Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.

CBP Issues Travel Reminder: Departure Date

This year, the United States Customs and Border Protection (CBP) launched a new electronic reminder system for foreign national travelers. The new emailing system sends reminders to travelers about the period of time remaining for their particular travel visa. Not only does the email reminder system help travelers keep track of their period of stay, the CBP email reminder will provide notifications for travelers who have overstayed their period of admission.

Email Notification

Within 10 days of the end of a traveler’s admissions period, travelers may receive email notifications from CBP counting down the remaining days left of their stay in the United States. If a traveler overstays, they will continue to receive notice of an overstay violation. In addition to email notifications, travelers may refer to the I-94 website to check their compliance with period of stay limitations. Via the website, travelers may click the “view compliance” tab and enter their personal information to receive updates on their remaining period of stay.

Phishing Warning

Phishing, or email scams, are forms of electronic correspondence that attempt to exploit online users through false email correspondence. Often, travelers receive fake emails from users pretending to represent the federal government of the United States. These emails may falsely notify travelers of urgent notices to their period of stay. Never provide your personal information to an online source claiming to represent the CBP unless you are sure the notification is legitimate. Email notifications should come only from travelerscompliance@cbp.dhs.gov. As fraudulent emails are quite common, it is always advised to check the email address of any notification sent by an official agency.

Stages of Notification

CBP will gradually launch the new travelers notification system. Certain Visa Waiver Program (VWP) recipients are the first to receive email notice from CBP, and most classes of admission will soon be added to the notice system.

OPT Extensions for STEM: New Worksite Changes

On August 17th, USCIS updated guidelines for OPT STEM extensions. The student visa program allows international students the opportunity to gain practical training. For F-1 student’s with degrees in science, technology, engineering, and math, extensions are available to receive temporary employment privileges by an additional duration of 24 months. To qualify, applicants must have a bachelor’s degree in a STEM field as well as other requirements. The program allows students to receive more hands-on experience with employers in a field relevant to the student’s educational background.

Several months ago, however, USCIS made changes to online regulatory guidelines. These changes made clear that students were expected to work only at the worksite related to their STEM OPT employer. Therefore, the previous guidelines prohibited anythird-party or other off-site placement. Thus, ICE worksite visits would be conducted only at the primary address of employment listed on the student’s application. For many, this change limited students from receiving diversified experiences at different worksite related to their employment.

 USCIS Renews Flexibility

The most recent changes to the OPT STEM website retract previous guidelines and offer students greater options and flexibility for training experience. According to USCIS, the Department of Homeland Security (DHS) clarified that STEM OPT students once more have the ability to “engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met.” USCIS reminds beneficiaries of STEM OPT that a “bona fide” employee-employer relationship must be maintained if a student receives training outside of the employer’s principal location. DHS will review each case to ensure that employers listed on the Training Plan maintain the required employee-employer relationship. Students should ensure that a third-party placement or offsite placement does not compromise their employee-employer relationship with their documented supervisor.

Major USCIS Changes: Update on RFE & NOID

On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.

Overview of Changes

In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.

Who is at Risk?

All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.

Impact of Denial

If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.

Change of Address: Non-Citizens & Citizens

In most cases, the United States Customs and Immigration Service (USCIS) requires only non-U.S. citizens to report a change of address. However, if you are a U.S. citizen serving as a sponsor for a non-U.S. citizen, you may have to submit a Form I-865 to update your most recent address.

Non-U.S. Citizens

If you are a foreign national who is in the United states for a period of more than 30 days, or who is not an official government representative or diplomat for your country, you must report any change to your address within 10 days. Non-U.S. citizens can change their address online through an electronic Form AR-11. There, individuals with open or recently approved applications and petitions can amend their applications at the same time with the online change of address system. Although all non-U.S. citizens may file their Form AR-11 through the mail, the following must submit address changes through mail, not through the online portal nor through phone: Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant filed as VAWA self-petitioner; Form I-914, Application for T Nonimmigrant Status (“T visa”); Form I-918, Petition for U Nonimmigrant Status (“U visa”); Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse; and Form I-485, Application to Adjust status as an abused spouse under the Cuban Adjustment Act. Willful failure to notify USCIS of a change of address will result in a misdemeanor charge and could result in deportation proceedings. U.S. citizens, however, must file a separate notice of address change if they are a sponsor for a non-U.S. citizen.

U.S. Citizens

If you are a sponsor for a non-citizen i.e. if any time in the past you have completed Form I-864, you will need to complete a Form I-865, Sponsor’s Notice of Change of Address, if your address changes while the sponsorship agreement is still in place. Sponsors, who are citizens of the United States, have up to 30 days to submit a signed Form I-865 to USCIS following the change in permanent address. Each sponsor must submit a separate Form I-865, regardless if they share the same address. In many cases, sponsors must submit multiple notices for each relocation while the sponsorship agreement remains in force, which can span several years. The sponsor will maintain an obligation to report a change of address until the sponsorship agreement is no longer in place (e.g. the sponsored immigrant becomes a U.S. citizen or the application is abandoned or void). Failure to report an address change may result in fines ranging from $250 to over $5,000. Upon submitting the Form I-865, sponsors may receive further correspondence from USCIS for further documentation confirming the change of address.

