Kurzban's Immigration Law Sourcebook: Corrections, Clarifications, and Selected Updates

This page supplements Kurzban's Immigration Law Sourcebook, and contains corrections, clarifications, and selected updates to the 16th Edition.

Page Number Change
p. 88-89 (Ch. 3, ¶ III.B.1.)

Replace paragraph 1.a. with the following:

1.a. Persons Likely to Become a Public Charge

INA §212(a)(4), 8 USC §1182(a)(4); 8 USC §1601-46; 8 CFR §§212.20-.23, 213.1, 214.1(a)(3)(iv), 245.4(b), 245.23, 248.1; 84 FR 41292-508 (Aug. 14, 2019); 22 CFR §40.41; 9 FAM 302.8-2(B); H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. 240–42. The statute provides that a non-citizen who “is likely at any time to become a public charge is inadmissible.” Prior case law defined public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” Gegiow v. Uhl, 239 U.S. 3 (1915). See Appendix F (p.2227) regarding public benefits.

1.a.1. Regulations on Public Charge—USCIS published regulations on public charge effective Oct 15, 2019. 84 FR 41292-508 (Aug. 14, 2019); 8 CFR §212.20. The regulations define public charge at 8 CFR §212.21. The regulations and a public charge finding applies to AOS, E/S and C/S and if abroad under DOS guidelines to IVs and NIVs. The rule is not binding on DOJ (IJs/BIA) and not binding on DOS, although “it is DHS’s understanding that DOS will update its FAM to ensure consistency with the DHS rule.” 84 FR at 41315. In regard to E/S and C/S DHS is not applying the new rule as a ground of inadmissibility but as “a new condition for approval of extension of stay and change of status applications—that the applicant establish that the alien has not received since obtaining the nonimmigrant status.…one or more public benefits for more than 12 months in the aggregate within any 36-month period….Therefore DHS removed the future looking aspect of [the public charge] condition and will not request applicants for an extension of stay or change of status to submit a Form I-944.” 84 FR at 41329. For application of public charge by visa category and status, see 84 FR at 41336-46 at Tables 2-5.

1.a.2. Receipt of Public Benefits—A non-citizen is deemed to be a public charge, 8 CFR §212.21(a), if he is receiving one or more of the following public benefits for more than 12 months in the aggregate within any 36 month period (8 CFR §212.21(b)(1)-(6)):

  1. Any federal, state, local, or tribal cash assistance for income maintenance (other than tax credits) including (i) Supplemental Security Income (SSI) under 42 USC §1381 et seq.; (ii) Temporary Assistance for Needy Families (TANF) under 7 USC 601, et seq.; (iii) federal, state, or local cash benefit programs for income maintenance (often called “General Assistance in state context);
  2. Supplemental Nutrition Assistance Program (SNAP) under 7 USC 2011-2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program under 42 USC 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8;
  5. Medicaid under 42 USC 1396 et seq. except for (i) emergency medical benefits under 42 USC 1396b(v)(2)-(3) and 42 CFR §440.255(c); (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq.; (iii) school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined by state or local law; (iv) benefits received by a non-citizen under the age of 21 or a woman during pregnancy (including the 60 day period beginning the last day of pregnancy);
  6. Public Housing under Section 9 under the US Housing Act of 1937.
  7. Double Counting—Receipt of more than one of the above public benefits in a one-month period will count as receipt of one month for each benefit so that receipt of two benefits in one month, for example, would count as receipt of benefits for two months. 8 CFR §212.21(a).
  8. Not Counted As Public Benefits for Public Charge—Many programs were not included in the list of public benefits including: WIC, School Breakfast/Lunch Programs, Head Start, Pell Grants, CHIP, D-SNAP (Disaster Supplemental Nutrition Assistance), Social Security Disability Insurance, 84 FR at 41386-92, and health insurance for which the non-citizen receives subsidies in the form of premium tax credits under the Affordable Care Act.

1.a.3. Exceptions to Receipt of Public Benefits—Receipt of a public benefit will not result in a finding of inadmissibility if at the time of receipt of the benefit or at the time of filing or adjudication of an AOS, E/S, or C/S the person:

  1. was enlisted in the U.S. Armed Forces under 10 USC 504(b)(1)(B) or 10 USC 504(b)(2);
  2. was actively serving in Ready Reserve;
  3. was the spouse or child of such a person;
  4. was exempt from public charge inadmissibility under 8 CFR §212.23(a) (refugees, asylees, Amerasian immigrants, Afghan and Iraqi interpreters, Cuban and Haitian entrants, Cuban Adjustment applicants, NACARA and HRIFA applicants, Lautenberg parolees, SIJs, registry applicants, TPS, A-1/A-2, C-2/C-3 (relating to UN and foreign government officials), G-1 through G-4 (international organization NIVs), NATO-1 through NATO-4 and NATO-6, T, U and VAWA visa applicants under certain circumstances (84 FR at 41298), American Indians born in Canada, Texas Band of Kickapoo Indians, Indochinese refugees, Polish and Hungarian parolees ). The comments indicate that the exemption not only applies to asylum or refugee status but to the application for AOS subsequent to a grant of asylum/refugee status. 84 FR at 41324 [the public charge rule “does not apply to asylum applicants, those granted asylum (asylees), and those seeking to adjust their status to that of a lawful permanent resident based on their asylee or refugee status”]
  5. filed the appropriate affidavit for exemption under an employment based category 8 CFR §212.23(b). However, “Congress did not exempt employment based EB-1A or EB-1B categories, or those seeking an NIW from the public charge ground of inadmissibility.” 84 FR at 41334-35.
  6. received a waiver due to S visa status
  7. was in any other category in a law that exempts public charge inadmissibility
  8. was a child of a US citizen whose admission will result in automatic citizenship under INA §320 including adopted children
  9. was a child entering the US for purposes of attending an interview for citizenship under INA §322

1.a.4. Receipt of a Public Benefit Is A Requirement for a Finding of Public Charge—8 CFR 212.21(e). The applicant must actually receive the benefit to be considered a public charge for receipt of a public benefit. Applying for a benefit or certification for future receipt of a public benefit does not constitute receipt, although it may suggest a likelihood of future receipt under the totality of the circumstances test. But a non-citizen’s “receipt of, application for, or certification for public benefits solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.” See also 84 FR at 41334 [“if an alien is the person receiving benefits on behalf of another (for instance as a parent, legal guardian) the alien will not be considered to have received, been certified for, or applied for such public benefit”]. In discussing the rule’s impact DHS stated the following: “Because DHS will not consider receipt of public benefits by U.S. citizens and aliens not subject to public charge inadmissibility, the receipt of public benefits by these individuals will not be counted against or made attributable to immigrant family members who are subject to this rule. Accordingly, DHS believes that it would be unwarranted…to disenroll from a public benefit program or forego enrollment in response to this rule when such individuals are not subject to the rule.” 84 FR at 41313. In regard to receipt of public benefits by those entitled to such federal or state benefits, “DHS also disagrees with commenters that this rule changes federal and state decision-making regarding aliens’ access to public benefits. The rule itself does not prohibit any eligible alien or citizen from accessing public benefits for which they qualify.” 84 FR at 41317.

