protect ourselves from ICE over-enforcement! We also talk about the Padilla/Matter of M-S- ruling on asylum bonds.” See #TheImmigrationHour on Twitter.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law.”

Cyrus Mehta and Stephen Yale-Loehr were quoted by the Times of India in “As U.S. EB-5 Visas Become Expensive, Indian Applications Expected to Slump.” Mr. Yale-Loehr said, “The new EB-5 changes will affect investors from India in a variety of ways. First, I predict a surge of EB-5 petition filings until November 21. After that, I expect a sharp decline in EB-5 petitions, as fewer people will be able to satisfy the new minimum investment amount.” Mr. Mehta noted that many of the attractive projects that are designated in targeted employment areas in metropolitan areas may no longer receive such a designation after November 21, so the investment will go from $500,000 currently for such a project to $1.8 million. “Under the current RBI [Reserve Bank of India] guideline of only allowing $250,000 to be remitted out of India per financial year, the higher investment amounts will serve as a further disincentive. I predict that there will be a rush to file EB-5 applications before the rule change on November 21.

Mr. Yale-Loehr was quoted by Reuters in “U.S. to Expand Rapid Deportation Nationwide With Sweeping New Rule.” Mr. Yale-Loehr said the new policy will create chaos and fear in immigrant communities and could have unintended consequences. “U.S. citizens could be expeditiously removed by error. You don’t have a lot of room to challenge that. You can’t go before an immigration judge,” he noted.

Mr. Yale-Loehr was quoted in several other media outlets about the expansion of expedited removal:

New York Times: “Trump Administration Expands Fast-Tracked Deportations for Undocumented Immigrants”

Law360: “DHS Vastly Expands Deportation Authority,” available by registering here.

Mr. Yale-Loehr was quoted by Tampa Bay Times in “Despite Trump’s Claims, ICE Is Arresting Way More Immigrants Without Criminal Records—Especially in Florida.” Immigration enforcement agents can now “round up anybody they could find, whether they had a criminal conviction or not,” he noted.

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8. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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