Federal Courts to Continue Funded Operations Until January 25

During the partial shutdown of the federal government, which began December 22, 2018, the Judiciary has continued to operate by using court fee balances and other “no-year” funds. As of January 16, 2019, the Administrative Office of the U.S. Courts (AO) estimates that federal courts can sustain funded operations through January 25, 2019. Previously, the AO had estimated that Judiciary funding would be exhausted on January 18, resulting in federal courts relying on unpaid staff to perform critical operations.

The additional week of funding was mainly attributed to aggressive efforts to reduce expenditures. In recent weeks, courts and federal public defender offices have delayed or deferred non-mission critical expenses, such as new hires, non-case related travel, and certain contracts. Judiciary employees are reporting to work and currently are in full-pay status.

The Judiciary is continuing these cost-cutting efforts in the hopes of sustaining operations past January 25, but at some point in the near future, existing funds will run out if new appropriated funds do not become available. Should that occur, the Judiciary would operate under the terms of the Anti-Deficiency Act,1 which permits mission-critical work. This includes activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services. Each court would determine the staff necessary to support its mission-critical work.

In response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, while others have declined to do so. Such orders are published on court internet sites. Criminal cases are expected to proceed uninterrupted.

The Case Management/Electronic Case Files (CM/ECF) system remains in operation for electronic filing of documents, as does PACER, which enables the public to read court documents.

Courts have been encouraged to work with their district’s U.S. Attorney, U.S. Marshal, and Federal Protective Service staff to discuss service levels required to maintain court operations. The General Services Administration has begun to reduce operations and courts are working with their local building managers to mitigate the impact on services.

Updates will be provided as more information becomes available.

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EOIR Issues Policy Memorandum Regarding Acceptance of NTAs by Immigration Courts and Use of Interactive Scheduling System

On December 21, 2018, Executive Office of Immigration Review (EOIR) Director James R. McHenry III issued PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System,” which is intended to establish standards for the receipt of Notices to Appear (NTAs) as filed by the Department of Homeland Security (DHS). It provides in part:

[A]lthough DHS may serve an NTA to an individual with a time and date for a hearing on it, the immigration court does not actually acquire jurisdiction–and, thus, the case is not actually “scheduled” and no record of proceedings exists–until DHS files the NTA with the court. Accordingly, although an individual may believe that his or her case has been scheduled for a hearing at the time and date indicated on the NTA and may appear for that hearing, that hearing cannot occur if the NTA has not also been filed with the immigration court.

All individuals who have been served as NTA with a hearing date and time on it are encouraged to contact EOIR’s Automated Case Hotline [1-800-898-7180 (toll-free)] to confirm the time and date of any hearing listed on an NTA. If no information is found … and the scheduled hearing is less than 10 calendar days away, the individual is encouraged to contact the DHS office that issued the NTA or the relevant immigration court.

Download Memo

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Government Agencies Outline Effects of Government Shutdown On Their Operations

As of December 27, 2018, the federal government is in shutdown mode due to a stalemate regarding President Trump’s insistence that appropriations include funding for the building of a wall at the southern border of the United States. The Executive Office for Immigration Review (EOIR), U.S. Citizenship and Immigration Services (USCIS), and the Department of State (DOS) outlined the effects of the government shutdown on their operations.

EOIR: Immigration Courts
EOIR announced that during the current lapse in appropriations, detained docket cases will proceed as scheduled. Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

USCIS: Fee-Funded Activities
The current lapse in annual appropriated funding for the federal government does not affect USCIS’ fee-funded activities. USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled. Generally, USCIS will continue to accept petitions and applications for benefit requests.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

• EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program): See below. The EB-5 Program will continue to operate.
• E-Verify: See below.
• Conrad 30 Waiver Program for J-1 medical doctors: This program allows J-1 doctors to apply for a waiver of the two-year foreign residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
• Non-minister religious workers: This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

EB-5 Immigrant Investor Regional Center Program
The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on December 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of December 21, 2018. Any Forms I-924 pending as of that date will be put on hold until further notice.

Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018.

USCIS will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on December 22, 2018. As of that date, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.

E-Verify and E-Verify services are currently unavailable due to a lapse in government appropriations. Employers will be unable to access their E-Verify accounts to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete or edit any user account; reset passwords; edit company information; terminate accounts; or run reports. Employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).
To minimize the burden on both employers and employees, USCIS has implemented the following policies:

• The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
• USCIS will provide additional guidance regarding the “three-day rule” and the time period to resolve TNCs deadlines once operations resume.
• Important: Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
• Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Several free E-Verify resources are still available.