1.a.5. Totality of the Circumstances—8 CFR §212.21(c), 8 CFR §212.22; 84 FR at 41396-401; FAM 302.8-2(B)(3). To determine likelihood of becoming a public charge in the future, the officer must determine whether under the “totality of the circumstances” it is “more likely than not” that “at any time in the future” the applicant will be a public charge. 84 FR at 41392-93. In DHS’ view the standard does not require a finding that the person will be a public charge indefinitely but only that s/he is likely to become a public charge any time in the future without remaining a public charge indefinitely. 84 FR at 41352. A determination that a person is a public charge because of the receipt of public benefits as defined supra regarding the acceptance of 12 months of public benefits over a 36 month period does not mean that the person is automatically inadmissible as likely to be a public charge. Rather, it will be considered a heavily weighted negative factor. 84 FR at 41358 [“As with the proposed rule, current receipt or past receipt of more than 12 months of public benefits in the aggregate, in any 36-month period will not necessarily be dispositive in the inadmissibility determination; i.e. in determining whether the alien is like to become a public charge at any time in the future, but will be considered a heavily weighted negative factor in the totality of the alien’s circumstances.”]

The officer is charged with “weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits as defined in 8 CFR 212.21(b) for more than 12 months in the aggregate within any 36 month period.” 8 CFR §212.22(a). “The presence of a single positive or negative factor or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible…” 84 FR at 41295. The minimum factors that must be considered under 8 CFR §212.22(b)(1)-(7) are the person’s:

  1. Age—Does his age impact the person’s ability to work? It would be a negative factor if the person were younger than 18 or older than 61 and otherwise a positive factor. 84 FR at 41295, 41401-05.
  2. Health—Has the person been diagnosed with a condition likely requiring extensive medical treatment or institutionalization? 84 FR at 41405-12.
  3. Family status—Does household size as defined under 8 CFR §212.21(d) makes it more likely than not that he will be a public charge? 84 FR at 41412-13.
  4. Assets, resources and financial status—Is household gross income at least 125% of poverty guidelines based upon household size defined in 212.21(d)? If less, look to other assets? Does person have sufficient assets to cover reasonably foreseeable medical costs? Does person have any financial liabilities? Has the person applied for, been certified to receive, or receive public benefits? Has the person disenrolled in the public benefit or proof that he does not or would not qualified for such benefit, 84 FR at 41299? Has person received fee waivers for immigration benefits? 8 CFR §212.22(b)(4)(ii)(F), 84 FR at 41299 [fee waivers for benefits that do not include public charge are not considered], Credit history? See generally 84 FR at 41413-29.
  5. Education and Skills—Is education/skills adequate to obtain or maintain lawful employment? Employment history? Tax transcript for three years or other credible evidence? High school diploma? Proficient in English and other languages? Is the person a primary care giver for a child or an elderly, ill or disabled person in his household as defined under 8 CFR §§212.21(f), 212.22(b)(5)(ii)(E), 84 FR at 41298 [“This factor is intended to take into consideration difficult-to-monetize contributions by aliens who may lack current employment or an employment history due to their full time, unpaid care of household members”]. 84 FR at 41429-38.
  6. Prospective immigration status and Expected Period of Admission—If NIV, the anticipated period of temporary stay?
  7. An I-864 Affidavit—Sponsor’s annual income and resources? Relationship to applicant? Has sponsor submitted other I-864s? The affidavit of support and the likelihood the affidavit sponsor would actually provide support is a factor to determine the likelihood that the non-citizen would become a public charge. 8 CFR §212.22(b)(7). However, the existence of the I-864 by itself does not preclude a public charge finding. 84 FR at 41320, 41438-41.

Heavily weighted negative factors, 8 CFR §212.22(c)(1); 84 FR at 41441-46.

  1. Person is not a full-time student and is authorized to work but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of employment
  2. Has received in the past or has been certified or approve to receive one or more public benefits as defined in 212.21(b) for more than 12 months in the aggregate within any 36-month period, 84 FR 41297
  3. Has been diagnosed with a medical condition requiring extensive treatment or institutionalization and is not insured nor has the ability to pay for reasonable foreseeable medical costs
  4. Prior finding of inadmissibility or deportability for public charge by an IJ/BIA.

Heavily weighted positive factors, 8 CFR §212.22(c)(2); 84 FR at 41446-50.

  1. Household income 250% above poverty guidelines
  2. Authorized to work and has current employment in a legal industry where income is 250% above poverty guidelines
  3. Private health insurance for the expected period of admission but it does not include “health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act” 84 FR at 41449

Benefits received prior to Oct. 15, 2019, 8 CFR §212.22(d) —receipt of public benefits defined in the regulations prior to Oct. 15, 2019 will be considered a negative factor but not “any other [kinds of ] public benefits” that were received prior to that date. This means that an officer may consider: (1) any receipt of cash public benefits that were received prior to Oct. 15, 2019 as designated in the original INS Interim Field Guidance, 84 FR at 41297 n. 18 [“DHS will not apply this rule to benefits received before the effective date of the rule, except for those benefits that would have been considered under the 1999 Interim Field Guidance”], 84 FR at 41318; and (2) receipt of cash and non-cash public benefits as defined in the new rule even if they were less than the 12/36 month thresholds. 84 FR at 41297 [“Under the final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold…”].

1.a.6. Law Prior to Regulations—The law, prior to the regulations, included the same factors including whether the alien has received public assistance, his or her age, capacity to earn a living, health, family situation, work history, affidavits of support and physical and mental condition. Matter of A-, 19 I&N Dec. 867 (Comm. 1988) [unemployed woman who is young and has no physical or mental impediments that would affect her ability to earn a living is not a public charge]. See also Matter of Vindman, 16 I&N Dec. 131 (RC 1977); Howe v. United States ex rel. Savitsky, 247 F. 292 (2d Cir. 1917); Ex Parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). Under IIRIRA §531(a), INA §212(a)(4)(B)(i), Congress mandated that the following factors be taken into account in deciding public charge: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Former guidance also at INS, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26, 1999) [person “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense” but was not understood to include receipt of non-cash benefits such as Medicaid, SNAP/food stamps, housing vouchers].

1.a.7. DOS Position—In regard to DHS’ rules describe supra “it is DHS’s understanding that DOS will update its FAM to ensure consistency with the DHS rule.” 84 FR 41292, 41315 (Aug. 14, 2019). The public charge finding applies to all immigrant and non-immigrant visa applications except for certain categories of A, G, C-2, NATO, T, U, VAWA, and battered spouses/children receiving federal benefits. 9 FAM 302.8-2(A), 302.8-2(B)(6). Like DHS, DOS is using the “totality of the circumstances” approach at the time of the visa application and will look, at a minimum, at the Congressional mandated criteria of “age, health, family status, assets, resources, financial status, education and skills.” 9 FAM 302.8-2(B)(2). DOS has already adopted the position that an Affidavit of Support (I-864) by itself may not satisfy the public charge grounds as they are distinct requirements that must be separately satisfied. 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122 [holding for the first time in Jan. 2018 that the affidavit of support is only “one factor in the totality of the applicant’s circumstances”]. DOS has also recognized that public charge concerns may arise even with an affidavit of support where there are identifiable personal characteristics of the applicant that would require considerable resources from either the sponsor or the public and the sponsor does not have such resources. These characteristics might include “chronic illness, physical or mental handicaps, extreme age or other serious conditions.” Cable, 98-State-102426, supra at 880. Accord 71 FR 35732, 35737–38 (June 21, 2006). See also 9 FAM 302.2-3(G)–(U) [consular officer must determine whether the person’s disease or disability would be likely to render the person unable to care for himself or attend school or work]. A consular officer, despite an affidavit of support, may also consider if “the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs.” Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122.

