EAD automatic renewals

Starting Jan. 17, 2017, USCIS is automatically extending certain expiring EADs for up to 180 days for applicants who:

  • Properly filed for a renewal EAD before their current  EAD expired, and
  • Are otherwise eligible for a renewal, which means that:
    • Your EAD renewal is under a category that is eligible for an automatic 180-day extension (see the list of categories below); and
    • The Category on your current EAD matches the “Class Requested” listed on this Notice of Action.  (Note:  If you are a TPS beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other).

We are doing so to help prevent gaps in employment authorization and documentation. This extension applies to Form I-765 renewal applications that are still pending on January 17, 2017, and to Form I-765 renewal applications filed on or after Jan. 17, 2017.

The following categories of EADs will be eligible for an automatic extension of up to 180 days:

The eligibility category you listed on your Form I-765 renewal application 

Description

(a)(3) Refugee
(a)(5) Asylee
(a)(7) N-8 or N-9
(a)(8) Citizen of Micronesia, Marshall Islands, or Palau
(a)(10) Withholding of Deportation or Removal Granted
(a)(12) Temporary Protected Status (TPS) Granted
(c)(8) Asylum Application Pending
(c)(9) Pending Adjustment of Status under Section 245 of the Act
(c)(10) Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA
(c)(16) Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)
(c)(19) Pending  initial application for TPS where USCIS determines applicant  is  prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.
(c)(20) Section 210 Legalization (pending I-700)
(c)(22) Section 245A Legalization (pending I-687)
(c)(24) LIFE Legalization
(c)(31) VAWA Self-Petitioners

 

NOTE:  TPS individuals may receive an automatic extension of their employment authorization:

  1. Through publication of a Federal Register notice extending the TPS designation of the individual’s country, provided that the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs; and/or
  2. Through this 180-day automatic extension.
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Appeals Court Refuses to Decide Right to Counsel for Undocumented Children

By Guillermo J. Martinez

The U.S. Court of Appeals for the 9th Circuit ruled September 20, 2016 in J.E.F.M. v. Lynch that undocumented children cannot sue the federal government in a class action suit to have attorneys represent them in deportation hearings.  The three-judge panel reversed the lower court’s determination that it had jurisdiction over the minors’ due process claims under the Constitution, while affirming the district court’s dismissal for lack of jurisdiction of the minors’ statutory claims for court-appointed counsel.

The unanimous opinion written by Judge Margaret McKeown stressed that the district court did not have jurisdiction over the class-action claim that indigent minor immigrants have a right to government-appointed counsel in removal proceedings. Judge McKeown explained that, despite the gravity of their claims, the minors could not “bypass” the processes in their individual immigration court hearings by filing a class action suit in federal district court. The appeals court did not address the merits of the case in its holding. Rather, it indicated that the matter would have to be determined within the normal immigration court process and appellate procedures for immigration matters.

While the 9th Circuit decision is binding only on the western states within that circuit, the decision strongly suggests that immigration courts may well be the exclusive venue for initial review of civil rights claims for individuals in removal proceedings. Decisions made by immigration courts can be appealed to the Board of Immigration Appeals (BIA) and the BIA decisions are subject to review in the federal circuit court with jurisdiction over the location of the immigration court that issued the initial decision.

The case was originally brought by the American Civil Liberties Union (ACLU) in response to the child migrant crisis of 2014. In that year, more than 60,000 minors from Central American countries, fleeing violence and insecurity in their home countries, arrived at the border to seek asylum[1].  This humanitarian crisis raised the question of whether these children have a right to counsel in immigration cases – which are considered civil (non-criminal) proceedings. Currently, while criminal defendants have been found to have a right under the Constitution’s Sixth Amendment to be appointed an attorney if they cannot afford one, no such right have been found for individuals in non-criminal proceedings. Removal (deportation) proceedings are considered civil, so there is no right to free counsel despite the grave consequences individuals could face after deportation.

The decision does contain language acknowledging that it is problematic for children to represent themselves in complex proceedings with no access to counsel. In a separate concurrence joined only by Judge M. Smith, Judge McKeown encouraged the Obama administration and Congress to find a political solution to the problem.  However, under the new Trump administration and Republican majority, it is unlikely that the issue of unrepresented minors in removal proceedings will be addressed through legislation. Although this decision does not dictate precedent for the whole country or change immigration laws, a future case could do so if it reached the U.S. Supreme Court. This would require litigation in immigration court, an appeal to the BIA, an appeal to the appropriate circuit court, and the acceptance of the case by the Supreme Court through a grant of certiorari.  In the meantime, thousands of unaccompanied children will continue to lack legal representation in removal proceedings.  Given the vast difference in removal rates between individuals with counsel and those without, it is virtually certain that children who qualify for asylum, Special Immigrant Juvenile Status or other forms of relief will continue to be ordered removed.

