E-1 and E-2 Visas Available to New Zealand Nationals:

Effective June 10, eligible New Zealand nationals can apply for E-1 and E-2 nonimmigrant visas at the U.S. Consulate in Auckland.  The embassy advises that generally it takes 10 business days for an officer to review the case, but during peak times, it can take as long as three weeks.

Fourth Circuit Finds Rescission of DACA Violative of the APA as Arbitrary and Capricious

On May 17, the Court of Appeals for the Fourth Circuit found that the Administration’s rescission of DACA violated the Administrative Procedures Act (APA).  The Court of Appeals agreed with the district court that the plaintiffs’ challenges are subject to judicial review and that the government’s decision to rescind DACA did not require notice and comment under the APA. But, the Court of Appeals held that the government’s decision to do so violated the APA because it was not adequately explained and thus was arbitrary and capricious. The Fourth Circuit also held that the district court erred in ordering the government to comply with its policies promulgated in 2012 on the use of information provided by DACA applicants and enjoined it from altering those policies. (Casa de Maryland v. DHS)

Update on Travel Ban and the Courts:

On May 2, a federal district court in Maryland denied the government’s motion to dismiss the plaintiffs challenges to the 9/24/17 Presidential Proclamation, finding that the plaintiffs had put forward factual allegations sufficient to show that the 9/24/17 proclamation is not rationally related to legitimate national security and information-sharing justifications and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.

Student and Exchange Visitor SEVP Filing Fees to Increase

In an effort to better fund the Student and Exchange Visitor Program (SEVP), DHS is raising the fees associated with the program.  Effective June 24, 2019, the fee for each F or M nonimmigrant student applicant filing Form I-901 will be $350 (an increase of $150); for full program J-1s filing Form I-901, $220 ($40 more). The existing $35 fee for each J-1 exchange visitor seeking admission as an au pair, camp counselor, or summer work/travel program participant will remain the same.   Large increases have shifted to the schools, with initial school certification increasing to $3,000 (up $1,300) and recertification, $1,250 (previously free). DHS expects to raise more than $75 million annually, of which over $62 million will be borne by F and M nonimmigrants.

New Report: Social Media Monitoring: How the Department of Homeland Security Uses Digital Data in the Name of National Security

On May 22, the Brennan Center for Justice released a new and scathing report, Social Media Monitoring: How the Department of Homeland Security Uses Digital Data in the Name of National Security, that analyzes DHS’s expansion and use of social media information and data collection culled from press reports, information obtained through Freedom of Information Act requests, Privacy Impact Assessments, System of Records Notices, departmental handbooks, government contracts, and other publicly available documents.  As background and introduction, the authors note:

 

“The Department of Homeland Security (DHS) is rapidly expanding its collection of social media information and using it to evaluate the security risks posed by foreign and American travelers. This year marks a major expansion. The visa applications vetted by DHS will include social media handles that the State Department is set to collect from some 15 million travelers per year. Social media can provide a vast trove of information about individuals, including their personal preferences, political and religious views, physical and mental health, and the identity of their friends and family. But it is susceptible to misinterpretation, and wholesale monitoring of social media creates serious risks to privacy and free speech. Moreover, despite the rush to implement these programs, there is scant evidence that they actually meet the goals for which they are deployed.

 

“While officials regularly testify before Congress to highlight some of the ways in which DHS is using social media, they rarely give a full picture or discuss either the effectiveness of such programs or their risks. The extent to which DHS exploits social media information is buried in jargon-filled notices about changes to document storage systems that impart only the vaguest outlines of the underlying activities.

 

The following are the report’s eight key – and scary – findings:

 

1.      Social media information is collected from travelers, including Americans, even when they are not suspected of any connection to illegal activity.

 

2.      Social media checks extend to travelers’ family, friends, business associates, and social media contacts.

 

3.      DHS frequently uses social media information for vague and open-ended evaluations that can be used to target unpopular views or populations.