H-1B in FY 17: Warnings for Future Applicants

These last several months featured some of the most radical changes to legal immigration in recent history. American businesses interested in hiring foreign nationals now struggle to stay updated on new procedures and practices coming out of USCIS, especially regarding the approval of highly skilled employees. Many employees capable of filling highly skilled, high demand positions are now denied H-1B benefits under new processing procedures. Many companies are shocked as many potential employees considered a shoo-in for H-1B benefits in years past now face increased requests for evidence (RFE) or straight out denials. The current presidential administration’s distaste for legal immigration is not only evident in recent rhetoric, but also in the numbers. Fiscal Year 2017 (FY 17) saw a drastic increase in both RFEs and denials following the inauguration of the current president.

The Numbers

According to the National Foundation for American Policy (NFAP), FY 2017 saw the most drastic changes in legal immigration between the 3rdand 4thquarter, coinciding with the first several months of the Trump administration. In fact, between the 3rdquarter and 4thquarter of FY 2017, RFEs for H-1B petitions increased by over 120%, a jump from 28,711 in quarter three and 63,184 in quarter four. This increased scrutiny from USCIS adjudicators was far from indiscriminate; nearly three out of four H-1B applicants from India received a request for evidence in the 4thquarter. Comparably, applicants from other countries received RFEs at a rate of 61% in the 4thquarter of FY 2017. Foreign nationals from India were further disadvantaged in the 4thquarter with a 42% increase in the rate of H-1B petitions deniedfor compared to professionals denied in the 3rdquarter of 2017. In quarter three, only about one out of six applicants from India were denied H-1B benefits compared to nearly one out of four in quarter four (16.6% and 23.6% respectively). Other countries experienced a similar decline, with denial rising from 14% to 19.6% from the 3rdto 4thquarter. In conjunction with recent changes to notice of denials and requests for evidence, the upward trend of both H-1B RFEs and denials may result in an unprecedented rate people leaving the country.

What is a Notice to Appear? (NTA): New Memos Hit Legal Immigration

In the last couple of weeks, the buzz surrounding recent memos released from the United States Customs and Immigration Service (USCIS) have left many on edge. In such a short period of time, USCIS has made historic levels of change to immigration law. Now, with talk of NTAs, RFEs, and NOIDs those affected by recent changes may be confused and left behind as news continues to progress. In this article, we break down the potential consequences of a Notice to Appear, or NTA, and how USCIS’s new memo endowing all adjudicating officers with the power to freely issue NTAs impacts foreign workers who are legally in the United States.

What is a Notice to Appear (NTA)?

Recently, much of national debate has centered around one form of deportation: expedited removal. Such as in the case of family separation seen in the news, undocumented foreign nationals within 100 miles of the United States Border undergo removal proceedings without a hearing before an immigration judge. Unlike expedited removal, the issuance of an NTA is the first step of a longer, more judicial deportation process. If a foreign national is found to be removable from the United States, an official federal charging document is issued in the form of an NTA. The NTA is a formal notification document stating the beginning of formal federal court proceedings. Individuals who receive an NTA must appear before an immigration judge and have the opportunity to defend their eligibility for relief from deportation, either individually or through representation through an attorney. Following the issuance of the NTA, the appearance before the immigration judge serves as an opportunity for foreign nationals to argue why they should be allowed to remain in the United States. However, failure to persuade a judge results in an order of removal and, at minimum, bans a foreign national from re-entering the United states for five years. The individual is faced with the same consequences if he or she leaved the U.S. voluntarily (self-deportation) rather than attend the court hearing. To save on court fees and possible further penalties, many opt to voluntary leave the United States upon receiving a NTA by requesting voluntary departure through the Department of Homeland Security.

Impact of USCIS Memo

As previously reported, the June memo grants USCIS officials the ability to issue NTAs without referring cases to ICE for further investigation. Soon, a foreign national working legally in the United States is at risk of receiving an NTA, and consequently at risk of deportation, if USCIS denies their application. With issuance of NTAs on the rise, there could be a record level of deportations.

Traveling on OPT: Navigating Re-entry

Student’s working in the United States under the optional practical training (OPT) program understand just how extensive the regulations are that accompany the post graduate opportunity. Therefore, if an F-1 student working in the U.S. must leave the country for any reason during their OPT, they should organize their documentation in advance to avoid inadmissibility upon return. Additionally, students should prepare to be questioned by Customs and Border Patrol (CBP) agents upon return to the United States. Below, we outline what to bring with you at the border and what you should expect from your re-entry interview.

Documentation

OPT students must present their recent (last six months) form I-20, endorsed by their designated school official (DSO). The I-20 forms should include the recommendation for OPT, the instructional program code for the primary majors of the student’s last degree program, and the name of the student’s employer. In addition to the I-20, students will present either an unexpired EAD or I-765 (application for employment authorization) receipt. Students who have received an EAD must present the card upon entry; students may only be re-admitted without an EAD if their form I-765 is still pending, as long as the student applied for OPT in a timely manner. However, without an EAD, some students may face further scrutiny at the border. Students must also provide CBP officers with evidence that the student is returning to the United States to resume employment related to their degree program (as required by OPT regulation).

