USCIS to Begin Accepting CW1 Petitions on April 2, 2018

The United States Citizenship and Immigration Services (USCIS) issued a reminder that it will begin accepting petitions under the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW1) program subject to the fiscal year 2019 CW1 cap on April 2, 2018 [PDF version].

The CW1 category allows employers in the Northern Mariana Islands, only, to employ workers who are not eligible for any other nonimmigrant worker category. The fiscal year 2019 CW1 cap is set to 4,999 [see article].

The USCIS encourages employers to file CW1 petitions “up to six months in advance of the proposed start date of employment and as early as possible within that timeframe.” However, petitions filed more than six months in advance of the employment start date will be rejected.

CW1 extension petitions may request an employment start date of October 1, 2018, even in cases where the CW1 worker’s current CW1 status will not expire by that date.

The USCIS states that it expects to receive more CW1 petitions than the number of CW1 visas available under the fiscal year 2019 CW1 cap. In that case, the USCIS will conduct a CW1 lottery to randomly select petitions and beneficiaries so as to not exceed the CW1 cap. The USCIS states that another reason it will use the lottery in this situation will be to account for “the possibility of mail delays from the CNMI.” In deciding whether a CW1 lottery is necessary, the USCIS will count the number of beneficiaries in the CW1 petitions received after 10 business days to determine whether the CW1 lottery will be needed. In the event that the CW1 cap is met after 10 business days, “a lottery may still need to be conducted only with the petitions received on the last day before the cap was met.”

The USCIS will announce both when the CW1 cap is reached and whether it conducted a CW1 lottery.

Employers must use the most recent version of the Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, in order to petition for a CW1 worker. The petition must be accompanied by the $200 mandatory CNMI education funding fee and the $460 filing fee. Any petition submitted with insufficient payment will be rejected. Please see our related article to learn about the increased mandatory CNMI education funding fee [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Kevin McAleenan Confirmed as Commissioner of CBP

On March 19, 2019, the United States Senate confirmed Kevin McAleenan as the new Commissioner of the United States Customs and Border Protection (CBP) by a vote of 77-19.[1] McAleenan had been serving as Acting Commissioner of the CBP since President Donald Trump took office on January 20, 2017. President Trump nominated McAleenan to become the permanent Commissioner of the CBP on March 30, 2017 [see blog].

Prior to becoming Acting Commissioner and then Commissioner, McAleenan served as Deputy Commissioner of the CBP from November 2, 2014, through January 20, 2017. McAleenan served in various other capacities in the CBP and in the legacy U.S. Customs Service beginning in 2006. Before serving in government, McAleenan practiced law in California, having received his law degree from the University of Chicago Law School [PDF version].

With McAleenan now confirmed, two of the three main immigration components of the Department of Homeland Security (DHS) — the CBP and the United States Citizenship and Immigration Services (USCIS) [see article] — have permanent heads. The nomination of Thomas Homan for Director of the United States Immigration and Customs Enforcement (ICE) remains pending before the U.S. Senate. Homan is currently serving as Acting Director. We will update the website with more information as it becomes available.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Dinan, Stephen. “Senate approves Trump’s border chief.” The Washington Times. Mar. 19, 2018. https://www.washingtontimes.com/news/2018/mar/19/kevin-mcaleenan-confirmed-us-customs-and-border-pr/

DACA Update: DACA Program Remains in Effect Beyond March 5 Due to Court Injunctions

On September 5, 2017, then-acting Secretary of Homeland Security Elaine Duke published a memorandum providing for the draw-down of the Deferred Action for Childhood Arrivals (DACA) program [see article]. Under the memorandum, DACA was to end on March 5, 2018, while allowing for those who had DACA benefits at that time to maintain DACA until their benefits expired. The DHS hoped that Congress would pass a permanent solution for those with DACA benefits in advance of the March 5 deadline.

However, the March 5 deadline has been rendered effectively meaningless for the time being due to two separate District Court preliminary injunctions against the DACA rescission. The two District Court injunctions restored DACA to the status it had prior to September 5, 2017, while allowing for those who have or who previously had DACA benefits to apply for renewal. Because the Supreme Court of the United States has declined to expedite review of the issue, the injunctions appear slated to remain in effect for the time being.

On the subject of the injunctions and their effect on the DACA rescission, the spokesman for the Department of Homeland Security (DHS), Tyler Q. Houlton, had this to say:

«We have to follow the rules and letter of the law and injunctions. Our deadline was March 5, but court orders have come in and put injunctions in place and we’re going to continue to follow the rule of law».[1]

Accordingly, for the time being, DACA will continue to be run in accordance with the injunctions. However, in the absence of a legislative solution, it is possible that the injunctions could be overturned either on appeal to Federal circuit courts or to the Supreme Court if it opts to take the case next term. That would allow for the DACA recession to take effect.