The latest updated FAM provisions prior to final DHS regulations suggest that consular officers will be much tougher on public charge than in the past. Under the “health” category DOS’ position is that “certain health issues which might affect employment…increase the burden on the applicant to provide evidence that they will not become a public charge.” 9 FAM 302.8-2(B)(2)(b). Under family status, having a significant number of dependents may be a negative factor and the applicant should at lest be able to support the number of dependents at 125% of the poverty guidelines. 9 FAM 302.8-2(B)(2)(c). Under the “age” criteria a child under 18 who is unaccompanied presents a negative factor and a person’s “advanced age” may present a negative factor. 9 FAM 302.8-2(B)(2)(d). Under the education and work experience criteria DOS officers are directed to carefully scrutinize I-140 approvals and labor certifications including reviewing (i) whether the applicant’s education and work experience are compatible with the duties in the job offered; and (2) whether the position is permanent and meets the prevailing wage. 9 FAM 302.8-2(B)(2)(e). In regard to receipt of public benefits consular officers must consider “past or current receipt of public assistance of any type by the visa applicant or a family member in the visa applicant’s household” as relevant to determining public charge. 9 FAM 302.8-2(B)(2)(f)(1)(b). A dependent family member’s receipt of public benefits is a “heavily negative factor” unless the applicant can demonstrate sufficient prospective income. 9 FAM 302.8-2(B)(2)(f)(2)(b)(ii). But a public charge determination is prospective and although past or current receipt of public assistance is relevant the “determination must be made on the present circumstances.” 9 FAM 302.8-2(B)(1)(f)(1)(b). If a person seeks to demonstrate future employment to refute any inference of public charge, he may submit an offer of employment. The submission of an offer of employment must be sworn to and subscribed before a notary and must contain the signatory’s title. 22 CFR §40.41(e).

1.a.8. Affidavit of Self-Sufficiency—8 CFR §245.4(b). For purposes of meeting the requirements of the public charge provision, an applicant for AOS must submit a Form I-944 declaration of self-sufficiency as part of his or her application.

1.a.9. Public Charge Bond—8 CFR §213.1; 84 FR at 41450-57. A person found inadmissible as a public charge may, if otherwise admissible, submit a public charge bond in the discretion of DHS. If a person has one or more heavily weighted negative factors as defined in 212.22 DHS “generally will not favorably exercise discretion to allow submission of a public charge bond.” A surety bond under 8 CFR §103.6 or a cash or cash equivalent bond may be accepted. The minimum bond amount is $8,100 which will be annually adjusted using CPI-U. The bond will remain in effect until the person naturalizes or otherwise obtains USC, permanently departs the US, dies, reaches his or her 5 year as an LPR, or changes immigration status to one not subject to public charge inadmissibility. Obligors may be substituted.

p. 138 (Ch. 3, ¶ III.E.2.d.)

Replace paragraph 2.d. with the following:

2.d. Counting the 3/10 Years—Once a person has triggered the 3/10 year bar, the 3/10 years are a permanent bar upon the person’s departure even if he or she is paroled back into the U.S. or lawfully admitted on a visa with a INA §212(d)(3)(A) waiver, because the waiver only temporarily waives the 3/10 year bar. However, because a parole does not trigger inadmissibility, the 3/10 years needed to “cure” the bar also continue to run when the person returns and remains on parole in the U.S. for 3/10 years. AFM at 40.9.2(a)(4)(E). Thus, a person who is subject to the 3-year bar and returns on a parole and remains for three years on parole, would “cure” the 3-year bar. Similarly, a person who triggers the 3/10 year bar as a B-2 overstay and returns to his or her country and obtains, for example, an E-2 visa with a §212(d)(3)(A) waiver may, upon return to the U.S., “cure” the ground of inadmissibility after remaining in the U.S. for 3/10 years. Letter, Divine, GC USCIS to Berry (July 14, 2006), AILA Doc. No. 08082930 and Letter, Melmed, GC, USCIS to Horne (Jan. 26, 2009), AILA Doc. No. 09012874. But post-Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [travelling on advance parole does not constitute a departure triggering the 3/10 year bar] there may be some question as to whether a person returning on an advance parole and remaining in the U.S. after advance parole for 3/10 years would be eligible for AOS or otherwise cure the 3/10 year bar. LegalNet apparently takes the position that being paroled on an advance parole does not allow a person to restart counting the 3 (or 10) years, because post-Arrabally & Yerrabelly returning on advance parole means the person never left. But see Matter of ___, St. Paul, Minn. (AAO Oct. 26, 2012), AILA Doc. No. 12102242 [denial of AOS reversed where person reentered on advance parole and therefore eligible to adjust]. However, if the person reenters EWI and remains in the U.S. for three years, her EWI status in the U.S. does not “cure” the 3/10 year bar and she is unauthorized and barred even after the 3 years. But see Matter of Cruz, A087 241 021 (BIA Apr. 9, 2014) (unpublished). Notwithstanding the triggering of the 3/10 year bar, an applicant may make an argument that simply remaining in the U.S. for 3/10 years would satisfy the 3/10 year bar, because unlike sections such as INA §212(a)(9)(A), (C) there is no language that suggests departure from the U.S. is required to satisfy the 3/10 years.

p. 223 (Ch. 3, ¶ IV.D)

Replace paragraphs 1 and 1.a. with the following:

