News & Resources
Posted November 15, 2019 Articles
On November 12, 2019 a federal judge in Boston ruled that border officers violate the Fourth Amendment when they search electronic devices at a port of entry without reasonable suspicion. U.S. Customs and Border Protection and Immigration and Customs Enforcement officers must have a reasonable suspicion that the devices contain contraband before the search and/or seizure.
In January 2018, CBP updated its directive governing border searches allowing officers to conduct basic or advanced searches. Under the directive basic searches allow an officer, to examine, review, and analyze a device, with or without suspicion. Advanced searches are similar to basic searches but allow an officer to copy the contents of the electronic device as well. U.S. District Judge Denise Casper found no meaningful difference between a basic and advanced search when looking at privacy concerns. Under current ICE policy, a reasonable suspicion is required to perform an advanced search.
Device searches are uncommon, but are on the rise. In fiscal year 2017, CBP conducted 30,200 border searches of electronic devices, out of more than 397 million international travelers. This translates to about 0.007 percent of people being subjected to a device search. CBP has not published more recent data, but told the Associated Press that during fiscal year 2019 it conducted 40,913 border device searches and processed more than 414 million travelers. This equates to just under .01 percent of travelers.
For additional information about CBP's directive and for travel suggestions, please see our blog post on the topic. If you have any questions about border searches please reach out to your designated Meltzer Hellrung LLC attorney.
Posted November 15, 2019 Articles
The holidays are quickly approaching, and for foreign nationals planning to travel abroad now is a great time to ensure that all immigration documents are in order.
Pending Cases with USCIS
Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.
Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.
Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.
In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.
Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S.
It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.
Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays. Each U.S. Consulate lists its holiday closures on its website, and estimated visa appointment and processing wait times can be found on the U.S. Department of State’s website.
Citizens of Canada generally do not need a visa stamp.
Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.
Re-entering the United States
When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:
- Current passport
- Current I-797 approval notice
- Two most recent paychecks
- Signed employment verification letter confirming current position, wage, etc.
Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:
- What is the name of your employer?
- What is your job title?
- Where do you work?
- How long do you expect to stay in the United States?
Students on M-1 or F-1 status should hand carry the following document:
- Current passport
- Student visa
- Form I-20
Any student that is admitted but receives a Form I-515A, “Notice to Student or Exchange Visitor” from the CBP officer should immediately contact their school’s Designated School Official (“DSO”) for assistance.
Upon returning to the U.S., all foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency please contact us immediately for advice on correcting the mistake.
As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.
We wish a happy holiday season to you and your family.
Posted November 13, 2019 Articles, Immigration Reform
The Supreme Court heard arguments on November 12, 2019 on whether the Trump administration can lawfully terminate Deferred Action for Childhood Arrivals (DACA) and whether the decision to terminate DACA is judicially reviewable. DACA was an Obama-era program that benefited over 700,000 reciepents, also known as Dreamers. DACA has provided certain individuals who were brought to the U.S. as children with no lawful status, deferred action from deportation. Many federal courts have kept DACA ongoing, requiring the government to continue to accept renewal applications.
The outcome of this case depends on the Administrative Procedure Act (APA). In 1946, the APA required all federal agencies to follow certain protocols when promulgating new rules and regulations. In particular, the notice-and-comment rulemaking, federal agencies must publish proposed rules in the Federal Register and allow the public to comment on these proposed rules before the agencies makes the rules final. Courts can invalidate these rules if they are perceived to be “arbitrary and capricious.” The lower courts have blocked the termination of DACA because the agency’s stated reasons are insufficient. The lower courts remind the agencies that the process has to result from reasoned decision-making.
Because DACA was enacted through executive authority, it did not have a notice-and-comment period. Trump’s administration argued that if President Obama had the authority to create this program, President Trump has the authority to terminate it without a notice-and-comment. DACA advocates argued that the government must follow the APA’s requirements. The Supreme Court is expected to announce its decision in June 2020.
If you are a DACA recipient and have questions about your eligibility for a nonimmigrant or immigrant status, please contact any Meltzer Hellrung attorney.
