Late last month, attorneys in New Jersey were pleasantly surprised to learn of a one-year-old immigration court decision that directly implicates many issues currently impacting foreign nationals charged with disorderly persons offenses in our state. Although unpublished and hence, non-precedential (in other words, courts are not bound to follow the ruling of this case), In re: Mario Harold FLORES may afford defense counsel with greater weight to argue that misdemeanor offenses-technically non-indicatable offenses-in New Jersey are not "convictions" within the meaning of the Immigration and Nationality Act. (A "conviction" under section 101(a)(48) can form the predicate basis of a ground of removability.)
No More Self-Scheduling of Infopass Appointments in New Jersey
Effective November 26, 2018, USCIS is no longer accepting walk-in requests or scheduling InfoPass appointments for New Jersey. As we wrote in earlier blog, this is all part of a national initiative to transition to the new Information Services Modernization Program. Under the new protocol, individuals will first have to call a USCIS Contact Center at 1-800-375-5283 to conduct their query. Representatives will supposedly be available Monday through Friday from 8am to 9pm, eastern time except during federal holidays.
Even If Divorced, K-1 Adjustment Applicants Still Required To Submit I-864 Affidavit
In recent months, many of the more notable immigration developments have concerned the public charge ground of inadmissibility. The first rumblings occurred when the Department of State began implementing new guidelines vitiating the presumptive weight of an approvable I-864 affidavit of support. Even if a petitioner's income met or exceeded 125% of the federal poverty guideline, adjudicators were vested with greater authority to look beyond the affidavit and explore traditional factors in more detail. These traditional factors-health, age, education, income and resources-will undergo more scrutiny in determining whether an immigrant is likely to become a financial burden on the government.
False Claims to US Citizenship To Get Private Job Must Be Proven on I-9 Form
The Ninth Circuit recently issued a precedential case that is instructive, and potentially helpful, to individuals accused of making false claims to US citizenship. In Diaz-Jimenez v. Sessions, No. 15-73603 (9th Cir. 2018), the court confirmed that obtaining private employment did fall within the scope of false claims; however, the court also ruled that for purposes of 1182(a)(6)(C)(ii)(I), a person can only be considered to have made a false claim of citizenship in connection with private employment only when such representation is made on Form I-9. In the case at hand, there was no evidence of an I-9 form to sustain the government's claim that Mr. Diaz-Jimenez misrepresented his citizenship status to secure a job, resulting in the court reversing the BIA's finding and remanding the case.
Denied U Visa Applicants and Battered Spouses May Be Placed Into Immigration Court
Earlier last month, we wrote about USCIS implementing the new Notice to Appear Policy Memorandum released on June 28 of this year. According to a bulletin released late last week, the second phase of expansion is scheduled to take place November 19, 2018. On and after this date, USCIS will begin applying the new policy to the following types of applications upon denial:
Is the End of INFOPASS? USCIS To Discontinue Self-Scheduling
Just last week, USCIS announced that it will be expanding its Information Services Modernization Program to several major district offices. During the first quarter of next year (2019), it is expected that Newark will be among the first batch, with eventually all remaining field offices implementing the protocol by the end of the year.
Divorce Prior to Oath Ceremony Can Result in Denial of 319 Citizenship Application
USCIS recently clarified that lawful permanent residents applying to naturalize on the basis of marriage to a US Citizen must not only demonstrate "living in marital union" with their spouse three years immediately prior to filing, but also that termination of the marriage at any time prior to the Oath of Allegiance renders an applicant ineligible under section INA 319(a). We have seen this second provision being strictly applied to deny naturalizations applications where the applicant divorces after passing the examination but prior to the oath ceremony. Practically speaking, this may not affect residents in states that administer the oath the same day as the interview, such as New Jersey. In general, however, most states regularly schedule the oath ceremony many months after the applicant has passed the examination. This gap can, in some cases, be quite long, especially if background checks are being conducted, an officer needs to look into something, or on occasion, neglects to finish reviewing the file. In the interim, an applicant's marital situation may rapidly deteriorate and the couple may seek a quick dissolution. Unfortunately, if this occurs prior to the oath, the applicant has technically fallen outside the boundaries of INA 319, the section of the law that allows green card holders to apply after only three years marriage to a US Citizen (versus the normal requirement of five years permanent residence prior to becoming eligible). This is one reason why applicants are expected to review and complete a questionnaire on the day of the oath verifying that certain information has not changed, ie., address; arrests; trips outside the US; and in this case, marital status.
Most Prosecutorial Discretion Requests Will Be Rejected Under New Memo
Early this month, BuzzFeed News obtained an internal government memo relating to the exercise of prosecutorial discretion by immigration prosecutors. Dated August 15, 2017, the memorandum provides specific guidance to government attorneys who work for the Office of the Principal Legal Advisor ("OPLA"). These attorneys, who represent Immigration and Customs Enforcement ("ICE"), are charged with prosecuting deportation/removal cases in court and carrying out the Department of Homeland Security's enforcement priorities.
Citizenship Test Changes | USCIS To Use Digital Tablets for Reading and Writing
On October 3, 2018, USCIS issued a public bulletin regarding the incorporation of digital tablets into the naturalization reading and writing process. Our office began seeing implementation of tablets a few months back, and this announcement not only confirms that this practice is here to stay but that technology will assume an even greater role in the process than ever before. Previously, citizen applicants were asked to review and digitally sign their applications on iPad or ipad-like devices. Now under this expansion, the use of pen and paper is essentially being phased out and discontinued. Pen and paper may be used "on a case-by-case basis," but by and large, both the reading and writing components of the N-400 examination will now be conducted on digital tablets:
USCIS Will Begin Placing People Into Deportation Court If Application Is Denied
On September 26, 2018, USCIS quietly announced that it will be implementing the June 28 updated guidance on issuance of Notice to Appears (NTAs). This will be an incremental roll out, with the new memo being applied to different types of cases at different stages. Effective October 1, 2018, the memo will be applied to "status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status." According to the bulletin, the new guidance will not be implemented with respect to employment-based and humanitarian applications and petitions at this time. The announcement also makes clear that USCIS will continue its current practice for NTAs regarding applicants with criminal records or where there are fraud or national security concerns.
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