Yesterday, the Ninth Circuit Court of Appeals issued a simple but clear reminder to the United States Citizenship and Immigration Services (USCIS) that it must act within the bounds of the law. The issue before the court was whether USCIS could properly deny an employment-based, “extraordinary ability” visa because the petitioner had not demonstrated “the research community’s reactions to his [scholarly] publications” – an arbitrary requirement with no justification in the law. The court, in Kazarian v. USCIS, found that USCIS unlawfully imposed a requirement on the petitioner that was not found in the regulations. The court said that “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” In other words, USCIS cannot bypass the law.
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Yesterday marked the seventh anniversary of the Department of Homeland Security (DHS) and its immigration agencies: Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). It also corresponds to the due date set by Secretary Janet Napolitano for completion of a sweeping internal review of DHS. While the internal review results have never been made public, an external review reveals that DHS is struggling with the challenges of reform—both administrative and legislative—and finds itself attempting to create more humane ways to enforce broken laws, which is ultimately a losing proposition.
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Asylum applicants and their attorneys have long struggled to better understand how the employment authorization asylum clock (“EAD asylum clock”) functions. The clock, which measures the number of days after an applicant files an asylum application before the applicant is eligible for work authorization, affects potentially more than 50,000 asylum applicants each year. While the law requires asylum applicants to wait 150 days after filing an application to apply for a work permit and in some instances, permits the government to extend this waiting period by “stopping the clock” for certain incidents caused by the applicant, some applicants often wait much longer than the legally permitted timeframe to receive a work permit, which can cause a host of problems.
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According to the Associated Press, the Obama Administration said today that it will no longer detain asylum seekers who, in addition to other criteria, have displayed a credible fear of persecution in their home countries. According to the article:

Immigration and Customs Enforcement director John Morton says beginning Jan. 4, asylum seekers can temporarily enter the U.S. if they meet certain criteria. They must establish their identities, they cannot be dangerous or a flight risk, and they must have a credible fear of persecution or torture.

Currently, foreigners who come to the U.S. without valid documents can be immediately deported. Many are detained while their asylum requests are considered.