DHS and DOJ Issue Interim Final Rule on Credible Fear Screenings and Consideration of Asylum Claims by USCIS Officers

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Elizabeth Carlson,

Joanna Mexicano Furmansk

Last Updated

April 21, 2022

Topics

Asylum and Refugee Law
Removal Proceedings

The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have jointly issued an interim final rule to revise the processing of certain applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The timing of this rule coincides with the end of Title 42, a legal procedure used to expel hundreds of thousands of asylum seekers from the United States without a hearing or due process. Title 42 of the U.S. Code, section 265, was used under both the Trump and Biden administrations to prohibit the entry of individuals into the United States based on the COVID-19 pandemic. This section allows the Director of the Centers for Disease Control and Prevention to prohibit the entry of individuals if they present a danger of introduction of a communicable disease.

The Biden administration has announced that Title 42 will end on May 23, 2022. The goal of the new regulations is to speed up the asylum process in response to the expected increase in individuals who will seek asylum in the United States with the intention of completing the asylum process within six months.

The notable regulatory changes in the interim final rule include authorizing asylum officers within U.S. Citizenship and Immigration Services (USCIS) to adjudicate the asylum claims of individuals who receive a positive credible fear determination after being placed into expedited removal. Following a positive credible fear interview (CFI) the applicant will be provided an Asylum Merits interview in which USCIS will decide whether to grant asylum and, if necessary, determine the applicant’s eligibility for withholding of removal or protection under the CAT. Prior to this rule, those cases were decided only by immigration judges within the DOJ’s Executive Office for Immigration Review (EOIR). USCIS will issue a Notice to Appear (NTA) to any noncitizen not granted asylum by USCIS after an Asylum Merits interview. The proceedings before the Immigration Judge are to be concluded pursuant to a “streamlined” processing timeline.

Summary of the Proposed Amendment to the Asylum Regulations for Individuals Subject to Expedited Removal Who Have a Credible Fear of Persecution or Torture

The interim final rule, once it goes into effect on May 31, 2022, will make the following changes to the asylum regulations:

  1. DHS and DOJ will generally return to the regulatory framework governing the credible fear screening process in place before the Trump administration’s various proposed regulatory changes that would have heightened the screening standard. Specifically, the proposed regulations will return to the intentionally low “significant possibility” screening standard in place prior to the Trump’s administration’s attempt to heighten the screening standard. The regulations also return to the historical practice of not applying the mandatory bars to asylum at the credible fear screening stage.
  2. The regulations amend the definition of “asylum application” to provide that a written record of a positive credible fear interview satisfies the asylum filing requirements for all purposes, including the one-year filing deadline and eligibility for employment authorization.
  3. The regulations also create a new Asylum Merits interview process for those who receive a positive credible fear determination. Those individuals who receive such a determination will be scheduled for an Asylum Merits interview for USCIS to consider their asylum application in the first instance.
  4. For those individuals not granted asylum by USCIS during the Asylum Merits interview process, the regulations create a new process for such asylum cases to be referred to EOIR and proceed on an accelerated timeline. There are strict rules about the timing of the commencement of proceedings, service of documents, scheduling of hearings, and granting extensions and adjournments. There are additional rules regarding the form of the asylum application, the consideration of evidence and testimony, and the weight of the USCIS determination on an individual’s withholding or CAT applications, all intended to fast-track the process.
  5. Finally, the new regulations specify that parole under INA § 212(d)(5) is the only avenue for release from detention pending the Asylum Merits interview and subsequent removal proceedings. The regulations also provide that this parole cannot serve as an independent basis for employment authorization.

https://cliniclegal.org/resources/asylum-and-refugee-law/dhs-and-doj-issue-interim-final-rule-credible-fear-screenings-and

Automatic Employment Authorization Document (EAD) Extension

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Certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring employment authorization and/or EADs while their application is pending. You qualify for this extension if you:

