USCIS has announced that effective May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants may apply for employment authorization.
To qualify, the H-4 spouse must be married to an H-1B nonimmigrant who 1) has an approved Form I-140 or 2) have has their H-1B status extended beyond 6 years under AC21 Act because a residency application (I-485) remains pending.
Yet another federal district court judge has determined that holding certain immigrants in detention without a bond hearing violates federal law. The American Civil Liberties Union (ACLU), Asian Americans Advancing Justice–Asian Law Caucus, and lead counsel Keker Van Nest, LLP, has challenged the federal government’s practice of arresting and detaining certain immigrants for months at a time without providing an opportunity to demonstrate that they are not a danger to the community or pose a flight risk.
United States District Court Judge for the Northern District of California, Yvonne Gonzalez Rogers has joined the majority of district courts that have found that the practice of mandatory detention without bond violates the very statute the government has relied upon to justify its practice. Specifically, Judge Gonzalez Rogers ruled that the statute that subjects immigrants detained by Immigration and Customs Enforcement (ICE) “when released” from criminal custody to mandatory detention without a bond hearing only applies to immigrants who are detained by ICE immediately at the time of their release from criminal custody, and not at any time thereafter. The named plaintiffs were picked up by ICE months, sometimes years, after their release from criminal custody. The government had argued that “when released” should be read to mean “any time after release.” The Judge rightfully rejected such an unnatural reading and held that “‘when released” means means what it says,”–that is, at the time an immigrant is released from custody. The Judge’s Order granting a preliminary injunction and certification of the proposed class and denying the government’s motion to dismiss the suit is worth reading– it provides a clear and concise overview of the law at issue and is a model of thoughtful analysis.
Those of you who have been following the story of my detained grandmother client in various news outlets or on my Facebook page may recognize the photo in the ACLU press release. That is her in the photo. She was also wrongly held subject to mandatory detention by the government and the ACLU was motivated in part to bring this class action suit based on her experience and the successful writ of habeas corpus challenge this office brought together with the ACLU Northern California.
While her 2 plus years in immigration detention was unconscionable, it has wrought some positive changes in the system. Although she has been released from immigration detention, her case remains pending in immigration court. It is possible her case may yet inspire more positive changes.
In an email sent to the American Immigration Lawyers Association (AILA) yesterday, the U.S. Citizenship and Immigration Services (USCIS) announced an important change in the way they consider and adjudicate applications for a provisional unlawful presence waiver (“I-601A”). Since the launch of the new program, USCIS had been denying applications where it had “reason to believe” that the applicant may be subject to another ground of inadmissibility beside the unlawful presence ground. In practice, this mostly affected applicants with any prior criminal offense.
Not all criminal offenses in fact render an applicant inadmissible– for example, a minor offense that is not considered to be a crime involving moral turpitude or that would fall under the petty offense exception does not trigger inadmissibility. However, USCIS had been blanketly denying applications by anyone with a criminal history without considering whether the criminal offense in fact rendered the person inadmissible. This policy had up until now excluded many applicants with minor offenses like a single shoplifting conviction who were nevertheless admissible as immigrants.
Thankfully, the USCIS has reconsidered its policy and has announced that it will now take the additional step of considering whether a prior criminal offense falls under the petty offense exception or is otherwise not considered a crime involving moral turpitude. Where the prior criminal offense is deemed to not render the applicant inadmissible, USCIS will proceed to adjudicate the I-601A. USCIS has further announced that it will reopen, on its own motion, all prior I-601A applications that it had denied based solely on the existence of a prior criminal offense and it is determined that the criminal offense is a not a ground of inadmissibility, will proceed to adjudicate the I-601A application.
For information about the Provisional Waiver process, check the USCIS website.