Posted November 12, 2019 Articles, Green Card
On October 16, 2019, S. 2603 was introduced by Senators Dick Durbin (D-IL), Patrick Leahy (D-VT), and Mazie Hirono (D-HI) to eliminate the current green card backlogs. Unlike HR 1044 which would improve the timeline for individuals born in China and India while creating a minimum wait time of seven years for all others, S. 2603 would address the backlog in a more comprehensive manner.
S. 2603 seeks to expand the “immediate relative” category to include spouses and dependent children of legal permanent residents, as well as exempting dependents of the beneficiaries of I-140 petitions from the 140,000 annual limit on employment-based green cards. This act would also eliminate family and employment green card backlogs in the order that applications were filed, over a five year period. The act would lift the country caps to help mitigate the backlogs currently experienced by immigrants. S. 2603 will also prevent the separation of families by “locking-in” children’s ages at the time the immigrant petition for their parent is filed, thus preventing children from “aging-out” while their parents are waiting for the priority date to become current.
Our firm supports S. 2603 as it provides a practical solution to the extreme backlogs faced by individuals born in India and China, without the severe negative impact on the remaining categories of HR 1044.
Please contact your designated Meltzer Hellrung attorney with any questions.
Posted November 7, 2019 Articles
On November 4, 2019 The Department of Homeland Security (DHS) published a Federal Register notice that extends the validity of Temporary Protected Status (TPS) documentation for beneficiaries previously scheduled by DHS to lose TPS designation over the next year.
Temporary extensions for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal
- TPS Employment Authorization Documents (EADs), Forms I-797 Approval Notices, and Forms I-94 for nationals of El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal are automatically extended through January 4, 2021, provided they meet certain registration and documentary requirements.
- Nationals of El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal who have a pending EAD filed under a prior extension will be covered by this extension.
- The I-94 and I-797 for TPS beneficiaries who are nationals of El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal will be extended so long as they properly filed an application for re-registration during the most recently DHS-announced registration period for their country or a previous DHS-announced registration period, or has a pending re-registration application. A beneficiary whose application was withdrawn or denied is not eligible.
Impact on employers and foreign nationals
I-9 employment eligibility verification: Salvadoran, Haitian, Nicaraguan, Sudanese, Honduran, and Nepalese TPS beneficiaries eligible for automatic EAD extensions may complete or update their I-9 employment eligibility records by providing an employer with a copy of the Federal Register notice, an eligible expiring or expired TPS EAD, and any other required I-9 documents. The Federal Register notice provides specific instructions on proper completion of an I-9 form to reflect an automatically extended TPS EAD.
- For a new hire providing a TPS-related EAD, the employer should verify that the EAD has been automatically extended when completing Section 2 by referring to the charts in the Federal Register notice. If it has been automatically extended the employer should write in the document title, enter the issuing authority, enter either the employee's A-number or USCIS number from Section 1 in the Document Number field on the I-9, and write January 4, 2021 as the expiration date.
- For existing employees who presented a TPS-related EAD, employers must determine if the EAD has been automatically extended by referring to the charts in the Federal Register notice. If it has been extended, employers must update Section 2 of the previously completed I-9 by writing EAD EXT and January 4, 2021, as the last day of the automatic extension in the Additional Information field, and initial and date the correction.
- Before the start of work on January 5, 2021 employers are required to reverify the employer's employment authorization in Section 3 of the I-9. If the original I-9 was a previous version, the employer must complete Section 3 of the current version of Form I-9 and attach it to the previously completed I-9.
New EADs: While it is not necessary for Sudanese and Nicaraguan TPS nationals to obtain a new EAD in order to benefit from the automatic EAD extension, they may do so by filing a Form I-765 (Application for Employment Authorization) with USCIS.
Pending TPS and/or EAD applications: If a pending application is approved, approval notices and document expiration dates will reflect the Federal Register’s automatic extension dates. There is no need for a foreign national to file either application again in order to benefit from the extension.