  • Properly filed Form I-765 for a renewal of your employment authorization and/or EAD before your current EAD expired, and
  • Are otherwise eligible for a renewal, which means that:
    • Your renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
    • The Category on your current EAD matches the “Class Requested” listed on your Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

Automatic Extension Time Period—Temporary Increase to up to 540 Days

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the extension period. Effective May 4, 2022, DHS is temporarily increasing the extension period and providing up to 360 days of the additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic extension time is counted from the expiration date of the employment authorization and/or EAD. This temporary increase is available to eligible renewal applicants with pending applications if you filed your Form I-765 renewal application either:

  • Before May 4, 2022, and your 180-day automatic extension has since expired;
  • Before May 4, 2022, and your 180-day automatic extension has not yet expired; or
  • Between May 4, 2022, and Oct. 26, 2023, inclusive of these dates.

If you file your Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.

Proof of an Automatic Extension

The automatic extension period, including the temporary increase to the extension period, is provided to certain renewal applicants to help prevent gaps in employment authorization and documentation.

If you file a Form I-765 renewal application on or after May 4, 2022, USCIS will send you a Form I-797C Notice of Action receipt notice that has information regarding the up to 540-day automatic extension. If you are eligible for the automatic extension, this receipt notice, together with your expired EAD (and your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S, and L-2S class of admission codes) will serve as acceptable proof of employment authorization and/or EAD validity during the up to 540-day automatic extension period.

If you filed a Form I-765 renewal application before May 4, 2022, you should have received a Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days. You will not receive a new I-797C receipt notice reflecting the increased employment authorization and/or EAD automatic extension period. However, Form I-797C receipt notices that refer to an up to 180-day automatic extension will still meet the regulatory requirements for completing Form I-9, including if your 180-day automatic extension expired prior to May 4, 2022.

For information about automatic extension of Employment Authorization, contact our office at (212)258-0713.

Immigration Catch and Release Policy

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The immigration “catch and release”  release policy is being re-upped by those same architects, enablers, and defenders of the former President Donald Trump’s cruelty and chaos to attack the Biden’s Administration and for overtly political reasons.

Some Republicans say the catch and release policy helps undocumented immigrants disappear; many immigrants say it has prevented them from following the government’s instructions.

Is it true?

Let’s define the immigration term “Catch and Release.”

“Catch and release” is a term used to describe the process through which certain immigrants are apprehended and released from Department of Homeland Security (DHS) custody pending their immigration court proceedings. This is an incorrect term, as it incorrectly implies that individuals apprehended along the U.S./Mexico border are released from DHS custody without consideration, monitoring, or consequence. This is not true.

Detaining individuals who present no safety or flight risk has both human and economic costs. It needlessly robs these individuals of their dignity and is a drain on limited DHS resources. In fact, costs in FY19 were $124 per individual/per day for those in adult detention and $319 per individual/per day for those in family detention. See Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement Budget Overview Congressional Justification, Fiscal Year 2018, 128 (2018), available at https://www.dhs.gov/sites/default/files/publications/CFO/17_0524_U.S._Immigration_and_Customs_Enforcement.pdf.

Furthermore, many migrants entering the United States are seeking protection and already have strong community ties upon arrival, strengthening their incentive to comply with immigration requirements. These individuals are often received by family members and friends who have been in the country for some time and are eager to help their loved ones integrate into their new communities.

Other immigrants have been allowed into the country for a variety of reasons, including a lack of detention space because of pandemic precautions. The Biden administration has made some exceptions for humanitarian reasons, particularly for families and children.

Are individuals who are released from DHS custody after apprehension along the U.S./Mexico border subject to monitoring from the U.S. federal government?

Absolutely. DHS has a spectrum of humane, proven, and cost-effective alternatives to detention that it can utilize to monitor released individuals and families. The Border Patrol receives and in-process” illegal aliens at Border Patrol facilities, “conducts and documents personal property inventories, performs welfare checks, transports noncitizens with a Border Patrol agent escort, coordinates logistical and additional travel requirements, and performs various administrative duties, such as processing notes and completing paper/electronic file transfers.

