Category: Immigration

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

The Time to Comply is Now: The New “I-9 Sheriff” is in Town!

As we have previously informed our readers, the Department of Homeland Security (DHS) has issued yet another update to U.S. Citizenship & Immigration Services’ (USCIS) Employment Eligibility Verification Form (commonly referred to as Form I-9).

As of September 18, the revised Form I-9 is in effect, bringing a new paperwork duty for all U.S. employers. All employers who have not already done so must immediately disregard the old version of and begin using the new version of Form I-9. The new form is accessible on the (USCIS) website, and older versions of Form I-9 are no longer available to the public. The new version of Form I-9 is not required for existing employees, since it pertains only to new hires joining a company on or after September 18, 2017.

Following are some reminders for employers to keep in mind during the onboarding process:

  1. While the core requirements of Form I-9 remain unchanged, employers will find minor revisions concerning the instructions and the list of acceptable documents that confirm an intended employee’s identity and employment eligibility. Specifically, USCIS changed the name of the U.S. Department of Justice’s enforcement arm on employment eligibility compliance, namely from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name of Immigrant and Employee Rights Section. What is more, USCIS modified the form’s instructions by removing “the end of” from the phrase “the first day of employment.” As a result, employers should amend their Form I-9 procedures to ensure that all intended employees complete the form’s Section 1 at the outset of the first day of employment.
  2. USCIS has also revised the list of acceptable documents concerning employment eligibility. Notably, USCIS added the Consular Report of Birth Abroad Form (Form FS-240) as an acceptable List C [employment eligibility] document. Form FS-240 is generated by the U.S. Department of State (DOS) at U.S. embassies worldwide to record the birth of a U.S. citizen outside U.S. territorial limits. Now, employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C pertaining to Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9. Lastly, USCIS combined all the certifications of report of birth issued by the DOS into selection C # 2 in List C and renumbered all List C documents, except the Social Security card.

USCIS has included all these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is more user friendly than older editions of this document. Unlike previous versions of M-274, users can no longer download the handbook as a PDF document. Instead, USCIS has now organized and posted the M-274 handbook’s content as a web-based resource. It is yet unclear how USCIS will be updating this document.  By consequence, employers should regularly review the most updated, on-line content of the M-274 handbook, as it will likely be a more dynamic document.

3.  Another valuable resource for employers handling Form I-9 issues is the I-9 Central webpage available on the USCIS website. This webpage provides additional information about Form I-9, including learning resources and frequently asked questions.

Although the changes to Form I-9 are minor, failure to use the new version of the form can result in significant fines. Employers should therefore revisit their compliance policies to ensure a seamless transition to the new Form I-9.

This post was written by Roy J. Barquet of Foley & Lardner LLP © 2017
For more Immigration Legal Analysis go to The National Law Review

Impact of the Trump Administration’s Decision to Terminate DACA

On September 5, 2017, Elaine Duke, Acting Secretary of the U.S. Department of Homeland Security (“DHS”), issued a memorandum rescinding the Deferred Action for Childhood Arrivals (“DACA”) program. The DACA program, instituted in 2012 under the Obama administration, defers deportation and provides work authorization for individuals who were brought to the United States as children and who pass criminal and national security background checks. The DACA program was designed to assist individuals who were raised in the United States but who do not possess lawful status in the United States. These individuals are often referred to as “Dreamers.”

Citing a recent 4-4 decision by the U.S. Supreme Court, which in effect allowed a lower court injunction of a program providing similar relief for undocumented parents of U.S. citizens to stand, the Trump Administration determined that the DACA program should end on March 5, 2018. Effectively, this provides Congress with six months to provide a legislative solution for the nearly 800,000 individuals impacted by the DACA program rescission.

For individuals eligible or currently enrolled in the DACA program, this will have the following impact:

  • Currently valid DACA benefits, including Employment Authorization Documents (“EAD”s) and Advance Parole documents (I-131 applications, authorizing beneficiaries of DACA to travel) will remain valid until their expiration. These documents remain subject to termination or revocation under the existing DACA program rules.
  • No new DACA applications (I-821D applications) will be accepted as of September 6, 2017.
  • Currently pending initial DACA applications and extensions will be adjudicated.
  • USCIS will not accept any new advance parole applications where the basis of that application is an approved I-821D.
  • Currently pending advance parole applications will be administratively closed, and I-131 filing fees will be refunded.
  • Individuals whose DACA benefits expire between September 5, 2017 and March 5, 2018 will be allowed to file an extension of their DACA benefits until October 5, 2017. If approved, we anticipate that extensions will be valid for two years, and not end on March 5.
  • U.S. Citizenship and Immigration Services (“USCIS”, the agency that oversees administration of the DACA program) will not affirmatively provide information regarding DACA recipients to U.S. Immigration and Customs Enforcement (“ICE”, the agency in charge of interior immigration law enforcement) or U.S. Customs and Border Protection (“CBP”, the agency in charge of border security) unless the DACA recipient meets existing deportation enforcement guidelines.

