Category: Immigration

Administration Clarifies and Limits Searches of Electronic Devices at Border

On January 4, 2018, U.S. Customs and Border Protection (CBP) issued Directive 3340-049A, governing border searches of electronic devices. CBP’s new directive updates and provides several improvements over the agency’s initial directive, published nine years ago, regarding the policies and procedures for border searches of electronic devices conducted in furtherance of CBP’s mission. CBP has implemented several key changes that aim to provide travelers with more clarity and protections regarding the procedures for electronic device searches; however, the numerous exceptions included in the new directive may, in practice, allow CBP to bypass some of these protections. Ultimately, the new directive serves as an upgrade over CBP’s initial directive, provides additional protection for travelers by incorporating a reasonable suspicion standard for most “advanced” searches, and provides specific procedures to be followed when travelers assert the attorney–client privilege or the attorney work product doctrine.

Under the new directive, CBP assures travelers that it will protect the rights of individuals against unreasonable search and seizure and ensure privacy protections while accomplishing its enforcement mission. However, it is important to note that travelers carrying electronic devices are guaranteed few protections limiting CBP’s searches and seizures of their devices. CBP regards such searches as integral to protecting border security and aiding in the detection of evidence relating to terrorism and other national security matters, human and cash smuggling, contraband, and child pornography.

New Directive Applies Only to CBP

Importantly, the directive applies only to CBP. Thus, any border search conducted by agents of U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI) is not subject to the protections of the directive. ICE and HSI are not included in the directive and those agencies have not issued a new policy or directive for their searches.

What Is an Electronic Device?

The directive governs searches of electronic devices conducted by CBP at the physical border, functional equivalent of the border, or the extended border. An “electronic device” is defined as “any device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players.”

What Content May Be Searched?

Pursuant to the directive, border searches of electronic devices are limited to “only the information that is resident upon the device,” and officers are prohibited from intentionally using the device to access information that is solely stored remotely. To avoid access to information stored remotely, officers will either request that the traveler disable network connectivity or, where warranted by national security, law enforcement, officer safety, or other operational considerations, the officers themselves will disable network connectivity.

New Distinction Drawn Between Types of Searches

The new directive makes a distinction between “basic” searches, which may be conducted without suspicion, and “advanced” searches, which require officers to have reasonable suspicion of activity in violation of the laws enforced or administered by CBP. The directive also carves out an exception to allow for advanced searches without reasonable suspicion when national security concerns exist. For example, a national security concern may arise in scenarios involving a national security-related lookout in combination with the presence of an individual on a government-operated and government-vetted terrorist watch list. During a basic search, an officer may examine the electronic device and review and analyze information encountered at the border. During an advanced search, an officer connects external equipment to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.

Protections for the Attorney–Client Privilege and Attorney Work Product Doctrine

The new directive includes detailed procedures for searches that may involve the attorney–client privilege or the attorney work product doctrine. However, CPB’s detailed procedures are not applicable to other sensitive material, such as medical records or business confidential information. When an individual asserts the attorney–client privilege or the attorney work product doctrine, the CBP officer will seek clarification—in writing, if practicable—from the individual asserting privilege to assist CBP in identifying the privileged information. While the directive instructs officers to handle medical records and other work-related or business confidential information in accordance with applicable federal laws and CBP policies, it does not require officers to follow the detailed procedures set forth for searches involving attorney–client privilege or the attorney work-product doctrine, and no new protections have been added for these other types of sensitive material.

Travelers Explicitly Required to Provide Passcodes and Encrypted Information

With regard to passcodes or encrypted information, travelers are obligated to present electronic devices and their contents in a condition that allows inspection. If an officer is unable to complete an inspection because the device is protected by passcode or encryption, the officer may detain the device pending a determination as to its admissibility, exclusion, or other disposition. Additional consequences, such as travel delay or denial of entry may potentially arise if a traveler refuses to provide passcodes or encrypted information.

Detention of Electronic Devices

Searches may take place on-site or off-site and are to be completed as expeditiously as possible. Unless extenuating circumstances exist, the detention of devices ordinarily should not exceed five days.

