Report: New Internal Oversight Division within USCIS to be Established

The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Establishing this division follows changes Cissna recently made to the USCIS mission statement. That revised statement emphasizes ensuring that benefits are not provided to those who do not qualify, moving away from prioritizing customer (i.e., applicant) satisfaction.

A USCIS spokesman said the agency has no official announcement to make regarding any reorganization at this time, but did not deny such a division is being considered. Jackson Lewis will continue to monitor developments.

New Tool to Help You Determine TPS Work Authorization

The Trump Administration has announced the upcoming termination of Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua and Sudan and the temporary extension of TPS status for Honduras, Nepal, Somalia, South Sudan, Syria and Yemen. With each termination or extension, the Administration also publishes information on how the effected TPS beneficiaries may extend their statuses until the end of the termination or extension period.  For El Salvador and Haiti the relevant re-registration period ends on March 19, 2018.  Employers of thousands of TPS beneficiaries must determine whether their employees still have work authorization.  Some TPS beneficiaries are granted automatic extensions of work authorization for up to 180 days while they await the adjudication of their new EAD cards but eligibility for those extensions varies from country to country.

Jackson Lewis has created a tool to help you determine the work authorization eligibility for each effected country. To use it, please click here. If you have any questions about how to use the tool or about next steps regarding Form I-9 employment verification, please reach out to your Jackson Lewis attorney or email.

Travel Ban 3.0 Updated: DOS Waiver Process

News outlet Reuters has reported that during the first month of Travel Ban 3.0, 8,400 individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela applied for visas, while only an estimated 100 waivers were granted.

Individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela are affected by Travel Ban 3.0. Certain individuals are exempt from the travel restrictions, including those with valid entry documents, U.S. legal permanent residents, and dual nationals.

Concerned, Senators Chris Van Hollen (D-MD) and Jeff Flake (R-AZ) requested information from the State Department regarding the waiver process following information received reporting “the near uniform denial of waivers of visas.” In response, the State Department outlined its waiver process.

If an exemption does not apply to the traveler, a Consular Officer must consider the following to determine whether a waiver might be appropriate in order to grant entry to the U.S.:

  • Is there undue hardship?
    • An unusual situation exists that compels immediate travel, and delay would defeat the purpose of the travel.
  • Is there a national interest?
    • A U.S. person or entity would suffer hardship if the applicant could not travel until after restrictions are lifted.
  • Does the applicant pose a threat to national security or public safety?
    • This includes a consideration of the information-sharing and identity management protocols of the individual’s country of nationality.

There are no categorical or blanket waivers, but Travel Ban 3.0 provides specific examples where a waiver might be appropriate in Section 3(c)(iv), assuming the above standards are also met. Examples include the following:

    • Applicant has previously been admitted for work, study, or other long-term activity and plans to continue that activity.
    • Applicant previously established significant contacts with the U.S. for work, study, or other lawful activity.
    • Applicant seeks to enter the U.S. for significant business or professional obligations and denial of entry would impair those obligations.
    • Applicant seeks to enter the U.S. to visit or reside with a close family member (e.g., spouse, parent, or child).
    • Applicant is an infant, young child, or adoptee, or an individual needing urgent medical care.
    • Applicant has been employed by the U.S. government.
    • Applicant is traveling for purposes related to an international organization.
    • Applicant is a Canadian permanent resident who applies for visa in Canada.
    • Applicant is traveling as a U.S. government-sponsored exchange visitor.
    • Applicant is traveling at the request of a U.S. governmental department or agency for law enforcement, foreign policy, or national security purposes.

When being considered for a waiver, individuals may be asked to provide additional personal information. While there is no specific waiver application, individuals are encouraged to submit information to show they qualify for an exemption or waiver. The waiver adjudication may take additional time to process.

In the meantime, the U.S. Supreme Court has agreed to hear a case challenging the validity of Travel Ban 3.0 this spring.

If you have questions about the process, please reach out to your Jackson Lewis attorney.


If foreign national employees have recently experienced trouble scheduling INFOPASS appointments, it may be because USCIS is preparing for an expected rollout of a new pilot program over the next couple of months. Instead of standard self-service online scheduling of appointments, the National Customer Service Center (NCSC) first will be coordinating scheduling for five selected District Offices.  The American Immigration Lawyers Association (AILA) announced that USCIS plans to institute this program to avoid INFOPASS appointments for issues that it believes could be resolved by NCSC.  Only after individuals seeking an appointment speak to two tiers of officers will NCSC decide if an INFOPASS appointment should be scheduled.  It seems that the five pilot offices will be Hartford, Connecticut; El Paso, Texas; Jacksonville, Florida; and Sacramento and San Francisco, California.

There has not yet been an official announcement from USCIS but Jackson Lewis will continue to follow this situation.

U.S. Cracks Down on Birth Tourism Industry

Travelling to another country for medical procedures, or medical tourism, is a growth industry both as an export and an import. U.S. citizens may travel for medical treatments that are less expensive and patients with means come to the U.S. for high-quality services that may not be available abroad. Paying full cost for the services provides a healthy stream of income for some U.S. healthcare facilities.