Once an individual’s DACA benefits expire, that individual will no longer have work authorization, and his or her deportation will no longer be deferred. This does not mean that individual will be automatically deported by ICE. However, it does mean that the individual will no longer be protected from deportation. In essence, without congressional action, Dreamers will once again become subject to potential removal from the United States.

A lawsuit has already been filed challenging the DACA program’s termination. It is hard to know whether the case will succeed, however. In the meantime, Dreamers plan to press Congress to pass a legislative solution before March 5.

A DHS memorandum outlining rescission of the DACA program is here. An FAQ is here.

 

This post was written by David J. Wilks of Miller Mayer LLP. All Rights Reserved. © Copyright 2013 – 2017
For more Immigration legal analysis go to The National Law Review

DACA Program to Be Phased Out

Today, the Trump Administration announced rescission of the Obama Administration’s 2012 Executive Order which created the Deferred Action for Childhood Arrivals (DACA) program. As of March 5, 2018, DACA will fully end with many questions yet to be answered.

DACA has benefitted approximately 800,000 recipients, who came to the U.S. before the age of sixteen and hold no valid immigration status, by granting them temporary work authorization and relief from deportation.  Through the program, beneficiaries have gone on to become productive members of communities, contributing to the economy by attending college, buying houses and cars, and obtaining better paying jobs.

What We Know:

  • The U.S. Citizenship & Immigration Services (USCIS) will immediately halt acceptance of new DACA applications while “orderly winding down” the program for existing DACA recipients.

  • Current DACA recipients with permits that expire before March 5, 2018 may apply for a renewal by October 5, 2017.

  • Some DACA recipients could lose work authorization as early as March 6, 2018, while others may continue to use the program over the next two years.

  • No specific guidance will be issued to DHS agents to shield young undocumented immigrants from deportation.

What Is Unclear:

  • Whether and how quickly Immigration & Customs Enforcement will take enforcement action to remove DACA recipients who have disclosed personal information in order to obtain a DACA benefit.

  • Whether Congress will be able to pass a legislative solution within the next six months.  Much will depend on DACA proponents’ ability to mobilize and advocate some form of relief.

  • Whether those granted Advance Parole pursuant to DACA will be permitted to return to the U.S. once DACA ends.  Having Advance Parole does not guarantee admission to the U.S., and the U.S. Department of Homeland Security may revoke or terminate it at any time.

Other Possible Forms of Relief:

In lieu of federal legislation, other forms of relief may be available.  Current DACA recipients and undocumented immigrants may want to explore eligibility for:

  • Asylum;

  • A temporary visa as a victim of a specific crime;

  • Proof of existing U.S. citizenship or noncitizen nationality; and

  • Lawful permanent residence.  Potential applicants include:

    • Individuals whose last entry to the US was after inspection and admission or parole by U.S. Customs & Border Protection (CBP) and who have an immigrant visa immediately available;

    • Certain individuals who are beneficiaries of visa petitions filed by family members or employers on or before April 30, 2001 and who have an immigrant visa immediately available;

    • Certain spouses, children and parents of U.S. citizens or green card holders who have been subject to battery or extreme cruelty by a U.S. citizen or green card holder family member, even if the individual entered without being inspected and admitted by CBP; and

    • Certain unmarried individuals under 21 where a juvenile court has found that the child’s reunification with his or her parent(s) is not viable due to abuse, neglect, abandonment or a similar basis under state law, even if the individual entered without being inspected and admitted by CBP.

Additional guidance is expected in the coming days and weeks. Stay tuned for further updates.

This post was written by Jennifer Cory of Womble Carlyle Sandridge & Rice, PLLC. Copyright © 2017 All Rights Reserved.

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

Trump to End DACA Program?

