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  • US immigration services set to furlough two-thirds of its workers after coronavirus stimulus talks fail

    U.S. Citizenship and Immigration Services notified about 13,400 of its 20,000 employees that they would be furloughed Aug. 30 because of budget shortfalls, which the agency hoped Congress would fill in its next relief package before negotiations stalled last week. 

    “In the past few months, USCIS has taken action to avert a fiscal crisis, including limiting spending to salary and mission-critical activities,” an agency spokesperson said. “Without congressional intervention, USCIS will have to take drastic actions to keep the agency solvent.” 

    The agency had asked Congress for $1.2 billion, and the money had been expected to come through its next coronavirus relief package.

    Potential Impact of Furloughs on the U.S. Legal Immigration System

    • The anticipated agency furloughs will halt U.S. immigration, negatively impacting families, U.S. businesses, educational institutions, medical facilities, and churches.
    • If USCIS is essentially shut down, immigrants who are in the process of becoming naturalized U.S. citizens will not be able to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face increased delays, and businesses will be unable to hire or retain employees.
    • According to the Migration Policy Institute, “For each month the USCIS furlough lasts, 75,000 applications for various immigration benefits will not be processed.”

    With information of AILA and USA Today

  • Congressional Leaders Urge ICE and DHS to Withdraw New Guidance for International Students Taking Online Courses

    Ninety nine (99) members of Congress sent a letter to DHS and ICE urging the agencies to withdraw the new guidance issued by ICE that states that international students may not take a full online course load and remain in the United States.

    The letter support that the announcement of modifications to the Student and Exchange Visitor Program’s requirements for international students, would effectively punish international students at colleges, universities, and other institutions that have decided to move their courses online in order to protect their communities from COVID-19.

    “The proposed policy throws the lives of hundreds of thousands of students, and the operations of hundreds of colleges and universities, into uncertainty just weeks before the start of the fall term, to the detriment of the United States and its institutions of higher education.

    We are concerned that ICE’s guidance is motivated not by public health considerations, but rather by animus toward immigrants, by a goal of forcing schools to reopen even as COVID-19 cases are rising, and by a desire to create an illusion of normalcy during this unprecedented public health emergency. ICE’s proposed policy demonstrates a callous disregard for the harm this policy inflicts on international students, and is contrary to public health guidance from authorities within the Administration. We urge you to withdraw this proposed policy immediately, and not to proceed with your stated plans to publish it in the Federal Register as a Temporary Final Rule”.

    Due to the Trump Administration’s catastrophic mishandling of the pandemic, COVID19 continues to rage throughout the United States. Institutions of higher education are rightly consulting with local public health officials, and many have decided to move most or all of their courses online to protect their students, faculty, and staff. These plans are consistent with the U.S. Centers for Disease Control and Prevention’s (CDC) guidance for such institutions, which says that “virtual-only learning options, activities, and events” are the “lowest risk” setting.

    The CDC also advises that institutions of higher education “offer virtual learning and telework options, if feasible,” “pursue virtual group events, gatherings, or meetings, if possible,” and “encourage telework for as many faculty and staff as possible.” The CDC guidance is clear: more social distancing is safer, and online solutions are safest for colleges and universities.

    “International students contribute immensely to the United States. They add value to their learning communities, bringing diverse viewpoints and experiences benefiting all other members of their communities. They also contribute to the economy; by one estimate, international students contributed nearly $41 billion to the American economy and supported 458,290 jobs during the 2018-2019 academic year. As President Trump noted five years ago, “When foreigners attend our great colleges & want to stay in the U.S., they should not be thrown out of our country.” The sudden removal of international students would weaken the country economically precisely when our fragile economy cannot afford another self-inflicted blow, and would undermine higher education as one of our most significant and valuable exports. This decision also will severely impact the budgets of many colleges and universities during some of the most challenging financial times in modern memory and could result in increased college costs and student debt for domestic students”.

    Recent statements by Administration officials suggest that DHS and ICE released this guidance as a pretext to force institutions of higher education to reopen against the advice of public health experts and local officials.

    The letter conclude with the allegation that” ICE’s arbitrary new policy is irrational and xenophobic, and risks the health of students, faculty, and staff. We urge you to rescind this proposed policy immediately and to collaborate productively with institutions of higher education to enable a smooth start to the academic year for all students. We also request a staff briefing to discuss the Administration’s rationale for this reckless policy by July 16, 2020.”

    By AILA

  • 4th Circuit Denies Asylum Claim On Family Relation

    One of the most difficult areas of asylum law is to determine what social group you are in if you are claiming asylum, and if that is the reason that you are in danger of persecution. While membership in a family is now established as a possible social group, it is important to tie the danger of persecution to the membership in that family and not related dangers that may arise related to membership. At least in the US 4th Circuit.

    On June 26, 2020, the US Circuit Court of Appeals for the Fourth Circuit issued its published opinion in the case of Jexte Cedillos-Cedillos v. William Barr (https://www.ca4.uscourts.gov/opinions/182233.P.pdf) denying asylum because his claim was based on his personal danger due to having reported the crimes of those that would persecute him, and since it was based on his personal conduct, he was not eligible for asylum. This is a tricky issue that most may not understand. Reading this case, especially since it is a “published” opinion, and therefore has precedent value, explains the difficult analysis that must be made for a claim to be successful.