But high-quality medical treatment is not the only attraction for a particular type of medical tourist. As one of a few countries that grants citizenship to any person born on American soil, a cottage industry has developed around birth tourism. Pregnant women by the thousands from countries that includes China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico come to the U.S. every year to give birth to U.S. citizens.

Although President Donald Trump has railed against “anchor babies,” there is no law that prohibits foreign nationals from coming to the U.S. to give birth, although many end up committing immigration fraud by misrepresenting the purpose of their visits to gain entry or obtain an appropriate visa.

Some who come to the U.S. to give birth find themselves in less than ideal situations (in terms of housing and medical care) and may even be putting their babies at medical risk. But, for the wealthy among them, birth tourism can be a luxurious semi-vacation and an investment in the future for their children and their families. Spending up to $80,000 for birth tourism packages advertised online, these mothers-in-waiting also visit shopping centers and restaurants and contribute to the economy in the areas where they congregate, particularly in California, New York, and Florida.

U.S. officials, however, are cracking down on the birth tourism industry for tax fraud, contractual breaches, immigration fraud (helping birth tourists get visas under false pretenses), and even zoning violations. ICE officials have raided “birth hotels” in California and has been reported that at Los Angeles International Airport, CBP has been tightening security particularly for pregnant Chinese women who are trying to enter the country.

One of the biggest advantages of having a U.S. citizen child is that once that child reaches the age of 21, he or she could sponsor for a Green Card the parents who “gave” the child U.S. citizenship in the first place. That family unity benefit, called “chain migration” by Trump, is another one of the immigration programs that Trump would like to eliminate.


Update on H-4 EAD Rule Rescission

Following up on the U.S. Court of Appeals for the D.C. Circuit Order of February 21, 2018, DHS has requested still more time to review the H-4 EAD Rule.  In a status report filed on February 28, 2018, just a week after the Court’s Order granting DHS’ request to continue to hold the case in abeyance based upon the Department’s assertion that it would issue a Notice of Proposed Rulemaking in February 2018, DHS concluded that it could not meet that deadline.  DHS stated that it “has determined that significant revisions to the draft proposal” are required and that those revisions will require “a new economic analysis.”

DHS now has told the Court that it plans to publish the new Rule in June 2018. How the Court will react to this status report and how this new analysis will affect the Rule’s prospective provisions remain unknown.   In the meantime, those with H-4 EADs and their employers have been waiting for over a year for DHS to make its final move on the Rule and still have no certainty, potentially leaving them considering their options in anticipation of the Rule allowing H-4 EADs being rescinded.

USCIS Revises Its Mission Statement

The new USCIS mission statement, issued on February 22, 2018, by Director L. Francis Cissna, no longer emphasizes customer satisfaction, i.e., the satisfaction of petitioners and beneficiaries. Instead, it focuses on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm. . . .”

The former Director of the USCIS, Leon Rodriguez, and others have pointed out that the new mission statement eliminates the mention of a “nation of immigrants,” a phrase famously used by then Senator John F. Kennedy as the title of his 1958 book on American immigration. The new mission statement states:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

The old mission statement included:

USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

The new mission statement mirrors the Trump Administration’s focus on enforcement, strict scrutiny and extreme vetting.

Travel Ban Case at the U.S. Supreme Court, But DACA Will Wait

The Supreme Court is now in the middle of two high-profile immigration cases: Travel Ban 3.0 and the DACA rescission.

The Court let President Donald Trump’s travel ban go in effect while litigation challenging the ban is pending, but the Court did nothing to overturn lower court rulings that have effectively stopped the President’s rescission of DACA while those cases are pending below.

In both the travel ban and the DACA cases, the Administration took the extraordinary step of seeking Supreme Court review before any Circuit Court opinions were issued, a procedure, called “certiorari before judgment.”

Travel Ban 3.0

In December, the Supreme Court, at the Administration’s request, allowed Trump’s Travel Ban 3.0 to go into effect, with litigation pending in both the 9th and the 4th Circuit Courts of Appeal. The Supreme Court indicated that it believed the lower courts would issue their decisions “with appropriate dispatch” hinting that it would then decide whether to grant certiorari.

The 9th Circuit upheld the district court injunction on December 22, 2017, in Trump v. Hawaii. On January 19th the Supreme Court agreed to hear that case. The Court asked the parties to brief a question that was not raised by the government, but was raised in Hawaii’s opposing brief: whether Trump’s travel ban proclamation violated the Establishment Clause. That question, however, was raised in the 4th Circuit in International Refugee Assistance Project (IRAP) v. Trump, and on February 15, 2018, the 4th Circuit held that the travel ban proclamation likely violated the Establishment Clause. IRAP has asked the Supreme Court to consolidate its case with that of Hawaii.


In the DACA case, the Supreme Court declined to step in while an appeal is pending in the 9th Circuit Court of Appeals (U.S. Department of Homeland Security v. Regents of the University of California), which effectively means the Administration cannot end DACA on March 5.