An individual who is affected by the uncertainty over DACA should consult with an experienced immigration attorney for a case-specific evaluation and guidance.

To read about the DACA rescission and all of the subsequent develops discussed in this article, please see our full article on the issue [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Dinan, Stephen. “Trump boosts Dreamer approvals as DACA deadline passes.” The Washington Times. Mar. 4, 2018. https://www.washingtontimes.com/news/2018/mar/4/daca-deadline-passes-action-courts-not-congress/

Supreme Court Denies Petition for Cert Before Judgment in DACA Case

On February 26, 2018, the Supreme Court of the United States denied the Government’s petition for a writ of certiorari before judgment in Dept. of Homeland Sec., v. Regions of Univ. of Ca, (No. 17-1003). You may see the denial here. 

On January 9, 2018, Judge William Alsup of the United States District Court for the District of Northern California preliminarily enjoined the Department of Homeland Security (DHS) from rescinding the Deferred Action for Childhood Arrivals (DACA) program on multiple grounds [see blog]. On January 12, 2018, Judge Alsup issued a second decision dismissing the Government’s motions to dismiss the case. On January 18, 2018, the Department of Justice (DOJ) filed a notice of appeal with the Supreme Court, asking the Court to take the case before final judgment.

Notably, the Supreme Court denied the Government’s petition “without prejudice,” and it stated its expectation that “the Court of Appeals will proceed expeditiously to decide this case.” In effect, the denial of cert before judgment means that the litigation will proceed through the normal course, with Government appeals first being heard by a Federal circuit court prior to the Supreme Court. The denial does not commit the Supreme Court to a future outcome if it does ultimately take one or more of the DACA rescission cases on appeal.

The Supreme Court’s denial of the Government’s petition means that the DACA rescission will not take effect on March 5, 2018, as initially planned. Instead, pending final litigation of the issues, DACA will remain open to certain individuals who have previously had DACA benefits. It is worth noting that a second injunction against the DACA rescission has been issued by Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York [see blog].

We will continue to update the situation on DACA as further information becomes available. To learn more about the DACA rescission memo along with the latest updates, please see our full article [see article]. An individual with questions about how the developments involving DACA may affect him or her should consult with an experienced immigration attorney for case-specific guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

March 2018 Visa Bulletin

Introduction

On February 9, 2018, the U.S. Department of State (DOS) published the March 2018 Immigrant Visa Bulletin [PDF version]. Eleven days later, the United States Citizenship and Immigration Services (USCIS) determined that the beneficiaries of approved family-sponsored immigrant visa petitions must use the filing date charts from the March 2018 Visa Bulletin whereas the beneficiaries of approved employment-based immigrant visa petitions must use the final action date charts [PDF version].

In this article, we will examine the relevant charts from the DOS and USCIS for beneficiaries of approved immigrant visa petitions in March 2018. We will also go through news and notes included with the March 2018 visa bulletin.

To learn more about the subject generally, please see our articles on how to use the Immigrant Visa Bulletin as an adjustment of status applicant [see article] and the differences between final action dates and dates for filing [see article]. Please also see our index of Immigrant Visa Bulletin articles [see article].

Furthermore, we did not publish an article on the February 2018 Visa Bulletin. For reference, you may see the February 2018 Visa Bulletin here: [PDF version].

Family-Sponsored Cases

The USCIS determined that individuals who are seeking adjustment of status based on an approved family-sponsored immigrant visa petition must use the dates for filing on the March 2018 Visa Bulletin. This decision is favorable to family-sponsored applicants because, in most cases, the filing date cutoffs are later than the final action date cutoffs.

In order for the beneficiary of an approved family-sponsored petition to be eligible for adjustment of status in March 2018, his or her priority date must be earlier than the applicable filing date for his or her preference category and chargeability area. In family-sponsored cases, the priority date is generally the date on which the petition was properly filed with the USCIS.

The following chart [see here] contains the filing dates for family-sponsored cases in March 2018.

For reference, the following chart [see here] contains the final action dates for family-sponsored cases in March 2018.

Employment-Based Cases

The USCIS determined that beneficiaries of approved employment-based immigrant visa petitions who are seeking adjustment of status must use the final action dates from the March 2018 Visa Bulletin.

In order for the beneficiary of an approved employment-based immigrant visa petition to be eligible to file for adjustment of status in March 2018, his or her priority date must be prior to the applicable final action cutoff date for his or her preference category and chargeability area. In employment-based cases where labor certification is required, the priority date will generally be the date on which the labor certification application was approved by the U.S. Department of Labor. In employment-based cases where labor certification is not required, the priority date is generally the date on which the petition was properly filed with the USCIS.

The following chart [see here] contains the final action dates for employment-based cases in March 2018.

