DHS Finalizes Rule to Increase Fees

The U.S. Department of Homeland Security (DHS) finalized a rule that will increase immigration fees. The proposed rule was issued on May 4, 2016, and the final rule will go into effect on December 23, 2016 (60 days after publication). The fees in the final rule remain unchanged from the fees originally proposed. DHS says the new fees are needed to maintain adequate services and recover costs and proposed after a comprehensive fee review. The fee hike will affect many, including those most commonly applying for a Form I-140, where the fee will go up more than 20%. Other significant increases include the Form I-129, Petition for a Non-Immigrant Worker, which will go from $325 to $460; the Form I-485, Application to Register Permanent Residence of Adjust Status, which will go from $985 to $1140; and the Form I-539, Application to Extend/Change Non-Immigrant Status, which will go from $290 to $370. In July, the U.S. Government of Accountability Office released a report that found that better oversight, monitoring and reporting of DHS programs are needed in order to show how the Agency’s collection programs are operating. To see all the new fee changes, see the “Summary of Final Fees” chart in the Federal Register.

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Where the 2016 Presidential Candidates Stand on Immigration

For those of you who missed the third and final Presidential debate, immigration was an important topic discussed by the 2016 Presidential candidates. Moderator Chris Wallace asked both candidates about their positions and plans regarding immigration. Some highlights include Mr. Trump accusing Secretary Clinton of wanting to give amnesty to all illegal immigrants. He also stated the need for stronger borders, in an effort to keep drugs out of the United States. Trump reiterated his plan to build a wall on the southern border and deport criminals as one of his first actions in office. Ms. Clinton said that she does not want to “rip families apart” and deport the millions of undocumented people in the U.S. She also asserted she has supported border security for years and will ensure resources go towards deporting any violent criminals. Secretary Clinton stated she would introduce comprehensive immigration reform within her first one hundred days in office.

Hillary Clinton’s official immigration plan promises to introduce comprehensive immigration reform within her first 100 days in office, which would include a route to citizenship. Ms. Clinton also supports President Obama’s executive actions from 2014 that would allow undocumented immigrants whose children were born in the U.S. to apply for work permits and temporary residency (also referred to as DACA and DAPA). The Supreme Court blocked this order, after issuing a 4-4 split decision, leaving the Fifth’s Circuit decision in place, and denied rehearing the case this session. A Clinton Administration will also continue President Obama’s policy of deporting violent criminals and others who break the law after entering the U.S. In addition, Clinton would end family detention for parents and children, and she would also allow all people – regardless of immigration status – to buy into the federal health care exchanges.

Donald Trump’s official immigration plan includes building a physical wall on the Southern border on his first day in office. Mr. Trump would not support President Obama’s executive actions and has promised to triple the number of enforcement and border patrol agents. A Trump Administration would oppose any pathway to legal status for immigrants in the U.S. illegally and would deny illegal immigrants access to any government benefits. He would suspend issuance of visas to any places “where adequate screening cannot occur” and would also create a deportation task force that would prioritize the removal of criminals or people who have overstayed their visas.

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Supreme Court Denies Rehearing in Immigration Case

On Monday, October 3rd the Supreme Court denied the Obama administration’s request to rehear arguments in United States v. Texas, a case involving President Obama’s 2014 executive actions on immigration. The Supreme Court denied the case without comment in a long list of orders the Justices issued for their 2016-17 session. In June, the court issued a 4-4 split decision that left the Fifth Circuit’s decision in place, blocking protections for millions of immigrants. In July, The U.S. Department of Justice petitioned the Court to rehear the case, but recognized a rehearing was unlikely, as the Senate was not willing to confirm the President’s nomination of Merrick Garland to the Court, and the administration knew it was unlikely a current justice – who opposed the program in June – would flip their vote in a rehearing. The Fifth Circuit’s decision affects millions of U.S. citizens living with family members who are now at risk for deportation.

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Madeleine Albright Writes About Her Experience as a Refugee

Former U.S. Secretary of State, Madeleine Albright, sent the below message to the White House ahead of President Obama’s remarks at a U.N. Refuge Summit:

I came to the United States as a refugee when I was 11 years old. My father was a diplomat and a strong supporter of democracy in Czechoslovakia, so when the Communists took over, we were forced into exile as refugees. In November 1948, we were welcomed to the United States of America. Becoming a U.S. citizen is the most important thing that ever happened to me. My father said that when we were in Europe during WWII people would say, “We are sorry for your troubles and hope that you have everything you need; by the way, when will you be leaving to go back home?” But in America, people said: “We are sorry for your troubles and hope that you have everything you need; by the way, when will you become a citizen?”