  • US Supreme Court Preserves DACA

    The Supreme Court ruled Thursday, June 18th, that the Trump administration cannot carry out its plan to shut down the Deferred Action for Childhood Arrivals (DACA) program, which has allowed nearly 800,000 young people, known as Dreamers, to avoid deportation and remain in the U.S.

    https://www.nbcnews.com/politics/supreme-court/supreme-court-rules-trump-cannot-end-daca-big-win-dreamer-n1115116?fbclid=IwAR20dr4j1fgFCSuByRppJTDQF5TFFfrhNSVSbI7ArlarWXBbBjZwFW7EatI

  • 7th Circuit Blocks Public Charge Burden

    This decision releases the Supreme Court stay which permitted the Trump administration’s policy against immigrants to become effective. Not the end of the battle, but a victory.

    https://www.courthousenews.com/7th-circuit-blocks-feds-from-enforcing-public-charge-immigration-rule-in-illinois/

    An excellent article discussing the merits of this issue was posted in the Washington Post on Friday:

    https://www.washingtonpost.com/opinions/trump-is-so-set-on-harassing-immigrants-that-his-immigration-agency-needs-a-bailout/2020/06/11/52c2ae06-ac1b-11ea-9063-e69bd6520940_story.html

  • H-1B Statutes Are Carefully Crafted to Be Misleading to the Casual Reader

    The H-1B statutes are lobbyist-written and carefully crafted to be misleading to the casual reader. The “prevailing wage” is one area where there has been great confusion; in particular H-1B wage levels. The H-1B wage or skill levels are entirely a bureaucratic creation that have no relation to the job market.

    The article published in the journal The Immigration Post, mentioned that the source of the H-1B Wage Levels is the Bureau of Labor Statistics Occupational Employment Statistics (OES). The BLS puts out a wage survey every May. The OES survey gives by occupation and location the average salary, the 10th, 25th, 50th, 75th, and 90th percentile wages. The 50th percentile (median) is what normal people call “the prevailing wage”. In fact, the Department of Labor’s (DOL) regulations required it (or the mean if the median is not available).

    The State of Utah has had a contract for decades to manage foreign labor certification data. Until 2004 and apparently without any statutory authority, they had been taking the OES survey and then interpolating the data to create approximations of the 17th and 66th percentile wages and putting them out as a high and low prevailing wages.

    Employers were routinely using the 17th percentile wage supplied by this website and claiming it was the “prevailing wage” in H-1B labor condition applications (LCAs) even though this did not meet the requirements under regulation for a prevailing wage.

    However, the Department of Labor is required to approve all H-1B LCAs within 14 days as long as the form is filled out correctly, so employers can put down nearly anything as the prevailing wage and get it approved. The Utah system provided an extremely low wage that had the appearance of being government-approved even if it was not lawful.

    In 2004 Congress enacted 8 U.S.C. § 1182(p):

    4) Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.

    By Center for Immigration Studies

  • Unable to Depart US Due to Pandemic? Avoid Overstay!

    Request “Satisfactory Departure”

    Were you admitted to the United States under the Visa Waiver Program (VWP)? —>  There is no provision of law that would allow you to extend your stay. However, if you are unable to depart before their current period of admission expires due to exigent circumstances, there is an option to request relief in the form of a Satisfactory Departure request. Both U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) have authority to handle these requests which grant an individual a period of 30 days in which to depart the U.S. without being considered to have overstayed their allotted time.

  • IBLF during the Pandemic

    IBLF during the Pandemic

    While our office is closed in accordance with the recommendation of government officials, we are still receiving and processing mail, email, and conducting video and telephone consultations and meetings.  By special arrangement, we can receive documentation that cannot be mailed to our office.  Please call if you have any such special requests

  • 4th Circuit Finds Domestic Violence can be Legitimate Asylum Claim

    The Fourth Circuit issued a published decision (which means it has precedential value which must be followed by judges within the 4th Circuit) which finds a claim of asylum based on the Salvadoran government’s inability to protect a woman from domestic violence is a proper basis for a grant of asylum.

    The Case, (Ruth Jeanette Orellana v. William Barr (http://www.ca4.uscourts.gov/opinions/181513.P.pdf) , was in part based on a stipulation by the government that “Salvadoran women in domestic partnerships who are viewed as property” can form a protected social group, and the decision lends substantial support to this position, even though the government apparently is trying to walk back this interpretation, claiming that the stipulation will be withdrawn upon remand.

    This is an important development because individual cases of domestic violence are not normally sufficient to create the basis for an asylum claim. In this case, however, the documented failure of the El Salvadoran government, police, and court system was so well described that the Court of Appeals rejected the finding by the Immigration Court judge that the victim could be protected in El Salvador. 

  • Virginia Law Criminalizing Gang Activity Not Categorically a CIMT

     On July 19, 2019 the US Fourth Circuit Court of Appeals issued its decision finding that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude.

    The Virginia statute,  Va. Code § 18.2-46.2(A), which prohibits participation in a criminal street gang, is as follows:

    Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. 

    The court reasoned that the statute criminalizes acivity which is not the requisite base, vile, and morally depraved conduct which must be found for it to be a crime of moral turpitude, using, as an example, a situation where a person wearing a gang scarf who trespassed onto property could be found guilty under the statute without any further criminal acts being involved.

    This means that a simple conviction under this statute cannot be used as a basis for deportation of a person so convicted.