Options during crisis and conflict

OPTIONS DURING CRISIS AND CONFLICT Kathleen Gasparian Gasparian Spivey Immigration kathleen@gsimmigrationlaw.com 504 262 9878 GSImmigrationLaw.com

WARNING WARNING WARNING • The information contained in this presentation is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel.

• Immigration law and policy is constantly changing. This presentation was prepared the week of March 21, 2022.

RULES OF OUR HOUSE

Don’t panic.

Ask for help.

FEARS My family is not safe.

Everyone from my country will be detained or deported.

The US government will take away my status.

I’m not sure what I am afraid of, but I can’t eat/sleep/focus/care about this because there is so much more going on.

I won’t be able to pay for school, and I will be deported.

My family or I will be “stuck.”

• They are not safe now.

• They are safe now, but won’t be safe tomorrow.

This is going to screw up my future.

BE HONEST ABOUT POSSIBILITIES, BUT DON’T GET MIRED DOWN IN POTENTIAL HYPOTHETICALS • Immigration is an inherently political animal.

• Immigration officers are human beings with all the problems and inconsistencies that entails.

• We would like to think that the US will “do the right thing,” but history tells us otherwise.

• Registration requirements (like NSEERs - *in the opinion of the presenter, likely if a direct conflict) • Active monitoring of certain nationals (like Campus Sentinel - *in the opinion of the presenter, likely if a direct conflict) • Mass detention (like Japanese internment camps during WWII or remain in Mexico/camps at the border)

BE HONEST ABOUT POSSIBILITIES, BUT DON’T GET MIRED DOWN IN POTENTIAL HYPOTHETICALS • Imperative to maintain status.

• Do some pre-planning about next steps. May want to advance timelines.

• Know what is available as a “back-up plan.”

• Be thoughtful about sources of information.

• Be thoughtful about your own actions.

• Most likely reality • In most scenarios, entitled to removal proceedings.

• Risk of “worst case” is low if maintaining status and avoiding criminal conduct.

KNOW THE REGULAR OPTIONS Alternate Non-Immigrant categories: • E-1/E-2 investors • H-1B work • O artists

Routes to Permanent Residence: • Diversity Lottery • Family-based petitions • Employment-based petitions • Self petitions / merit based: National Interest Waiver and Alien of Extraordinary Ability • Investment ($1.8 million)

F-1 REGULAR RULES – KNOW YOUR DSO! • *** Warning – talk to your DSO FIRST****

• Allow for • • • •

Work authorization off campus in situations of economic hardship Work authorization off campus for curricular practical training Reduction in course load in certain circumstances Reinstatement to student status after a violation in certain circumstances

SSR: SPECIAL STUDENT RELIEF • DHS can change or suspend the rules regarding duration of status, full course of study, and employment eligibility for F-1 students from parts of the world that are in crisis. This definition is very broad and can be conflict, natural disaster, economic crisis, etc.

• DHS has to make a finding and publish information about why and what they will allow.

• Applications for SSR start with your DSO. They may also end there or may require additional filings with USCIS (i.e., to get a work authorization document).

• Combo of work authorization and authorization to reduce one's course load. The reduced course load benefit is only available to students who acquire work authorization through the notice. It is not available separately.

• In all cases, the DSO must first assess eligibility for Special Student Relief under the SSR notice covering the student's citizenship, before making the SSR employment recommendation in SEVIS. Once the relevant SSR employment is approved, the student is authorized to reduce course load according to the terms of the notice.

SSR • Can suspend the cap of 20 hours a week to on-campus employment

• Can allow for off-campus employment due to hardship • Can suspend the cap of 20 hours a week of off-campus employment allowed through economic hardship

• Can reduce or suspend the requirements of a “full course of study”- only available if student has been granted employment authorization pursuant to the terms of SSR

SSR • You may be eligible for SSR if you: • Are the citizen of a country specified in DHS notice.

• Have lawfully resided in the United States for the dates indicated.

• Have reported on time to your designated school official (DSO) and been enrolled in an SEVP-certified school since the event.

• Are currently maintaining F-1 status.

• Are experiencing severe economic hardship.

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Burma/Myanmar. Effective May 25, 2021 until November 25, 2022.