1. Generally—Under IIRIRA, Congress mandated (beginning Apr. 1, 1997) a procedure for expedited removal of persons deemed inadmissible at the border under INA §212(a)(6)(C) (material misrepresentation) and INA §212(a)(7) (lack of IV or NIV documents). 8 CFR §§235.3(b), 1235.3(b). The expedited-removal regulations have been upheld. AILA v. Reno, 199 F.3d 1352, 1356–57 (D.C. Cir. 2000) [finding that AILA lacked third-party standing and that district court’s dismissal of individual plaintiffs for failure to state cause of action was correct]. Expedited removal may also apply to persons not admitted or paroled who are unable to prove they have been in the U.S. continuously for 2 or more years. INA §235(b)(1)(A)(iii)(I)–(II). On July 23, 2019, USCIS expanded expedited removal to apply in the following two situations. First, it applies to anyone who: (i) did not arrive by sea; (ii) was admitted or paroled; (iii) is stopped by an immigration office more than 100 miles from a US international land border; and (iv) cannot prove he or she has been continuously physically present in the U.S. for more than two years immediately prior to the date his or her inadmissibility is determined. Second, it applies to anyone who: (i) did not arrive by sea; (ii) was not admitted or paroled; (iii) is stopped by an immigration officer within 100 miles of the border; and (iv) has been continuously physically present in the US for 14 days (but less than two years) immediately prior to the date his or her inadmissibility is determined. 84 FR 35409-14 (July 23, 2019). Prior expansion focused on the 100-mile limit in the Southern Border, Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004), but it was subsequently expanded to all borders, including the Northern Border. Press Release, DHS (Jan. 30, 2006), AILA Doc. No. 06013018; Memo, Mead, Ex. Assoc. Director, ICE, Strategic Use of Expedited Removal Authority (Apr. 5, 2011), AILA Doc. No. 14101447. Persons who arrive in the U.S. by sea (except if they come from a country in the Western Hemisphere for which we no longer have full diplomatic relations, formerly Cuba) will also be subject to expedited removal, unless they were in the U.S. for two years prior to the determination of inadmissibility. 67 FR 68924–26 (Nov. 13, 2002). Cubans are no longer exempt from expedited removal. 82 FR 4902 (Jan. 17, 2017). Persons paroled prior to Apr. 1, 1997, will not be put in expedited removal proceedings. Also, persons reentering the U.S. on advance parole, although arriving aliens, may not be subject to expedited removal. 8 CFR §§1.2, 1001.1(q). Memo, Perryman, Exec. Assoc. Comm. INS, 501 12.1-P (June 30, 1997), reprinted in 74 No. 31 Interpreter Releases 1247, 1258–59 (Aug. 18, 1997). See also Bona v. Gonzales, 425 F.3d 663, 667–68 (9th Cir. 2005) [person granted advance parole not considered an arriving alien for purposes of expedited removal]; American-Arab Anti-Discrimination Comm. v. Ashcroft, 272 F.Supp.2d 650 (E.D. Mich. 2003) [where ICE placed person who was paroled on a fraudulent I 512 into expedited removal proceedings, the court found that persons paroled into U.S. are not “arriving aliens”]. If a person subject to inspection is not inadmissible under one of the two designated sections, he or she would be subject to a removal proceeding under INA §240 for persons who are inadmissible (unless suspected of being a terrorist, in which case INA §235(c) would apply). A record of the proceedings, including the facts of the case and the statements made by the applicant for admission, should be created on Form I 867AB. 8 CFR §§235.3(b)(2)(i), 1235.3(b)(2)(i).

1.a. The categories included in the view of USCIS, Memo, Lafferty, Chief, Asylum Division, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determination, HQRAIO 120/9.15b (Feb. 13, 2017), AILA Doc. No. 17022434, 17022435 and updated Lesson Plan, Lesson Plan Overview, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determinations (Apr. 30, 2019), AILA Doc. No. 19050602, 84 FR 35409-14 (July 23, 2019), are:

  • Arriving aliens coming or attempting to come into the U.S. at a port of entry or seeking transit through the U.S. at a port of entry, 8 CFR §235.3(b)(1)(i) [but, persons attempting entry through Canada must first establish an exception to the Safe Third Country Agreement, through a Threshold Screening interview, in order to receive a credible fear interview, 8 CFR §208.30(e)(6)];
  • Persons interdicted in international or U.S. waters and brought to the U.S. by any means, whether or not at a port of entry, 8 CFR §1.2; 67 FR 68924 (Nov. 13, 2002); 82 FR 4902 (Jan. 17, 2017); 82 FR 8431 (Jan. 25, 2017);
  • Persons paroled under INA §212(d)(5) on or after Apr. 1, 1997 if parole is terminated, including persons paroled for urgent humanitarian or significant public benefit reasons. It does not include persons granted advance parole;
  • Persons who arrived by sea who have not been admitted or paroled and who have not been in the U.S. continuously for the two-year period prior to the determination of inadmissibility, 67 FR 68924 (Nov. 13, 2002); 82 FR 4902 (Jan. 17, 2017); 82 FR 8431 (Jan. 25, 2017);
  • Person apprehended within 100 air miles of any U.S. international land border, who have not been admitted or paroled, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter, 69 FR 48877 (Aug. 11, 2004); 82 FR 4902 (Jan. 17, 2017); 82 FR 8431 (Jan. 25, 2017).
  • Persons found in the interior of the U.S. beyond 100 miles of the border who were not admitted or paroled, unless they can prove they have continuously been physically present in the U.S. for two years immediately prior to the date of the determination of their inadmissibility. 84 FR 35409-14 (July 23, 2019).
p. 540 (Ch. 3, ¶ X.T.5.g)

Replace the second sentence of paragraph 5.g.(1) with:

In Matter of L A B R , 27 I&N Dec. 405 (AG 2018), the AG elaborated on the “good cause” standard, holding that the IJ should consider primarily: (1) the likelihood that the noncitizen will receive collateral relief and (2) whether the relief will materially affect the outcome of the removal proceeding. The IJ should also consider (i) whether the noncitizen has exercised reasonable diligence in pursuing the relief; (ii) DHS’s position on the motion; (iii) the length of the requested continuance; (iv) the procedural history of the case; and (v) concerns of administrative efficiency. Matter of L-A-B-R- at 413-17 [giving as examples lacking “good cause” a request for a continuance to seek an I-601A waiver or to await the outcome of a collateral attack of a criminal conviction]. The courts have taken a broader view.

p. 541 (Ch. 3, ¶ X.T.5.h)

Replace the Apparent Eligibility paragraph in 5.h with:

