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USCIS Has Evolved Into A Third Immigration-Enforcement Agency

After 9/11/2001, the government created the Department of Homeland Security (DHS).  This department deals with immigration-related matters. Congress divided DHS into three separate branches: U.S. Immigration and Citizenship Service (USCIS), Immigration Customs Enforcement (ICE), and Customs and Border Protection (CBP). The goal was to separate immigration service from enforcement.

Congress meant for USCIS to function as the service-based immigration and citizenship branch of DHS. The other two branches (CBP and ICE) serve as immigration enforcement. However, the Trump Administration has blurred the clear lines Congress created to separate these branches.

In the last two years, with the Trump Administration’s drastic changes in policy, USCIS has evolved into a third immigration enforcement tool by:

  1. Working with ICE to stage deportation traps for applicants trying to lawfully gain immigration benefits.
  2. Imposing a policy that expands USCIS’s ability to place an applicant in deportation proceedings.
  3. Issuing a memo that gives immigration officers more discretion to deny. For example, applications can now be denied for innocent filing mistakes without giving applicants the chance to correct the mistake. This affects individuals lacking legal representation that may not fully understand what evidence is needed.
  4. Issuing guidance increasing the likelihood that foreign students and exchange visitors could face bans on re-entering the United States.
  5. Creating crisis-level processing delays and application backlogs that may result in an applicants’ loss of immigration status while awaiting approval.
  6. Prioritizing ICE’s work over its own by transferring over $200 million in application fees to ICE to hire over 300 ICE enforcement officers.

It is clear that USCIS is no longer what Congress intended. USCIS’s shift to immigration-enforcement is unsettling and is not what our immigration community deserves. As we are fully aware of the Trump Administration’s assault on USCIS as a service-based immigration agency, we do our best to protect and prepare our clients.

Marijuana Use and Immigration Revisited

Attention Californians, Canadians, and 04/20 celebrators worldwide! As another April 20th passes us by and celebrations become legal and larger, we want to remind you of the potential immigration consequences of smoking pot (we know, buzzkill). We have written previously about the immigration risks of and the distinction between state law and federal law when it comes to legal marijuana. As of the end of 2018, the use of marijuana for medicinal purposes is legal in 29 U.S. states and the District of Colombia. Recreational use is legal in nine U.S. states.  In October 2018, Canada legalized marijuana use nationwide. However, use of marijuana is still not legal under U.S. federal laws.   For U.S. immigration, federal law is still the law that matters.

USCIS recently issued additional policy guidance on this issue. Specifically, USCIS clarified that the violation of federal drug laws, including marijuana, remains a challenge when applying for U.S. citizenship. If an applicant has not been convicted, but just admits to having used or possessed marijuana, even in a state where it is legal, this may prevent the applicant from obtaining U.S. citizenship.

As the number of legal marijuana users increases around the world, it is important to consider the various ways the immigration issue may arise.  A Customs and Border Protection officer at the border or at an airport could ask a tourist hoping to visit the U.S. about his or her drug use. The officer at a USCIS interview or a Department of State interview could similarly raise the issue.  Even the panel physicians charged with conducting a medical exam for those applicants seeking permanent residence may ask about prior drug use. In all cases, it is important to be mindful of U.S. federal law when it comes to drug use and be prepared to answer these questions. Applicants should consider the immigration consequences of legal marijuana use until becoming a U.S. citizen.

Spring and Approvals Are in the Air!

We have survived the winter and the busy H-1B season (we kid, we live in LA and love H-1Bs) and want to share some happy news that happened during that time!  As we move into spring and look for renewal and rejuvenation, we are motivated by stories like the one from a client below. Even in this political climate, it is a nice reminder that our clients continue to find immigration success. We are as energized as ever to continue to work diligently with our clients to meet their goals and obtain lawful status, so that they may have a fresh start in the U.S.

 

5 star avvo

I applied for a green card through marriage to my husband. We live on the East Coast and were recommended to seek out Navid Dayzad by a lawyer (here on the east coast) that was unable to fit us in. It was the best recommendation I have ever had from anyone for anything. I have been through the visa process 8 times and was prepared for the worst. Dayzad and his team made the process as painless as they could. It was a huge burden off of our shoulders to be able to ask questions and know that a team of lawyers would physically look through our application, and not just submit it. The cost was truly worth every penny. We never had to worry there would be something that went wrong with the application, and knowing that whenever we needed an answer to a question we would have a response ASAP. I cannot thank them enough.

President Seeks to Take Away H-4 Spouse Employment Authorization

The Trump administration has continuously sought ways to deter lawful immigration. It builds its invisible wall through rule changes and executive order. The latest proposed rule is to take away work authorization for the spouses of H-1B visa holders.  Trump talks about encouraging legal immigration and embracing highly skilled immigrant workers, but this rule undercuts that idea.

H-1B workers are highly skilled professionals who most commonly specialize in the fields of science, technology, engineering, and math. Their spouses are eligible for H-4 status. Since 2015, H-4 spouses have been eligible for work authorization while their H-1B spouse is in the process of becoming a lawful permanent resident. For many H-1B employees the permanent resident process can take years to complete.  While these employees wait out the long, legal process, their H-4 spouses can help support their families financially and find a sense of independence and purpose through their own employment in the United States.

Taking away employment authorization for H-4 visa holders would inordinately impact women, because 90 percent of H-4 visa holders are women. Furthermore, telling valued H-1B employees that their spouses cannot work sends a message that they and their families are not truly welcome. It makes moving to the U.S. to work a less attractive option for these highly skilled workers.

Many of our clients are in the process of obtaining permanent residence. As these workers build their lives in the U.S., we understand that having two financial earners in the family can be necessary to their success. This proposed rule will do more harm than good. It punishes skilled foreign workers who are putting their talents to use in the U.S. economy.

USCIS Hopes to Avoid Total Premium Processing Suspension

As previously announced, USCIS will be offering premium processing in a two-phased approach during the Fiscal Year 2020 cap season. The hope is that by offering premium processing in two phases, the government can better manage the requests without fully suspending premium processing.  As many of our clients know, the government has had to suspend all premium processing for H-1B petitions in the past due to high demand.

The first phase will offer Premium Processing for cap-subject H-1B petitions requesting a change of status. The government promises to make a decision within 15 days starting May 20, 2019. The second phase will include all other H-1B cap-subject petitions and will not begin until at least June 2019.  Currently, premium processing for all other H-1B petitions that are exempt from the cap, such as an H-1B extension of stay, remains available.  Hopefully, the government can avoid a total suspension of premium processing. USCIS is likely to make additional announcements regarding premium processing in the coming months. We will continue to track any updates to keep our clients informed.