Federal Judge Orders Release of Immigrants Detained During Marriage Interviews

A Maryland-based federal judge has prohibited immigration officials from arresting, detaining, and deporting immigrants who seek legal status based upon their marriage to U.S. citizens, as well as the release of any individuals who were detained prior to their ability to complete the first step in the process of obtaining legal residency.

The February 7 decision, issued by U.S. District Judge George J. Hazel, addressed a case filed by six couples who asserted that immigration officials lured families to interviews in Baltimore, only to end in the detainment of the immigrant spouse for deportation. While federal regulations permit U.S. citizens to attempt to legalize the status of their spouses who have been in the country illegally, even if they have orders for deportation, the American Civil Liberties Union (ACLU) which represented the couples in the case, argued that immigration officers have detained immigrant spouses after the required marriage interviews at an alarming frequency.

These interviews serve to demonstrate the legitimacy of their marriage and are the first part of an often months-long process. If they pass the interview and earn other approvals, immigrant spouses must travel outside the country for a visa interview at a U.S. consulate. Only if they receive a visa are they allowed to return to the U.S. legally. The detainment of individuals during this first phase, without affording them the opportunity to compete the entire process, was an integral aspect of the claims made by the ACLU. ACLU of Maryland attorney Nick Steiner asserted, “their blatant disregard for their own rules and regulations that are meant to prevent family separation is unconstitutional.”

Judge Hazel defended his decision, stating the, “order is in the public interest because it requires Respondents to comport with their own rules and regulations, bars arbitrary agency action toward vulnerable immigrant communities, and diminished the emotional and financial impact on families participating in the provisional waiver process.” While presently the ruling is applicable exclusively to individuals living in Maryland, the ACLU is seeking a similar complaint in the state of Massachusetts.

For more information, view the full article from PBS.


USCIS Announces Iranian Nationals’ Ineligibility for E-1 and E-2 Trade and Investment Visas

On January 22, United States Citizenship and Immigration Services (USCIS) announced that nationals of Iran will no longer be eligible for E-1 and E-2 trade and investment visas, citing the October 3, 2018 termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran as the motivation for this measure.

E-1 and E-2 nonimmigrant visa classifications permit nationals of a treaty country admission to the United States so that they may engage in international trade or invest capital in a U.S. business. According to USCIS, since the purpose of these visas is based upon trade and investment treaties or specific legislation which provides reciprocal treatment of the respective countries’ nationals, “the existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.”

On October 3, 2018, the Trump administration terminated the 1955 treaty following the United Nations’ top court’s demand that the United States end sanctions which prevented the entrance of food and medical supplied to Iran. Secretary of State Mike Pompeo stated at the time that the decision was, “frankly, 39 years overdue,” and while the United States had every intention of leaving humanitarian exceptions, the United Nations had no authority to dictate the composition of United States sanctions on Iran.

USCIS will send out, “Notices of Intent to Deny” to all applicants who filed E-1 or E-2 applications after October 3, and Iranians currently holding the visa status will be allowed to remain in the United States until the expiration of their current statuses.

For more information, view the full article from Newsweek.


Trump Administration Begins Implementation of Controversial DNA Collection Program

On January 6, 2020, the Trump administration began its implementation of a controversial pilot program of collecting DNA samples from certain migrants and immigrants. Border Patrol officers in the Detroit sector of the Canadian border and Customs and Border Protection personnel located at the Eagle Pass port of entry in Texas have been instructed to begin the DNA collection from certain migrants, including green card holders and teenagers. These samples are from cheek swabs which will be used as profiles in the synthesis of an enormous criminal database to be managed by the FBI. This represents the first phase in a five-part, three-year Department of Homeland Security (DHS) plan of obtaining DNA profiles from essentially every migrant in U.S. custody, irrespective of those migrant’s criminal status.

This unjustified, unilateral collection of personal information has elicited criticism from human rights advocates, such as the ACLU. DHS officials have cited the DNA Fingerprint Act of 2005, stating that individuals who refuse to comply with the collection could be referred for criminal prosecution.