For information on interim cases statuses and E-Verify resources see E-Verify publications (https://www.e-verify.gov/employers/employer-resources) and Questions and Answers (https://www.e-verify.gov/about-e-verify/questions-and-answers). USCIS recommends that all employers and employees refer to the E-Verify User Manuals or Guides (https://www.e-verify.gov/employers/employer-resources?resource=27) and the E-Verify website (https://www.e-verify.gov/) for questions and answers, and encourages E-Verify Employer Agents to see the Supplement Guide for E-Verify Employer Agents (https://www.e-verify.gov/supplemental-guide-for-e-verify-employer-agents).
The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements.

Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) (https://www.uscis.gov/i-9-central/handbook-employers-m-274) and on I-9 Central (https://www.uscis.gov/i-9-central).

myE-Verify is unavailable and employees will not be able to access their myE-Verify accounts to use Self Check, Self Lock, Case History, or Case Tracker. However, employees may visit the Resource Center (https://www.e-verify.gov/mye-verify/resource-center) and Employee Rights Toolkit (https://www.e-verify.gov/employees/employee-rights-toolkit) for information on their rights and roles in the Form I-9 and E-Verify processes.

The following webinars are cancelled: Form I-9; E-Verify Overview; E-Verify in 30; E-Verify for Web Services Users; Federal Contractor E-Verify; E-Verify for Existing Users; myE-Verify and Employee Rights. However, employers and employees may view the Form I-9 On-Demand Webinar (https://www.uscis.gov/i-9-central/learning-resources).

Form I-9, E-Verify and myE-Verify support representatives are not available to respond to inquiries.

DOS: Passport and Visa Services
At this time, scheduled passport and visa services in the United States and at U.S. Embassies and Consulates overseas will continue during the lapse in appropriations as the situation permits. The National Visa Center, National Passport Information Center, and Kentucky Consular Center will still accept telephone calls and inquiries from the public.

If you have a scheduled appointment at a DOS passport agency or center, plan on keeping your appointment. If you need to cancel your appointment, you may do so by visiting the Online Passport Appointment System or by calling 1-877-487-2778. If you have a scheduled appointment at a passport acceptance facility and need to cancel your appointment, contact the facility directly.

The Department of Labor’s (DOL’s) Office of Foreign Labor Certification (OFLC) assures employers and other interested stakeholders that the temporary lapse in appropriations for some federal government programs and activities does not directly impact the administration of OFLC programs. A full year appropriations through September 30, 2019, for all DOL program and activities was enacted by Congress on September 28, 2018. The OFLC National Processing Centers are open and the iCERT System is operating as normally scheduled.

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CBP Releases Statistics Showing Increasing in Credible Fear Claims During Fiscal Year 2018

On December 10, 2018, U.S. Customs and Border Protection (CBP) released statistics regarding claims of fear by those who are determined to be inadmissible at ports of entry, or apprehended along the border, by U.S. Border Patrol agents. In recent years, CBP has seen a significant increase in the number and percentage of aliens who seek admission or unlawfully enter the U.S. and then assert an intent to apply for asylum or a fear of persecution.

In Fiscal Year (FY) 2018, CBP law enforcement personnel on the Southwest Border reported 38,269 claims at ports of entry and another 54,690 claims between the ports, for a total of 92,959. This represents a 67 percent increase in claims in FY 2018 compared to FY 2017, and a dramatic departure from 2000-2013, when fewer than 1 percent of those encountered by CBP initiated asylum claims.

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Acting Attorney General Whitaker Orders BIA to Refer Two Cases to Him for Review of the Decisions

Acting Attorney General Matthew Whitaker has ordered the Board of Immigration Appeals (BIA or Board) to refer two cases to him for review of the Board’s decision:

• Matter of L-E-A-, in which the question is whether, and under what circumstances, an alien may establish persecution on account of membership in a “particular social group” under INA § 101(a)(42)(A) [8 USCA § 1101(a)(42)(A)] based on the alien’s membership in a family unit;
• Matter of Castillo-Perez, in which the questions are: (1) In connection with an application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 USCA § 1101(f)? (2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 USCA § 1101(f)? and (3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 USCA § 1229b(b)?

In both cases, AG Whitaker invites the parties to the proceedings and interested amici to submit briefs on points relevant to the disposition of the case. The parties’ briefs may not exceed 15,000 words and must be filed on or before January 4, 2019. Interested amici may submit briefs not exceeding 9,000 words on or before January 18, 2019. The parties may submit reply briefs not exceeding 6,000 words on or before January 18, 2019.

All filings must be accompanied by proof of service and submitted both electronically to AGCertification@usdoj.gov, and in triplicate to United States Department of Justice, Office of the Attorney General, Room 5114, 950 Pennsylvania Avenue, NW, Washington, DC 20530. All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

Note: On December 7, 2018, President Donald Trump indicated that he intends to nominate William Barr to succeed Jeff Sessions as Attorney General. Mr. Barr served as Attorney General under former President George H.W. Bush from 1991 to 1993.

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