Terminating the H4 EAD?

Terminating the H4 EAD?

 
In February 2015, the Obama administration promulgated a federal regulation permitting certain spouses of foreign employees in H-1B visa status to seek authorization to work in the U.S.

Ordinarily, a spouse or child of a foreign employee in H-1B status is given a ‘derivative’ status known as ‘H-4’ status.  Under most circumstances, someone in H-4 status is not allowed to work in the U.S.   However, under this program, a spouse who is in H-4 status may apply for an Employment Authorization Document – (an ‘EAD’ or ‘work permit’) – if the H-1B spouse is also the beneficiary of an approved I-140 Petition for Alien Worker. 

The I-140 Petition For Alien Worker is the first step in the ‘green card’ process which shows that the foreign employee is eligible for a ‘green card’.  Because of the backlog of visa numbers for natives of some countries such as China and India, some foreign employees may have to wait years before they can take the second step of actually applying for a ‘green card’.  The executive order gave relief to the spouses of these foreign employees who successfully completed the first step while waiting for the second step.  It is typical for a foreign employee who qualifies for an H-1B visa to have a spouse who is also highly educated or skilled, so this program allowed spouses to put their education and skills to good use while waiting for a ‘green card’.

It was widely expected that when Donald Trump took office, he would attempt to eliminate this program.  Recent reports indicate that a proposed new federal regulation has been drafted that would do just that.

An added dimension to this story is the existence of a lawsuit styled Save Jobs USA v. U.S. Dept. of Homeland Security filed in April 2015 and presently at the D.C. Court of Appeals.  ‘Save Jobs USA’ is a consortium of technology workers who argue that the manner in which the H-4 EAD program was created was improper.  Proceedings in this case have been held in abeyance until December 31, 2017 to give time to the U.S. Dept. of Homeland Security (under the new Trump administration) to assess the case.  A ruling may be coming as early as January, so this may be a factor in how/when/if the Trump Administration addresses this program.

In the meantime, foreign employees and their family members who may be eligible for the program should examine whether they are in a position to benefit from these regulations…sooner rather than later.

 

Your HS&D Immigration Team

What's Next For DACA Recipients?

What’s Next For DACA Recipients?

 

You can be excused if you feel like you have whiplash.  The turmoil and mixed messages that have swirled since the announcement was made terminating the DACA program on September 5^th make it difficult to keep up.

Here’s a quick assessment of where we are – at least as of 1:27 p.m. on September 14, 2017:

                The DACA program is still winding down (as described in our previous post on this Blog).   As the program slowly dies, no new petitions are allowed, but anyone whose existing DACA benefits are set to expire before March 5, 2018, still have until October 5, 2017 to file an application for renewing his or her benefits.  The March 5 deadline is significant because it represents a 6-month invitation to Congress to draft and pass its own legislation to provide immigration benefits to the young adults who benefitted from the DACA program – (also referred to as ‘DREAMERS’).

                Shortly after U.S. Attorney General Jeff Sessions announced the termination of the program, tweets from President Trump infer that he is still supportive of the beneficiaries of the DACA program, and even went so far as to say that if Congress did not act by March 5^th, he might consider taking some other action that might be beneficial to these persons.

                Then, last night, Democratic leaders meeting with President Trump announced that they had all agreed to support legislation that would give immigration benefits to DREAMERS, and that funding for ‘The Wall’ between the U.S. and Mexico would not be a part of the Bill being negotiated.  Reports indicate that President Trump did not agree to not continue pursuing construction and funding for ‘The Wall’ – just that he would not pursue funding in the same Bill that would give DREAMERS immigration benefits.  (From a practical standpoint, this would increase the likelihood of passage of a ‘DREAM’ Act, since including funding for ‘The Wall’ would prevent Democrats from supporting the Bill.)

                For all of the excitement these developments seem to create, we would caution against getting too optimistic at this stage.  The history here shows that positions on this type of immigration reform have been predictably inconsistent.  Furthermore, we should be reminded that the DACA program was created only after the President and some Congressional leaders supporting a ‘DREAM’ act failed to get a Bill through Congress – which is precisely the same situation we are now in. 

It takes more than a President and some Senators and Representatives wanting to pass legislation.  It takes a majority of Senators and a majority of Representatives to vote for legislation in both houses of Congress that supports giving benefits to immigrants who are not currently in status.