For more information, view the full article from CBS News.


DHS to Begin Conducting Site Visits for Employers of F-1 Students

As of January 8, the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) has begun conducting site visits for employers of F-1 post-graduate students, working during periods of Science, Technology, Engineering, and Math optional practical training (STEM OPT).

According to a memorandum released by Director of International Scholars Office at the Massachusetts Institute of Technology, Penny Rosser warned departments, laboratories, or centers at MIT of the possibility that they may have one or more graduate students who are in F-1 visa status with STEM OPT permission. While these employees are most likely Postdoctoral Associates or Fellows, it is possible that they could be Research Scientists/Associates, Visiting Scholars, or may have a different title entirely. A DHS/ICE agent may directly contact the department, lab, or center in order to schedule a visit, generally through email with 48-hours’ notice. Once contacted, it is advisable to pass the information along to the human resource director in the DLC headquarters as well as the Director of the Internal Scholars Office.

In order to be granted STEM OPT work authorization, it was required these foreign nationals complete a, “Training Plan for STEM OPT Students” (DHS Form I-983) with their supervisors/faculty hosts, who signed the plan.

The purpose of these visits is for DHS/ICE to confirm the employer’s resources are sufficient, supervisory personnel are qualified to provide the training, and the foreign national is appropriately engaged in that activity. Additionally, DHS/ICE may ask for information pertaining to the determination of wages for the foreign national and/or similarly situated U.S. workers.

In preparation for the site visit and to answer questions about the STEM OPT employee’s appointment/employment, the employee should provide a copy of his or her Form I-983, STEM OPT Training Plan for reference. The following points of interest are also imperative:

  • It is required for DHS/Ice officers to produce their official badges and identify themselves.
  • The meeting with the DHS/ICE officers in an administrative office, the International Scholars Office, a conference room, or other location.
  • The conversation should exclusively be concerned with the F-1 STEM OPT employee in question, not other employees, students, or faculty.
  • If questions are asked the answer to which is not immediately available, it is possible to follow up with the officers after the visit.
  • DHS/ICE officers may ask for a tour of the employee’s worksite and may be allowed to tour the office/desk of the employee and the general location of a lab.
  • For safety and liability reasons, labs which contain chemical, biological materials or equipment may have restricted entry. It may or may not be possible to accommodate an officer’s specific request for entry into these labs. Published guidance from Environmental Health and Safety indicates the laboratory contact should meet with visitors in order to explain any safety and protective equipment requirements for the area which is to be visited. Outside visitors are to be escorted at all times, per EHS guidelines.
  • Questions may be pertaining to the rationale behind the determination of the employee’s salary. For postdocs, it is good practice to refer the officers to the Vice President for Research’s Postdoc salary guidelines or NIH guidelines. For non-postdocs, if unsure of the manner in which the salary determination was made, that information can be provided later after consulting the HR administrator in DLC headquarters.
  • If the DHS/ICE officers request copies of appointment letters or payroll records for the F-1 STEM OPT employee, the HR administrator should be contacted. Unencrypted documents and records should not be sent over email in this correspondence.

If after the site visit DHS concludes an employer or student needs to submit updated or corrected information, it will communicate this request in writing to the employer and include specific instructions detailing how the new information is to be submitted.

For more information, view the announcement on the Study in the States website, and the memorandum from Penny Rosser.

DHS Places Restrictions on Inbound Flights Carrying Individuals Who Have Been to China

The Department of Homeland Security (DHS) announced that beginning February 2, 2020, it will begin its enforcement of restrictions for all passenger flights to the United States which carry individuals who have recently traveled from the People’s Republic of China. The announcement was made in response to the continually evolving threat of the novel coronavirus, and the measures are aimed at minimizing the risk of the virus spreading within the United States.

The restrictions began for flights commencing after 5:00 P.M. EST on February 2, directing the arrival of U.S. citizens who have traveled in China within 14 days of their arrival to one of seven designated airports, which have enhanced public health resources.