Apparent Eligibility—Pursuant to 8 CFR §1240.11(a) the IJ must notify the respondent of “all benefits enumerated in this chapter,” Matter of Cordova, 22 I&N Dec. 966, 970 n.4 (BIA 1999), including all relief available, particularly cancellation, adjustment and registry, if the respondent has “apparent eligibility” for such relief. 8 CFR §1240.11(a)(2). Unlike the previous regulation, this requires advising the applicant of both forms of VD. Cordova, supra. However, it may not extend to potential eligibility if there are certain facts, not disclosed to the IJ, for which the IJ could not have reasonably known. U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform applicant that he could have married his undisclosed fiancée or that his parents could naturalize thus making him eligible to AOS does not violate the regulation]. But a “failure to advise can be excused only when the petitioner’s eligibility for relief is not ‘plausible…’ and it is not the province of the IJ to determine the petitioner’s entitlement to the relief. C.J.L.G. v. Barr, __F.3d__,___(pp.12-14), 2019 WL 1967943 (9th Cir. 2019) (en banc) [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and failure to advise is only excusable where relief is not plausible]. “Apparent eligibility” arises “where the record fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must advise the alien of the possibility and give him the opportunity to develop the issue.” Asani v. INS, 154 F.3d 719, 727–28 (7th Cir. 1998) [IJ failed to advise as to suspension]. The IJ should also grant a continuance to allow the applicant to apply. C.J.L.G. v. Barr, __F.3d__,__(pp.16-17), 2019 WL 1967943 (9th Cir. 2019) (en banc), [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and should have granted continuance to allow him to apply]. In Matter of C B , 25 I&N Dec. 888 (BIA 2012), the BIA reversed the IJ for: (1) failing to advise the applicant of asylum/withholding and CAT after the respondent expressed a fear of returning to Guatemala; and (2) failing to notify respondent of post-completion VD after the respondent said he wanted to appeal his case and therefore was no longer eligible for the prehearing VD granted to him. See also Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [K-3 eligible for an INA §212(d)(3)(A) waiver and IJ erred in not advising her of the right to apply]; Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) [reversing deportation order where respondent apparently eligible for §212(h) relief]; Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) [test applied to former §243(h)]; U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [IJ’s failure to advise of apparent eligibility for INA §212(h) resulted in reversal of guilty plea for re-entering]; U.S. v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) [permitting withdrawal of plea before sentencing where defendant argued that intervening St. Cyr decision was basis to dismiss indictment for illegal reentry because IJ failed to inform him of INA §212(c) relief even though he informed him of cancellation but only if he did not commit aggravated felony]; U.S. v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998) [failure to inform person married to USC of 212(h) waiver “taints” hearing, although not prejudicial in this case]; U.S. v. Maldonado, 33 F.Supp.3d 1178, 1185-90 (S.D. Cal. 2014) [granting motion to dismiss indictment for unlawful reentry because defendant, under “apparently eligibility” doctrine was never informed of his right to apply for suspension of deportation]; U.S. v. Andrade-Partida, 110 F.Supp.2d 1260 (N.D. Cal. 2000) [respondent never advised of INA §212(c) relief]; Matter of Cordova, supra [reversing final order where IJ improperly told applicant he was ineligible for VD because he lacked good moral character]; Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999) [respondent inadmissible as public charge had the right to be informed by IJ of a waiver under §213]. But see Matter of R S H , 23 I&N Dec. 629, 644 (BIA 2003) [failure of IJ to advise respondents as to prehearing VD was not prejudicial because respondents provided no reason to believe they would have waived their rights to other relief]; U.S. v. Rodriguez-Aparicio, 888 F.3d 189, 196 (5th Cir. 2018) [despite “apparent eligibility” test there is no prejudice in context of dismissal of criminal indictment where IJ fails to inform applicant of relief because there is no property or liberty interest in discretionary relief and therefore denial did not rise to level of fundamental unfairness]; Alva-Arellano v. Lynch, 811 F.3d 1064 (8th Cir. 2016) [where respondent did not express fear and did not present any documents, IJ had no obligation to inform respondent about asylum and refusal to reopen was warranted]; U.S. v. Valdez-Novoa, 780 F.3d 906, 912-21 (9th Cir. 2015) [defendant not prejudiced under “apparent eligibility” doctrine where he was ineligible for VD because he was convicted of an aggravated felony and therefore ineligible for VD]; U.S. v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc) [where applicant was not eligible for INA §212(c) relief at the time of his deportation proceeding and would not be eligible for 8 months and a change in the law, the IJ did not err under “apparent eligibility” in failing to inform him]; Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. 2008) [no due process violation to fail to inform respondent of asylum, withholding and CAT where there was no plausible basis for such an application]; Mema v. Gonzales, 474 F.3d 412, 420–21 (7th Cir. 2007) [no due process violation for failing to inform respondent under §1240.11(a)(2) of his right to withdraw his application for admission where there is no showing of prejudice]; Bejko v. Gonzales, 468 F.3d 482, 487–88 (7th Cir. 2006) [same]; Bonhometre v. Gonzales, 414 F.3d 442, 448–50 (3d Cir. 2005) [no due process violation for failure to inform respondent of INA §§212(c), 212(h) and CAT because respondent was not eligible for §212(c)/212(h), and no evidence was presented regarding CAT claim]; U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004) (en banc) [no constitutional right to be informed of discretionary relief that might be available such as INA §212(c)]; U.S. v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) [failure to inform defendant of §212(c) relief does not rise to the level of fundamental unfairness and does not affect the conviction because there is no liberty or property interest in §212(c) relief].

p. 650 (Ch. 3, ¶ X.T.7.w.)

Add to the end of subparagraph (3):

Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];

p. 754 (Ch. 4, ¶ III.A.6.d.(1))

Replace the first full paragraph, discussing social group based on family, with the following:

Matter of L-E-A Standard Regarding Families and Nexus—The AG, reversing the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594. The AG left intact, however, the former opinion’s stringent reading of “nexus,” finding no nexus simply because a family member was persecuted due to being the son of man a cartel was interested in having sell its drugs. Under the facts in Matter of L-E-A, the court first rejected the claim where drug cartel members wished to use the father’s store to sell drugs and they threatened his son because “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental.” But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [the family relationship was one central reason for the threats against the wife and children of the deceased where the husband’s former employer, connected to criminal activity, feared the wife would go to the police]. The one central reason requirement only applies to asylum post-REAL ID and not to withholding or CAT. Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason].

p.836 (Ch. 4, ¶ VIII.N)

Add to the paragraph concerning TPS for nationals of Somalia:

TPS was again extended for nationals of Somalia, until Mar. 17, 2020. For registration periods and employment authorization, see 83 FR 43695-700 (Aug. 27, 2018).

p.838 (Ch. 4, ¶ VIII.T)

Add to the paragraph concerning TPS for nationals of Yemen:

TPS was again extended for nationals of Yemen, until Mar. 3, 2020. For registration periods and employment authorization, see 82 FR 40307-13 (Aug. 14, 2018).

p. 939 (Ch. 4, ¶ XII.B.2.h.(1)(c))

Replace subparagraph (c) with:

AG Opinion in Matter of L-E-A- Undermining Family as a Social Group— The AG, reversing in part the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question.”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id. at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594.

Former L-E-A- Opinion on Nexus—The BIA determined in the first Matter of L-E-A- decision, 27 I&N Dec. 40 (BIA 2017), that when it came to a social group claim based upon family, “the respondent must demonstrate that the family relationship is a least one central reason for the claimed harm” and that there must be a “nexus” between the threatened harm and the family. The AG left this narrow reading of nexus in place and affirmed the decision of the Board in that respect. Matter of L E A , 27 I&N Dec. 40 (BIA 2017), aff’d as to nexus finding only, Matter of L-E-A-, 27 I&N Dec. 581, 596-97 (AG 2019) [finding no nexus simply because a particular social group of family members exists and the family members experience harm where drug cartel members wished to use the father’s store to sell drugs and they threatened his son; “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental”]. See also Sosa-Perez v. Sessions, 884 F.3d 74 (1st Cir. 2018) [asylum and withholding denied where, despite repeated acts of violence against various family members over three decades, the precipitating 2013 incident was insufficient to demonstrate persecution due to kinship because applicant could not show nexus, that the attack was due to her family status]; Ruiz-Escobar v. Sessions, 881 F.3d 252 (1st Cir. 2018) [same as Sosa-Perez in that despite allegation that he had been persecuted based upon family membership in Honduras, respondent stated he had no idea who attacked him and offered no factual basis for the reasons for family members deaths]; Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) [extortion and assault by gang member against mother cannot be imputed to daughter and verbal threat to take it out on El Salvadoran daughter was insufficient]; Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016) [extortionate threats by members of Mara 18 in Guatemala against brothers was not because of family membership but as prosperous businessmen]; Giraldo-Padron v. Lynch, 846 F.3d 21, 25 (1st Cir. 2016) [applicant for reopening due to changed circumstances in Colombia failed to provide nexus evidence, other than her own speculation, that she would be harmed due to her membership in a family involved in narco-trafficking]; Marin-Portillo v. Lynch, 834 F.3d 99, 101-02 (1st Cir. 2016) [fear that police officer who killed respondent’s father would retaliate against him in anticipation of counter-retaliation is based upon personal motive and not on family as a group]. But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- decision by BIA did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family who fought MS-13; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) [one central reason was applicant’s familial relationship to father who was threatened and extorted b MS-13]; Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [reversed BIA denial based upon family relationship where the family relationship was one central reason for the threats against the wife and children of the deceased because the husband’s former employer, connected to criminal activity, feared the wife would go to the police].

