Venezuela to Start Issuing “No Objection Statements” Needed for J-1 Waivers

Officials at the Embassy of Venezuela have confirmed that it will begin issuing “no objection” statement letters for Venezuelans seeking a waiver of the two-year foreign residency requirement that attached to their J-1 visa status. (No-objection letters are the first consular services to be provided by the new government.) Officials are currently working on a web-based “NOS” application process, and expect that process to be available in September. This is welcome news to the many Venezuelans who have been subject to the “skills list” or received funding for their J program from the Venezuelan government for which a no-objection letter is a prerequisite for obtaining a waiver recommendation. Those individuals have been unable to obtain certain nonimmigrant visas, such as Hs and Ls, and have been unable to adjust their status to green card holders even if married to a U.S. citizen.

 

The Embassy is currently maintaining a consular registry, and some 350 people are already registered. Venezuelan nationals are encouraged to register at https://us.embajadavenezuela.org/

 

DOJ Moves to Decertify Immigration Judges Union with NLRB

In early August, the Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ claims that the National Association of Immigration Judges (NAIJ) is no longer a valid union because the judges are managers who can’t form unions under the Federal Service Labor-Management Relations statute. DOJ cited a series of “factual and legal developments” it says have added managerial weight to the judges’ authority and rendered moot the FLRA’s 2000 ruling rejecting the Executive Office for Immigration Review’s (EOIR) bid to break up the union.

 

The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of immigration judges, has called DOJ’s claim absurd and said that DOJ’s actions are designed to silence judges and their union. Clearly, decertifying the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, the Administration has made every effort to limit the judges’ managerial authority and independence, micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.

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