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Haiti. Effective August 3, 2021 through February 3, 2023.

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Be a citizen of Venezuela, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on April 22, 2021;

Yemen. Effective September 4, 2021 until March 3, 2023.

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Be a citizen of Syria, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on April 22, 2021;

Venezuela. Effective April 22, 2021 until September 9, 2022.

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Be a citizen of South Sudan, regardless of country of birth (or be an individual having no nationality who last habitually resided in South Sudan); Have been lawfully present in the United States in F-1 nonimmigrant status on March 3, 2022;

Syria. Effective April 22, 2021 until September 30, 2022.

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Be a citizen of Somalia, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on September 18, 2021;

South Sudan. Effective March 3, 2022 through November 3, 2023.

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Be a resident of Hong Kong, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on November 26, 2021;

Somalia. Effective September 18, 2021 through March 17, 2023.

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Be a citizen of Haiti, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on August 3, 2021;

Hong Kong. Effective November 26, 2021 through February 5, 2023.

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Be a citizen of Burma (Myanmar), regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on May 25, 2021;

Be a citizen of Yemen, regardless of country of birth; Have been lawfully present in the United States in F-1 nonimmigrant status on September 4, 2021;

As of 3/21/22 – note NOT Ukraine or Afghanistan

CURRENT SSR

COMMON QUESTIONS

What do I do first?

• Visit your DSO / Office of International Students (the person who signs your I-20)

What should I NOT do?

• Start working off campus or drop classes until/unless you have talked to your DSO and are one thousand percent sure it is okay and you have the work card in hand (for off campus).

TPS: TEMPORARY PROTECTED STATUS • A safe haven for nationals of a country that has been designated by DHS as unsafe for return • Country can be designated because of • Armed conflict • Environmental disaster • Extraordinary and Temporary Conditions that prevent a safe return

• Individuals granted TPS: can obtain work authorization, are not removable from the US, may be granted travel authorization, and cannot be detained solely on the basis of immigration status.

• TPS is not permanent residence or citizenship and by itself does not lead to permanent residence or citizenship.

• WORK AUTHORIZATION IS OPTIONAL, NOT MANDATORY. • Can also get the authorization and never use it.

• Unrestricted work authorization

National of designated country Continuous physical presence in United States since the date of most recent designation

ELIGIBILITY FOR TPS

Continuous residence in United States since designated date Admissible and not ineligible Registers during registration period

ELIGIBILITY FOR TPS – “NATIONAL” • Must be a national of the designated country or if stateless, last habitually resided in that country • Evidenced by passport, birth certificate, national identity documents, affidavits • “National” is broader than citizen. A national is one who owes permanent allegiance to a state.

• However, dual citizens may not be eligible for TPS depending on their exact facts!

ELIGIBILITY FOR TPS PHYSICAL PRESENCE & CONTINUOUS RESIDENCE • Physical presence = physical body in the US

• Residence = intent to be in US • Brief, casual, and innocent absences will not break physical presence or continual residence

• A departure from the US: • Of short duration • Reasonably calculated to accomplish purpose for absence • Not because of removal/deportation order, voluntary departure, or administrative grant of voluntary departure • With purpose for absence or actions during absence not contrary to law

ELIGIBILITY FOR TPS • Must be generally admissible to the US, but can still apply if entered without permission / inspection, overstayed a visa, or fell out

status.

of

• If danger to US, persecuting others, or terrorist, won’t qualify.

• Many crimes/convictions will render you ineligible for TPS

• TPS rules are different from rules for other immigration benefits when it comes to crimes.

• Convicted of any felony or two or more misdemeanors • Has very limited definitions of felony/ misdemeanor at 8 CFR 244.1, specific to TPS

• Felony - a crime committed in US punishable by imprisonment of more than one year, irrespective of actual confinement. A felony does not include an offense defined by the state as a misdemeanor where the sentence actually imposed is one year or less.

• Misdemeanor - any crime punishable by one year or less, irrespective of actual time served. However, any crime punishable by a maximum of five days or less shall not be considered a misdemeanor.

ELIGIBILITY FOR TPS REGISTRATION • Initial registration period is usually 6- 18 months • MUST register during the initial period to qualify and to re-register later on • Late initial registration permitted in limited circumstances

• Must then re-register every time

• May late re-register for “good cause” • GOOD CAUSE could be “I was maintaining my F-1 status”.