A final action date of “C” means that any individual with an approved immigrant visa petition in the applicable preference category and chargeability area will be able to apply for adjustment of status (if otherwise eligible for adjustment of status) in March 2018.

Two of the employment-based categories — 4th preference certain religions workers (SR) and 5th preference (IR and R5) — are scheduled to expire on March 23, 2018. If Congress does not take action in time, no individuals in the SR category will be able to be admitted after midnight, March 22, 2018. Furthermore, no visas would be issued overseas or action taken in adjustment of status cases after March 23, 2018, in the IR and R5 categories. If these categories are allowed to lapse, the final action dates will be set to “unavailable.”

Notably, the SR, IR, and R5 categories were allowed to lapse during the brief government shutdown in January. It is likely that Congress will reach an agreement on a broader spending bill prior to March 23, 2018. However, it is of course possible that the authorization for the programs in question may again be allowed to lapse for only a short period. In any event, we expect that these programs will either be reauthorized as part of a broader spending agreement prior to March 23, 2018, or shortly thereafter. Individuals who may be affected by the uncertainty should consult with an experienced immigration attorney for case-specific guidance.

News for Vietnam Employment-Based Fifth Preference Category

The DOS stated that “[c]ontinued heavy applicant demand is expected to result in the Vietnam Employment Fifth preference category reaching the per-country annual limit during March.” In the event that Vietnam reaches the limit, Vietnam Employment Fifth Preference will become subject to a distinct final action date for the remainder of fiscal year 2018.

Special Immigrant Translators

The DOS continues to expect to reach the annual limit of 50 Special Immigrant Visas in the SI category in early 2018. For this reason, DOS maintained a March final action date of April 22, 2012, for the SI category. The DOS expects the SI category final action date to become unavailable in coming months. The final action date for the SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan remains current.

Conclusion

Those who intend to apply for adjustment of status based on an approved immigrant visa petition in one of the preference categories should stay abreast of developments with the Immigrant Visa Bulletin. It also provides those who intend to seek visas through consular processing of a general idea of when their interviews may be scheduled and when final action may be taken on their applications. Those seeking immigrant visas are well-advised to consult with an experienced immigration attorney throughout the entire process.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Second Preliminary Injunction Against DACA Rescission

On February 13, 2018, Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York issued a nationwide preliminary injunction against the rescission of the Deferred Action for Childhood Arrivals (DACA) program [PDF version]. This marks the second injunction against the DACA rescission. Judge Garaufis granted the injunction after concluding that the plaintiffs are likely to succeed on the merits of their claims under the Administrative Procedures Act (APA). Specifically, he concluded that the Trump Administration did not opt to rescind DACA as an exercise of discretion or based on a reasoned policy judgment, but instead did so upon concluding that DACA was unconstitutional or unlawful based on reasons that Judge Garaufis did not consider to be persuasive or sound (note: he did not reach the question of DACA’s underlying legality). We covered the legal rationale of Attorney General Jeff Sessions for the DACA rescission in a separate post [see article].

Although Judge Garaufis’ reasons for granting his injunction were not identical to Judge William Alsup of the United States District Court for the Northern District of California on January 10, 2018, this injunction is identical in scope, requiring the Trump Administration to maintain DACA as it existed prior to September 5, 2017, but not requiring it to consider new applications by individuals who never received DACA benefits or to continue granting advance parole to DACA beneficiaries [see article].

Because the Trump Administration is already complying with the court order from the United States District Court for the Northern District of California which is identical in scope, the preliminary injunction coming from the Eastern District of New York will not change the current situation regarding DACA [PDF version]. As we noted in a separate post, the Trump Administration has asked the Supreme Court of the United States to agree to hear the DACA rescission case on appeal before final judgment is rendered by the district court [see blog]. The Supreme Court has not yet issued a decision, but the issues are likely to end up in the Supreme Court in the near future.

DACA beneficiaries and other individuals affected by the potential DACA rescission should consult with an experienced immigration attorney for case-specific guidance. For the time being, DACA beneficiaries should prepare for the possibility that DACA is eventually rescinded and not replaced with new laws.

Please see our up-to-date post on the DACA rescission to learn more [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Driver’s Licences/IDs Issued in American Samoa No Longer Accepted for Commercial Air Travel

Introduction

Beginning on February 5, 2018, the Transportation Security Agency (TSA) will no longer accept American Samoan-issued driver’s licenses and identification cards as proof of identity to board commercial aircraft. This is because American Samoa was deemed non-compliant with the REAL ID act, which sets standards for state-issued identification documents, and it was not granted an extension for becoming compliant. American Samoa is the only one of the 56 states and territories to be deemed non-compliant and not granted an extension.

The information in this blog is drawn from a Department of Homeland Security (DHS) FAQ on the subject [PDF version].

