Know Your Rights:

International travelers to USA continue to experience heightened scrutiny at U.S. Ports of Entry (airports). Travelers often carry an electronic device such as a cell phone or a laptop.

The current administration’s focus on border security has increased concerns about how to protect personal and corporate data contained on electronic devices from searches at the border, airport.

On January 4, 2018, CBP issued a new directive titled “Border Search of Electronic Devices.” The directive provides “guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices.”

CBP has long engaged in the search of electronic devices at the airport and the border. This new guidance addresses “the rights of individuals against unreasonable search and seizure and ensure privacy protections” while setting forth specific procedures CBP must follow in carrying out their duties.

One major topic is the type of information CBP officers may access on electronic devices. Specifically, CBP may only access information that is stored directly on the device at the time it is presented for inspection. CBP officers may not access information that is stored remotely (in the cloud). In order to ensure that this procedure is properly carried out, CBP has instructed officers to disable a device’s wireless features that would allow access of remote information.

The directive further addresses how officers should review and handle sensitive material, such as documentation protected by attorney-client privilege, medical records, and work-related information carried by journalists. The guidance does not indicate that this information is off-limits, but instead puts in place limitations on which government agencies may review and share the information in order to ensure proper security protections are in place. A CBP officer may request passwords to access any password-protected or encrypted information contained directly on an electronic device.

CBP officers have the discretion to search electronic devices when a traveler makes an application for entry into the United States. If an individual refuses to allow the search of a device, the device can be confiscated. CBP also may refuse to admit a nonimmigrant visa holder who does not comply with search requests.

The January 4th 2018 directive does not change CBP existing border search practices and policies, but provides some clarification. Electronic devices may continue to be seized if a traveler refuses to present them for inspection, but the guidance provides some specifics as to maintenance of both devices and information obtained from devices, of which detention should be limited to a “reasonable period of time.” CBP states that a device that is seized should generally not be held for more than five days to determine whether there is reasonable cause for continued search and seizure.

​DHS and CBP new directive and guidance can be found here.

On January 9, 2018, a federal judge in San Francisco, CA temporarily blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program that protects certain immigrants from deportation. The decision applies NATIONWIDE.
​
Judge said the Obama-era program must remain in place while litigation over Trump’s decision to end the program is pending. In a court ruling, Judge W. Alsup said the Department of Homeland Security's "decision to rescind DACA was based on a flawed legal premise."

Judge ordered USCIS to publish new DACA renewal instructions on their website, and start accepting applications.
​
As a result of this court ruling, DACA grantees can renew expired DACA, but can't file a new DACA.
(1) DACA recipients who failed to renew their status by the last year’s deadline can submit renewal applications. It is better to wait for the instructions from USCIS, to avoid any possible erroneous denial or rejection by a USCIS employees. 
(2) The decision does not, however, allow new applications to be submitted.

Read an advisory here.

In Russian:  

9 января 2018 федеральный судья вынес решение о том, что президент превысил свои полномочия, когда 5 сентября 2017 отменил иммиграционную программу ДАКА / DACA для молодежи, кого привезли в США в детстве и кто вырос в США, но не имеет ни грин карты, ни гражданства. 

Судья приказал Департаменту госбезопасности (DHS - USCIS) опубликовать инструкции и порядок подачи заявлений на продление ДАКА статуса и получение разрешения на работу через ДАКА. Судья приказал USCIS начать прием заявлений немедленно, и опубликовать новые инструкции. 

Лучше всего будет дождаться выхода официальных инструкций на вебсайте USCIS, скорее всего на следующей неделе, чтобы избежать ошибочного отказа. Хотя некоторые адвокаты советуют, что подавать заявление можно уже сейчас, так как судья временно приостановил действие указа президента в отношении DACA, и приказал USCIS игнорировать решение от отмене DACA как незаконное, и возобновить прием заявлений.

Что можно -- подать заявление на продление - DACA renewal.
Что нельзя -- подать новое заявление (new DACA application), или заявление на advance parole (travel document).

The DHS / USCIS is considering new regulations to end the extension of H1-B work visas. The new rule potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. It will affect many tech and IT professionals, especially from India and China.

“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home."

“The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” said a source briefed by Homeland Security officials.

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs,” confirmed USCIS.

UPDATE 01-09-2018: 

Under pressure from the business and technology communities, USCIS appears to be backing away from a policy change that could have forced foreign tech workers out of the country. The administration denies they considered abolishing H-1B extensions. 

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment based visa programs,” Jonathan Withington, chief of media relations for USCIS, said Monday.

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
​
Pressure against this discriminatory proposal, and explaining to USCIS that the decision would have been illegal and in violation of federal law worked!

Read more here.

#visa #workvisa #H1B #H1Bextension #USCIS #deportation

Read more here.