Attorney General Jeff Sessions Rescinds 25 DOJ Guidance Documents

INTRODUCTION

On December 21, 2017, Attorney General Jeff Sessions rescinded 25 guidance documents that had been issued over the years by the U.S. Department of Justice (DOJ) [PDF version].

We discussed in a previous article that Attorney General Sessions had issued a memorandum on ending the DOJ's practice of regulation by guidance [see article]. This guidance document was issued to follow the policy set forth in President Donald Trump's February 24, 2017 Executive Order 13777, titled “Enforcing the Regulatory Reform Agenda” and published in the Federal Register (FR) at 82 FR 12285 [PDF version].

RESCINDED DOCUMENTS

Sessions stated that he was rescinding the 25 guidance documents because they were determined to be “unnecessary, inconsistent with existing law, or otherwise improper.” The majority of guidance documents were issued under the Clinton, George W. Bush, and Obama Administrations, although a couple were older. The following is the list of 25 rescinded guidance documents:

1. ATF Procedure 75-4.
2. Industry Circular 75-10.
3. ATF Ruling 85-3.
4. Industry Circular 85-3.
5. ATF Ruling 2001-1.
6. ATF Ruling 2004-1.
7. Southwest Border Prosecution Initiative Guidelines (2013).
8. Northern Border Prosecution Initiative Guidelines (2013).
9. Juvenile Accountability Incentive Block Grants Program Guidance Manual (2007).
10. Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on Levying Fines and Fees on Juveniles (January 2017).
11. Dear Colleague Letter on Enforcement of Fines and Fees (March 2016).
12. ADA Myths and Facts (1995).
13. Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
14. Title II Highlights (last updated 2008).
15. Title III Highlights (last updated 2008).
16. Commonly Asked Questions About Service Animals in Places of Business (July 1996).
17. ADA Business Brief: Service Animals (April 2002).
18. Prior Joint Statement of the Department of Justice and the Department of Housing and Urban Development Group Homes, Local Land Use, and the Fair Housing Act (August 18, 1999).
19. Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009).
20. Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012).
21. Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
22. Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
23. Website guidance on bailing-out procedures under section 4(b) and section 5 of the Voting Rights Act (2004).
24. Americans with Disabilities Act Questions and Answers (May 2002).
25. Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments' Employment Service Systems for Individuals with Disabilities (October 31, 2016).

TWO RESCINDED DOCUMENTS TOUCHING ON IMMIGRATION ISSUES (19 & 20, ABOVE)

None of the rescinded documents bear significantly on immigration issues. However, two of the letters did address issues having to do with the employment of aliens. While we will discuss the documents in brief, it is important to note that both have been rescinded and, in fact, taken down from the DOJ website. However, it is worth noting that David Shortell and Jessica Schneider of CNN reported that a DOJ official have stated that both of the immigration-related letters “were outdated and revoked because subsequent guidance on the subjects has been issued…”[1]

First, document 19, “Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009),” consists of a DOJ response to a question from Baudry, an attorney, concerning a client matter. Although the DOJ deleted the letter, we have uploaded a cached version for those who are interested in reading [PDF version]. The letter detailed that Baudry stated that the human resources manager of a client had learned from the police department that one of its employees lacked employment authorization. As a result, the client reviewed documents presented by another employee hired around the same time and discovered that the social security card presented by that employee included “notable spelling errors,” calling into question its validity.

Baudry posed two questions. First, he wanted to know if his client was permitted to question the employee and request or require that the employee submit another form of employment verification. If not, he wanted to know what other steps the employer should take. Second, he asked if the client could conduct a further review or audit of other files and take similar steps if it found any other documents that included “such obvious errors.”

