Immigration Lawyers Freak as DHS Allows Agents to Enforce Long-Ignored Laws

AP Photo/Alex Brandon

Pro-migration groups are complaining as the Department of Homeland Security streamlines rules to help officials enforce long-ignored laws about illegal immigration, work visas, visa overstays and welfare.

The enforcement effort is being readied by the department’s U.S. Citizenship and Immigration Services agency, which is rolling out a stream of rules and regulation to clarify the responsibilities of agency officials, and the obligations for students, temporary visa-workers, employers, illegal migrants, people who overstay their visas, and various lawyers.

The reforms could have a huge impact because roughly half of all new legal immigrants — about 500,000 people per year — are approved via the USCIS agency’s “Adjustment of Status” process. Also, USCIS agents conduct many of the “Credible Fear” interviews which decide if illegal migrants can stay in the United States.

The USCIS revamp is being led by agency chief, L. Francis Cissna, and is it generating protests from the immigration lawyers and migration advocates who gain from a very complex system with plenty of loopholes and shortcuts for migrants to use. The revamp is also being threatened with lawsuits by companies and universities who fear the enforcement will reduce their gains from foreign workers and foreign students.

“This policy erases the ‘Service’ from USCIS and transforms the agency into yet another DHS enforcement tool,” said a statement from the president of the American Immigration Lawyers Association.

The memos are part of a “well-organized and systematic effort by the current administration to make the process of legal immigration to the United States as difficult as possible for both immigrants and the employers who sponsor them,” Jennifer Minear, an immigration lawyer at McCandlish Holton told Forbes magazine. She continued:

This policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies – to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally. Even if that is not the intent, that is sure to be the result.

However, Andrew Arthur, a former immigration judge says the new rules are helping the agency “more faithfully hew to Congress’ intentions in the [1952] Immigration and Nationality Act.” The benefits of some changes show up quickly, but the new rules will have to survive many court challenges, he said.

Also, if President Donald Trump loses in 2022, and “if the White House is in the hands of President Kamala Harris or Bernie Sanders, the agency may change [back] the regulations, or may not mount a sufficient defense to [courtroom] challenges to the regulations,” he said. 

On July 13, for example, USCIS issued a policy memorandum stating that USCIS officials have the authority to deny benefits to would-be immigrants without giving the migrants a second or third chance to justify their claim. It replaces a 2013 rule by President Barack Obama’s deputies which required USCIS officials to help applicants. According to USCIS:

The policy implemented in this PM rescinds the 2013 PM’s “no possibility” policy and restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

On June 28, USCIS posted two memos about the “Notice to Appear” process, which begins the process of deportation and usually directs would-be migrants to meet with USCIS officials. One NTA document is intended to help wind down the ‘DACA’ amnesty. The other memo allows officials to quickly send out NTAs when an immigration-related request – such as a visa extension — is denied. The memo said:

USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.

“This policy change will have far-reaching implications for many of those interacting with the agency, but also signals a major shift in how USCIS operates,” complained Joshua Breisblatt, a policy analyst at the American Immigration Council. He continued:

USCIS was never meant to be tasked with immigration enforcement. Their mandate has always been administering immigration benefits. With its distinct mission, USCIS was created to focus exclusively on their customer service function, processing applications for visas, green cards, naturalization, and humanitarian benefits.

Anastasia Tonello, the president of the American Immigration Lawyers Association, complained:

The new guidance will have a chilling effect, discouraging people who are eligible for immigration benefits from applying out of fear that they will be tossed into the deportation machine if they are denied … As a result, USCIS will now needlessly sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their application is denied.

On May 10, USCIS issued the Accrual of Unlawful Presence policy, which clearly states when migrants are deemed to be residing illegally in the United States. The policy was needed because immigration law sets tough penalties for people who are in the country illegally for more than 180 days or more than 1 year — yet the prior 1997 and 2009 policies said the clock started only after officials noticed and formally declared the person was overstaying their welcome.

But Obama’s officials were not trying hard to identify the overstays, so many migrants – especially students or summer visa-workers — could overstay their visa without suffering any penalties. The new policy shifts the burden back to foreigners ensure they stay legal, and says:

Individuals in F [student], J [summe worker], or M [trade school]  status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;

The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

The day after the I-94 [arrival and departure form] expires; or

The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Under the prior rules, “even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence,” said immigration attorney Cyrus Mehta told Forbes magazine. “The radical departure from previous policy will jeopardize the ability of many nonimmigrants, mainly foreign students, from returning to the United States for unwitting or inadvertent status violations,” Mehta said at his blog.