• If I don’t register now, can I do it later?

• If an individual misses the initial registration –but otherwise qualifies for TPS – may be able to late register within 60 days after any registration ends: • • • •

Spouse or parent is eligible for TPS and the relationship existed at the time of the initial registration period Held Non-Immigrant status (like F-1) or Voluntary Departure or some other authorized relief Had a pending asylum, change of status, adjustment, or other application pending Was a parolee at some time during the initial registration period

TPS BASICS • Can I be out of status and apply for TPS? • Yes

• What if I have a criminal history?

• Gather all documentation about the charges, judgments, sentences and see a good immigration attorney.

• Do I need a lawyer?

• Most people don’t. Some people like to have one. Criminal history – YES. In removal proceedings – YES. Order of deportation or removal – YES. • Look for non-profits in your area. It is common for there to be free services or workshops when there is a new designation.

TPS AND TRAVEL • May travel with permission; must apply for and receive advanced parole before traveling • If you have a valid NIV (like F or H) and travel on that visa without the advance parole, the TPS is abandoned.

• Travel and unlawful presence prior to TPS is complicated and beyond the scope of this presentation. If you have had time out of status or time in the US without authorization, talk to an immigration attorney before leaving the US.

TPS & CHANGE OF STATUS • May adjust and change status and is considered in non-immigrant status for those purposes • Can apply for asylum, but the mere designation of country is not proof of eligibility.

• Aliens granted TPS prior to the expiration of their authorized stay are not subject to INA §222(g) if they remain in TPS status throughout their stay in the United States. If the TPS grant is made after the alien’s authorized stay has expired, or if the alien stays in the United States after the TPS status has expired, then §222(g) would apply.

• If you entered without authorization or have time in the US without authorization prior to obtaining TPS, your ability to adjust or change status may be limited. This is an area of immigration law that is in flux and litigation.

TPS AND CONCURRENT NIV STATUS • Statute explicitly provides that a non-immigrant alien is not required to relinquish status to obtain TPS and that TPS is not inconsistent with the granting of non-immigrant status.

• It is a good idea for anyone who qualifies to register for TPS as a back-up or alternative plan, and to maintain non-immigrant status as long as possible.

• Cannot have two non-immigrant status at the same time – can’t be F and H1B, but you can have a status and TPS. That is the whole point. It is meant to be a safety net. Both USCIS and SEVP agree!

• If you want to keep both, need to maintain both.

DIFFICULTIES OF TPS AND A CONCURRENT NIV- THE PROBLEM OF HAVING F-1 AND TPS • Conservative position: Must maintain both to keep both

• WORK AUTHORIZATION • USCIS has opined that if a FN wants to keep the NIV status going, then must keep work to the rules of that NIV status (even if using TPS EAD).

• SEVP has also opined that use of TPS EAD beyond F-1 rules could be a violation of F-1 status / warrant a termination in SEVIS??

• TRAVEL • While TPS designated • Travel on TPS and designation ends

COMMON QUESTIONS CONTINUED • How long will it last?

• As long as congress determines that there are still problems in your country.

• What happens when TPS for my country runs out?

• Return to previous status • TPS is meant to be only temporary – should continue to pursue routes to permanent residence • If you fell below full time, or worked with a TPS work authorization document, would you have to apply for reinstatement?

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Probably – SEVP has stated in FAQs that if you are in TPS and fall out of student status, school is to terminate I-20, and you would have to apply for reinstatement. This is contrary to the regs/concept of TPS, so is up for debate.

COMMON QUESTIONS CONTINUED • Can I lose TPS? • Yes. • Travel without authorization • Criminal activity • Even “traffic violations” like reckless driving can be considered a misdemeanor.

• No matter how small, talk to a criminal lawyer AND an immigration lawyer • Make sure the attorneys know what status you have, your plans for international travel, and plans for becoming a permanent resident.

TPS AND REMOVAL PROCEEDINGS • A person with TPS shall not be removed while status is in effect.