In many instances, people released from DHS custody at the U.S./Mexico border are put on GPS monitoring, such as an ankle monitor, which tracks their movements electronically; these individuals are also required to report to Immigration and Customs Enforcement (ICE) field offices periodically. Other forms of monitoring include release on bond and telephonic monitoring.

Do individuals released along the U.S/Mexico border have the responsibility to comply with their immigration court proceedings?

Yes.  All individuals who are apprehended along the U.S./Mexico border are subject to U.S. immigration laws. The large majority of those who have been apprehended between ports of entry have been put into removal or “deportation” proceedings and accordingly, need to comply with the requirements of the immigration authorities, including showing up to present themselves and their case in immigration court. Those seeking a form of relief, such as asylum, have particularly high incentives to comply with their court proceedings.

Individuals have been allowed into the country for a variety of reasons, including a lack of detention space because of pandemic precautions. The Biden Administration has made exceptions for humanitarian reasons, particularly for families and children.

Who is telling the truth? You decide.

CBP Releases February 2022 Monthly Operational Update

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CBP’s February Monthly Operational Update reflects the continued economic rebound from the depths of the COVID pandemic, with CBP officers processing more than 2.8 million shipments in legitimate trade valued at more than $236 billion. February also registered a slight uptick in the number of encounters along the Southwest border, with most individuals arriving from Mexico and the Northern Triangle, and the majority of noncitizens expelled under Title 42,” said CBP Commissioner Chris Magnus. “CBP also continues to successfully interdict illegal narcotics through our expanded use of non-intrusive inspection technology (NII) and other strategies. As with every monthly update, February’s report highlights the tremendous breadth and scope of work that the men and women of CBP carry out every single day to safeguard our borders and support our economy.”

CBP Southwest Border Enforcement Numbers for February 2022

The large number of expulsions during the pandemic has contributed to a higher-than-usual number of migrants making multiple border crossing attempts, which means that total encounters somewhat overstate the number of unique individuals arriving at the border.

  • The number of unique individuals encountered nationwide in February 2022 was 116,678, a 2 percent increase in the number of unique individuals encountered the prior month.
  • In total, there were 164,973 encounters along the Southwest land border in February, a 7 percent increase compared to January. Of those, 30 percent involved individuals who had at least one prior encounter in the previous 12 months, compared to an average one-year re-encounter rate of 14 percent for FY2014-2019.
  • More than three-fourths (76 percent) of encounters were single adults, with 126,151 encounters in February, an 11 percent increase compared to January.
  • 91,513 encounters, 55 percent of the total, were processed for expulsion under Title 42. 73,460 encounters were processed under Title 8.
    • 83,553 encounters involving single adults (66 percent of all single adult encounters) were processed for expulsion under Title 42, with 42,598 processed under Title 8.
    • 7,773 encounters involving family unit individuals (29 percent of all family unit individuals) were processed for expulsion under Title 42, with 18,809 processed under Title 8.

Unaccompanied Children

  • Encounters of unaccompanied children increased 37 percent, with 12,011 encounters in February compared with 8,760 in January. In February, the average number of unaccompanied children in CBP custody was 520 per day, compared with an average of 295 per day in January.

Family Unit individuals

  • Encounters of family unit individuals decreased by 17 percent from 31,998 in January to 26,582 in February—which is a 69 percent decrease from the peak of 86,631 in August 2021.

CBP Nationwide Total Encounters for FY22TD through February: 967,743

CBP Nationwide Encounters for FY22 February: 189,602

International Travel and Trade

One of CBP’s core mission objectives is to enhance the nation’s economic prosperity, including through the facilitation of lawful trade and travel. CBP continues to protect America’s national and economic security by facilitating legitimate trade while rigorously enforcing U.S. customs laws and regulations.

