Haitian TPS Program Will End in July 2019

Six months after then-Secretary of Homeland Security John Kelly announced the extension of Haitian Temporary Protected Status (TPS) for only six months (until January 2018, when he would reevaluate the determination), Acting Secretary of Homeland Security Elaine Duke announced her decision to terminate the designation with a delayed effective date of 18 months.  She said this would allow for an orderly transition before the designation terminates on July 22, 2019.

Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the period. Further details about this termination for TPS will appear in a Federal Register notice. Termination of TPS will affect not only some 50,000-60,000 Haitians who are in the U.S. on TPS, but also their families, including approximately 30,000 U.S.-citizen children born in the U.S. to Haitians in TPS status since 2010 (when TPS was conferred after the earthquake that killed thousands on the island).

A number of advocacy groups, members of Congress, and the U.S. Chamber of Commerce had been urging a further extension based on ongoing problems from the devastating 2010 earthquake and Haiti’s limited capacity to reabsorb these nationals and family members.  They also highlighted that termination will create labor dislocations in certain construction, food processing, hospitality, and healthcare industries that have relied on Haitian TPS workers since 2010. Florida and Texas may be particularly hard hit as they continue to recover from Hurricanes Harvey and Irma.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more Immigration legal analysis go to The National Law Review 

Can They Really Do That?

Effective October 18, 2017, the U.S. Department of Homeland Security (DHS), U.S. Citizenship & Immigration Services (USCIS), Immigration & Customs Enforcement (ICE), Customs & Border Protection (CBP), Index, and National File Tracking System of Records, implemented new or modified uses of information maintained on individuals as they pass through the immigration process.

The new regulation updates the categories of individuals covered, to include: individuals acting as legal guardians or designated representatives in immigration proceedings involving an individual who is physically or developmentally disabled or severely mentally impaired (when authorized); Civil Surgeons who conduct and certify medical examinations for immigration benefits; law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity; and interpreters.

It also expands the categories of records to include: country of nationality; country of residence; the USCIS Online Account Number; social media handles, aliases, associated identifiable information, and search results; and EOIR and BIA proceedings information.

The new regulation also includes updated record source categories to include: publicly available information obtained from the internet; public records; public institutions; interviewees; commercial data providers; and information With this latest expansion of data allowed to be collected, it begs the question: How does one protect sensitive data housed on electronic devices? In addition to inspecting all persons, baggage and merchandise at a port-of-entry, CBP does indeed have the authority to search electronic devices too. CBP’s stance is that consent is not required for such a search. This position is supported by the U.S. Supreme Court, which has determined that such border searches constitute reasonable searches; and therefore, do not run afoul of the Fourth Amendment.

Despite this broad license afforded CBP at the port-of-entry, CBP’s authority is checked somewhat in that such searches do not include information located solely in the cloud. Information subject to search must be physically stored on the device in order to be accessible at the port-of-entry. Additionally, examination of attorney-client privileged communications contained on electronic devices first requires CBP’s consultation with Associate/Assistant Chief Counsel of the U.S. Attorney’s Office.

So what may one do to prevent seizure of an electronic device or avoid disclosure of confidential data to CBP during a border search? The New York and Canadian Bar Associations have compiled the following recommendations:

  • Consider carrying a temporary or travel laptop cleansed of sensitive local documents and information. Access data through a VPN connection or cloud-based warehousing.
  • Consider carrying temporary mobile devices stripped of contacts and other confidential information. Have calls forwarded from your office number to the unpublished mobile number when traveling.
  • Back up data and shut down your electronic device well before reaching the inspection area to eliminate access to Random Access Memory.

  • Use an alternate account to hold sensitive information. Apply strong encryption and complex passwords.

  • Partition and encrypt the hard drive.

  • Protect the data port.
  • Clean your electronic device(s) following return.
  • Wipe smartphones remotely.