Roadblocks

Regardless if students present all necessary documentation, CBP officers often ask questions to determine whether a student truly holds eligible status under OPT. CBP officers may ask questions about a student’s employment and may require the student to explain how their current employment matches their most recent field of study. In addition to a verbal explanation, students may provide CBP officers with a signed letter, written by their supervisor, that explains how the student’s current employment relates to their most recent graduate program. Students may also want to keep documentation related to their employment in the U.S. (e.g. proof of contract duration, a job title and description, a list supervisor information). Students should practice clearly and concisely explaining how their OPT relates to their most recent study program, especially if their field of study is uncommon or difficult to relate to employment. To prepare for you re-entry interview, or to ask any other questions regarding you optional practical training, contact our office for a consultation.

Unpacking the USCIS Memorandum: NOID & RFE (Part 2 of 2)

In the past few weeks, two memorandum out of the United States Customs and Immigration Service (USCIS) have upturned years of immigration procedures. In the first memo, USCIS announced a new direction to encourage USCIS officers to freely issue notices to appear (NTA), notably for cases in which a visa application is denied. In a separate memo, USCIS announced new measures to cut down on visa processing time, however with unorthodox methods. Starting September 11th, USCIS officers may automatically deny applications that have insufficient evidence without issuing a notice of intent to deny (NOID) or request for evidence (RFE). Together, these two memos mark what could be the biggest threat to legal immigration yet.

Threats to H-1B

As previously reported, increased scrutiny against H-1B visa applications spurred an unprecedented upsurge in RFE notices in 2017. Although RFE were not uncommon for H-1B applications, given the bulk of information required to prove both the qualifications of the employee and the employers need for the specialty hire, the upsurge was far from usual. With so many H-1B visas pending, there was an enormous backlog of H-1B applications. The memo release on July 13thwould cut down on issuance of RFEs and would instead automatically deny insufficient H-1B applications. Although the recent USCIS change aims to cut down on backlogs in visa application processing, the memo may spell a wave of unprecedented deportations.

Separately, the two above mentioned USCIS memos present only extreme inconveniences to visa applicants and employers. Together, these policies spell trouble for H-1B visa holders and all foreign nationals wishing to live and work in the United States. Under the new policies, H-1B applications, which are often delayed due to RFE’s, could be automatically denied for insufficient evidence, without notice to the employee or employer. Following denial from USCIS, even in circumstances in which the applications fell short due to clerical errors, these employees could receive a NTA and face deportation. Although extreme, these policies would allow a legal non-immigrant worker living in the United States awaiting their visa renewal to go from working in the United States to being sentenced to immediately depart the country.

Although the memo aimed to reduce the number of NOIDs and RFEs sent to visa applicants has yet to go into effect, the impact of the recent changes to USCIS procedures is likely to affect thousands. Combined, these two memos may spell catastrophe for legal immigration in the United States.

USCIS Can Now Deny at Will: NOID & RFE (Part I of 2)

For many years, USCIS adjudicators have provided applicants & petitioners with the benefit of the doubt. As such, applications, petitions, and requests were not outright denied if a USCIS officer noticed an absence of evidence or if evidence was insufficient for eligibility. For years, USCIS officers instead issued requests for evidence notices (RFE) or a Notice of Intent to Deny (NOID) to those who submitted insufficient applications. During this time, USCIS officers denied only applications in which there was “no possibility” of acceptance. However, a recent memo from USCIS may bring about unfortunate changes in the ways that officers process visa applications.

Early this month, USCIS released a policy memorandum providing adjudicators with greater autonomy in denying a visa application, petition, or request. The five-year procedural commitment to providing applicants with notice of challenges to their applications will now yield to a much harsher policy. USCIS officers may now deny requests for immigration benefits if they determine that there is insufficient evidence to grant the application. Thus, an application will be solely tied to an adjudicator’s interpretation of “insufficient” starting September 11th. For example, if a waiver is submitted with little supporting evidence, the application will be denied without a RFE or NOID. Additionally, applications which require supplementary material, both official and other, that establish the eligibility of an application will be denied if the required information is not submitted with the application (e.g. The affidavit of support does not accompany the application for permanent residence). Excluded from applications impacted by the memo are those submitted under the Deferred Action for Childhood Arrivals (DACA) program.

In a statement, the Director for USCIS praised the memo as an end to “frivolous filings and skeletal applications used to game the system.” Director Cissna hopes that, by allowing USCIS officers to eliminate frivolous and incomplete filings, the organization will be better equipped to quickly process legitimate applications. However, the memo removes the opportunity to mend legitimate mistakes made to applications. Although the procedural change does not go into effect for another two months, the decision is sure to impact many awaiting a decision from USCIS.

Read Part 2 of this news brief.