Navigating Uncertain Times: Friday Roundup

Friday March 3, 2017

Summary –

 If Yogi Berra didn’t say it – he should have:  “We won’t know what will happen…until it happens”.

That is perhaps the best way to sum up this week (and year) in immigration.

The President’s address to Congress on Tuesday night returned to some of the harsher language and proposals that have become emblematic of his tenure, but it followed a bit more accommodating tone in which the President seemed to consider openness to new immigration reforms and reasonable security proposals.  The challenge has been, is – and likely will continue to be – which of the mixed signals will become reality.

That is why it is prudent to wait to see what actually happens - rather than rely upon interviews, speeches, anxieties and fears, before responding .

 

Interior Security Memo

We briefly touched upon the Interior Security Memo last week, but as certain provisions were again raised during the President’s address on Tuesday, here is some additional analysis about some of the provisions addressed in the Feb. 17, 2017 Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest:

1.       Removable priorities – The Memo identifies certain persons as ‘priorities’ for removal from the U.S.  These include, predictably, persons who are inadmissible on criminal or national security grounds.  Since these have always been the priorities of previous administrations, this is not necessarily something new.

What is distinct, however, is the inclusion of any person who has been charged with a criminal offense – that has not yet been resolved (i.e., that might result in an acquittal); or that has committed an act that ‘constitutes’ a criminal offense (i.e., but has not been charged with having committed a crime) or any person who has ‘abused’ any program related to receipt of public benefits. 

The U.S. government is rightly tasked with insuring the safety and security of its citizens, and it is the purview of the President of the United States to prioritize the allocation of resources to their most effective and efficient use to insure our security.  However, with such ambiguously broad categories that make everything a priority, resources are spread thin and the lack of narrow focus fails that intent.  The proposed addition of enforcement personnel in the future does not address this flaw.

 

2.       VOICE – Victims of Immigration Crime Engagement Office – This was referenced in the President’s address to Congress on Tuesday.

 

The proposed ‘VOICE’ office will utilize ‘any and all resources that are currently used to advocate on behalf of illegal aliens’ to fund a liaison between ICE and the families of persons who were victims of crimes perpetrated by a ‘removable alien’.  The office will provide information to the family regarding the immigration and custody status of the perpetrator.  The implication is that victims are not now able to acquire such information.

A corollary provision in the February 17, 2017 Memo requires the Director of ICE to report statistical data regarding the apprehension of ‘aliens’ by ICE.  Since there is no mention of a qualifier ‘removable’, this presumably includes any foreign national – whether here legally or without legal permission.  The information to be provided includes the country of citizenship, criminal offenses or gang activity, custody status and – if released – the location of where the individual has been released.  This is expanded to also include weekly reports of non-federal jurisdictions that release foreign nationals from custody.

In a democracy such as ours, statistics and information about criminal activities of persons should be available and transparent.  A word of caution here is advisable, though and, aside from the costs to run such a program, thought should be given to consider the value and the motivation behind this initiative.  Without context and comparison to the general population, such information could easily distort the image of the foreign individuals who are at home in our country and could be used to justify unreasonable treatment of our immigrant population.

 

Next Up:  H-1B Visa Reform: Most people agree that the H-1B visa program needs some repairs. 

Navigating Uncertain Times: Friday Roundup - February 24, 2017

Navigating Uncertain Times:  Friday Roundup

Friday February 24, 2017

 

Welcome to our new effort  to keep you informed of the quick-paced changes in immigration – real and implied – that are taking place in our world today.  This regular feature titled “Navigating Uncertain Times: Friday Roundup” will summarize new developments that have occurred within the preceding week and to provide concise explanations of how these changes might affect you .  We hope to be able to provide a helpful summary each Friday – or as often as may be warranted by the pace of new developments in immigration law and practice.

We will continue to provide timely and thoughtful blogs on various areas of interest in immigration law from time to time, but we welcome you to this first installment of this regular feature.

On February 17, 2017, the U.S. Dept. of Homeland Security Secretary, John Kelly, issued two (2) new Memoranda addressed to the various departments within Homeland Security such as ICE (Immigration & Customs Enforcement) and CBP (Customs & Border Protection) implementing the enforcement priorities expressed in the recent Executive Orders issued by President Trump.

Border Security Memo

The first Memo, relating to ‘Border Security’ has, among many various provisions, some fairly significant changes to the manner in which immigration laws are enforced, including:

·         An effort to detain nearly all foreign nationals apprehended entering into the U.S. without inspection, rather than getting biometric information, and allowing them to remain in the country while awaiting the opportunity for a hearing on whether they are entitled to stay.  There are currently not enough detention facilities to house the anticipated number subject to this provision.