Indications are that President Donald Trump likely will end the DACA (Deferred Action for Childhood Arrivals) program while signaling the Administration’s willingness to work with Congress on an alternative program. Vice President Mike Pence, speaking in Texas, noted, “President Trump has said all along that he’s giving very careful consideration to that issue and that when he makes it he’ll make it with, as he likes to say, ‘big heart’.”

Since 2012, close to 800,000 people brought to U.S. illegally as children have been allowed to remain in this country with work authorization – their deportations having been “deferred.” Eliminating DACA was a staple of Trump’s campaign, but, once he became President, he indicated that it would be a hard decision to make and even noted that the “dreamers” “should ‘rest easy’ about his immigration policies.” The Administration’s decision on whether to discontinue DACA has been made more urgent by a number of Republican attorneys general and the Texas Governor’s announcement that they will ask a federal judge to rule on the legality of DACA by September 5 if the President does not announce he is ending the program.

President Barack Obama put DACA into place by way of an executive order as a temporary measure when Congress failed to enact immigration reform that would protect these individuals because, he believed, “It [was]. . . the right thing to do.”  Ending DACA likely will mean that new applications for status and work authorization will not be accepted and existing authorizations will not be renewed once they expire.

Hundreds of tech and business leaders sent a letter to the President and Congressional leaders expressing their support for DACA. It said, in part:

All DACA recipients grew up in America, registered with our government, submitted to extensive background checks, and are diligently giving back to our communities and paying income taxes. More than 97 percent are in school or in the workforce, 5 percent started their own business, 65 percent have purchased a vehicle, and 16 percent have purchased their first home. At least 72 percent of the top 25 Fortune 500 companies count DACA recipients among their employees.

Senator Orrin Hatch (R-Utah), who supports tougher immigration enforcement, tweeted that he has “urged the President not to rescind DACA . . . .” Speaker Paul Ryan (R-Wis.) has done the same.

Should DACA be rescinded, it would be up to Congress, working with the Administration, to agree upon legislation to provide legal status to these individuals.

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

Trump Administration Considers Elimination of J-1 Program for Some Students

The Trump Administration is considering the elimination of the J-1 Summer Work-Travel Program for students who come to tourist areas in the U.S. as temporary summer help and as participants in cultural exchanges. Like the numerical limitations placed on H-2B temporary seasonal visas, the elimination of this J-1 Summer Work-Travel Program would particularly affect the hospitality industry in areas that rely on these students to cook, wait tables, and run amusement park rides in tourist areas during the summer months.

Morey’s Pier Amusement Park in Wildwood, New Jersey, hired more than one-third of its 2017 summer workforce through the J-1 Summer Work-Travel Program. Its Director of Human Resources reported that it makes extensive efforts, including through job fairs, to hire U.S. workers, but cannot find enough people interested in the seasonal work. The Park hired 82 percent of the U.S. applicants who applied for jobs and the remaining 18 percent could not be hired because they were too young to be life guards or to serve alcohol.

Other tourist areas such as Hershey, Pennsylvania, and the Poconos also depend on the J-1 Summer Work-Travel Program. Congressman Bill Keating (D-MA), who represents Cape Cod and the Islands of Nantucket and Martha’s Vineyard, is critical of the reported plan to reduce these visas for students who he believes are vital to his area’s economy.

The review and possible elimination of the J-1 Summer Work-Travel Program arises out of the “Buy American, Hire American” Executive Order. The first hint that the Program might be cut was in a draft executive order that was leaked in January 2017. That draft, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” was never signed or formally released. It included specific provisions questioning the desirability of the J-1 program, the L-1 visa program, the use of parole authority, and the H-1B visa program, among others. To date, the Administration has been achieving some of the goals first set forth in that draft by conducting more L-1 site visits, scrutinizing H-1B and L-1 petitions by issuing a staggering number of post-filing Requests for Evidence (RFEs), postponing (and ultimately planning to eliminate) the International Entrepreneur Rule that relied on parole authority, and, now, focusing on the possible elimination of the J-1 Summer Work-Travel Program.

According to the State Department website, “The J-1 Exchange Visitor Program [overseen by the Department of States] provides opportunities for around 300,000 foreign visitors from 200 countries and territories per year to experience U.S. society and culture and engage with Americans.” There are more than a dozen J-1 programs. Others that are reportedly being reviewed for possible elimination are the J-1 internship and au pair programs.

This post was written by Forrest G. Read IV  of Jackson Lewis P.C. © 2017
For more Immigration News go to The National Law Review