October 2018 Newsletter

Here's our October 2018 newsletter, discussing USCIS' new policy commencing removal proceedings after certain types of immigration benefit denials; the Automatic OPT extension cutoff on October 1; AN update on DHS' anticipated regulation ending H-4 spouse employment authorizations; and USCIS' proposed expansion of public benefits types the acceptance of which could bar permanent residence.

 

USCIS Now Commencing Removal Proceedings After Some Case Denials - Employment Based Petitions  Excluded for Now

USCIS announced that starting October 1, 2018, it will begin "incremental" implementation of its new policy to commence Immigration Court removal proceedings after denial of an application or petition that leaves the beneficiary without lawful status. For example, applications to extend or change business visitor, tourist, student, exchange visitor status which USCIS will result in the issuance of a  Notice to Appear (NTAs), which Immigration and Customs Enforcement attorneys must then file in Immigration Court to commence removal proceedings.

Significantly, USCIS is not - for now - applying the new NTA policy to denial of employment-based petitions, such as H-1b (specialty occupations), L-1 (corporate transfers, O-1 (extraordinary ability), E-1/E-2 (Treaty Traders and Investors) which leave the beneficiary without lawful status. Unclear is whether all beneficiaries of employment based petitions are exempt, or whether the beneficiary must also have been in an employment-based status at the time of filing. 

USCIS states that it "will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns" for commencement of removal proceedings. 

 

Automatic OPT Extensions End October 1

USCIS issued a press release reminder to employers and F-1 students in Optional Practical Training (OPT) that the automatic OPT extension period ends on October 1. The automatic OPT extension occurs where an FY2019 H-1b change of status petition was filed but remains pending after the approved OPT term expires. Although the F-1 student may remain in the US pending action on the petition (and likely has a 60 day grace period in any event) OPT employment is prohibited.

Under a policy which took effect August 9, students in F-1 status who engage in unauthorized employment are deemed to be accruing unlawful presence as of the first day they do so. Departure from the US after 180 days of the commencement of any unlawful employment will invoke a 3 year bar on U.S. admission. The bar increases to 10 years after 365 days.
 
The end of the automatic H-1b OPT extension does not affect those students who timely filed for a two year STEM OPT extension before expiration of their first year of OPT, whether or not the OPT extension application has been approved yet. 

 

 

DHS Updates Timing OF H-4 Spouse Employment Rule Proposal

The Department of Homeland Security stated in a September 21 court filing that it plans to publish within three months a proposed rule "to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization." DHS has been expected for some time to rescind the Obama Administration's regulation which provided work authorization to the spouses of H-1b nonimmigrants with approved permanent employment petitions but are not yet eligible to apply for green cards.
 
DHS had said earlier last year that the H-4 rule change would be published in February 2018, and is required to update the court every 90 days until it is. In the September 21 update, DHS advised the court that since the July update "DHS’s senior leadership reviewed the proposed rule and returned it to USCIS this month for revisions". Once the revisions are incorporated, USCIS must again submit the rule to DHS senior leadership for approval prior to publication.

Given this "strong progress" toward rescinding the rule, DHS asked the Court of Appeals to continue to delay scheduling argument in the case, which was brought by a group seeking to invalidate the H-4 spouse employment regulation.

Although DHS is on the same side as the group seeking to invalidate the H-4 regulation, neither do they want to have to formally refuse to defend it in court. Hence the requested delays awaiting publication of a rule which would remove the need for the litigation. 

DHS provides no details as to the the specifics of what will be in the proposed H-4 rule. Apparently, USCIS doesn't know them either. 

 

USCIS Proposes to Expand Types of Public Benefits that May Bar Permanent Residence

USCIS intends to publish a proposed rule dramatically expanding the types of public benefits which noncitizens would be barred from accepting if they intend to seek US permanent residence. The proposed rule would require USCIS to presume that an applicant for permanent residence would become a "public charge" and (therefore inadmissible) if they have accepted Medicaid benefits, the Medicare Part D Low Income Subsidy, SNAP (formerly called food stamps), and federal housing assistance. Currently, the public charge regulations only bar accepting of certain types of cash assistance. USCIS has issued an FAQ summarizing the proposal

The propose regulation excludes a proposal floated earlier that would have attributed to the unlawfully present parents of U.S. citizen children any public benefits the children receive directly.

There has been broad opposition voiced against the proposal, arguing that receipt of certain public benefits does not presume that an individual will be unable to support themselves as an immigrant.The Attorney General of California has indicated that he will challenge the final regulation in court not knowing what it will actually require.