Count February 2020 February 2021 % Feb 2021 Change from

February 2020

 February 2022 %Feb 2022 Change from Feb 2020 % Feb 2022 Change from

February 2021
Air 11,695,959 2,019,030 -82.7% 6,878,917 -41.19% 340.7%
Passenger

Vehicles

 16,118,593 10,395,614 -48.2% 13,235,073 -17.89% 148.9%
Pedestrians 4,123,417 1,815,604 -56% 2,939,209 -28.72% 161.9%
Commercial Trucks 960,342 939,383 -2.2% 945,317 -1.56% 100.6%

 

Since travel restrictions were eased on November 8, CBP has processed increased numbers of arriving travelers without any significant delays. The new rules allow travelers who are non-U.S. persons to seek to enter the United States for non-essential travel via land ports of entry and ferry terminals, provided they are fully vaccinated and have appropriate documentation. The updated guidelines also allow most non-immigrants (non-U.S. citizens and other covered persons) who are fully vaccinated to travel by air to the United States, regardless of the reason for travel.

CBP will continue to track traveler numbers and wait times over the next few months and continue to adjust as needed to make the travel experience more efficient. In the meantime, travelers can plan by doing the following:

  • Have a valid Western Hemisphere Travel Initiative document, such as a passport, Trusted Traveler Program card, or Enhanced Tribal Card.
  • Possess proof of an approved COVID-19 vaccination as outlined on the CDC website.
  • Verbally attest to their travel intent and COVID-19 vaccination status.
  • Be prepared to present any documents requested by the CBP officer.

Accountability and Transparency

As part of the agency’s continuing effort to promote organizational accountability and transparency, CBP announced the release of its Report on Internal Investigations and Employee Accountability: Fiscal Year 2020. For FY2020, CBP leadership directed the Office of Professional Responsibility and Human Resources Management to generate a joint report combining information regarding allegation intake and misconduct investigations with information regarding disciplinary outcomes. CBP is committed to being a leader in law enforcement accountability and transparency by providing multiple ways to report incidents as well as timely, accurate and appropriate information regarding CBP-related deaths, use of force incidents, and other critical incidents resulting in serious injuries. The Accountability and Transparency page provides the public with statements, policies, reports, and other important information concerning critical incidents and related OPR reviews and investigations.

Trade Stats/Seizures – Protecting the American Consumer

CBP works diligently with the trade community and port operators to ensure that merchandise is cleared as efficiently as possible. CBP works with the trade community to strengthen international supply chains and improve border security. There are several programs by which CBP works with importers, carriers, consolidators, licensed customs brokers, and manufacturers to advance information about the shipments and expedite the inspection process at the ports of entry. CBP is available to conduct exams and is ready and willing to expand hours of operations if necessary to meet the growing demand for imported goods.

In February 2022 alone, CBP processed more than 2.8 million entry summaries valued at more than $236 billion, identifying estimated duties of nearly $7.7 billion to be collected by the U.S. government. In February, trade via the ocean environment accounted for more than 40 percent of the total import value, followed by air, truck, and rail.

Intellectual property rights violations continue to put America’s innovation economy at risk. Trade in counterfeit and pirated goods threaten the competitiveness of U.S. businesses, the livelihoods of American workers, and the health and safety of consumers.

In February 2022, CBP seized nearly 1,973 shipments that contained counterfeit goods valued at more than $225 million (MSRP).

Drug Seizures

CBP officers, Border Patrol agents, and Air and Marine Operations agents continue to interdict the flow of illicit narcotics across the border. Nationwide, drug seizures (Cocaine, Methamphetamine, Heroin, Fentanyl, and Marijuana) by weight were down 1 percent in February compared to January. Seizures were as follows:

  • Cocaine seizures increased 83 percent
  • Methamphetamine increased 97 percent
  • Heroin seizures increased 173 percent
  • Fentanyl seizures decreased 21 percent

Additional CBP drug seizure statistics can be found here.

Agriculture Stats/Seizures – Securing American Agriculture

In February 2022, CBP agriculture specialists helped protect America’s agriculture, natural resources, and economic prosperity.