America resettles more refugees than any other nation because it reflects one of our noblest traditions as a nation: providing support to those who are most vulnerable. With the world facing the largest mass displacement on record since World War II, it has never been more important for world leaders to follow America’s example and work together to do more to support refugees. Under President Obama, we’ve increased the number of refugees resettling this year to 85,000 – including 10,000 Syrian refugees. Starting next week, the United States will commit to resettling 110,000 refugees from around the world over the coming year. And with refugees undergoing the most rigorous screening of any kind of traveler, he’s shown that we can welcome refugees while ensuring our own safety.

As a former Secretary of State, I can tell you that President Obama’s leadership in this global crisis is critical to our national security. When countries with insufficient resources take in refugees, it creates more instability, not just at the frontlines of this crisis, but around the world. If we were to slam the door in the faces of refugees with certain religious backgrounds, we would defy our history and our principles of pluralism and diversity. As we talk to other nations about what more needs to be done to tackle this crisis, it’s important that President Obama is setting this example. When I came here as a child, I will never forget sailing into New York Harbor for the first time and beholding the Statute of Liberty. I did not have to face refugee camps or the kind of danger that many refugees endure. But like all refugees, I shared a hope to live a safe life with dignity and a chance to give back to my new country. Together, we can help refugees rebuild their lives and live with dignity once again.

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2018 Diversity Immigrant Visa Program Announced

On September 16, 2016,  the U.S. Department of State (DOS) published a notice in the Federal Register on the 2018 Diversity Immigrant Visa Program (DV-2018). This Congressionally-mandated program provides visas for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. A limited number of visas are available each fiscal year, and for FY2018, 50,000 diversity visas will be available. Applicants are selected through a lottery, with diversity visas distributed among 6 geographic regions. Natives from certain countries will not be eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous 5 years. Some of these countries include: Brazil, China, India, Pakistan, and Vietnam. Online registration for the DV-2018 program begins on Tuesday, October 4th at 12:00 pm EDT and ends on Monday, November 4th at 12:00 pm EDT. The notice contains FAQs and information about the diversity visa process, as well as requirements, such as every entrant must have at least a high school education or its equivalent.

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New International Entrepreneur Rule Revealed

Today, the U.S. Citizenship and Immigration Services (USCIS) announced it is proposing a new rule, which would allow certain international entrepreneurs to stay in the U.S. on a case-by-case basis, in order to start or grow their business. These entrepreneurs would be given parole – temporary permission to be in the U.S. – if they can show they will provide a significant public benefit.  This action stems from President Obama’s Immigration Accountability Executive Action, issued in November of 2014. The White House describes this administrative action as necessary “to ensure that our system encourages [foreign entrepreneur] to grow our economy.” The proposed rule would allow the U.S. Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs who can show a benefit through the substantial and demonstrated potential for rapid business growth and job creation. Per the USCIS press release, the following criteria would be considered by DHS:

  • Entrepreneurs who have a significant ownership interest in the startup (at least 15%) and have an active and central role to its operations;
  • The startup was formed in the U.S. within the past 3 years; and
  • The startup has substantial and demonstrated potential for rapid business growth and job creations as evidenced by:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The proposed rule would allow an initial stay of up to 2 years to entrepreneurs who meet the criteria. After that, a request for re-parole – for up to 3 additional years – would be considered only if the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. Once the proposed rule is published in the Federal Register, the public will have 45 days from that date to comment on the rule.

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Seventh Circuit Says No Asylum for Bisexual Man; Posner Dissents

The following blog post is written by Armeen Mistry, an Associate in Minneapolis

Last week, the Seventh Circuit declined to review the asylum application of a bisexual individual who applied for fear of persecution. Ray Fuller, 51, told an immigration judge and the Board of Immigration Appeals that he could not return to Jamaica for fear of harassment or torment over his bisexuality. Both the judge and the appellate board denied his application. The Seventh Circuit upheld the denial, but U.S. Circuit Judge Richard Posner issued a critical dissent opinion.

Fuller came to the United States in 1999 on a fiancé visa and received conditional permanent resident status under 8 U.S.C. §1186a(a). When he failed to attend a required interview, the U.S. Citizenship and Immigration Services terminated his status. Fuller then pled guilty to attempted criminal assault and was imprisoned. When he was released from state custody, the U.S. Department of Homeland Security detained Fuller.

Fuller then applied for asylum and asserted that he is bisexual. He testified to the prosecution he had experiences as a bisexual man in Jamaica. The immigration judge found Fuller’s credibility “seriously lacking.” The Board of Immigration Appeals upheld the immigration judge’s decision.

The Seventh Circuit panel agreed there was sufficient concern about Fuller’s inability to provide concrete evidence. “We conclude that substantial evidence supports the IJ’s conclusion that Fuller did not credibly establish that he is bisexual,” the Seventh Circuit said.

Judge Posner dissented. He noted that the merit of Fuller’s claim turns on (1) whether Fuller is bisexual and (2) whether bisexuals are persecuted in Jamaica. With respect to the first point, Posner asked “how exactly does one prove that he (or she) is bisexual?” To the second point, Posner said “given the vicious Jamaican discrimination” against LGBT persons, it was impossible for Fuller to ask all his male sex partners to testify on his behalf.