p. 1025 (Ch. 5, ¶ III.S.5)

Paragraph 5 should read as follows:

1. Request for Evidence (RFEs) & Notice of Intent to Deny (NOIDs)

8 CFR §103.2(b)(8); AFM at §§10.1(c), 10.5(a)(2), 10.5(b)(4), 11.1(m), 25.2(d)(3), 38.1(e); USCIS Policy Memo, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), AILA Doc. No. 18071377; USCIS, Adjudicating I 601 Waivers (Aug. 2015) at 17-50, AILA Doc. No. 15082741a [RFE table for waivers]

“In response to an RFE or a NOID, applicants, petitioners, or requestors must submit all of the requested materials together at one time, along with the original RFE or NOID. If only some of the requested evidence is submitted, USCIS will consider this to be a request for a decision on the record. See 8 CFR §103.2(b)(11). Additionally, failure to submit requested evidence which precludes a material line of inquiry will be grounds for denying the request. See 8 CFR §103.2(b)(14).” Policy Memorandum, USCIS, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), at 4, AILA Doc. No. 18071377. The regulations do not require adjudicators to issue RFEs or NOIDs before denying an application, 8 CFR §103.2(b)(8), and USCIS has now rescinded its June 3, 2013 policy memo, which provided that an RFE or NOID would issue unless there was “no possibility” that the deficiency could be cured by submission of additional information. PM-602-0163 at 2. An RFE or NOID need not be issued where there is a statutory basis for denial because the applicant, for example, does not have a qualifying relative needed for a waiver or family-based petition. AFM 10.5(a)(2); 72 FR 19100, 19103 (Apr. 17, 2007). Similarly, USCIS may issue a denial without an RFE or NOID where the filed application/petition lacks initial qualifying evidence such as a waiver application with little or no supporting evidence or where a document is required such as an I-864 affidavit in a family-based petition. AFM 10.5(a)(2). The applicant/petitioner does not have to establish eligibility beyond a reasonable doubt as the standard is only preponderance of the evidence. Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/2 (Feb. 16, 2005), AILA Doc. No. 05021810 (rescinding May 4, 2004 memo) [“Adjudicators too often issue an RFE for additional types of evidence that could tend to eliminate all doubt and all possibility for fraud”]. An officer may issue a follow-up RFE if the previous RFE “opens up new lines of inquiry.” However, an RFE “should ask for all the additional evidence the officer anticipates having to request.” AFM at 10.5(a)(2). RFEs should not be issued because there is suspected fraud, but instead should be referred to FDNS. Memo, Ohata, Director SC Operations, Guidance on the Limitations of Denials Based on Requests for Evidence Standards, (Jan. 6, 2005), AILA Doc. No. 11051265. When submitting a response to an RFE the applicant must demonstrate the evidence establishes eligibility at the time of originally filing. 8 CFR §103.2(b)(12). An RFE should only be issued where a specific piece of information is missing; the request should not be a “broad brush” request. It is not normally appropriate for officers to “dump” the entire RFE template and send it to the applicant. Memo, Yates (Feb. 16, 2005), supra. The time period to respond to an RFE is “flexible” depending upon the subject matter and should be 30 days to respond to an RFE for an I 539 or I 601A (provisional waiver), and may be less, but never more, than 12 weeks for all other applications. 8 CFR §103.2(b)(8)(iv); Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and AFM Appendix 10-9; USCIS Policy Memo, PM-602-0081, Standard Timeframe for Applicant to Respond to RFE for Evidence Issued in Relation to a Request for a Provisional Unlawful Presence Waiver, Form I 601A, (Mar. 1, 2013), AILA Doc. No. 13031842. If service is by mail there is always an additional three days to respond. 8 CFR §103.8(b). If by mail to a foreign country, USCIS will give an additional 14 days for RFE/NOID response. AFM 10.5(b)(3), App. 10-9. To question an RFE contact scopsrfe@dhs.gov

A NOID is appropriate where a statute or regulation requires it: Memo, Yates (Feb. 16, 2005), supra VAWA petitions (8 CFR §§204.2(c)(3)(ii) and (e)(3)(ii)), AOS involving certain physicians (8 CFR §245.18(i)) and certain legalization applications (8 CFR §245a.20(a)(2))]. A NOID is also required when derogatory or other information is uncovered by the government or internally obtained from a government source that is unknown to the individual 8 CFR §103.2(b)(16). However, if the information is classified the officer may decide not to disclose it. 8 CFR §103.2(b)(16)(ii) and (iv); PM 602-0163 at 4 n.4. A NOID, even one based upon a claim of fraud, may be overcome. Matter of ___ (AAO NSC Nov. 8, 2012), reported in 18 Bender’s Immigr. Bull. 385, 421 (Apr. 15, 2013) [petitioner overcame NOID where beneficiary relied on employment experience from former employer convicted of fraud]. An applicant only has 30 days to respond to a NOID. Memo, Yates (Feb. 16, 2005), supra. However, an officer may reduce the time periods only after concurrence of a supervisor. Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and Appendix 10-9. There is an additional three days if the RFE or NOID is mailed. 8 CFR §103.5a(b). Weekends and holidays are counted but if the final day falls on a weekend or holiday “the period shall run until the end of the next day which is not a Saturday, Sunday or a legal holiday.” 8 CFR §1.2 [definition of “day”]. An RFE/NOID may also direct an applicant to appear for biometrics capture. If the applicant fails to appear for biometrics or other required in-person process, the application or petition “shall be considered abandoned and denied” unless by the appointment date USCIS receives a change of address or rescheduling request that the agency concludes warrants the failure to appear. 8 CFR §103.2(b)(13)(ii).

p. 1116 (Ch. 5, ¶ VII.C.7.e.3)

Paragraph (3) should read as follows:

Extensions for Spouse/ChildrenThe regulatory language at 8 CFR §214.2(h)(13)(iii)(D)(9) and 8 CFR §214.2(h)(13)(E)(6) and the regulatory history at 81 FR at 82452 appear to state that no extensions beyond the 6-year period will be given to anyone but a principal beneficiary. However, these regulations and regulatory history are addressing the unique problem of a spouse who also has H-1B status (not H-4 dependent status) and seeks to use the extensions under 104(c) and 106(a) granted to his or her spouse as a basis for his or her extension. Thus, an H-1B spouse may not rely on his or her spouse’s 104(c) or 106(a) extension, as he or she must obtain his or her own extension. These regulations and regulatory history are not addressing whether an H-4 dependent spouse/child may obtain an extension beyond the six year period. It is clear from 8 CFR §214.2(h)(9)(iv) that H-4 dependent spouses and children may be granted extensions beyond the 6-year period [“for the same period of admission or extension as the principal spouse or parent”]. Also denying an extension under 106(a) appears clearly contrary to 8 CFR §214.2(h)(9)(iv) which grants employment authorization to those spouses extended through 106(a) or (b). See 8 CFR §214.2(h)(9)(iv) [A spouse of an H-1 who has an H-4 may apply for work authorization if the H-1B has had his or her status extended under 106(a), (b) of AC21 or already has an approved I 140 petition]. It is also clear from USCIS memos that an H-1B who has reached the 6-year maximum may C/S to H-4 and remain in the U.S. based on the principal’s status. Memo, Yates, Acting Assoc. Director, USCIS, HQBCIA 70/6.2.8-P (Apr. 24, 2003) at B, AILA Doc. No. 03050145; Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005) at p.10, AILA Doc. No. 05051810. An H-4 or L-2 may change to H-1B or L-1, because the time spent in H-4 or L-2 is not counted toward the 6-years for H-1Bs, or 5/7 years for L-1s. Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS, HQPRD 70/6.2.8, 70/6.2.12, AD 06-29 (Dec. 5, 2006), AILA Doc. No. 06122063; AFM §31.2(d)(2). An H-4 is also free to change to H-2 and H-3 categories and the time spent as an H-4 will not count against the maximum allowable period for H-2 and H-3 as well as H-1B. Policy Memo (Interim), USCIS, PM-602-0092, Additional Guidance on Determining Periods of Admission for [H-4], (Nov. 11, 2013), AILA Doc. No. 13111801; AFM 31.2(d)(2). See in this section ¶ 8.b (p.1117), infra.

p. 1200 (Ch. 5, ¶ VII.N.2.d)

Add to paragraph 2.d.:

Clarifying Policy Memorandum—On Nov. 15, 2018, USCIS issued a clarifying policy memorandum on several issues regarding the one-year-abroad provision. USCIS Policy Memo, PM-602-0167, AILA Doc. No. 18112933; AFM 32.3. The memo sets forth several principles: (1) the one year abroad is measured from the time of filing the L-1 petition, not admission, so that an applicant must have one year of the prior three years abroad prior to filing an L-1 petition; (2) periods of employment in the U.S. even for the petitioning organization do not satisfying the one-year-abroad requirement, nor can any time spent in the U.S. in any capacity; (3) brief trips into the U.S. on other visas such as a B-1 or B-2 do not interrupt the one-year period but are not counted toward it; for example, a person who spends 60 days in the U.S. over a year period would not accrue the one year until after one year and 60 days were reached, but each entry does not interrupt the one-year period requiring the applicant to start the one year anew; (4) lawfully working for the qualifying organization in the U.S. in another capacity such as an E-2 or H-1B does not count in computing the three-year period; for example, if a beneficiary worked in the U.S. in H-1B status for the qualifying organization from Jan. 2, 2017 to Jan. 2, 2018 and then the petitioner filed for L-1 for the employee, the pertinent three-year period would be Jan 1, 2014 to Jan. 1, 2017, thus not counting the year in H-1B status; (5) periods in the U.S. as an L-2, or F-1 (including OPT), or not being employed or being employed with another unrelated company do count in computing the three years and therefore do not result in an adjustment for the three years as does employment in the U.S. for the qualifying organization; (6) if a beneficiary takes more than a two-year break in employment from the qualifying employer, he or she must initiate another full one year of employment with the qualifying entity and does not get “credit” for any time period previously employed; (7) any e/s of L-1 or c/s to L-1B or L-1A requires that the beneficiary prove he or she initially met the one-year requirement.

p. 1312 (Ch. 6, ¶ VII.D.1.b.(3))

Add the following to paragraph 1.b.(3) on interview:

Waiving Interviews—USCIS has issued guidance on waiving an interview for an I-751 petition. USCIS Policy Memo, PM-602-0168, Revised Interview Waiver Guidance for Form I-751 (Nov. 30, 2018), AILA Doc. No. 18121001 [interview may be waived if: (i) there is sufficient evidence of the bona fides of the marriage; (ii) the principal petitioner was previously interviewed; (iii) there is no indication of fraud or misrepresentation in the I-751 or supporting documents; and (iv) there are no complex facts or issues requiring an interview].The waiver-of-interview policy applies to joint petitions and to petitions waiving the joint requirement. AFM 25.1(g).

p. 1340 (Ch. 6, ¶ VII.D.4.f)

Paragraph 4.f should read as follows:

4.f. Same Preference Category—An accompanying or following-to-join beneficiary will be given the same preference category as his or her spouse or parent. INA §§203(d) [8 USC §1153(d)], 9 FAM 503.4-2(C).

pp. 1487–88 (Ch. 7, ¶ VI.K.6)

Clarification:

In the EB-5 community there has been a good deal of confusion regarding whether a conditional resident (CR) may readjust another way. In particular, some readers were mistakenly under the belief that you could adjust from one approved I-526 to the next, even if you were already a CR, as a result of a now-removed section of the AFM 22.4(c). This rewrite of paragraph K.6 clarifies the issue:

Adjustment of Status to LPR from CR Obtained through Different Immigrant Category or through Different I-526 Approval—USCIS regulation at 8 CFR §245.1(c)(5) would prohibit those in investor-based (or family-based) CR status from obtaining LPR status through a second AOS directly from that CR status if the second AOS application is based upon a second immigrant petition (e.g., a CR investor marries a USC and seeks to AOS on that basis, or an investor CR seeks to AOS based upon a second I-526 petition). However, applicable law for marriage-based CR status allows AOS through a separate marriage upon withdrawal of CR status. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) [marriage to new USC]. It may be possible therefore to withdraw CR status and file a new AOS application if the second AOS is based upon an immediate relative. The issue is more complex when seeking AOS based upon an employment category (including a second approved I-526) given the bars to AOS under INA §245(c)(2) and INA §245(c)(7) permitting employment-based AOS only from an NIV status. One way to avoid all of these obstacles is simply to obtain an I-407 abroad and file for an immigrant visa through consular processing.

p. 1562 (Ch. 7, ¶ IX.M)

Replace paragraph M with:

Withdrawal—An employer may withdraw a certified PERM LC at any time and may do so through the Permanent Online system, by email or mail. ETA, FAQs, Round 14: Withdrawals, Requests for Redetermination or BALCA Review and Pay Differentials (May 13, 2019), AILA Doc. No. 19051541. An employer making a written request by mail must send it to the Atlanta National Processing Center. Id. at Q.2. If by email it should be sent to PLC.Atlanta@dol.gov. All requests by mail or email should include the case number, employer’s name and FEIN number, foreign worker’s name and the name and title of the person requesting withdrawal. A pending PERM LC application may also be withdrawn through the Permanent Online System, or if filed by mail or unable to withdraw electronically, through email or by letter. Id. at 1. DOL is not obligated to accepted the withdrawal of a pending application and if the application is withdrawn after an audit letter is received, the employer must still comply with the audit. Id. at 2. A new application may not be filed after withdrawal until the PERM system shows the status changed from “in process” to “withdrawn” or “denied” or until the employer receives confirmation by mail or e-mail. Id. at 3.

p. 1570 (Ch. 7, ¶ IX.N.2.b.10)

Paragraph (10) should read as follows:

Part-Time Employment—Boodell & Domanskis, LLC, 2012-PER-1275 (May 11, 2016) [CO denial reversed where employer demonstrated he had listed the position as a one year of full or part-time experience and prospective employee had part-time experience]; I Grand Express, 2014-PER-783 (Jan. 26, 2018) [CO ultimately counted part time work toward 24 months experience in Head Graphic Designer position where employer argued that in graphic design employees often work as freelancers or contractors and therefore working 25 hours per week may be considered full time].

p. 1946-47 (Ch. 10, ¶ V.H.1.b.)