 

4.      DHS is continuously monitoring some people inside the United States and plans to expand these efforts.

 

5.      DHS is increasingly seeking and using automated tools to analyze social media.

 

6.      Social media information collected for one purpose is used by DHS in a range of other contexts, increasing the likelihood of misinterpretation.

 

7.      Social media information collected by DHS is shared with other law enforcement and security agencies under broad standards.

 

8.      DHS systems retain information for long periods, sometimes in violation of the department’s own rules.

 

The report concludes:

 

“Social media provides a huge trove of information about individuals … that has proved irresistible for security and law enforcement agencies to collect and mine in the name of national security and public safety. Increasingly, DHS is vacuuming up social media information from a variety of sources … and using it to make decisions about who gets to come to the United States and the level of screening to which travelers are subjected. But there are serious questions about these programs: the evidence shows they are not effective in identifying risk, and they open the door to discrimination and the suppression of speech, association, and religious belief. Congress must fulfill its oversight responsibilities and require DHS both to come clean about the full extent of its social media surveillance and ensure that these programs are based on empirical evidence of effectiveness, safeguard against discrimination, and include robust privacy protections.

 

* * *

 

“The consequences of allowing these types of programs to continue unchecked are too grave to ignore.”  (emphasis added)

It’s no surprise that the Department of State now requests ALL social media handles (user names) for the last five years — including Facebook, Twitter, Flicker, and Myspace — on nonimmigrant- and immigrant-visa applications, DS-160 and DS-260.

 

The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize, and — when necessary — defend our country’s systems of democracy and justice. The full report is available at https://www.brennancenter.org/publication/social-media-monitoring.

More on F, J, and M Unlawful Presence Litigation

A district court judge for the Middle District of North Carolina issued a nationwide preliminary injunction, effective immediately, enjoining USCIS’s memo titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” originally issued on May 10, 2018, and updated on August 9, 2018, that went into effect on August 9, 2018, until further order of the court. The memo penalized international students for overstaying or violating the terms of their visas, even accidently. (Guilford College v. McAleenan). 

All USCIS International Offices to Close by March 2020

USCIS will close its international offices, starting with Ciudad Juárez (Mexico) and Manila (Philippines). All offices, including the main district offices for the separate regions, are scheduled to close by March 10, 2020. In September 2019, the Monterrey, Mexico, office is projected to close, as well as the station in Seoul. By the end of January 2020, the majority of the offices, including those in Mexico City, London, Athens, and Guatemala City, are slated to cease operations.

 

USCIS’s 23 international offices are in 20 countries around the globe as part of the International Operations Division (IO), a component of the Refugee, Asylum, and International Operations Directorate (RAIO). USCIS will permanently close its field office in Ciudad Juárez on June 30, 2019, applications/petitions will no longer be able to be filed there. The U.S. Consulate General in Ciudad Juárez will assume responsibility for certain limited services previously provided by USCIS to individuals residing in the Mexican states of Baja California Norte, Baja California Sur, Chihuahua, Durango, Sinaloa, and Sonora. USCIS will permanently close its field office in Manila on July 5, 2019, and applications/petitions will no longer be able to be filed there

Strict Enforcement of Affidavits of Support (Form I-864) on the Horizon

For the past 20 years, Congress has required a foreign national’s sponsor to sign an affidavit of support (Form I-864) pledging financial support in the event the sponsored foreign national applies for or receives means-tested public benefits. The law requires that when a foreign national receives certain forms of means-tested public benefits, the agency providing the public benefit must request reimbursement from the financial sponsor. The law also requires that when a foreign national applies for certain means-tested public benefits, the sponsor’s financial resources must be counted as part of the foreign national’s financial resources in determining both eligibility for the benefits and the amount of benefits that may be awarded. The major means-tested public benefits programs include the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Temporary Assistance for Needy Families (TANF). (There are exceptions for those who have been battered or subjected to extreme cruelty or who would be unable to obtain food and shelter without the public benefits, for children and pregnant women who are lawfully residing in the United States and receiving medical assistance from a state under the Children’s Health Insurance Program (CHIP) or Medicaid, and for those receiving SNAP benefits who are members of the sponsor’s household or are under 18 years old.)