Transition Period

However, in order to ensure a smooth transition for American Samoan travelers, TSA will provide additional assistance to American Samoans who arrive at an airport without acceptable documentation from February 5, 2018 through May 6, 2018. Please see our full article for the list of acceptable documentation for domestic travel [see article].

American Samoans who arrive at the airport without acceptable documentation from February 5, 2018, through May 6, 2018, may be asked to present at least two other forms of identification to travel. The DHS provided a list of examples of identification that may be accepted:

• American Samoa Certificate of Identity;
• Birth certificate;
• Social security card;
• Voter registration card;
• Vehicle registration;
• Marriage certificate;
• W-2 form; or
• Credit card.

In order to be accepted as evidence of identity by the TSA, the alternative forms of identification must include the individual’s name and other identifying information (e.g., photo, address, phone number, social security number, or date of birth). Provided that the individual’s identity is confirmed, he or she may be subject to additional screening before being permitted to enter the screening checkpoint. The individual will not be permitted to enter the security checkpoint if his or her identity cannot be confirmed.

As we noted, it is important to remember that, although American Samoan-issued identification cards and driver’s licenses no longer constitute acceptable documentation for air travel, American Samoans will still be able to rely upon a variety of other forms of documentation to meet the requirement. We would like to again remind you to see our full article on this subject [see article].

Other Articles Addressing American Samoa

In a separate matter, American Samoa has a unique status in the context of U.S. nationality law because individuals born in American Samoa are noncitizen nationals from birth (unless the individual has grounds for acquiring U.S. citizenship at birth through one or both parents [see article]). We discuss noncitizen nationals generally in a full article [see article]. Furthermore, please see our articles on immigration issues for noncitizen nationals (including naturalization) [see article] and the circumstances under which noncitizen nationals can file family-sponsored immigrant visa petitions [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Five New Immigration Judges Sworn In On February 8, 2018

On February 8, 2018, the Executive Office for Immigration Review (EOIR) announced the swearing in of five new immigration judges [PDF version]. The five new immigration judges, who will sit on five separate immigration courts (Elizabeth Immigration Court; Atlanta Immigration Court; Portland Immigration Court; San Francisco Immigration Court; and Adelanto Immigration Court), were appointed by Attorney General Jeff Sessions. The investiture ceremony for the new immigration judges was held on February 8, 2018. We will list the five new immigration judges with brief biographical information.

• Angelo J. DiCamillo (Elizabeth Immigration Court)

Judge DiCamillo brings nearly 40 years of experience as a state judge to the Elizabeth Immigration Court. DiCamillo served as a judge for the New Jersey Superior Court, in Trenton, N.J. from 1993 to 2017. From 1979 to 1993, DiCamillo served as a municipal court judge for the State of New Jersey. He holds a law degree from Rutgers University.

• John M. Gillies (Atlanta Immigration Court)

Most of Judge Gillies experience prior to joining the Atlanta Immigration Court came as a prosecutor. From 2005 through 2018, Gillies served in various capacities in the Department of Justice (DOJ). Much of his experience related to investigating and prosecuting narcotics crimes. He also served as an assistant U.S. Attorney in two district offices from 1998 through 2003. From 2003 through 2005, Gillies was chief legal counsel for former Senator Saxby Chambliss of Georgia. From 1991 to 1992, Gillies served as a law clerk for Judge Gerald Bard Tjoflat of the United States Court of Appeals for the Eleventh Circuit. He holds a law degree from the University of Florida.

• Mindy E. Hoeppner (Portland Immigration Court)

Judge Hoeppner brings experience from working in the Department of Homeland Security (DHS) to the Portland Immigration Court. From 2005 to 2017, Hoeppner served as assistant chief counsel for the Office of Chief Counsel (OCC), Immigration and Customs Enforcement (ICE), DHS in two different locations. Prior to her government service, she worked as an immigration defense attorney for several years. She holds a law degree from the University of Iowa.

• Cory M. Picton (San Francisco Immigration Court)

Prior to beginning his tenure on the San Francisco Immigration Court, Judge Picton served as an assistant U.S. attorney for 10 years from 2008 to 2018. In addition to his experience as a federal prosecutor, Picton earlier worked as a civil law attorney for the U.S. Marine Corps for several years. He holds a law degree from Saint Louis University School of Law.

• Nathaniel B. Walker (Adelanto Immigration Court)

Judge Walker has experience with both the DOJ and DHS. From 2014 to 2018, Walter served as an assistant U.S. attorney. From 2009 through 2014, he served as an assistant chief counsel for the Office of Chief Counsel, ICE, DHS. From 2002 to 2003, he was a law clerk for Judge Peter A. Nowinski of the U.S. District Court for the Eastern District of California. Walker holds a law degree from Boston College Law School.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.