Katherine A. Badwin of the DOJ did not provide case-specific guidance in response. Instead, she explained that the anti-discrimination provisions of the section 274B of the Immigration and Nationality Act (INA) “prohibits hiring, firing, recruitment or referral for a fee, and unfair documentary practices during the employment eligibility verification (Form I-9) process (document abuse) on the basis of citizenship or immigration status or national origin…” However, she added that “[a]n employer may choose to conduct an internal audit of its I-9 forms as long as it is conducted for every employee in the same manner.” She further added that if, during a properly conducted audit, an employer finds that some documents or forms are incomplete, it may re-verify those employees. An employer may not accept documentation that does not appear genuine or to relate to the employee in question.

However, document 20, “Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012),” did touch more directly on an immigration issue. Although the document appears to no longer be on the DOJ website, the text of the letter was uploaded by Chris Greider of Buzzfeed in connection with an article he wrote on the DOJ's decision [PDF version] [link].[2]

The now-rescinded Zendejas letter fielded a question regarding the reach of section 274B of the Immigration and Nationality Act (INA). Section 274B(1)(B) prohibits certain forms of employment discrimination against “protected individuals” on the basis of citizenship status. Aliens lawfully admitted for permanent residence (LPRs) are “protected individuals” under section 274B(3)(B). However, an LPR who fails to apply for naturalization within six months of becoming eligible to do so is not protected from citizenship status discrimination under the statute. Seema Nanda, a DOJ official who issued the letter, confirmed that section 274B(3)(B) does not cover LPRs who fail to apply for naturalization within six months of becoming eligible. However, she added that “all work authorized individuals are protected against other forms of discrimination under the anti-discrimination provision, including document abuse — the request for more or different documents, or the rejection of genuine looking documents in the employment eligibility verification process based on national origin or citizenship status.”

CONCLUSION

The two immigration-related guidance documents discussed above that have been rescinded by the DOJ do not represent any significant changes in the handling of immigration cases. Rather, the two rescinded guidance documents were reportedly rescinded because they have been since superseded by newer guidance. Employers with questions about section 274B of the INA should consult with an experienced attorney in the subject of employment immigration for case-specific guidance.

We will continue to follow this issue with respect to the DOJ, especially if the DOJ rescinds or revokes guidance relating to the Executive Office for Immigration Review (EOIR). Furthermore, we will update the site if similar steps are taken by the U.S. Department of Homeland Security (DHS) or U.S. Department of State (DOS).

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

1. Shortell, David and Jessica Schneider, “Justice Department rolls back guidance on fining poor defendants.” CNN. Dec. 22, 2017. cnn.com
2. Greider, Chris. “Jeff Sessions Cuts 25 'Guidance Documents,' Including Some Obama-Era Anti-Discrimination Guidance.” Buzzfeed. Dec. 21, 2017. buzzfeed.com

Lawyer website: http://myattorneyusa.com

DOJ Announces Criminal Complaint Filed For Unlawful Procurement Of Naturalization

On December 22, 2017, the U.S. Department of Justice (DOJ) announced that it charged a lawful permanent resident (LPR) from Uzbekistan with immigration offenses [PDF version].

The facts are as follows:

• Sidikjon Mamadjonov, a 31-year old citizen of Uzbekistan residing in the United States, was arrested on December 22, 2017, on a criminal complaint charging him with immigration offenses.
• Mamadjonov was admitted to the United States in February 2009. He became an LPR in September 2010.
• On September 8, 2014, Mamadjonov filed a Form N-400, Application for Naturalization.
• According to the criminal complaint, Mamadjonov told the FBI in an interview on November 20, 2017, that he had been informed on a trip to Turkey in 2013 that his brother had died in May or June 2013 while fighting in Syria with the “Nursa” group, which was affiliated with the Islamic State of Iraq and Syria (ISIS). When he returned from Turkey, Mamadjonov told the FBI that he received a package containing what he believed to be his brother's iPhone. The iPhone “contained several videos and photographs depicting [his brother] in Syria.” Mamadjonov also “recalled a video in which [his brother] stated, 'Join us brother, we are here.'” The phone also contained photographs of his Mamadjonov's brother's dead body and his bloodied face.
• According to the criminal complaint, Mamadjonov told the FBI in three interviews in 2014 — notably after he later stated he had received the package containing his brother's iPhone and gave a different account of his trip to Turkey — that his brother was still alive.
• The complaint also alleged that Mamadjonov had told the FBI in an interview in August 2016 that he did not know the whereabouts of his brother and that he had not overheard any discussions of Uzbeks in the United States going to Syria to fight. Furthermore, he told the FBI that he was not aware of any Uzbeks traveling to Syria.
• The complaint alleged that in September 2014 Mamadjonov provided false answers on his Form N-400, which he submitted under oath. He answered “No” to the question of whether he had “ever been a member of, or in any way associated (either directly or indirectly) with: C. A terrorist organization?” In response to Part 11, Question 31 of the version of the Form N-400 he filled out, he answered “No” in response to “Have you ever given any Government official information that was materially face, fraudulent or misleading?” He signed the form below, certifying under penalty of perjury that the Form N-400 and evidence submitted with it was true and correct.
• The complaint also alleged that Mamadjonov provided false statements to a United States Citizenship and Immigration Services (USCIS) officer in an interview regarding his Form N-400. In this interview, he again concealed information about his association with a member of a known terrorist organization, this being his brother. The complaint notes that “[a]t the conclusion of the interview, he swore an oath under penalty of perjury that his responses were true.”

The complaint charged Mamadjonov with Unlawful Procurement of Naturalization (18 U.S.C. 1425(b)), False Statements on a Naturalization Application (18 U.S.C. 1015), and False Oath or Declaration Under Penalty of Perjury (18 U.S.C. 1546). You may read the complaint here [PDF version]. The DOJ, however, made clear that “a complaint is only a charge and not evidence of guilt.” Mamadjonov will have the opportunity to defend himself in court.

While the complaint is not a conviction, the facts of the case are interesting. Regardless of the ultimate disposition of the specific case, it highlights several important points. First, an individual who is sought for questioning by the FBI or other law enforcement should consult with an experienced criminal defense attorney for guidance. Furthermore, the individual should never provide knowingly false information to law enforcement. Regarding Mamadjonov's Form N-400, the case also serves as a reminder that providing false information on an immigration application may render an individual subject to criminal penalties in addition to civil immigration penalties.

Mamadjonov was charged with unlawful procurement of naturalization under 18 U.S.C. 1425(b). We noted that Justice Neil Gorsuch posed questions about the language of 18 U.S.C. 1425(b) in oral arguments for Maslenjak v. United States, a case examining the scope of 18 U.S.C. 1425(a). For those interested, please see our full article on the Supreme Court decision in Maslenjak on the scope of 18 U.S.C. 1425(a).

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

Lawyer website: http://myattorneyusa.com

January 2018 Visa Bulletin

INTRODUCTION

On December 11, 2017, the U.S. Department of State (DOS) published the Immigrant Visa Bulletin for January 2018 [PDF version]. The visa bulletin contains filing dates and final action dates for the family-sponsored and employment-based immigrant visa preference categories. On December 15, 2017, the United States Citizenship and Immigration Services (USCIS) determined that beneficiaries of approved family-sponsored preference petitions must use the filing dates for applying for adjustment of status in January 2018 [PDF version]. Conversely, USCIS determined that beneficiaries of approved employment-based petitions must use the final action dates for applying for adjustment of status in January 2018.

In this article, we will examine the relevant charts provided by the DOS and the USCIS for immigrant visa applicants and adjustment of status applicants in January 2018. Furthermore, we will provide an overview of the news and notes included with the January 2018 visa bulletin from DOS.

Please see our full articles to learn about how to use the immigrant visa bulletin as an adjustment of status applicant [see article] and the differences between the final action dates and filing dates [see article].

To see how the visa bulletins have progressed over the current fiscal year, please see our index of visa bulletin articles [see article].

FAMILY-SPONSORED CASES

As we noted, the USCIS has determined that those applying for adjustment of status based on approved family-sponsored immigrant visa petitions must use the filing dates from the January 2018 visa bulletin. This is good news for family-sponsored applicants because the filing dates are generally more favorable to applicants than the final action dates.