This post was written by Jennifer Cory of Womble Bond Dickinson (US) LLP All Rights Reserved.,Copyright © 2017
For more Immigration legal analysis, go to The National Law Review

President Trump’s Third, Indefinite Travel Ban Takes Blow from Courts

Federal judges in Hawaii and Maryland have temporarily blocked the implementation of President Trump’s most recent travel ban, which was issued by Presidential Proclamation on September 24, 2017 (Proclamation) and set to take effect October 18, 2017. The more sweeping ruling by the federal court in Hawaii blocks implementation of the Proclamation as to all countries except Venezuela and North Korea, and the decision by the Maryland federal court declares the ban unenforceable toward those individuals with a bona fide relationship to a person or entity in the United States (U.S.).

Essentially, the Proclamation imposes certain restrictions on the entry of nonimmigrants and immigrants who are nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The type of restriction varies from country to country and the restrictions are of indefinite duration. The Proclamation was allegedly crafted based on recommendations by the Department of Homeland Security (DHS) pursuant to Executive Order 13780, which included a requirement for a global review of each foreign government’s information sharing practices, policies, and capabilities.

For a detailed analysis of the Proclamation, which is President Trump’s third attempt at instituting a travel ban, please click here.

What Are the Takeaways from the Two Decisions?

The Hawaii Decision: U.S. District Judge Derrick Watson ruled that the Proclamation likely exceeds the scope of presidential authority permitted by the Immigration and Nationality Act (INA), as amended. His ruling is effective nationwide and prohibits implementation of the Proclamation’s provisions, except as to nationals of North Korea and Venezuela.

The Maryland Decision: U.S. District Judge Theodore Chuang found that the Proclamation likely violates the Establishment Clause of the Constitution as well as the INA. As for the scope of the injunction issued by the Maryland district court, Judge Chuang ruled that the Proclamation is blocked as it would apply to those with a bona fide relationship with a person or entity in the United States. This language echoes that used by the U.S. Supreme Court when it temporarily restored President Trump’s second travel ban issued by Executive Order (E.O.) back in June of this year. In that decision, the Supreme Court temporarily allowed implementation of the E.O. but eliminated from its purview those with a “bona fide relationship with a person or entity in the United States.”

Where Are We Headed?

These court actions are just the beginning of what is anticipated to be a protracted legal battle that may very likely head to the Supreme Court yet again. The Supreme Court was positioned to hear oral arguments on the legality of an earlier iteration of the travel ban this month. One of those cases has been dismissed, and the other will likely be dismissed as well. Both of the cases that were set for argument this month were based on the decisions of these same two federal courts that have issued injunctions on the Proclamation. This travel ban battle is far from over.

What Should Employers Do?

It is unlikely that the Proclamation in its current form will have much of an effect on employers because the current pool of affected travelers is very small. It is important to remember that the Proclamation is still in effect for certain government officials from Venezuela seeking visitor visas as well as travelers from North Korea who do not have bona fide relationships with persons or entities in the U.S.

U.S. consulates still exercise, however, a great deal of discretion in adjudicating visa applications. Thus, while the Proclamation may be “mostly dead” for now, individuals from the restricted countries should expect increased scrutiny and prepare for it accordingly with counsel. Additionally, we are just at the beginning stages. An appeals court or the Supreme Court could ultimately reinstate the Proclamation or a portion of its content. Thus, careful pre-planning for visa applications is crucial.