·         An effort to hire 5,000 more border protection agents.  At this point, Dept. of Homeland Security has been unable to fill the already-existing requirement that there be 21,370 border protection agents.

·         An effort to expand the process of deportation known as ‘Expedited Removal’.  [For clarification, the term ‘deportation’ is commonly used to refer to the forced removal of persons from the country; but the precise legal technical term is known as ‘removal’].   Expedited Removal is, as the name implies, a procedure that removes the individual without the opportunity to appear before an immigration court or hire a lawyer.  The present practice is to use ‘Expedited Removal’ only for foreign individuals encountered within 100 miles from the border within 14 days of entry.  The new provision expands this to include anyone anywhere in the U.S. who cannot prove they have been here continuously for the previous 2 years.

·         Those apprehended at the border not subject to expedited removal would be returned to the ‘contiguous country’ from which they entered, (i.e., Mexico or Canada), regardless of their nationality.  They would then have formal ‘removal’ proceedings from a facility across the border in the neighboring contiguous country.

 

Interior Security Memo

This Memo relating to enforcement in the interior of the country (beyond the narrow regions along the nation’s boundaries) may be more significant in terms of the breadth of applicability.  Because of the finite amount of resources available to remove foreign nationals who are not presently here lawfully, past administrations have focused enforcement priorities on removing persons with criminal records. 

The ‘Interior Security Memo’ describes various classes of persons who are removal ‘priorities’, but concludes with one class that includes anyone who has ‘committed acts that constitute a chargeable criminal offense’ could include anyone who simply arrived in the U.S. without inspection.  This is a vast expansion of persons subject to removal.

It also supports the ‘fast-track’ removal process for the removal of persons included in these new ‘priorities’.

 

Look for additional explanation of these Memos in days to come – there are lots of issues to explore - but this should provide a brief introduction to some of the changes prompted by recent Executive Orders.   

Keep Calm and Carry...your Papers

With the release of President Trump’s most recent Executive Order asserting travel bans on certain immigrants from certain countries, there is understandably much confusion and anxiety over what this and his prior executive orders mean to immigrants now living in the United States and foreign nationals hoping to travel here.

Unraveling all of these issues will take some time.  Federal courts were quick to identify the legal and constitutional flaws in various parts of the orders and variously enjoined the Department of Homeland Security from taking actions to deport persons who arrived legally.  The Department of Homeland Security also properly conceded that the ban should not apply to persons who are lawful Permanent Residents of the United States.  But as the legal entanglements continue and the Department of State and the Department of Homeland Security figure out how to process these measures, what are noncitizens in the U.S. to do?

Keep Calm and Carry…your Papers

At this point, most of the immediate confusion is taking place at the borders and ports of entry into the U.S. and relates to persons outside of the U.S. trying to return or get into the U.S.  If you are already here, it would make sense to avoid traveling abroad until the Administration, the Courts and the Agencies can give us a clearer definition of exactly what type of enforcement will be taking place.  Of course, the January 27, 2017 Executive Order deals primarily with Refugees and visitors from 8 countries, but reports of others being stranded abroad in the confusion would indicate that there is still some uncertainty in international travel to and from the United States for noncitizens for now.

The January 25^th Executive Orders deal with internal enforcement of immigration laws; like the January 27^th Order, there is still some room for the Courts and the Administration to figure out to what extent these provisions are legally enforceable.  However, it is a general conclusion among the immigration bar that Immigration and Customs Enforcement is not restrained by the executive memoranda from the previous administration giving clear enforcement priorities on who should (or should not) be placed in removal proceedings.  Thus, in this heightened environment of enforcement, if you are a noncitizen of the U.S., it would be prudent to make sure that you carry your authorizing documents, (e.g., ‘green cards’, copies of visas, etc.) with you at all times.

Finally, keep in mind the long-view.  Although this is a period of great uncertainty, anxiety and disorientation for immigrants in the U.S. – irrespective of one’s legal status – we are also an exceptional democracy that has mechanisms and tools to give balance and, ultimately, greater certainty to the legal rights and constitutional protections that have evolved and continue to improve through the testing of these principles that have shaped our nation for the past two centuries.

So Keep Calm, Carry On…and Be Careful until we can get this sorted out.

Troubling The Waters...New Executive Orders Challenge The Way We Look At Immigration

Troubling the Waters…

If you are even remotely keeping up with the news, you are aware that the Trump Administration has started its term with a swarm of Executive Orders, tweets and announcements that affect the millions of immigrants presently in the U.S. and those dreaming of one day entering our country.