 

[1] William Kandel, Unaccompanied Alien Children: An Overview, Congressional Research Service, 1 (May 11, 2016), available at https://fas.org/sgp/crs/homesec/R43599.pdf

 

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Immigration Bills Proposed in Senate

The election of incumbent president Donald Trump has deeply troubled many immigrants and others due to frequent anti-immigrant rhetoric.  Although he later expressed sympathy for DACA holders, one of his campaign promises was to rescind DACA (Deferred Action for Childhood Arrivals), a program instituted by President Obama to provide temporary status to eligible young people who were brought to the U.S. before age 16.  Approximately 750,000 people currently hold DACA status. On December 9th a coalition of Democratic and Republican senators introduced the BRIDGE Act (Bar Removal of Immigrants Who Dream and Grow the Economy Act,” S. 3542) to temporarily protect those eligible for DACA in the event that after becoming President, Donald Trump eliminates the program. We urge you to contact your senators and express support for the BRIDGE Act, which will benefit the overall U.S. economy as well as protect the individuals concerned.

On the same day another bill was proposed called the SAFE Act (“Securing Active and Fair Enforcement Act”). We oppose the SAFE Act, which would institute enforcement measures that would promote mandatory detention and decrease or eliminate due process for immigrants in removal proceedings. If implemented, the SAFE Act would require detaining undocumented immigrants with U.S. citizen family members who pose no danger to the community.  Although described as targeting “violent criminals,” the bill would apply to individuals who had been arrested in error and found not guilty of any crime, as well as to individuals who had committed minor offenses such as shoplifting or failing to pay for riding the metro. In addition to burdening tax-payers by requiring unnecessary and cruel detention, the bill is likely to make communities less safe by damaging police-community relationships.  We hope that you will contact your senators to express your support for the Bridge Act and opposition to the SAFE Act.  Virginia residents should contact Senator Kaine at 202-224-4024 and Senator Warner at 202-224-2023.  Maryland residents should contact Senator Cardin at 202-224-4524 and Senator Mikulski at 202-224-4654.

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USCIS fees to increase December 23

As of December 23, USCIS will charge higher fees for a number of applicants and petitions.

See the USCIS website for a full list of new fees.

Application New Fee ($) Old Fee ($)
I-130, Petition for Alien Relative $535 $420
I-131, Application for Travel Document $575 $360
I-485, Application to Register Permanent Residence or Adjust Status $1,140 $985
I-751, Petition to Remove Conditions on Residence $595 $505
I-765, Application for Employment Authorization $410 $380
N-400, Application for Naturalization $640 $595
USCIS Immigrant Fee $220 $165
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Supreme Court split on DAPA/DACA

CourtBuilding_smOn June 23, 2016, the U.S. Supreme Court made a decision in the case United States v. Texas. The case dealt with the institution of Deferred Action guidelines made by President Barrack Obama regarding the expansion of the Deferred Action of Childhood Arrivals (DACA) and the addition of the program known as DAPA (Deferred Action of Parents of Americans). The DACA expansion would allow more young individuals who arrived in the United States as minors to qualify for temporary status and work authorization. DAPA would allow parents of U.S. citizens and green card holders to be protected from deportation and qualify for work permits. In 2015, led by Texas, 26 states attorneys generals filed suit to block the programs from being implemented, claiming that the President’s administration had overstepped their Executive boundaries. Texas stated that it had a reason to bring the suit because the program would require the state to issue drivers’ licenses to DACA and DAPA eligible individuals, causing their government to sustain a financial injury from the President’s program.

Last month, the Supreme Court announced a split 4-4 decision on the matter. As a result, the original opinion of the lower court in Texas is left in place, and the DAPA and DACA expansion programs cannot be implemented. Although the split decision does not set a precedent or a binding decision for the future, immigration laws will stay as they are, and many individuals will remain in their situation until another case is brought before the Court or new immigration laws are presented.

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STEM OPT Rule Granted Extension

Photo courtesy of David Castillo Dominici and freedigitalphotos.net

 Many foreign students and recent graduates are anxiously awaiting news regarding temporary employment following graduation. Students who complete a degree program in the United States are permitted to apply for up to one year of related “Optional Professional Training,” (OPT) temporary work in a field related to their studies. Students graduating from programs in science, technology, engineering, and mathematics have been permitted to apply for an additional 17 months of OPT since 2008.

