On July 31, 2019, USCIS issued an important policy memorandum adopting a case decided by the Administrative Appeals Office. The case is Matter of H-G-G, decided by the AAO on July 31, 2019. This case is particularly relevant to individuals who hold Temporary Protected Status (TPS). The gist of the case is essentially that while TPS provides a form of insulation from removal, a grant does not confer admission or cure a previous failure to lawfully maintain status. This is especially significant in the context of adjustment of status because an applicant must demonstrate lawful inspection and/or parole under section 245a; moreover, an individual who has failed to continuously maintain lawful status will generally be ineligible for adjustment under section 245c. In some jurisdictions, particularly the Sixth and Ninth circuits, applicants have successfully argued that TPS is a form of admission for purposes of adjustment of status-in effect, allowing them to adjust status although they may have initially entered without inspection. H-G-G strongly contravenes this interpretation, holding that TPS is a humanitarian measure intended to facilitate a grantee's eventual departure from the US, not a legal panacea that creates a path to residence or situates someone better than what they were before. As the AAO notes: "We find nothing in the statutory scheme or the legislative history to suggest that Congress intended to also confer new eligibilities on those who did not have them in the first place."
Last week witnessed the release of the much-dreaded final rule pertaining to the public charge ground of inadmissibility. To say that the new policy is a drastic reworking of the current practice is an understatement. The policy changes not only significantly expand the contours of what is considered a public charge but potentially arm adjudicators with additional tools to deny individuals seeking admission into the US. Since the Department of State has already implemented its own draconian public charge regulations, these new changes primarily affect people who are applying for family-based admission in the US, notably adjustment of status applicants. It also impacts certain non-immigrants requesting a change or extension of stay in the US.
This month, Immigration and Customs Enforcement announced an important policy change pertaining to enforcement against individuals who have filed for protection under the U visa program. The changes are formalized in Directive 11005.2 and summarized in a Questions and Answers Fact Sheet issued by the agency on August 2. In a significant reversal of the former practice, ICE officers are no longer required to interact with USCIS to request a prima facie determination of eligibility for U status before executing a removal order against an individual who has lodged a Stay of Removal. Effective immediately, ICE officers and attorneys are now accorded a wide berth of discretion to determine what action to take against such individuals. Enforcement are to consider the totality of circumstances, including both positive and negative factors; the beneficial impact of an applicant's assistance to law enforcement; and whether a temporary reprieve from removal is appropriate-all this without input from USCIS, which is in charge of adjudicating the U visa application. As a consequence, a sizeable population of U visa applicants with outstanding removal orders but who have legitimate pending U visa applications, may be expeditiously removed notwithstanding that they may have meritorious, approvable cases.
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.
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.
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.
USCIS just released a new policy memorandum that may be of interest and help to surviving relatives of US Citizens. PM 602-0126 is entitled "Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the death of a U.S. Citizen Petitioner." The memo is highly technical and intended for USCIS employees, but the main thrust of it is to nationally implement the holding of Williams v. DHS Secretary, 741 F. 3d 1228 (11th Cir. 2014), a court case out of the 11th circuit, and clarify the boundaries of 204(l).
Few people may be aware that the much-vilified Secure Communities Program has actually been discontinued and replaced by a purportedly more focused Priority Enforcement Program, or "PEP." The death knell of Secure Communities was actually heard in November of 2014 when DHS Secretary Jeh Johnson released a memo about it, but only recently have ICE officers received training in the implementation and application of PEP.
Just last week, USCIS quietly issued a Field Guidance Memo providing clarity and guidance to USCIS personnel on "reason to believe" issues and how they affect adjudication of Provisional Unlawful Presence Waivers.
Determining the viability of an adjustment of status application--"Should I file?"-can, at times, be very challenging. There are many factual and legal issues to consider, including but not limited to the immigration status of the petitioner (lawful permanent resident or United States Citizen?), priority dates, pre-conceived intent, overstay issues, eligibility under 245i, misrepresentation, and potential criminal bars. In addition to these considerations, there are special restrictions regarding aliens who enter the US under the Visa Waiver Program.