USCIS recently announced plans to update Form I-539, Application to Extend/Change Nonimmigrant Status. This change is particularly important to any foreign national currently here on a temporary basis who is intending on changing or extending his/her status. Apparently, the form has already been revised but will not be released until the same day the changes become effective, which is March 11, 2019. As of that date, any applications to change/extend non-immigrant status must be filed on the latest version. USCIS will not accept previous editions of Form I-539 and accordingly reject applications with the older version or applications that are missing required signatures or filing fees.
Applicants Are Responsible For False Information In Immigration Forms
The Board of Immigration Appeals recently issued a sobering decision that underscores the importance of understanding your own immigration case and knowing what you are filing. In Matter of Valdez, 27 I&N Dec. 496 (BIA 2018), the Board discounted the appellant's claim that they should not be held accountable for false statements contained in their applications because they were not fully aware of what the preparer was asserting on their behalf. In the case of the Valdezes, their green card applications were approved on the basis of Mr. Valdez serving as a religious worker. However, Mr. Valdez never worked as a minister with the church that sponsored him. His defense in court was that English was not his native language and he did not understand or appreciate that his application contained false information. Neither the immigration court nor the BIA gave much credence to this argument. The BIA essentially held that ignorance of the contents of an application prepared by someone else does not absolve the applicant. When an individual has signed an immigration application, there is a strong presumption that the signer knows and understands what he/she is signing off on. In fact, "given the nature and significance of immigration documents...it is reasonable to expect that aliens will take steps to ascertain the accuracy of documents they sign and obtain a translation, if necessary." Eschewing reading or translation of an application's contents does not constitute a legitimate excuse. Of course, there are genuine instances where applicants were deceived and truly unaware of what was being filed for them. However, in order to overcome this strong presumption of knowledge, the onus is on the applicant to demonstrate fraud, deceit, or malfeasance.
The N-400 Citizenship Form May Undergo More Changes
In recent years, many of the most commonly filed immigration forms underwent substantial revisions. These include the I-130 Petition for Alien Relative; I-129F Petition for Fiance; I-485 Application to Adjust Status; and N-400, Application for Naturalization. Rather than simplifying what is often an arcane process, the forms arguably obfuscate and complicate things even more. Soon, it is very likely that the N-400 will be changing again. Unfortunately, some of the proposed revisions and requirements will make the process more onerous and confusing, especially to a layperson who might be attempting to file pro-se.
2019 DACA Renewal Update | Supreme Court Declines To Hear Case This Term
Amidst the media's preoccupation with the shutdown, little was made of the Supreme Court's decision last week not to hear arguments on DACA this term. Unless the high court were to deviate from its normal procedure, this means that arguments will not likely be heard until its next term, assuming the case is taken up. As a consequence, and in light of pending litigation, current DACA recipients (and those who previously had DACA status) may continue to file for deferred action status at least through the end of 2019. The courts are still deciding whether individuals who never filed for DACA can file initial applications for the first time, but for those who have already filed and were granted DACA status, applications for renewal must still be accepted by USCIS pursuant to two federal court orders.
New Bill To Allow Illegal and Undocumented Aliens To Apply for New Jersey Driver Licenses
Driver licenses for undocumented immigrants in New Jersey has always languished in the New Jersey legislature, but with a new Governor receptive to the idea, there are some new bills that appear to be gaining traction. Ironically, the impetus is New Jersey's need to comply with the federal REAL ID Act of 2005. Currently, New Jersey driver licenses do not conform; and if not addressed by October 10, 2019, residents may soon find themselves unable to board planes or enter federal facilities, since federal officials will only accept REAL ID compliant documents. Information about REAL ID can be found here: https://www.dhs.gov/real-id-public-faqs.
Crimes in New Jersey That Can Expose Immigrants to Detainers
Last week, we wrote about New Jersey Attorney General Law Enforcement Directive 2018-6, which directs state law enforcement to refrain from actively enforcing immigration law except in narrowly defined circumstances. Two salient aspects of the directive prohibit law enforcement from providing notice of an immigrant detainee's upcoming release from detention to ICE; and continuing detention of an immigrant detainee, pursuant to a detainer, beyond the time the person would be eligible for release. It is important to note that these two guidelines do not apply in the case in the case of foreign nationals charged with, convicted of, or adjudicated delinquent of a "violent or serious offense." Fortunately, this classification is much less ambiguous than some federal immigration terms, many of which are amorphous and subject to interpretation.
How Does The Government Shutdown Affect My Immigration Case?
With the New Year, of course, there are always changes-unfortunately, not all good. In New Jersey, USCIS has already made the transition to its modernization campaign and eliminated self-scheduling of appointments through INFOPASS. Late last month, USCIS also announced that it will be discontinuing several USCIS service center email boxes, which have been previously used to address case-specific issues. Effective Jan 21, 2019, the following email addresses will no longer be in use or responded to:
NJ State Police May Not Inquire Into Immigration Status
On November 29, 2018, New Jersey Attorney General Gurbir Grewal drew a proverbial line in the sand by issuing a new directive that clearly demarcates criminal law enforcement from federal civil law compliance. Under Directive 2018-6, which supersedes Attorney General Ann Milgram's obsolescent 2007 directive, law enforcement is essentially instructed to limit cooperation with federal authorities unless such assistance furthers state criminal law enforcement. As the Attorney General makes clear: "New Jersey's law enforcement officers protect the public by investigating state criminal law offenses and enforcing state criminal laws. They are not responsible for enforcing civil immigration violations except in narrowly defined circumstances. Such responsibilities instead fall to the federal government and those operating under its authority." As such, the directive sets forth important new parameters under which law enforcement may or may not interact with the Department of Homeland Security when dealing with foreign nationals in New Jersey.
DWI Convictions May Bar Citizenship and Cancellation of Removal
In yet another ominous sign of the erosion of judicial independence, Acting Attorney General Matthew Whitaker recently certified a case to himself that may have a significant impact on foreign nationals charged with Drunk Driving or Driving Under The Influence. The case is Matter of Castillo-Perez, and this case is particularly important given the issues that the Attorney General will be deciding-possibly overruling previous BIA precedent. According to the certification, the Attorney General is directing the parties to address the following questions:
New Policy for I-751 Green Card Interviews
USCIS has issued a new policy memorandum that provides guidance to USCIS officers on waiving interviews for I-751 cases. Under the Immigration and Marriage Fraud Amendments of 1986, immigrants who have been married for less than two years to their petitioning spouse at the time their case is approved are granted "conditional green cards." To remove these conditions, immigrants must file the I-751 petition, normally together with their spouses, but in some cases, alone with a waiver request. Over the last two years, we have seen an uptick in I-751 cases being scheduled for interviews, even for cases which are clearly approvable and devoid of any issues-which therefore makes the timing of this new guidance intriguing. In any case, the new policy is overall positive and may help to expedite the processing of I-751 cases (which are currently taking close to 18 months and in some cases, longer) by allowing officers to dispense with interviews under certain circumstances.
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