In order for the beneficiary of an approved family-sponsored immigrant visa petition to be eligible to apply for adjustment of status in January 2018 (if otherwise eligible, of course), he or she must have a priority date that is earlier than the applicable filing date for his or her preference category and chargeability area. An applicant's priority date will generally be the date on which his or her immigrant visa petition was properly filed with the USCIS.

The following chart [see here] lists the filing dates for family-sponsored cases for January 2018.

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

Although family-sponsored adjustment applicants must use the filing dates in January 2018, it is likely that the USCIS will determine that it is necessary for family-sponsored applicants to use the final action dates later in fiscal year 2018.

EMPLOYMENT-BASED CASES

The USCIS determined that beneficiaries of approved employment-based immigrant visa petitions must use the final action dates from the January 2018 visa bulleting for applying for adjustment of status. Employment-based applicants have been required to use the final action dates for every month in fiscal year 2018, and that trend is likely to persist through the end of the fiscal year next September.

Accordingly, the beneficiary of an approved employment-based petition may apply for adjustment (if otherwise eligible) only if his or her priority date is before the applicable final action cutoff date for his or her preference category and chargeability area. If labor certification was required for the petition, the priority date will usually be on the date on which the labor certification application was approved by the U.S. Department of Labor. For petitions for which labor certification was not required, the priority date will generally be the date on which the petition was properly filed with the USCIS.

The following chart [see here], courtesy of USCIS, contains the final action dates for employment-based cases in January 2018.

SCHEDULED EXPIRATION

The January 2018 visa bulletin's guidance on categories listed as “unavailable” is outdated. In this section, we will explain the current situation with the most up-to-date information.

The categories for employment-fourth preference certain religious workers (SR) and employment fifth preference investors (I5 and R5) are scheduled to expire unless they are extended by congress. These extensions are intertwined with passing legislation to extend funding of federal government operations. Regular readers of our blog and those otherwise interested in the affected categories will note that this issue has arisen regularly over the past couple of years.

The visa bulletin states that on December 7, 2017, President Donald Trump signed a continuing resolution, passed by Congress, to extend government funding through December 21, 2017. Accordingly, it states that no SR or IR/R5 visas could be issued after midnight, December 21, 2017.

However, subsequent to the issuance of the January 2018 visa bulletin, President Trump signed another continuing resolution passed by the Senate on December 21. This new continuing resolution funds the government through January 19, 2018. This extension also includes the SR, I5, and R5 categories.

What does this mean for beneficiaries of approved SR, I5, and R5 petitions? Assuming a new extension is not signed, the DOS may issue visas for SR beneficiaries until midnight, January 18, 2017. Furthermore, SR non-minister special immigrants must be admitted into the United States no later than midnight January 18. The DOS may issue I5 and R5 visas until the close of business on January 19, 2018. These same provisions apply to adjustment of status.

If a new government funding bill is signed prior to January 19, 2018, there will be no point at which visas in the SR, I5, and R5 categories become unavailable. Furthermore, if legislation is passed after January 19, the visas would become available after a gap period.

The DOS states that in the SR category, the final action date is current for January for all countries except El Salvador, Guatemala, and Honduras (Dec. 1, 2015 final action date) and Mexico (June 1, 2016 final action date), until January 19 (and after if they are extended). The final action dates for I5/R5 are current for every country except China-mainland born (July 22, 2014 final action date).

While it is perhaps more likely than not that the SR, I5, and R5 will be extended prior to their expiration, it is important to remember that the question is an ancillary issue in the broader budget negotiations for the entire U.S. government. It is certainly not beyond the realm of possibility that there will be a gap in the authorization of these three important programs. Those who may be eligible for visas/status in these categories in January 2018, whether through consular processing or adjustment of status, should consult with an experienced immigration attorney for case-specific guidance. We will update the website with information on the situation regarding these three categories as it becomes available.