However, in a recent federal lawsuit, DHS was found by the Court to have implemented the policy without proper “public notice and comment,” and was ordered to complete the process by February 12, 2016. The Court has granted DHS an extension until May 10, 2016 to complete review of the 50,500 comments it received, and publish the new rule. The final proposed rule was sent to the Office of Management and Budget of the White House for review on February 5, 2016, and is expected to be published in the Federal Register shortly.

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Bill for representation of Children in Immigration Court

Photo courtesy of David Castillo Dominici and freedigitalphotos.net

A group of senators have introduced the “Fair Day in Court for Kids Act.” If enacted, this proposed law would provide unaccompanied children in removal (deportation) proceedings with immigration lawyers to represent them. Despite the complexity of the law and the potential “life or death” consequences of deportation, there is currently no guarantee of representation even for unaccompanied small children under US law, and nearly half of unaccompanied minors currently proceed without ever having the help of an attorney. Research has shown that 47% of unaccompanied children who do have attorneys are permitted to remain in the U.S.; this is about five times the percentage for children who do not have attorneys. See http://trac.syr.edu/immigration/reports/359/.

Of course, all individuals in removal proceedings, whatever their age, are far more likely to obtain relief when represented. See http://trac.syr.edu/immigration/reports/377/ http://trac.syr.edu/immigration/reports/160//. A lawsuit is currently pending in which the plaintiffs argue that lack of counsel violates due process. While

the recent bill does not guarantee representation for all individuals in removal proceedings as does Canadian law, for example, it would greatly improve the fairness of immigration proceedings, especially for children as well as those who have suffered abuse, torture, or violence, and would ease the burden on the many organizations and individuals that are struggling to protect the rights of immigrants.

We believe it is unworthy of a country that believes in justice for all that currently only fifty percent of unaccompanied children have the help of a lawyer at any point in their court cases, and salute Senator Harry Reid (D-NV) and his colleagues who proposed this legislation. The bill is available at http://www.reid.senate.gov/wp-content/uploads/2016/02/Fair-Day-in-Court-for-Kids-Act.pdf.

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US Government Cracks Down on Fraudulent Immigration Applications

In July, four Jacksonville, Florida residents originally from the Philippines were charged with marriage fraud, immigration document fraud, lying to a federal agency, and conspiracy. They face a maximum penalty of 15 to 25 years in prison, if found guilty of all charges. According to the indictment, one of the defendants, Peter Barlaan, a naturalized US citizen contracted a sham marriage with his son’s girlfriend Mary (now Mary Barlaan) in order to enable her to obtain Lawful Permanent Resident status. Thereafter, Peter Barlaan’s son, Mark Barlaan, also entered a fraudulent marriage with a U.S. citizen named Winnie (now Winnie Barlaan) for the purpose of obtaining Lawful permanent residence. The father allegedly paid several thousand dollars to Winnie to induce her to marry his son and cooperate in the immigration application process and interview. The indictment claims that all four individuals made false statements under oath, and conspired together to defraud the government.

On July 9, 2015, Buyantod Thomas, a San-Francisco area non-lawyer was sentenced to prison for assisting natives of Mongolia in filing fraudulent asylum applications. The conviction was obtained after an investigation by Immigration and Customs Enforcement (ICE). Legitimate asylum seekers must have suffered or fear persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Ms. Thomas assisted dozens of individuals who did not have well-founded fear of persecution in creating false statements and false documents.

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Temporary Protected Status Authorized for Yemen; Extended for Haiti

DHS has announced the designation of Yemen for Temporary Protected Status (TPS) for 18 months due to the ongoing armed conflict within the country. Yemen is experiencing widespread conflict and a resulting severe humanitarian emergency. As a result of Yemen’s designation for TPS, eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS).

The TPS designation for Yemen is effective September 3, 2015, and will be in effect through March 3, 2017. The designation means that, during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period begins September 3, 2015 and runs through March 1, 2016. For more information see the USCIS website or contact us.

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Post-approval Delays in Receiving Employment Authorization Documents and Permanent Residence Cards

Individuals have typically received their Employment Authorization Documents (EAD’s), also known as “work permits” and Lawful Permanent Residence (LPR) Cards “Green Cards” within a week of receiving the approval notice from US Citizenship and Immigration Services (USCIS). However, USCIS has confirmed that they are currently experiencing delays of several weeks in card production, even after approval notices are issued. We remind individuals that for those with approved LPR status, a temporary stamp may be placed on their passports by a USCIS official at the local district office, by first making an infoPass appointment online: https://infopass.uscis.gov/

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