Impact on Employers

Despite the improved guidance and clarified limits in the new CBP policy, employers may still be at some risk when employees carry electronic devices containing company data during international travel. While the CBP directive contains specific procedures for border searches when confronted with sensitive business confidential information, the directive does not preclude a border search of business confidential information. Thus, employers may wish to consider whether it is feasible to restrict employees from carrying electronic devices containing sensitive company data during international travel. When practicable, some employers already seek to determine whether they can provide “clean” electronic devices to be used by employees during international travel so that the devices do not retain company data. These practices may be effective for many employers since border searches of electronic devices are limited to data resident on the device, and CBP is not permitted to connect devices to external networks.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

ICE Raids on 7-Eleven Franchise Stores Result in 21 Arrests

On January 10, U.S. Immigration and Customs Enforcement (ICE) agents commenced employment audits at nearly 100 7-Eleven franchises across the U.S., signaling the biggest crackdown on suspected illegal workers since President Trump took office. The raids resulted in 21 administrative arrests. Following the raids, ICE Deputy Director Thomas Homan said in a statement: “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”

ICE gave no reason why 7-Eleven, famous for the Slurpee, was targeted. The notices of inspection, also known as  I-9 audit notices, were served on stores in Washington, D.C., and in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland, Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, and Washington. The franchise owners have three days to provide the agency with the immigration status of their workers.

The recent raids stem from a 2013 ICE investigation that resulted in charges against nine 7-Eleven franchise owners and managers. All of those individuals have now been arrested as of November 2017, and eight out of the nine pleaded guilty and were ordered to pay more than $2.6 million in restitution for back wages.

In its own statement, 7-Eleven said it is aware of the raids and its franchisees are “independent business owners” who are “solely responsible for their employees including deciding who to hire and verifying their eligibility to work in the United States.” 7-Eleven says it has terminated the franchise agreements of franchisees convicted of violating immigration laws.

President Trump ran on a campaign promise to prevent U.S. business from employing undocumented workers. ICE’s actions against 7-Eleven are a clear indicator of keeping that promise. Expect ICE to move forward with similar enforcement actions, as one top ICE official stated the 7-Eleven raids were “a harbinger of what’s to come” for employers.

 

© 2018 Barnes & Thornburg LLP.
This post was written by Joseph D. Hess from Barnes & Thornburg LLP.
Click here for more Immigration Coverage from the National Law Review.

Administration’s Regulatory Agenda Signals Continued Push to Align Visa Programs With “Hire American” Goals

On December 14, 2017, the Office of Information and Regulatory Affairs (OIRA) released the Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which is a report on the rulemaking efforts U.S. administrative agencies intend to pursue in the near- and long-term.

If enacted, several items in the agenda have the potential to impact employers’ immigration programs. The relevant proposals include the following items:

  • U. S. Citizenship and Immigration Services (USCIS) is proposing to issue a rule that would eliminate the ability of certain H-4 spouses to obtain employment authorization documents (EADs).
  • USCIS is proposing to issue a rule (originally introduced in 2011) that would establish an electronic registration system for H-1B petitions that are subject to the annual quota (H-1B cap filings). DHS notes that the rule is “intended to allow USCIS to more efficiently manage the intake and lottery process” for these petitions. USCIS notes that this rule may include a provision for a modified selection process, as outlined in the Buy American and Hire American Executive Order, such that “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • USCIS is proposing to issue a rule that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” in the H-1B context. USCIS notes that the purpose of these changes would be to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition for [H-1B eligibility].” The rule may also contain provisions regarding the payment of appropriate wages to H-1B visa holders.
  • The Department of State is proposing and finalizing several rules that would enact various modifications to the exchange visitor (J-1) program. These changes include arrangements relating to the administration of the J-1 program, provisions to help ensure the safety and well-being of foreign nationals who enter the U.S. as exchange visitors, and efforts to reinforce the cultural exchange and public diplomacy aspects of the program. Changes may also include an expansion of the types of jobs that are prohibited under the summer work travel category.
  • As a “long term action,” U.S. Customs and Border Protection (CBP) is proposing a rule that would clarify the criteria for admission to the United States as a temporary visitor for business (B-1) or pleasure (B-2). CBP also notes that the proposed revisions would “make the criteria [for entry as a temporary visitor] more transparent.”
  • Immigration and Customs Enforcement (ICE) is proposing to issue a rule that would effectuate a comprehensive reform of the practical training options (OPT) available to nonimmigrant students. The proposed provisions include increased oversight over the schools and students participating in the program. The stated purpose is to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students.”