This is just the beginning of what we expect to be a long and turbulent period of changes to the immigration system as it now exists and challenges to the law, regulations, policies and memoranda that immigration attorneys use to try to help guide clients to secure the benefits that the law offers to them.

The early waves of the expected sea-change in immigration policy began with a series of Executive Orders issued on Wednesday, January 25, 2017.

We will endeavor to process these developments as soon as they occur so that we can help explain how these changes affect all of us.   We will therefore be regularly providing blogs at this site to help you remain fully informed as to the actual substantive actions that are taken, as well as some context for understanding their significance.

 

PART I – Executive Order of January 25, 2017:

 

 Executive Order 1:  “Enhancing Public Safety in the Interior of the United States”

The basic purpose of this Executive Order is to tighten the enforcement of those immigration laws relating to unlawful presence and to more aggressively pursue foreign nationals who are unlawfully present for removal. 

Here are the provisions intended to do this:

1.       Prioritize for removal noncitizens who are present in the U.S. and who are inadmissible on the basis of criminal, national security, fraud, misrepresentation and other related grounds of inadmissibility.

 

2.       Promulgate new regulations to collect penalties from noncitizens who are unlawfully present… as well as “those who facilitate their presence” in the U.S.

 

3.       Hire 10,000 additional Immigration & Customs Enforcement, (‘ICE’) Officers

 

 

4.       Resurrect a Program known as the ‘287(g)’ Program that authorize state and local law enforcement officials to investigate, apprehend and detain noncitizens who are unlawfully present in the U.S.

 

5.       Declare the authority of the Attorney General to take enforcement actions against ‘Sanctuary Cities’ by challenging their eligibility for certain federal grants.  This provision also directs the Department of Homeland Security to publicize any criminal acts committed by ‘aliens’ in those communities where they are not detained for ICE enforcement.

 

6.       Pressure other countries that do not accept their nationals who have been removed from the U.S. by suspension of visas from those countries; this also threatens these countries with their acceptance of removed nationals as a ‘condition precedent’ to diplomatic negotiations.

 

7.       Creation of an ‘office’ to assist victims of crimes perpetrated by ‘removable aliens’.

 

 

8.       Exclude non-U.S. citizens from the protections of the Privacy Act.

 

9.       Direct the U.S. Dept. of Homeland Security and the Attorney General to provide quarterly reports on the immigration status of all noncitizens incarcerated by the Bureau of Prisons, state and local prisons and jails.

 

These are the basic provisions of this Executive Order.  Please stay-tuned for a context-driven analysis of these provisions in the days ahead.

What's Next?

 

As we wake up this morning after a tense night of watching the Presidential election returns, it is clear that we are entering a period of uncertainty relating to immigration policy in the United States.

When considering the numerous possible scenarios that might arise, it will be interesting to see how the bureaucracy – never to be accused of acting expeditiously – will respond to changes in federal law and regulations that are surely to follow in the next several years.

And yet, here on November 9, 2016, no one is certain what those changes will look like.  The candidates have offered various and sometimes inconsistent statements about what they would like to do, but when the reality of governance settles in, no one is certain about what the future will look like for those whose presence in the United States is dependent upon the immigration policies of the U.S. Department of Homeland Security and U.S. Department of State.

In the midst of this uncertainty, here is something to rely upon:  the immigration practice group at Hunter, Smith & Davis, LLP will be vigilant in keeping abreast of new developments in immigration law and policy that affect foreign nationals and their families, their employers and businesses seeking to remain compliant with immigration law.

There are already some significant developments in immigration law in process, so stay tuned to his Blog for concise explanations and comment on future developments in U.S. policy on immigration.

The 'STEM' bud is now showing...

Update on the STEM Extension

As discussed in our most recent post, there was concern that the deadline for the vacatur of the 17-month STEM OPT extension program would arrive without a new federal regulation to take its place.  [See our Blog of January 8, 2016]  The court's initial deadline was February 12, 2016.

Students concerned that they would have to relinquish their employment on that date can breathe a little easier.  The U.S. District Court for the District of Colombia recognized that the enormous volume of comments to the new proposed rule received by the U.S. Department of Homeland Security would require additional time for the Homeland Security to review the new proposed regulation.  Consequently, the Court set May 10, 2016 as the new deadline for vacating the previous regulation granting STEM students 17 months in OPT status.

Let's hope that a new regulation - basically providing the same benefits - is grafted into place by May 10, 2016.  

'Nipped in the Bud...