Given recent history, it’s far from a sure bet that they would work together to get such a Bill passed, even if the President supports it.

But to end on a more optimistic note, it does appear that there is a broad measure of support for these young adults and their plight that seems to transcend political parties and ideology.  So stay tuned to see what happens next. 

 

                Your Immigration Team at

               Hunter, Smith & Davis, LLP

DACA is Terminated

Termination of the DACA Program

 

Like the slow progression of a hurricane expected to make landfall, the Trump Administration today finally confirmed what had been anticipated for a number of months:  the ‘rescission’ of the Deferred Action for Childhood Arrivals, or ‘DACA’, program.

So what does this actually mean?

It could be worse.

Let’s start here: What is (was) DACA?

As referenced above, the ‘D A’ in DACA stands for ‘Deferred Action’.  ‘Deferred Action’ is a legal term that references a longstanding immigration administrative tool that has been in use since the 1970s.  ‘Deferred Action’ simply means that the act of formally removing a person from the U.S. will be deferred for a specific period of time.  From a functional standpoint, it can also be viewed that a prosecutor from the U.S. Dept. of Justice uses his or her discretion to not act to remove a person from the U.S. because of sympathetic factors or in deference to other ‘deportation’ priorities.  This is known as ‘prosecutorial discretion’.

Understanding this helps us clarify what ‘Deferred Action’ does not do.  It does not grant any type of ‘status’ to the individual.  The person is not eligible for a ‘green card’, much less U.S. citizenship – and the person cannot sponsor anyone else for an immigration benefit.  The only thing ‘Deferred Action’ does is temporarily shield the person from an action to remove him or her from the U.S.; in addition, the individual who is granted ‘Deferred Action’ is also permitted to seek work authorization in accordance with Federal Regulations.

On June 15, 2012, then-President Obama ordered the Department of Homeland Security to consider young persons who had already been brought to the U.S. before January 1, 2010 and were at that time under the age of 16, to seek ‘Deferred Action’.  Since it was being used for a specific sector of young people living in the U.S. his program was initiated as ‘Deferred Action’ specifically for ‘Childhood Arrivals’, (or ‘DACA’). 

It is instructive to note that the DACA program was not the creation of a new immigration benefit – (Deferred Action has been around for nearly 40 years) – it was simply identifying a specific segment of society for whom these existing federal regulations would systematically apply.  Each individual, however, would still need to prove eligibility for deferred action on a case-by-case basis by filing a Form I-821D – ‘Application For Consideration of Deferred Action’ – with U.S. Citizenship & Immigration Services.  If the applicant met the qualifications and successfully passed a background check, the individual could receive ‘Deferred Action’ for a 2-year period.

In November of 2014, President Obama sought to expand the DACA program to extend the period of Deferred Action from 2 years to 3 years and include a greater number of persons who arrived before the age of 16.  (These persons are often referred to as ‘Dreamers’ – which alludes to an earlier Congressional Bill that offered similar benefits known as “The Dream Act”.)  Several state attorneys general brought suit in a Texas federal court to enjoin the DACA expansion.  Their success against the DACA expansion was solidified when the U.S. Supreme Court deadlocked on a 4-4 vote on whether or not President Obama’s actions exceeded his executive authority as President of the United States.  The original DACA program was not included in the Texas lawsuit – but what seemed to prompt today’s announcement was the threat among several state attorneys general to sue President Trump if he did not terminate the program on the grounds that DACA exceeded President Obama’s executive authority.

Tennessee’s Attorney General, Herb Slatery was initially among 10 attorneys general who threatened to sue President Trump if he did not terminate the program – but appropriately backed-out of the threat in recognition of the “human element” represented by the many DACA recipients who “have outstanding accomplishments and laudable ambitions”– and encouraged Tennessee Senators Lamar Alexander and Bob Corker to support a legislative solution to the issue.  It is hard to avoid noting the ironic argument that the Trump Administration would have had to make: that the President did not have executive authority to act on these types of immigration matters, when numerous and significant changes to our immigration system have been made exclusively by executive order by President Trump since January of this year. 

Interestingly, when President Obama initiated the DACA program, his stated purpose was to create a temporary program until Congress could act to pass legislation to give these same young people actual immigration benefits including legal status, work authorization or even perhaps lawful permanent residency.  Proposed bi-partisan legislation authored by Republican Lindsey Graham and Democrat Richard Durbin seeks to ‘legislate’ these benefits which – if successful, would be a more reliable means to accomplish the same ends.