  • CBP issued 5,909 emergency action notifications for restricted and prohibited plant and animal products entering the United States.
  • CBP conducted 62,350 positive passenger inspections and issued 481 civil penalties and/or violations to the traveling public for failing to declare prohibited agriculture items.

CBP COVID-19 Response

The safety of our workforce, our communities, and individuals in our care is a top priority.  CBP personnel put themselves and their families at risk with every encounter with the public.

Since the start of the pandemic:

  • More than 23,629 CBP employees have tested positive for COVID-19.
  • 64 have passed away.

CBP continues to explore adjustments to workforce posture and health protocols based on widespread vaccine access and easing public health metrics:

  • CBP provides migrants who can’t be expelled under the CDC’s Title 42 order or are awaiting processing with PPE from the moment they are taken into custody, and migrants are required to keep masks on at all times.
  • CBP works with appropriate agencies that facilitate testing, diagnosis, isolation, and treatment of migrants, including:
    • Local governments and non-governmental organizations for persons released from CBP custody;
    • ICE for testing of persons to be released from CBP custody, particularly in locations without local government or NGO testing capability; and,
    • HHS for testing of unaccompanied children.
  • DHS has developed a partnership model to test and isolate families who test positive for COVID-19, and reimburse 100 percent of the cost, provided that the state does not stand in the way.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the comprehensive management, control, and protection of our nation’s borders, combining customs, immigration, border security, and agricultural protection at and between official ports of entry. Available at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-february-2022-monthly-operational-update

Last modified:
March 15, 20

Introduction to Immigration Court Video

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EOIR has released an Introduction to Immigration Court video as part of its “Access EOIR” initiative. The video, currently available in English and Spanish, is designed to educate and inform noncitizens about the immigration court process. Please visit the Access EOIR webpage or EOIR’s YouTube channel to watch the video.

For assistance with your immigration process, call the LAW OFFICES OF NORKA M. SCHELL, LLC at (212) 258-0713.

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Release Date

In the recently published April Visa Bulletin, the Department of State advanced the Date for Filing (also known as the application date) applications for an immigrant visa or adjustment of status in the employment-based, second preference (EB-2) category for India from Sept. 1, 2013, to Sept. 1, 2014.

If you are a noncitizen who has an approved immigrant visa petition in the EB-2 category chargeable to India and a priority date earlier than Sept. 1, 2014, USCIS encourages you to consider applying for adjustment of status in April by filing Form I-485, Application to Register Permanent Residence or Adjust Status. You should include your Form I-693, Report of Medical Examination and Vaccination Record, with your Form I-485 to save time. You are not required to file Form I-693 at the same time you file Form I-485, but filing both forms at the same time may eliminate the need for USCIS to issue a Request for Evidence to obtain your Form I-693. This may also help avoid adjudication delays if we decide that you do not need to be interviewed.

As previously announced, we continue to encourage eligible applicants to consider requesting to transfer the underlying basis of their pending adjustment of status applications in the EB-3 category to the EB-1 or EB-2 category if they meet the following criteria: a visa is unavailable to them in the EB-3 category; they have a pending or approved Form I-140, Immigrant Petition for Alien Workers; and a visa is available in the EB-1 or EB-2 category.

For more information, please see  the Green Card for Employment-Based Immigrants page and the Visa Availability and Priority Dates page at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html

DHS, VA Launch New Online Services for Noncitizen Service Members, Veterans, and Their Families

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Release Date: February 7, 2022

WASHINGTON – On February 7, 2022, the Department of Homeland Security (DHS), in partnership with the Departments of Veterans Affairs and Defense, launched two new resources to support our nation’s noncitizen service members, veterans, and their families. Through its Immigrant Military Members and Veterans Initiative (IMMVI), DHS will host a one-stop online center to consolidate relevant federal resources. As part of the resource center, DHS has also created a portal for veterans who need assistance in applying to return to the United States or accessing VA benefits to which they may be entitled.