In April and May, USCIS required that all “Adjustment of Status” citizenship requests include an interview to check for possible fraud, such as marriage fraud. A USCIS statement provided to Breitbart News said:

In April 2017, USCIS began increasing the types of benefits for which it regularly required in-person interviews. Cases that typically involve an interview as part of the adjudication process include applicants for permanent residence who entered the United States as a nonimmigrant fiancé, applicants for permanent residence based on an approved Petition for Immigrant Worker (From I-140), and beneficiaries who are in the United States and “following-to-join” a principle asylee/refugee applicant …

We acknowledge that the threats to the integrity of our immigration system are persistent and evolving; we are using every available means to ensure immigration benefits are afforded only to those who are eligible …

In one instance, during an employment-based adjustment of status interview, information was elicited from an applicant who acknowledged not working for the petitioning company. In a K-1 adjustment of status case, an applicant was unable to provide logical or consistent answers to questions regarding his petitioning spouse. After referral to FDNS, a site visit was conducted by a FDNS Immigration Officer. The petitioner confessed and provided a sworn statement admitting that the marriage was a sham for immigration purposes. In another case, a K-1 adjustment of status application was denied when a petitioner verbally admitted during the interview to engaging in marriage fraud and withdrew the Affidavit of Support (Form I-864).

Under Obama, officials rubber-stamped Adjustment of Status requests, creating a closed-door amnesty for a huge number of low-profile illegal immigrants. The new rules will likely deter adjustment requests by current illegals, including by the roughly 4 million people who arrived legally as tourists or workers but who never returned home when their visas expired.

Roughly 1.47 percent of visitors overstay their visas, but many leave a few months later. For example, 740,000 of 50 million 2016 visitors overstayed their visas in 2016, but 2o0,000 went home by December 2016, leaving roughly 540,000 of them illegally living in the United States on January 10, 2017, according to DHS.

USCIS officials have also drafted a policy to begin the enforcement of the law barring migrants who are a “public charge” from getting citizenship. The long-standing and long-ignored law was designed to deter the immigration of people who rely on welfare and government aid. Critics say the proposed policy is unfair because it would bar almost 50 migrants for using routine government aid programs, such as Obamacare and the Earned Income Tax Credit.

USCIS officials are also creating a new division to revoke citizenship when fraud was used to get citizenship. Several thousand possible cases have been identified.

On July 11, Attorney General Sessions’s provided USCIS officials with a revamped set of rules for “Credible Fear” asylum interviews. The reform reverses Obama-era rules by providing USCIS officials with more authority to use their own judgment and allowing them to exclude asylum-seekers who claim they are being persecuted by criminal gangs or abusive spouses. This change will help quickly deport illegals who claim asylum once they are approved for deportation.

USCIS officials are tightening oversight of the various visa-worker programs which keep roughly 1.5 million foreign college-graduates working in U.S. jobs, likely helping U.S. workers gain better wages.

The agency has told companies that it cannot use “Optional Practical Training” students as “offsite” contract-workers, is pressuring companies which use L-1B workers to identify every location where they will work, and is pressuring companies to raise pay for H-1B workers. The agency is also planning a broad reform of the H-1B program, which places roughly 600,000 foreign college-graduates in a wide variety of healthcare business, engineering and software jobs throughout the United States.

The agency is also planning to eliminate the H4EAD work permit program which was invented by Obama’s deputies to provide work-permits for roughly 100,000 spouses of foreign visa-workers. According to the Houston Chronicle:

Houstonian Minal Bhadane, who holds a Ph.D in biomedical engineering, told the [newspaper’s] editorial board she and her husband love to eat out and enjoy everything that a major city like Houston has to offer — luxuries that they can only afford because she has a job.

The threat of losing work authorization may cause many women in Texas and across the country to consider leaving the United States. An exodus of H-1B visa holders and their families would hit major technology industries that rely on these specialized workers, including, as the Chronicle reported, the global IT company Cognizant Technology Solutions Corp., whose U.S. headquarters is in College Station.

Cutbacks in the foreign labor supply are likely to help raise wages for Americans by forcing employees to compete for workers in a smaller pool of candidates.

Four million Americans turn 18 each year and begin looking for good jobs in the free market — but the government provides green cards to roughly 1 million legal immigrants and gives temporary work-permits to roughly 3 million foreign workers.

The Washington-imposed economic policy of economic growth via immigration shifts wealth from young people towards older people by flooding the market with cheap foreign labor. That process spikes profits and Wall Street values by cutting salaries for manual and skilled labor offered by blue-collar and white-collar employees. The policy also drives up real estate priceswidens wealth-gaps, reduces high-tech investment, increases state and local tax burdens, hurts kids’ schools and college education, pushes Americans away from high-tech careers, and sidelines at least 5 million marginalized Americans and their families, including many who are now struggling with opioid addictions.






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