Here are a few things that an employer can do:

  1. Assess travel plans for employees of affected nationalities based on implementation.
  2. Consider the ability of those who are dual nationals to travel on a non-restricted country (under the ban) passport.
  3. Consider rescheduling meeting locations and using internet-based meeting options.
  4. When necessary, compile documentation and information for a potential waiver application under the standards set forth in the Proclamation even though it is not in effect in full, such documentation may be required to withstand the heightened scrutiny that will likely continue to be applied toward individuals from these targeted countries.
This post was written by Heather L. Frayre of Dickinson Wright PLLC., © Copyright 2017
For more Immigration legal analysis go to The National Law Review

New California Laws Provide Protections to Immigrant Employees

On October 5, 2017, California Governor Jerry Brown signed 11 bills essentially making California a sanctuary state.  The California Values Act (SB 54) aims to protect undocumented immigrants living in California.  Brown stated that “this bill strikes a balance that will protect public safety while bringing a measure of comfort to those families who are now living in fear every day.”  The law, which will become effective on January 1, 2018, stops state and local enforcement agencies from using state resources to enforce federal immigration laws.

While the California Values Act has received a good deal of press, it is the Immigrant Worker Protection Act (AB 450), that is most relevant to employers.

With the signing of the IWPA, California became the first state to explicitly affirm the rights of immigrant workers at the worksite. The bill imposes an affirmative obligation on California employers to provide employees notification that ICE has determined they are lacking work authorization, thereby giving them advance warning that ICE may be considering their apprehension and removal from the U.S. through a workplace raid. Beyond union support, the IWPA is designed to protect an immigrant workforce essential to California’s economy – especially its agriculture. “According to [California] state Controller Betty Yee, undocumented immigrants’ labor is worth more than $180 billion a year.”

To protect immigrant employees, the IWPA:

  • Requires employers to ask for a warrant before allowing federal immigration officials into a workplace to interview employees
  • Bars employers from sharing employees’ confidential information (i.e. Social Security numbers) without a subpoena except for I-9s or other documents when a Notice of Inspection has been provided
  • Establishes penalties ranging from $2,000 to $10,000 for employers that:
    • Fail to give employees public notice within 72 hours of an upcoming federal immigration inspection of employee records including written notice to any Collective Bargaining Representative
    • Fail to provide affected employees with a copy of any Notice of Inspection and a copy of any inspection results within 72 hours

In late September, just prior to the signing of these bills, ICE implemented “Operation Safe City.” During the four-day operation about 500 people were arrested in California, Colorado, Illinois, Maryland, Massachusetts, New York, Oregon, and Pennsylvania, in cities and counties specifically targeted for their sanctuary policies.  Thomas Homan, ICE’s Acting Director stated:  “Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration . . . As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.” Now, in response to the California Values Act and the IWPA, ICE announced it would have to target California neighborhoods and worksites.

This post was written by Brian E. Schield of Jackson Lewis P.C. © 2017
For more Immigration legal analysis go to The National Law Review

Trump Administration Issues “Principles” in Exchange for Relief for DACA Recipients

Deferred action for DACA recipients will start to expire in March 2018 and there is still no certainty about what will happen to them.  Amidst legal challenges to the rescission of DACA, the introduction of a number of statutory fixes, and a supposed “deal” between President Trump and Democratic leaders to protect the “Dreamers,” there is now a new twist.  The Trump Administration has announced a list of principles to include in any deal for the Dreamers.  Those principles, some of which derive from the President’s various Executive Orders, include:

  • Construction of a wall across the US southern border;
  • Improve infrastructure and security on the northern border;
  • Eliminate loopholes that make it difficult to return Unaccompanied Alien Children (primarily from Central America) and their families to their home countries;
  • Hire 10,000 immigration agents and 300 Federal prosecutors;
  • Hire 370 Immigration Judges and 1,000 ICE attorneys;
  • Increase scrutiny of asylum petitions and impose penalties for baseless or frivolous claims;
  • Terminate “catch and release” policies;
  • Expand grounds of inadmissibility and deportability;
  • Deny federal aid to sanctuary jurisdictions;
  • Discourage visa overstays by classifying overstays as misdeameanors;
  • Require use of E-Verify by all employers and increase penalties for a pattern or practice of violations;
  • Eliminate extended family “chain migration” and establish a new merit-based green card system; and
  • Eliminate the diversity lottery.