• DHS should agree to admin close any active proceedings. They will agree only after pleadings taken and removability established • If in active removal, alien shall be notified of availability of TPS

• TPS affects calculation of time for Non-LPR Cancellation • Does not cause a break in continuous presence, but time in TPS does not count as presence unless extreme hardship exists

• An applicant whose TPS application has been denied, or whose TPS status has been withdrawn, has a right to a de novo review in proceedings. The decision of the judge may be appealed to the Board of Immigration Appeals.

TPS AND UNLAWFUL PRESENCE • If an individual is granted TPS, time in TPS does not accrue unlawful presence.

• This is important for future options of consular processing/ obtaining new visa.

TPS – BASIC PROCEDURE • www.uscis.gov

• I-821 Application for TPS with I-765 Application for Employment Authorization • Fee or Fee waiver • Proof of identity, nationality, and presence

• Always file by “trackable” means • Common reasons for rejections • • • •

Wrong fees/ check misspelled Missing info Wrong forms Forms not signed

• Country

Reg open

Residence

PP

• Burma (Myanmar)

11/25/2022

3/11/2021

5/25/2021

• Haiti***

02/06/2023

07/29/2021

08/03/2021

• Somalia

03/17/2023

07/19/2021

09/18/2021

• South Sudan

11/03/2023

03/01/2022

03/03/2022

• Syria

09/30/2022

03/19/2021

03/31/2021

• Venezuela

11/09/2022

03/08/2021

03/09/2021

• Yemen

03/03/2023

07/05/2021

09/04/2021

• El Salvador, Honduras, Nepal, Nicaragua, Sudan – a bunch of litigation is in place; closed to new registration.

TPS DESIGNATIONS

Ukraine:

Designated but not yet published in the FR States continuous residence since March 1, 2022 18 months DHS estimates that 75,100 Ukrainians are eligible to apply for TPS.

Afghanistan:

Designated but not yet published in the FR States continuous residence since March 15, 2022 18 months

COMING SOON

DED • Authorized by the President

• Not the same as a non-immigrant status • If in DED, then not subject to removal for a period of time • May also be able to apply for work authorization (have to apply and get work card) • May also be able to apply for travel authorization (have to apply and get travel authorization) • Not required to register for the status with USCIS unless seeking work or travel

• Liberia – October 1, 2007 through June 30, 2022 • Hong Kong – August 5, 2021 through February 5, 2023

• Venezuela – January 20, 2021 through July 20, 2022

DED DESIGNATIONS

ASYLUM VS REFUGEE • Both: Fear of persecution because of race, religion, national origin, social group or political opinion.

• Asylees: Apply and are granted status after arrival in US • Refugees: Granted status abroad and admitted as such.

US ASYLUM PROCESS • If in US after admission, applicant can apply affirmatively to USCIS Asylum Office, and may be granted or referred to Immigration Court. If referred or placed in removal proceedings, the applicant can apply to Immigration Judge for de novo review • ‘Arriving aliens’ are subject to mandatory detention/credible fear process

ONE-YEAR FILING DEADLINE

• Applies to asylum only

• “Clear and convincing evidence” that asylum application was filed within one year of arrival. INA §208(a)(2)(D) • Does not apply to unaccompanied children. INA §208(a)(2)(E)(as amended by TVPRA of 2008) • Exception: (1) exceptional circumstance; (2) changed circumstance

BASIC ELEMENTS OF ASYLUM • Well Founded Fear

• Of Persecution • On Account of (“Nexus”)-

• Race, Religion, Nationality, Political Opinion, Membership In A Particular Social Group (Or Imputed Grounds) • Government Is Persecutor Or Cannot Control Persecutor

PERSECUTION • • • • • • • •

Not defined by statute, but by case law—which varies by Circuit Poverty, crime, bad luck are not enough Behavior that threatens death, imprisonment, or substantial harm Hallmarks are detention, arrest, interrogation, prosecution, imprisonment Illegal search, surveillance, beatings, torture, confiscation, severe economic disadvantage Rape and sexual assault Military proscription is not persecution Does not require permanent or serious injuries

NEXUS • The person has to show that there is a relationship (“nexus”) between the persecution and the basis – race, religion, nationality, political opinion, or membership in a particular social group

RACE AND NATIONALITY • Race – “all kinds of ethnic groups that are referred as ‘races’ in common usage” – e.g., apartheid in South Africa, the Holocaust, slavery.