In its attempt to engage the Supreme Court, the Administration did not resort to the same tactic that it used in the travel ban case. In that case, the Administration asked the Supreme Court to block the district court injunctions while it considered certiorari. In the DACA case, the Administration asked the Supreme Court to review the case directly on its merits while the Administration pursued an appeal in the 9th Circuit. As with the travel ban, the Supreme Court noted: “It is assumed the court of appeals will proceed expeditiously to decide this case.” Although it is not clear when the 9th Circuit will issue an opinion and whether the Supreme Court would then grant certiorari, it is now unlikely that the DACA case would reach the Supreme Court before its next term.

In the meantime, Congress still has time to act.

ICE Sweeps California, Increases Enforcement Nationwide

Following California Governor Jerry Brown’s signing of sanctuary laws in October 2017, the state has been targeted for a major ICE sweep to arrest undocumented individuals. ICE Director Thomas Homan stated that because California’s sanctuary laws nearly eliminate all cooperation with state law enforcement partners, ICE actions “will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”

Accordingly, in January 2018, ICE issued Notices of Inspection (NOIs) to 77 companies in Northern California. Then, in a five-day period during the week of February 12, 2018, ICE made 212 arrests and issued 122 NOIs to companies in Southern California in the Los Angeles area. Of those arrested, Homan said that “88 percent . . . were convicted criminals.” Those who were issued NOIs regarding their I-9 processes had three days to prepare for the inspections on their compliance with federal employment verification laws. Findings of failure to comply result in civil fines and possible criminal prosecution for knowing law violations.

ICE has not been constrained in its issuance of penalties to employers or in its deployment of agents to actively audit employers. Since September 2017, ICE assessed one of the largest fines in its history and has conducted raids nationwide. Asplundh Tree was assessed a $95 million penalty and ICE served audit notices on 98 7-Eleven franchises and conducted raids that led to more than 20 arrests.

California, of course, is not the only enforcement target. Here are ICE’s own statistics for fiscal year 2017:

  • Conducted 1,360 I-9 audits
  • Made 139 criminal arrests, and 172 administrative arrests
  • Ordered businesses to pay $97.6 million in judicial forfeiture, fines, and restitution and $7.8 million in civil fines.

These statistics reflect the first two prongs of ICE’s three-pronged enforcement process:

  • I-9 inspections and civil fines;
  • Arrests of employers and unauthorized workers; and
  • Outreach through the IMAGE Program.

ICE’s IMAGE Program trains and certifies employers who can serve as role models for other employers. Employers seeking certification must agree to:

  • Complete the IMAGE Self-Assessment Application
  • Sign an IMAGE partnership agreement
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility verification policy
  • Conduct yearly I-9 self-audits
  • Submit to an initial I-9 inspection

In return for certification, ICE agrees to:

  • Waive potential fines if substantive violations are discovered on fewer than 50% of the Form I-9s
  • If more than 50% of Forms have substantive violations, mitigate fines
  • Not conduct another inspection for two years
  • Provide information and training before, during, and after inspection

In this era of increasing enforcement efforts, consult your Jackson Lewis attorney regarding I-9 self-audits, I-9 processes and whether enrollment in the IMAGE Program (and E-Verify) makes sense for your company.

Rescission of Rule Allowing for H-4-Based Employment Authorization Documents (EADs) Expected

The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.

According to DHS pleadings in the U.S. Court of Appeals for the D.C. Circuit, a Notice of Proposed Rulemaking (NPRM) will be issued by the end of February.

H-4 EADs have been the subject of litigation since the regulation creating them was issued in 2015 during the Obama Administration. Save Jobs USA, a group of high-tech workers, had filed suit in the federal district court in D.C., arguing that the DHS lacked the authority to issue the H-4 EAD regulation. Save Jobs USA lost in the district court, but it appealed to the federal appeals court just before President Donald Trump was inaugurated.

It then fell to the Trump DOJ to defend the regulation. Instead of mounting a defense, the DOJ asked for a 60-day pause in the proceedings to “allow incoming leadership personnel adequate time to consider the issues.” That pause was to conclude on April 3, 2017.

The DOJ asked for a second pause of 180 days “to permit the Department [of Justice] to re-consider the H-4 Rule and whether the issuance of a notice of proposed rulemaking relating to it [would be] appropriate.” The Court granted another pause until September 27, 2017.

On September 27, 2017, the DOJ requested yet another delay because the “DHS required additional time to assess the H-4 Rule in light of the Executive Order 13,788, Buy American and Hire American . . . .”  That request was granted until January 2, 2018.

Now, more than a year after the appeal was filed, the DOJ has requested a fourth delay to give the DHS more time to begin the NPRM to rescind the rule. The DOJ argued that, because DHS “has announced its intention to propose rescission of the H-4 Rule in its current form and remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” the issues raised by the litigation will become moot. In a Per Curiam Order, the Court granted the request, stating that DHS “represents that it plans to issue a notice of proposed rulemaking in February 2018 . . ..”

While the Administration’s intention to eliminate at least some H-4 EADs seems clear, how it proposes to wind down the program is not. Employers should consider back-up plans for employees on H-4 EADs such as filing H-1B cap-subject petitions in appropriate situations. For further guidance, please contact your Jackson Lewis attorney. We will continue to closely monitor this situation.