Add to paragraph 1.b.:

Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];

p. 2163 (Ch. 13, ¶ II.A.3.d)

The first full paragraph on page 2163 (starting on the 7th line) should read as follows:

Reapply After a Break in Residency—If there is a break in residency due to absence, a person may reapply after 4 years and one day. If the person is able to naturalize after 3 years but had a break due to absence, she may reapply after 2 years and one day. 8 CFR §316.5(c)(1)(ii); 12 USCIS-PM, Pt. D, Ch. 3 ¶C.5

p. 2167 (Ch. 13, ¶ II.A.4.b(2))

Add to the discussion of admission vs. conviction:

A person who admits the “possession, manufacture or production, or distribution or dispensing of marijuana” even if permitted under state law may lack GMC if the admission constitutes a federal offense. USCIS Policy Alert, PA-2019-02, Controlled Substance-Related Activity and Good Moral Character Determinations (Apr. 19, 2019), AILA Doc. No. 19041930; 12 USCIS-PM, Pt. F, Ch. 5 ¶C 2 [noting that even if the applicant does not admit facts of a marijuana-related offense sufficient under Matter of K, 7 I&N Dec. 594 (BIA 1957) to bar GMC, the applicant “may be unable to meet the burden of proof to show that he or she has not committed such an offense”].


Additional Items of Major Importance

*Caveat: Entries below represent selected items of major importance that occurred since the book was published in June 2018. This section does NOT reflect all decisions and other changes since publication.

Topic Update
Stop-Time Rule

In Pereira v. Sessions, 138 S.Ct. 2105, 2110 (2018), the Supreme Court determined that an NTA that fails to include the time and place of the removal hearing “is not a ‘notice to appear’ under section 1229(a),” and therefore cannot be the basis to trigger the stop-time rule. The Pereira decision has significant implications not only for the stop-time rule but if the NTA did not properly contain the date and time of the hearing and possibly other information required in §239(a), it could affect: (1) when subject-matter jurisdiction vests with the immigration court under 8 CFR §1003.14; Shogunle v. Holder, 366 Fed. Appx. 332 (4th Cir. 2009); (2) the validity of in absentia orders; (3) the ability to seek post conclusion VD; (4) inadmissibility under INA §§212(a)(9)(A), (a)(9)(C); and (5) immigration court jurisdiction for asylum/withholding when NTA is filed pursuant to 8 CFR §§208.2(b), 1208.2(b). See also Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990), for interpretation under previous regulations. Venue lies where NTA filed. 8 CFR §1003.20.

Asylum/§237(a)(1)(H) Waivers

Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018). In the context of a review of the denial of asylum and an INA §237(a)(1)(H) waiver, the court made a number of important legal decisions. First, it determined it had the authority to review the BIA’s denial of a discretionary INA 237(a)(1)(H) waiver despite INA §242(a)(2)(B)(ii) because it was reviewing the BIA’s failure to follow the clearly erroneous rule. Second, it found that the BIA’s decision that Hussam had resettled in a third country could not be supported where the applicant contested it and the government waived the argument by not addressing it on appeal. Third, it held that the BIA erred in denying asylum where it ignored Pula and Kasinga and found that an applicant with a strong asylum claim should be denied on discretionary grounds for failure to disclose a Syrian passport that was fraudulently obtained. Fourth, the court relied on the final paragraph of INA §237(a)(1)(H) and determining that even if AOS was a second entry, granting the waiver for that entry would, on a derivative basis also waive the misrepresentation of the first entry. The court reversed the denial of asylum and INA §237(a)(1)(H) and remanded to the BIA.

Asylum: Transit Bar

Third-Country Transit Bar to Asylum—Any applicant who “enters, attempts to enter, or arrives in the United States across the southern land border” is ineligible for asylum in the United States if she transited through a country other than her country of citizenship, nationality or last habitual residence unless she applied for protection from persecution or torture in “at least one country” outside of her own country that she transited through en route to the United States. 8 CFR §§208.13(c)(4); 1208.13(c)(4). The provision applies to persons seeking entry on or after July 14, 2019. Withholding and CAT relief are not barred. Asylum is also not barred if the person: (1) applied in the third country and received a “final judgment denying the alien protection in such country;” (2) is a “victim of a severe form of trafficking” defined in 8 CFR §214.11; or (3) the transit countries were not parties to the UN Convention and Protocol Relating to the Status of Refugees. 8 CFR §§208.13(c)(4)(i)-(iii); 1208.13(c)(4)(i)-(iii). The determination that a person is or is not a victim of trafficking is not binding on subsequent determinations for a T or U visa. 8 CFR §§208.13(c)(5); 1208.13(c)(5). If an applicant is subject to the third-country bar rule, she will receive a negative credible fear determination as to asylum but would be screened under a “reasonable fear” standard for withholding and CAT. 84 FR 33829, 33837-88 (July 16, 2019). If it is determined that she has a “reasonable fear” claim she would be placed in an INA §240 proceeding. 8 CFR §208.30(e)(5)(iii). She would also be able to raise in that proceeding whether she was improperly characterized as having a third-country transit bar. If it is determined by the asylum officer that she did not have a “reasonable fear,” she would still be subject to an IJ review of the denial. 84 FR 33829, 33837-88 (July 16, 2019). But she would have to prove at that hearing before the IJ that she had a “reasonable fear,” not a “credible fear.” 8 CFR §§208.30(e)(5)(iii); 1208.30(g)(ii). Prior to reviewing the negative “reasonable fear” determination by the asylum officer, the IJ will first review whether the applicant is subject to the third-country transit bar. 8 CFR §1003.42(d)(3). See also McHenry, Director, EOIR, PM 19-12 Guidelines Regarding New Regulations Governing Asylum and Protection Claims (July 16, 2019). The third-country transit regulatory bar, however, has been enjoined. East Bay Sanctuary Covenant v. Barr, Case No.19-cv-04073-JST (N.D. Cal. July 24, 2019), AILA Doc. No. 19071800 [finding that Congress set the standards for third-country processing and the rule ignores those requirements; the rule failed to comply with notice and comment, and the decision to promulgate it was arbitrary and capricious].


Cite as AILA Doc. No. 19080202.