It is not clear whether these principles represent a first offer in a negotiation or if these principles are non-negotiable. Some Democrats in Congress have threatened the possibility of a government shutdown in December if DACA recipients receive no relief. Senator Jeff Flake (R-Ariz.) has pieced together parts of other proposed legislation and introduced what he believes would be a compromise bill, the Border Security and Deferred Action Recipient Relief Act. This Act provides:

  • DACA recipients or other children who have been in the U.S. since 2012 can obtain Conditional Resident Status for 10 years by pursuing vocational or higher education, are gainfully employed or by enlisting in the military. Upon meeting certain conditions, after the 10 years, they will be eligible to apply for Green Cards.
  • $1.6 billion for border security measures: 74 miles of border fortifications and funding to plan for further construction.
  • Construction of border access roads to simplify CBP patrols of the border.
  • Targeting of gangs and cartels for deportations.
This post was written by Forrest G. Read IV of Jackson Lewis P.C. © 2017
For more Immigration legal analysis go to The National Law Review

U.S. Suspends Nonimmigrant Visa Services in Turkey; Turkey Responds by Suspending Visas to U.S. Citizens

The U.S. Embassy announced it was suspending all nonimmigrant visa services in all U.S. diplomatic posts in Turkey. Turkey responded within a few hours of the U.S. Embassy’s announcement by saying it would no longer issue visas to U.S. citizens, including the physical “sticker” visas at border posts as well as the online Turkish electronic visa (e-visa).

It’s important to note that while the U.S. has halted its visa services in Turkey, it appears that the U.S. State Department is still issuing visas to Turkish nationals outside of Turkey. The U.S. has not indicated how long the suspension will last. Nevertheless, Turkish nationals who are currently in the US with expiring visas in their passports and who need to travel internationally should consider applying at another post as a third-country national. While applying as a third-country national is not ideal because such applications can be subject to delays, applying at another post may become necessary if the suspension of visa services in Turkey continues.

This post was written by Rebecca B. Schechter  of Greenberg Traurig, LLP. All rights reserved., ©2017

GOES Website Goes Away…October 1 Trusted Travelers Take Note

Effective October 1, 2017, U.S. Customs and Border Protection (CBP) is replacing the GOES (global online enrollment system) website with the new cloud based Trusted Traveler Program (TTP) system website. Users of the various Trusted Traveler Programs (Global Entry, Nexus, Sentri, Fast, APEC) managed by CBP are all familiar with the GOES website. The GOES website is used for applications and the creation of accounts as well as receiving notifications from CBP and updating certain account information.

September 30 will be the last day users can access the GOES website information regarding their accounts. It is critical for users to save/print out their information in their GOES account including their PASSID membership number to recreate their account in the new TTP system.

What do current TTP program participants need to do before September 30?

  1. Make sure your GOES profile information is correct. Log into your GOES account at: https://goes-app.cbp.dhs.gov/ and print/save the information located in your profile. Make sure to record your PASSID number, which appears on the back of your TTP card or in the top left corner of your GOES homepage.
  2. Create a Login.gov account, if you do not have one. Visit https://login.gov/. The GOES user ID/password will not work to log in into the new TTP system website. You can also create this Login.gov account after September 30, 2017.

The GOES website will be gone on October 1, 2017. So, what must TTP users do on or after October 1?

  1. After using login.gov to create an account for authentication, create a new account using the TTP system at https://ttp.cbp.dhs.gov (not yet activated).
  2. For those who had started an application in GOES before October 1, the application will be cancelled unless it is submitted before October 1. If the application was not submitted in GOES before October 1, the data will be lost and a new application must be submitted using the TTP system.
  3. To manage TTP accounts in the future, the place to go will be https://ttp.cbp.dhs.gov (not yet activated).

This post was written by Kathleen C. Walker of  Dickinson Wright PLLC © Copyright 2017

For more Immigration legal analysis, go to The National Law Review