“These new resources are just the first step to help support noncitizen service members and their families who have made tremendous sacrifices for our country,” said Secretary Mayorkas. “We are committed to identifying previously removed veterans to ensure they are able to obtain VA benefits, access COVID-19 vaccines, and return to the United States as appropriate.”

“Veterans qualify for VA benefits based on their service to our country and never on their immigration status,” said Veterans Affairs Secretary Denis McDonough. “We are proud to work with our partners at DHS and DoD to honor the service of immigrant and noncitizen Veterans by ensuring that they have access to information about the care and services available to them.”

The new one-stop resource center will consolidate resources and forms from DHS, the Department of Veterans Affairs (VA), the Department of Defense (DoD), and other agencies so noncitizen service members, veterans, and their families are able to easily find any needed forms and resources.

The new portal on the DHS website will provide previously removed veterans a simple and fast way to get in touch with the Department for assistance with any questions or issues they may have as they seek assistance in returning to the United States or accessing their VA benefits.

To date, the initiative has helped dozens of veterans access the U.S. immigration system and their VA benefits, and several individuals have been able to return to the U.S. DHS offices and agencies continue to actively review policies for individuals with military association to determine how to best meet the commitments made in this initiative.

Foreign Nurse Visas

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  • U.S. hospitals seek foreign nurses amid visa windfall. Since the pandemic, American hospitals have been facing a shortage of nurses, leading many hospitals looking abroad for healthcare workers. The U.S. has an unusually high number of green cards available this year for foreign professionals, including nurses. The burnout from working during the pandemic has led many U.S. nurses to retire or leave their jobs. The high number of covid-19 cases has also placed tremendous pressure on the healthcare system. USCIS said it would quicken the renewal of work permits for health care workers, which could help keep some foreign citizens in the U.S. on the job. Last year, the State Department told consulates to prioritize applications for workers at facilities that respond to the pandemic.

    As a Foreign Nurse, Can I Work in the U.S. Temporarily?

    If you are a foreign nurse and want to work in the U.S. on a temporary basis (without receiving a U.S. green card), you might be able to obtain an H-1B visa. An H-1B is a popular temporary work visa for foreign nationals who have a job offer from a U.S. employer to work in a “specialty occupation.”

    Can I Obtain a U.S. Green Card as a Foreign Nurse?

    Your U.S. employer might also be willing to sponsor you for a green card. The employer must first offer you a full-time, permanent nurse position. Second, your employer must complete a process known as “labor certification” on your behalf (more commonly referred to as PERM). Now, you might have heard a lot about the PERM/labor certification process, with all its advertising requirements, but this process is completely different (and easier) for nurse positions.

    A nurse position is classified as a “Schedule A” position. Schedule A positions are ones that the U.S. government has recognized the U.S. needs more workers to fill. Therefore, employers are not required to post advertisements for Schedule A positions (a usual PERM requirement), because the U.S. government already knows there is a shortage of workers in these positions.

    For additional information on how to obtain a Foreign Nurse Visa, call Law Offices of Norka M. Schell, LLC at (212)258-0713.

H-1B, L-1A and L-1B TEMPORARY WORK VISAS

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U.S. Businesses rely on their ability to employ foreign nationals to compete efficiently in today’s global market. Particularly critical in this regard are the H-1B program, which permits U. S. employers to retain the temporary services of foreign professionals, and L-1 transfer managers, executives, and other employees with “Specialized Knowledge” from a foreign office to a branch office, subsidiary, or affiliate in the United States. Both of these programs permit U.S. employers to hire high-skilled foreign employees for discrete periods and, necessary, to extend their terms of employment.

Foreign nationals may remain in the United States in H-1B status for up to six years, and in L-1A and L-1B status for up to seven and five years, respectively.

Note that, federal regulations mandate that no H-1B, L-1A or L-1B petition can be approved for longer than three years. So, many U.S. employers file extension requests to enable these employees to fulfill their responsibilities.

For additional information on H-1B, L-1A, and L-1B temporary work visas, contact the Law Offices of Norka M. Schell, LLC at (212) 258-0713 to speak with our attorney.