Posner also criticized the immigration judge’s conclusion that Fuller is not bisexual because he has had sexual relations with women, including a marriage. “Apparently the immigration judge does not know the meaning of bisexual,” Posner said. “The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that Fuller is not bisexual.”

U.S. Chief Circuit Judge Diane Wood and U.S. Circuit Judges Ilana Rovner and Richard Posner were on the panel. Judge Wood wrote the majority opinion.

The case is Ray Fuller v. Loretta Lynch, No. 15-3487, in the U.S. Court of Appeals for the Seventh Circuit. The full text of the opinion is available here.

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New Entry Requirement When Traveling to Canada

Canada has a new entry requirement that applies to visa-exempt foreign nationals flying to the country on a temporary basis. The program is called the Electronic Travel Authorization (eTA) and was implemented on March 15, 2016. This new requirement is a result of the 2011 “Beyond the Border” action plan, announced in 2011 by President Obama and then Prime Minister Harper. The stated goal of the eTA program is to improve screening of all visa-exempt foreign nationals flying to Canada. This initiative mirrors the U.S.’s Electronic System for Travel Authorization (ESTA) that was put in place in 2008, and requires all eligible international travelers who wish to travel to the U.S. under the Visa Waiver Program to apply for the authorization. However, the ESTA is not needed if you have a Canadian passport. Likewise, if you are a U.S. citizen, you do not need to apply for an eTA. In addition, you will not need to register for an eTA if you are traveling to Canada by road or sea.

The eTA is electronically linked to a traveler’s passport and is valid for 5 years or until the passport expires, whichever comes first. The online application is $7 and all applicants are required to have a credit card and passport to apply. Currently, there is a leniency period, and as long as travelers have appropriate travel documents and a valid passport they are okay, but starting September 30, 2016 foreign travelers will need to register online for the eTA. This program works as a pre-screen for travelers and the idea is to act as a first line of defense in securing the border. If there’s a red flag with a traveler’s eTA application, they will be asked to provide additional information and may be asked for an interview. This is a big change from previous requirements and will apply to foreign nationals who wouldn’t normally require a visa to travel to Canada – such as British, Australian and French citizens, as well as U.S. green card holders or work permit holders.

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DHS Expands the Provisional Unlawful Presence Waiver

Today, The U.S. Department of Homeland Security (DHS) finalized a rule that expands eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The provisional unlawful presence waiver (“provisional waiver”) process allows certain individuals who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver on the grounds of inadmissibility before departing the United States for consular processing of their immigrant visas – rather than applying for a waiver abroad after their immigrant visa interviews using the Form I-601. The provisional waiver process is designed to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.

This final rule provides that eligibility for the provisional waiver will no longer be limited to the subset of statutorily qualified individuals who seek to immigrate as immediate relatives of U.S. citizens and who can show that denial of admission will result in extreme hardship to a U.S. citizen spouse or parent. Rather, this final rule makes eligibility for the provisional waiver available to all individuals who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility. Under the new rule, such an individual must go abroad to obtain an immigrant visa, establish that denial of admission will result in extreme hardship to a U.S. citizen or LPR spouse or parent, establish that his or her case warrants a favorable exercise of discretion, and meet all other regulatory requirements. Eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join principal immigrants. For those eligible, it provides the opportunity to apply for a waiver before departing the United States to obtain an immigrant visa. The DHS says the new rule promotes family unity, especially now that the immigrant can remain with their family pending a decision on their waiver.

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Report Shows Better Oversight Needed for DHS Fee-Collecting Programs

Last week, the U.S. Government Accountability Office (GAO) released a report after examining the way the U.S. Department of Homeland Security (DHS) manages the billions of dollars it collects from its various programs. In FY 2014, DHS received $15 billion in fees and other collections across 38 programs – including USCIS, CBP and ICE – the agencies within DHS that administer and enforce immigration laws. The GAO concluded that better oversight, monitoring and reporting of DHS programs and components are needed in order to educate the public and Congress on how the Agency’s collection programs are operating. The GAO recommended that DHS conduct regular reviews to identify, track, and report operational deficiencies. They also recommend that DHS document the processes for assessing, as well as managing, the difference between program costs and collections. The GAO found that DHS has generally focused on “ensuring continuity of program operations rather than efficiently using the funds.” The release of this report comes after the DHS proposed increasing the fees USCIS chargers for certain immigration and naturalization filings. USCIS says the new fees are needed to maintain adequate service and recover costs. This fee hike will affect many immigrants, including those commonly applying for a Form I-140, where the fee will go up more than 20%. With the release of the GAO report, it is clear the DHS needs regular and comprehensive oversight of the various programs and components – including the proposed new fees from USCIS – to ensure an effective and efficient use of fees.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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