 

What Does President Trump’s Memorandum Issued This Morning Actually Do?

First – it formally and immediately rescinds President Obama’s Memorandum of June 15, 2012, discussed above.  In other words, the DACA program is immediately terminated.

But there are many logistical issues to consider, so the program will have to ‘wind down’ in an ‘orderly fashion’.  Thus, here are some of the other logistical ramifications of the President’s decision:

Second – USCIS will continue to adjudicate new DACA applications that have already been filed.  If you have not already filed a new DACA application, it’s too late now.

Third – USCIS will continue to adjudicate DACA renewal applications that have already been filed – and – will actually continue to accept DACA applications for renewal up until October 5, 2017 for persons whose current DACA benefits expire before March 5, 2018.

Fourth – the U.S. Department of Homeland Security will not terminate or revoke Deferred Action benefits from those who currently have them.  Of course, once they expire, they will not be renewed.

Fifth – Advance Parole:  if you have been previously approved for advance parole (the permission to travel abroad and then be admitted back into the U.S.), the Department of Homeland Security/Customs & Border Protection – states that it will continue to honor the permission to return to the U.S., but reminds us that it can also revoke or terminate this at any time.  [I think this means ‘travel at your own risk’.]

Furthermore, it will not approve any new applications for advance parole and will close any applications for advance parole that are currently pending.

 The Long-View

So what happens next?

The political calculation appears to be to give Congress a deadline to pass legislation that confers benefits to young people in this similar situation.  There seems to be some momentum for this since the majority of Americans polled seem to support benefits for ‘Dreamers’.  The less optimistic view is that the DACA program was born out of the same predicament: the inability of Congress to pass a law addressing this issue forced President Obama to issue a Memorandum instead.  Is it possible for Republicans and Democrats, Senate and House of Representatives to cooperate to pass legislation that amounts to immigration reform?

I am reminded of the great hope and momentum that emerged from the U.S. Senate in the summer of 2013 when a strong majority of the Senate – both Republicans and Democrats - voted to enact a Comprehensive Immigration Reform Act, only to see it completely abandoned by the House of Representatives.  That was our last best hope to help fix our ailing immigration system.

President Trump has now created a new opportunity for our Senators and Congressional Representatives to work together to solve this compelling issue. 

Here’s hoping that history will not be repeated.

 

HS&D Immigration

 

What Is The Proposed 'RAISE' Act? Part 2

Part 2:  ‘Focus on Family-Sponsored Immigration for Spouses and Children’

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

Background

As stated in the first Blog installment, we are using the proposed Bill is to ‘raise’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  An analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  thus, the purpose of this article is to explore what is needed in immigration policy to fit the unique history and present cultural pressures of American society today.

We do this by comparing the provisions of the Bill to the current existing law.

 

1. ‘Focus’ on Family-Sponsored Immigration for Spouses and Children

This second installment of our discussion on the RAISE Act addresses the ‘focus on family sponsored immigration for spouses and children’

This language from the Bill is perhaps a bit disingenuous in that the implication is that there is a ‘focus’ to enhance the immigration benefits for spouses and children of U.S. citizens and permanent residents.  More accurately, it eliminates all other immigration benefits for family members and simply salvages existing benefits for spouses and children, yet narrowing the definition of a ‘child’.

The proposed changes under the ‘RAISE’ Act for family-sponsored immigration is a bit more complicated than the elimination and replacement of the employer-sponsored immigration system discussed in the first blog because some elements of the family-sponsored system were retained and others were reconfigured.

It may be helpful to begin with describing the current law affected by the changes sought in the RAISE Bill.

Under existing law, there is a worldwide limit on the number of family-sponsored visas available each year.  Presently, all family-related immigrant visas are limited to 480,000.  (These are reduced by a formula set forth in The Immigration & Nationality Act, Sec. 201(c)(2), but in no case is the number to fall below 226,000.)

The RAISE Bill dramatically reduces this number to 88,000.

The term ‘immediate relative’ currently means the spouse, an unmarried child under the age of 21 and parents of a U.S. citizen who is 21 or older.  Although ‘immediate relatives’ are counted against the worldwide limit, there is no annual numerical limitation for persons seeking lawful permanent residency as an ‘immediate relative’.  In other words, if you meet the definition of an ‘immediate relative’, there will be an immigrant visa available to you, regardless of the numerical limitation.