• Nationality – citizenship or membership in ethnic or linguistic group – e.g., Kurds in Iraq • Race/nationality overlap – e.g., member of the indigenous group in Central America, Bosnian-Muslim, Palestinians in the West Bank • Persecution of members of a national minority

POLITICAL OPINION • May be actual (party member or leader) or imputed (family were activists, for example, or typical of certain ethnic group to have particular political opinion). Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) (imputed political opinion standard described).

MEMBERSHIP IN PARTICULAR SOCIAL GROUP • Matter of Acosta,19 I&N Dec. 211 (BIA 1985): “members of the group of persons all of whom share a common, immutable characteristic. It must be one that the members cannot change, or should not be required to because it is fundamental to their identity or consciences.”

• UNHCR Handbook: “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of human rights.”

BARS TO ASYLUM • Previous asylum denial by IJ or BIA unless changed circumstances shown • 1 year deadline (exception: changed circumstance or extraordinary circumstance) • Firm resettlement • Safe Third Country by agreement (w/Canada) • “Aggravated felony” • “Particularly serious crime” • Persecutor of others or terrorist • Serious non-political crimes out of US • Danger to security of US/Terrorism

PRACTICAL ASPECTS OF APPLYING • There is no filing fee • If the application remains pending for 180 days, can get work authorization.

• Apply at 150 and the card could take 6 months or more to come in

• Processing times vary widely even in the same USCIS office • If you are denied and OUT OF STATUS at the time of denial, you will be placed in removal proceedings.

• If you win, can bring spouse/kids from abroad.

• If you win, can apply for permanent residence after 1 year.

• Applying is a sign of immigrant intent.

• Travel while application is pending is complicated.

• A win impacts ability to travel to home country in the future.

REFUGEE • Apply outside the US

• Must be of humanitarian concern to the US • Must meet the definition of refugee • Must be admissible to the US

• No resettlement • USRAP establishes processing priorities • P-1: those referred by UNHCR • P-2: special concern • P-3: family reunification

HUMANITARIAN PAROLE • Request to enter the US without getting a visa / going through visa process, etc.

• Must have compelling emergency and an urgent humanitarian reason or significant public benefit • Cannot use parole to avoid normal visa-issuing procedures or to bypass immigration procedures • EXTREMELY DIFFICULT TO GET

SOME THOUGHTS ABOUT UKRAINE • Immigrant Visas processing in US Embassy in Frankfurt and Warsaw

• Non-immigrant visa processing – where they are physically present, however note that rules of non-immigrant intent apply and B-1/B-2 may be very difficult • Note that E-2 is available for Ukraine

• Expedite of immigrant visa petitions may be available: www.uscis.gov • Filing of immigrant visa petition abroad / directly with US Embassy may be available in narrow circumstances

I AM ALREADY A PERMANENT RESIDENT / US CITIZEN • Can I go fight for my country / help my country?

• Extended periods out of the US can break eligibility for naturalization or jeopardize permanent residence.

• Certain service in a foreign military can jeopardize intent to be a permanent resident and can even be perceived as a renunciation of US citizenship • Make sure you can come back when you want.

• What can I do for my family?

• Can I sponsor someone for asylum?

DON’T MAKE PROBLEMS FOR YOURSELF • Be thoughtful about your acts of activism/ expression of opinion • Advocating violence can be an obstacle to future immigration • There are ways to protest that don’t affect your immigration options • Be careful of activities that could be construed to be unlawful • Ukraine hacking army?

• Be thoughtful about where you donate money or who you raise money for • Support of certain groups can be problematic

SOME ADVICE

Don’t get arrested. Don’t be in situations that could lead to an arrest or trouble.

If you do get arrested / cited / charged, talk to an immigration attorney and a criminal attorney right away.

Be careful about taking immigration and criminal advice from friends.

Be diligent with your documents and expiration dates.

TPS - Register every time (unless you become a permanent resident). Do not miss a registration period.

Keep your address current with USCIS at all times www.uscis.gov/addresschange

OPTIONS DURING CRISIS AND CONFLICT Kathleen Gasparian Gasparian Spivey Immigration kathleen@gsimmigrationlaw.com 504 262 9878 GSImmigrationLaw.com