SPECIAL IMMIGRANT TRANSLATORS

The DOS stated that it is holding the January Final Action Date for special immigrant (SI) translator category visas at April 1, 2010. It continues to expect to reach the annual limit of 50 visas in this category early in the fiscal year. At that time, the final action date in the SI translator category will become “unavailable.” The SQ special immigrant visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan remains current.

REPORT ON NUMBER OF IMMIGRANT VISA APPLICANTS REGISTERED IN PREFERENCE CATEGORIES AS OF 11/1/17

The National Visa Center released a report on the number of applicants registered in the various preference categories for processing at overseas posts as of November 11, 2017. We have included the PDF for those who are interested [PDF version].

CONCLUSION

It is important for those seeking status in one of the family-sponsored or employment-based preference categories to stay abreast of developments in the visa bulletin, and especially so for those who intend to apply for adjustment of status. In general, those seeking immigrant visas or adjustment of status should consult with an experienced immigration attorney throughout the entire process for case-specific guidance. Regarding the January 2018 visa bulletin, this is particularly important for those seeking visas or adjustment in the SR, I5, and R5 employment-based preference categories.

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

Lawyer website: http://myattorneyusa.com

District Court Issues Preliminary Injunction Against Implementation Of Certain Portions Of 10/24 Refugee Executive Order

On December 23, 2017, Judge James L. Robart of the United States District Court for the Western District of Washington granted a motion for a preliminary injunction against the implementation by federal agencies of certain portions of the inter-agency memorandum implementing President Donald Trump's Executive Order 13815 on refugees [see article]. The preliminary injunction was granted pertaining to two cases: Doe v. Trump and Jewish Family Services v. Trump [see decision].

First, the injunction enjoins the Government from suspending the processing and suspending the admission of following-to-join refugees. However, this injunction applies only to following-to-join refugees with a bona fide relationship to a person or entity within the United States. Judge Robart cited to the Supreme Court decision discussing the term with respect to President Trump's previous Executive Order 13780 [see article]. However, the preliminary injunction does not enjoin the Government from engaging in efforts to implement “additional security measures” or align “the screening mechanisms for following-to-join refugees” with “processes employed for principal refugees.” In short, the injunction prohibits the Government from suspending the processing or admission of following-to-join refugees, but it does not prevent the Government from implementing additional security measures described in the Executive Order.

Second, the temporary injunction enjoins the Government from enforcing the provisions of the inter-agency memorandum (implementing Executive Order 13815) that suspend or inhibit the admission of refugees from Security Advisory Opinion countries. Again, Judge Robart limited the scope of the injunction to cover only refugees with a bona fide relationship with a person or entity in the United States. The injunction does not enjoin the Government from conducting a detailed threat assessment of each Security Advisory Opinion country.

Notably, Judge Robart specified that the injunction does not apply to President Trump, agreeing with a separate conclusion by the United States District Court for the District of Hawaii that the court lacked jurisdiction to enjoin the president. Instead, the preliminary injunction “runs against all other Defendants.” He noted that this includes the Secretary of Homeland Security and the Secretary of State.

Judge Robart is no stranger to litigation over President Trump's recent spate of immigration executive orders, having issued the first of multiple nationwide injunctions against the initial iteration of the “travel ban” [see blog]. In the instant case, Judge Robart concluded that the Trump Administration had exceeded its statutory authority under the Immigration and Nationality Act (INA) insofar as its provisions affect both following-to-join and Security Advisory Opinion countries, and he effectively concluded that the plaintiffs were likely to succeed on the merits of their arguments regarding the Administrative Procedures Act.

Interestingly, despite the fact that the Supreme Court vacated the judgment of the Ninth Circuit in its decision enjoining the travel restrictions and refugee provisions of the former Executive Order 13780 [see article], Judge Robart joined the Hawaii District Court regarding new travel restrictions in declining to depart from the prior reasoning of the Ninth Circuit [see article].

We will update the site with more information on litigation surrounding President Trump's Executive Order 13815 and its implementation as it becomes available.

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

Lawyer website: http://myattorneyusa.com