The RAISE Bill removes ‘parents’ from the category of ‘immediate relative’ and lowers the age of the person defined as a ‘child’ from 21 to 18 years of age.

Under existing law, there are many other family members who can be sponsored for lawful permanent residency despite not being ‘immediate relatives’.  For example, the brother or sister of an adult U.S. citizen, an unmarried son or daughter of a ‘green card’ holder or a married son or daughter of a U.S. citizen may be sponsored for permanent residency (but because of the worldwide limit, these persons may have to wait many years before a visa becomes available).  The problem is that many more than 480,000 foreign persons seek to become U.S. lawful permanent residents each year.  When you consider that there are over 326 million persons living in the U.S., and that nearly all of us trace our ancestry to another country, there are many family members who want to join families that are already here, but there are not enough visas to accommodate the demand.

For example, because of the existing limitation, a person from the Philippines who was sponsored by a sister for a ‘green card’ would have to have filed the immigrant visa petition before April 8, 1994 just to be considered for a ‘green card’ today.  For those who are counting, that was 23 years ago.

One might be surprised by this long delay and might even question whether this current family-sponsored system is even functional.  However, the RAISE Bill eliminates the sibling category all together.   Here are the other family-sponsored categories eliminated by the RAISE Bill:  unmarried sons and daughters of U.S. citizens, spouses, children, unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens in addition to brothers and sisters of adult U.S. citizens – as well as the parents of U.S. citizens previously discussed.  Under the proposed Bill, the only remaining option for a ‘green card’ for family members are spouses and ‘children’ of U.S. citizens.

 Hence the ‘Focus’ on spouses and children of U.S. citizens.

One concession the RAISE Bill makes to the parents of American citizens is that it provides a non-immigrant (temporary) visa to parents to stay in the U.S. for five (5) years.  Although this non-immigrant visa (referred to as a ‘W’ visa) could be renewed, there are disincentives for a U.S. citizen to secure such a visa since the parent cannot work during this period, and the U.S. citizen child must prove that he or she will cover all of the parent’s living expenses, (regardless of the parent’s own assets) and secure health insurance for the parent, at no expense to the parent.

One final element in the proposed RAISE bill is a bit tricky; if the Bill were to pass, any visa application of a parent of a U.S. citizen, brother, sister or any other category eliminated by this Bill as discussed above filed after the date this Bill was introduced would be invalid on the date the Bill became law.  Since the Bill was introduced on August 2, 2017, any visa application filed today under one of the extinguished family classifications would be invalid if this Bill were to ever become law.  In other words, it’s already too late.

Again, few people fully expect this Bill to become law, at least not in its original version; but it is helpful to examine the potential consequences if this Bill were to pass Congress and signed into law by the President.  The result would be a dramatic reshaping of the immigration system as we know it – particularly for foreign persons who have family currently living in the United States.

 

 

Next:  ‘Elimination of the Diversity Visa Program’

What Is The 'RAISE' Act?

What Is The Proposed RAISE Act?

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

A perhaps more valuable use of this Bill is to ‘RAISE’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  If it causes us to pause and reflect on these core principles of American identity and values, it will have served a noble purpose.

Most political observers suggest that this Bill is not likely to pass Congress; nevertheless, an analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  We will leave the political discussion to those who are more knowledgeably equipped to do so; the purpose of this article is to explore what we need in immigration policy to fit the unique history and present cultural pressures of American society today.

A very strong and simple narrative upon which this Bill rests is the easily accepted notion that Americans are competing for job openings and that the addition of more immigrants would make it more difficult for Americans to get these jobs.

It is, of course, more complicated than that, but rather than debate the economic consequences of immigration – which is a fact-driven analysis that supports various dimensions on both sides of the debate – it may be even more helpful to look at the core values implicated in the Bill.  It is a point that will conclude our discussion, but to begin, it may be helpful to compare the provisions of the Bill to the current existing law.

Thus, the place to begin is the actual language in the Bill.

The Preamble of the Bill states 4 objectives:  “To amend the Immigration and Nationality Act to

 

1. Establish a skills-based immigration points system,
    
2. to focus family -sponsored immigration on spouses and minor children,

     3.  to eliminate the Diversity Visa Program, [and]

 

    4.   to set a limit on the number of refugees admitted annually to the

United States, and for other purposes.”

