Skip to main content

What Happens When USCIS Breaks The Law?

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (”APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.

USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest “Neufeld Memos” the USCIS has simply gone too far.

The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals. The USCIS, without any input from the users of the program (really, there was no input), has broken the camel’s back. Absent an immediate withdrawal of these memos, it is quite clear that in order to keep these programs workable, additional action will have to be taken. AILA USCIS HQ Liaison Committee has sent to USCIS Chief Counsel Roxana Bacon a detailed letter explaining how the USCIS has fundamentally eviscerated the H-1B program, and has clearly violated the APA. I strongly urge you to read it, to understand the depths to which the USCIS has delved in its war on the H-1B program.
I have no doubt that the USCIS’s intention in issuing these law-altering memos is to somehow curry favor with certain Senators who share a concern about the H-1B and the EB-5 programs, in regards to the fraud that exists in them. No one disputes that fact that some bad users have abused this program; some intentionally, others ignorantly. But, changing the rules to prohibit the legal and correct use of the program to catch bad actors is not the way to make a program work effectively. Enforcing existing laws against fraud, and not classifying legitimate industries as evil, is the way to go about cleansing the program of inappropriate users. The USCIS’s own failure to police the programs cannot justify what they have just done.

Here is a simple request to Director Mayorkas. When the your agency is going to issue a major policy change, perhaps you might want to ask users of your “service” whether what you want to do accomplishes its true purpose. I can assure you, that these two recent memos do not accomplish what you think they do, nor what you may have been told they will do. There is only one solution to the crisis caused by the recent pronouncement. To paraphrase President Ronald Reagan: Mr. Mayorkas, Withdraw Those Memos!

Comments

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America.
The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds.
Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups:
Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans), we strongly rec…

Why is USCIS Taking So Long to Renew DACA Work Permits?

If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence.

The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens…
Si usted es inmigrante (incluso un ciudadano de los EE.UU.), aquí hay 9 cosas que usted debe saber.

¿Es usted un ciudadano estadounidense naturalizado, residente legal permanente, titular de una visa o inmigrante indocumentado? Le recomendamos que tome los siguientes pasos para protegerse de nuestra versión actual de América.
Las últimas semanas hemos recordado a los inmigrantes, incluso a los ciudadanos estadounidenses naturalizados, que no nacieron en los Estados Unidos. Nuestra oficina ha recibido innumerables llamadas telefónicas, mensajes de correo electrónico y mensajes de medios sociales de personas preocupadas por el futuro de su familia en los Estados Unidos.
La mayoría de gente quiere saber qué puede hacer ahora para protegerse de lo que promete ser una ola de actividad anti-inmigración por parte del gobierno federal. La orden ejecutiva de Trump sobre la aplicación de la ley interior tiene algunas disposiciones que deberían hacer temblar a la mayoría de los estadounidenses. …