 

The White House recently issued a memo directing relevant agencies to update or issue procedures, guidance, and regulations by August 21, 2019,  as needed, to strictly enforce the existing income-deeming and reimbursement laws when sponsored immigrants seek certain means-tested public benefits and thereby ensure that ineligible non-citizens do not receive such public benefits. The memo states that agencies are not adequately enforcing these requirements, both due to insufficient procedures and guidance for implementing reimbursement and for the deeming requirements.

 

Among other things, the memo directs relevant agencies to update or issue guidance relating to procedures for notifying the Attorney General and Secretary of Homeland Security of the sponsor’s nonpayment and procedures for requesting that the Attorney General bring a civil action against the sponsor.

 

On a related note, the Department of Housing and Urban Development (HUD) issued a proposed rule that would require the verification of the eligible immigration status of all recipients of assistance under HUD’s public housing programs who are under the age of 62.

U.S. House of Representatives Passes Bill to Protect Dreamers, TPS and DED Recipients

The House of Representatives passed the American Dream and Promise Act (H.R. 6) on a bipartisan vote of 237 to 187, the first time the House has passed a bill on protection for Dreamers since 2010.  The bill offers permanent legal status for “Dreamers” and thousands of Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) holders.  Some 2 million people would benefit. The Senate must vote on and pass a similar piece of legislation before it can be presented to the President for signature.

More on the Government’s Attempts to Restrict Asylum Protection

It seems like every month the Administration comes up with yet another way to restrict the ability of asylum seekers to obtain protection from persecution in order to deter the flow of refugees. On April 29, President Trump issued a memorandum ordering changes to U.S. asylum policies. The memo orders the Attorney General and the Secretary of Homeland Security to propose regulations within 90 days that would:

 

  • Require asylum seekers to pay a fee to apply for protection.

  • Require applicants to pay a fee to apply for work authorization for the first time. (Right now, asylum applicants – who must wait 180 days before qualifying for work authorization – can apply for their initial period of work authorization without paying a fee but are required to pay for subsequent renewals.)

  • Place people who have shown a credible or reasonable fear of being persecuted or tortured into limited removal proceedings that would restrict the judges’ ability to consider any forms of relief aside from asylum or withholding of removal.

  • Prohibit anyone who has entered or attempted to enter the U.S. unlawfully from qualifying for work authorization until their asylum applications are approved.

  • Give immigration courts a 180-day limit to adjudicate asylum claims “absent exceptional circumstances.” The White House memo fails to address the 800,000-case immigration court backlog that causes years-long delays to asylum cases and will make it impossible for the government to meet this deadline.

 

This proposed change would be the first time in U.S. history that asylum seekers would have to pay to apply for asylum. People fleeing violence and persecution are among the most vulnerable in the world, and often leave their homes with little more than the clothes on their backs. Forcing them to pay a fee, even if nominal, would be an insurmountable challenge to many asylum seekers, leaving them unable to access protections that they are entitled to under both international and domestic law. Moreover, the proposal to place asylum seekers into special, limited proceedings means that the Administration is blocking people from applying for relief that Congress has made available to individuals in these vulnerable situations. Currently, a person who arrives at the border and establishes a credible fear of persecution can prepare and build their case for asylum and present it before an immigration judge. The changes proposed by the White House would curtail an asylum seeker’s ability to present their case and would continue to strain the immigration courts.

 

While the memo sets forth the expectation that asylum cases must be adjudicated in 180 days absent “exceptional circumstances,” it does nothing to resolve the immigration court backlog that has contributed to asylum seekers waiting years to have their claims heard. These proposed regulations would cause immigration court dockets to be reshuffled once again, forcing people who have been waiting in line for years to wait even longer.

 

These latest proposed changes would significantly affect families seeking safe passage under long-standing U.S. asylum protections.