Every lawful permanent resident 18 years of age and over is required to carry with them at all times their green card. Failure to do so results in a misdemeanor offense and shall upon conviction, result in a fine not to exceed $100 or imprisonment for not more than 30 days, or both.
On July 5th, USCIS published guidance regarding issuance of Notices to Appear (NTA). The NTA is the charging document issued to foreign nationals who are deemed “removable” form the U.S. People who receive NTAs must appear before an immigration judge to determine whether they should be removed (i.e., deported).
For years, NTA issuance has been the responsibility of CBP (border enforcement and inspections) and ICE (interior enforcement). This new guidance requires USCIS to issue NTAs to individuals whose applications to extend or amend their stay or change status are unexpectedly denied by USCIS due to changing USCIS policies.
For example, an H-1B petition requesting an extension of stay is timely filed before the current H-1B status expires. However, due to USCIS backlogs, the petition is not adjudicated until after the underlying petition has expired. If USCIS unexpectedly denies the extension request, the H-1B worker will be issued an NTA and placed in removal proceedings.
Given H-1B backlogs at USCIS and the uncertainty of case adjudications under the current administration, it is more important than ever to file cases as soon as possible and use premium processing to achieve an expedited decision from USCIS.
USCIS: USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, only E-Verify shuts down. Otherwise, it’s business as usual.
DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.
CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR: EOIR’s detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
In a news update made available late yesterday, the McClatchy DC news service reported that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a regulatory change to the H-1B extension rules, as had previously been reported in a December 30, 2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is not considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year limit for H-1B workers who have reached certain milestones in the green card process. USCIS went on to note that “such a change would not likely result in these H-1B holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
The U.S. Department of Homeland Security announced today it will terminate a temporary protected status program for nearly 200,000 Salvadorans in September 2019.
DHS is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay. The reported proposal, which arises from President Trump’s “Buy American, Hire American” executive order, could impact thousands of H-1B workers and their families, many of whom have been waiting in line for a green card for years.
Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process are met such as having an approved I-140 petition but stuck in a quota backlog and not eligible for LPR filing or approval.
To date, DHS has not issued a proposed regulation or formal announcement regarding its intention to change its long-standing practice in adjudicating H-1B extensions under AC21. For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation.
Recently, E-Verify released a redesigned participation poster. The new poster informs current and prospective employees of their legal rights, responsibilities, and protections in the employment eligibility verification process.
The poster is now available in English and Spanish as one poster. As stated in the E-Verify User Manual, employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security. Employers may also display any of 16 foreign language versions of the poster. The new posters can be downloaded when participants log into E-Verify.
Employers are still required to display the Immigrant and Employee Rights (IER) Right to Work posters in English and Spanish. To learn more, see the E-Verify Participation Posters webpage.