How Immigration Benefits for STEM graduates may get pruned

Because highly-sought H-1B visas are limited to only 65,000 each year, many highly-educated individuals seeking to work in the U.S. do not get a chance to secure work authorization in H-1B status.

Many of these applicants are foreign graduates of U.S. colleges and universities seeking work after graduation.

The greatest challenge for most of these graduates is a matter of timing. 

Here's why:

The allotment of 65,000 H-1B visas becomes available on the first day of the federal fiscal year, October 1.   However, one cannot apply for an H-1B visa more than 6 months ahead of time.  Thus, the first day someone can apply for an H-1B visa is April 1 of that same year.

Because of the intense demand for H-1B visas, U.S. Citizenship & Immigration Services, ('USCIS') typically receives more applications for H-1B status than there are available.  A whole lot more.  In fact, this past year, in April 2015, USCIS received nearly 3 times more applications than available H-1Bs.  In the first 5 days. 

USCIS will then typically hold a 'lottery' and randomly choose which H-1B petitions it will process.

Consequently, if you haven't filed your H-1B petition by April 5th, you're out of luck.  (Of course, even those who do get their H-1B petitions filed by then still may be arbitrarily denied a chance for an H-1B visa if his or her petition is not randomly chosen during the lottery.)

For graduates of U.S. colleges and universities, this poses a huge problem since most students graduate in May or June.  By the time they graduate, the H-1B application process has already shut down.  And since you must provide evidence of your educational qualifications, (e.g., a diploma), to apply for an H-1B visa, students are typically prevented from seeking an H-1B visa until April 1 of the following year.

Foreign students typically are allowed into the U.S. to study at U.S. colleges and universities with a 'student visa' - also known as an 'F-1' visa.

The final piece of the puzzle - if you haven't already considered it - is that the F-1 visa is valid only so long as the student is in a full-time course of study at a U.S. college or university.  When the program ends, (e.g., when a student graduates), then the student's F-1 visa status expires and the student must return to his or her home country.

Fortunately, there is an Option for these students to remain in the U.S. after their graduation.  It's technically an extension of the F-1 visa that allows the graduate to gain experience working in his or her field of study for one year following graduation.  This is called Optional Practical Training, (or 'OPT'). 

With OPT, a student can remain in the U.S. long enough to have the opportunity to file an H-1B petition during the next April's filing season.

In an effort to promote the workforce of highly-skilled technical employees, particularly for the technology sector, USCIS published a regulation in 2008 that permits an additional 17-month extension of OPT for individuals who graduate with a degree in one of the STEM areas, (Science, Technology, Mathematics and Engineering).  This would ostensibly give STEM graduates two chances to file an H-1B petition.

What's the Problem?

When the Department of Homeland Security published the regulation granting an additional 17-month extension of OPT, it did so without the customary 'Notice and Comment' period required of agencies wanting to promulgate new federal regulations.  It's argument was that the need to issue the regulations was so important at that time of year that it constituted extraordinary circumstances permitting it to avoid the Notice and Comment period.

Not everyone was enamored with these new regulations.  The Washington Alliance of Technology Workers concluded that it was harmed by the regulations, so it challenged the legitimacy of the 17-month STEM OPT extension, by filing suit in the Federal District Court for the District of Columbia.

The Federal Court ultimately agreed in August 2015 that the STEM OPT 17-month extension regulations were not properly promulgated and vacated the regulations - in effect saying that they should not be given any effect.  Nipped in the bud, if you will..

However, the Court also recognized the tumultuous consequence of instantly invalidating the work authorization of thousands of students working with STEM OPT 17-month extensions, so it stayed the vacatur of the regulations (postponed its effect) until February 12, 2016.

The Court stated:

     "The Court sees no way of immediately restoring the pre-2008 status-quo without    causing substantial hardship for foreign students and a major labor disruption for the technology sector.  As such, the Court will order that the 2008 Rule - and its subsequent amendments - be vacated, but it will order that the vacatur be stayed."   


It was anticipated that this delay would give the Department of Homeland Security enough time to go through a proper Notice and Comment period to validate these regulations.  However, on December 22, 2015, the Department of Homeland Security filed a Motion with the Court requesting additional time to complete the Notice and Comment period, train and educate personnel on the regulations.  The Motion requested that the stay remain in place until May 10, 2016.

As of today, the Court has not yet ruled on the Motion to extend the stay.  However, if the Motion is not granted, foreign graduates working under a 17-month OPT STEM extension may want to be prepared for the consequences on February 13, 2016.

Stay tuned for more information as it becomes available...