Furthermore, United States citizens who have been in Hubei province within 14 days of their return to the country will have to be quarantined for a maximum of 14 days to make sure they are provided proper medical care and health screening. U.S. citizens who have traveled to other areas of mainland China within 14 days of their return will undergo an entry health screening and up to 14 days of self-quarantine with health monitoring so as to ensure they have not contracted the virus and do not pose a public health risk.

Generally, except for immediate family of U.S. citizens, permanent residents, and flight crew, foreign nationals who have traveled in China within 14 days of their arrival will be denied entry into the United States.

Additionally, U.S. citizens who have been in Hubei province within 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure they are provided proper medical care and health screening. U.S. citizens who have been in other areas of mainland China within 14 days of their return will undergo proactive entry health screening and up to 14 days of self-quarantine with health monitoring to ensure they have not contracted the virus and do not pose a public health risk. Generally, foreign nationals (other than immediate family of U.S. citizens, permanent residents, and flight crew) who have traveled in China within 14 days of their arrival, will be denied entry into the United States.

The following is the list of designated airports to which the travelers are to be re-routed:

  • John F. Kennedy International Airport (JFK), New York;
  • Chicago O’Hare International Airport (ORD), Illinois;
  • San Francisco International Airport (SFO), California;
  • Seattle-Tacoma International Airport (SEA), Washington;
  • Daniel K. Inouye International Airport (HNL), Hawaii;
  • Los Angeles International Airport, (LAX), California; and
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia.

Beginning 6:30 A.M. on February 3, the list of airports was expanded to include Newark Liberty International Airport (EWR), New Jersey, and at 7:30 A.M. it was expanded to include Dallas/Fort Worth International Airport (DFW), Texas, and Detroit Metropolitan Airport (DTW), Michigan.

For more information, view the DHS announcement.


DHS Suspends Global Entry and Other Programs for New York

In response to the state’s “Green Light” law, which prevents immigration officials from accessing motor vehicle records, the Department of Homeland Security (DHS) informed New York state officials on February 5 that it would be cutting off the state’s residents from “trusted traveler” programs which permit the quick return of individuals from outside of the United States. Ken Cuccinelli, acting deputy secretary of DHS stated that the tens of thousands of New Yorkers whose applications are either pending or have to be renewed at the end of the year will be forced to undergo customs and passport checks upon their entry into the country. The DHS letter to New York officials informing them of the action indicated its retaliatory motivation as a measure taken by the Trump administration against states which have sought to protect people inside the country without legal authorization, and Cuccinelli went so far as to call the actions, “unfortunate consequences of New York’s ‘Green Light’ law.” Cuccinelli also indicated that DHS is contemplating other penalties against the state as well as a submitting a similar proposal against the state of Washington.

Last Summer, New York Governor Andrew Cuomo approved the law, which permitted the use of foreign-issued documents as proof for age and identity in order to apply for driving privileges. The law was motivated by the inclination that if individuals sought a drivers’ license, Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) would easily obtain their information, possibly facilitating the deportation of the individual. While other states allow people in the U.S. without legal authorization to obtain a drivers’ license, New York represents the only instance in which a state has banned the Department of Motor Vehicles from sharing records with DHS.

Cuomo questioned the relevance of the DMV database to Trusted Traveler Programs like Global entry, which have a mandatory face-to-face meeting with a federal official. He called the measure, “unbounded arrogance, disrespect of the rule of law, hyper political government, and another form of extortion.”

Currently, there are around 150,000 New York residents enrolled in programs such as Global Entry, Nexus, Sentri, or Fast who will be forced out upon their annual renewals at the end of the year, with another 80,000 pending or conditionally approved applications which will be affected immediately. The economic impact could also be severe, with nearly 30,000 commercial truck drivers enrolled in one of these programs which allow them to quickly cross the Canadian border at one of the four ports of entry in upstate New York.

For more information, view the full article from ABC7NY.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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