Employers may want to keep in mind that although the abstracts listed in the agenda seemingly have the potential to impact many areas of the immigration system, it is premature to draw conclusions about the effect of these proposed changes without first seeing the text of the rules themselves—none of which have been released, and some of which may not even be drafted. Additionally, both the agenda itself and the timing for the rules, are aspirational; in prior years, only a select number of proposals have actually turned into rules, and ever fewer have actually followed the stated timelines. As noted previously, for example, a proposed regulation on the electronic registration system for H-1B quota petitions was originally introduced in 2011, but no further action occurred.

Should a proposed rule actually be issued, the agencies must conform to the notice-and-comment protocols of the Administrative Procedure Act. Effectively, this requires the agency to issue a proposed rule that explains the agency’s plan to accomplish a certain goal or address a problem.  This is followed by a comment period, during which time any interested parties can submit comments about the proposed rule. Prior to issuing the final rule, the agency must review all comments and indicate its reasoning for either modifying the rule on account of a comment or explain why the proposed comment does not merit a revision to the rule. Rulemaking is typically a prolonged process that takes a minimum of several months to accomplish. In other words, a proposed rule (which is different than most of the abstracts found in this agenda, which only state the intent to issue a rule) would be the first step in what could be a complex and lengthy rulemaking process that may take many months before promulgation of any final rule.

Finally, employers may want to take note that many of the administration’s prior attempts to enact changes to the immigration system have been subject to lengthy and robust legal challenges. Any such litigation on a proposed rule could increase the timeline for implementation, assuming the rule survives the legal challenge at all.

In summary, although the agenda provides some insight into the goals of the administration on employment-based immigration, the publication of the agenda itself does not alter the status quo.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C

This post was written by Jacob D. Cherry of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more information check out the National Law Review’s Immigration page.

Sixty-Day Grace Period for Nonimmigrant Workers after Loss of Employment

The U.S. Department of Homeland Security has promulgated a regulation affecting highly skilled foreign workers when they lose their jobs. The stated purpose of the regulation is to improve the ability of U.S. employers to hire and retain highly skilled foreign workers and to increase the ability of those workers to pursue new employment opportunities.

Nonimmigrant workers are individuals who enter the United States for a temporary period of time and are restricted to the activity consistent with their visas (those in E-1, E-3, H1B, H1B1, L-1, O-1 and TN status). Prior to this regulation, a nonimmigrant worker who was laid off or whose employment was terminated would immediately begin to accrue unlawful status. Since the beneficiary of a visa petition must be in valid status at the time of filing, a sudden loss of employment was particularly problematic in terms of transferring the visa to a new employer. While U.S. Citizenship and Immigration Services (USCIS) was somewhat forgiving if a new sponsoring employer was identified quickly, the conventional wisdom was that the USCIS would not approve a transfer petition if the beneficiary was out of work in excess of one month.

The new regulation provides for a 60-day discretionary grace period, during which a nonimmigrant worker does not accrue unlawful status. This allows nonimmigrant workers two months to locate a sponsoring employer to whom the visa may be transferred, to apply for a change of status or to wind up their affairs before departing the United States.

Employment is not authorized during the grace period, but the nonimmigrant worker may begin working with the filing of a transfer petition by a new employer. A worker may use the grace period only once for each validity period. For instance, if a worker loses his job and then uses the grace period to transfer his visa to another employer, he may still be eligible for another 60-day grace period should he lose that job. Unused days in the first grace period cannot be carried over into a subsequent grace period. USCIS has the discretion to deny or shorten a grace period if there are violations of status such as unauthorized employment, fraud or criminal convictions, among others.

The 60-day grace period is a welcome accommodation to nonimmigrant workers who find themselves suddenly laid off or their employment terminated.

© 2017Wilson Elser Moskowitz Edelman & Dicker LLP
Learn more on our Immigration Practice Group page.

The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.

 

© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
Read more Immigration legal updates.

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