 

We will go through each objective separately.

Today we will address the ‘skills-based immigration points system’.

 

1. Skills-Based Immigration Points System –

The first objective of the Bill is to amend the current Immigration and Nationality Act to establish a ‘skills-based immigration points system’.  The intent here is to ‘filter’ the types of persons coming to the U.S. to only those who can offer their education, skills and salary to meaningfully participate in and prosper the U.S. economy.  The immigration benefit provided is presumably a ‘green card’ – or Lawful Permanent Residency in the U.S.

Under the provisions of the Bill, a person accrues ‘points’ based upon age, education, English proficiency, extraordinary achievement and salary related to a job offer.  A person who accumulates a minimum of 30 points is eligible to be placed in an ‘Applicant Pool’ for up to one year.

An applicant calculates his or her points based upon a strong showing under the metrics of age, education, English proficiency, extraordinary achievement and salary for a job offered.

For example, a young person aged 22 – 25 accrues 8 points, while an older person, aged 41 through 45 accrues only 4 points.  Likewise, someone with a bachelor’s degree from a foreign institution is allowed 5 points, but a person with a master’s degree in the U.S. in a STEM discipline is entitled to 8 points.  The English exam is scored on ‘deciles’ where the higher the decile, the more points someone gets.

If an applicant reaches 30 points, he or she may file an application with USCIS and is placed in a ‘pool’ of other applicants and sorted on the basis of an applicant’s overall score.

Every 6 months, USCIS will invite the highest ranked applicants to file an immigrant visa petition for a visa.  There would be only 140,000 visas available each year, so the invitation will go out to a number that will be expected to result in 70,000 visas being issued for that 6 month period.

 

To assess the effectiveness of such a ‘points-based’ system, we should consider the present system in light of the Bill’s stated objective of helping the U.S. Economy.

Our present Employment-Based Visa system offers a number of different types of ‘temporary’ visas to employees with the opportunity to eventually apply for an immigrant visa – (or ‘green card’).

Types of Nonimmigrant Visas Available Under The Present System

To make this a manageable comparison, we will look only at those nonimmigrant visas that are comparable to the ‘highly-skilled’ sector contemplated by the Bill that also provide a pathway to a ‘green card’, (lawful permanent residency).

One of the most sought-after nonimmigrant visas is the ‘H-1B’ visa for foreign workers in a ‘specialty occupation’.  By legal definition, a ‘specialty occupation’ is one in which the job requires a person with at least a college bachelor’s degree in that occupational field to perform the work.  There is an annual allotment of 65,000 H-1B visas available each year. 

Another visa is an ‘L-1A’ visa for foreign employees who are either multinational executives or managers, and the ‘L-1B’ visa for foreign employees who have unique ‘specialized knowledge’ in the specific field or work required by an employer.

It is important to note that both of these require the foreign employee to work only for the employer that sponsored him or her for the visa.  Thus, the visa process is targeted to specific job openings for specific job duties that an employer needs filled.

For the H-1B visa, the demand for specific employees is so great that in the most recent fiscal year when H-1B visas were available, employers filed over 235,000 petitions for only 65,000 visas.  When one considers that the cost of filing an H-1B petition includes a $500.00 ‘Fraud Detection Fee’, and $1,500.00 ‘Education and Training Fee’ and a $460.00 ‘petition filing fee’, not to mention additional legal fees, the cost of filing an H-1B visa petition is not taken lightly.  Furthermore, the employer must show the U.S. Dept. of Labor that it will be paying the foreign worker as much as or more than American workers – (to insure that the wages of American workers are not ‘undercut’ by hiring foreign workers at lower pay).  All of these factors give an economic incentive for U.S. employers to hire U.S. workers before considering the hire of a foreign worker.  Despite these additional costs, the fact that U.S. employers still filed over 235,000 petitions with the hope of having their applications randomly chosen for processing gives a pretty clear indication of the current inability of U.S. employers to fill crucial positions in their companies.

The ‘EB-5’ visa is known as the ‘job-creation’ visa.  This specialized visa generally currently requires an investment of at least $500,000 or $1 million, (depending upon other factors) in a new commercial enterprise in the U.S. and proof that the investment will result in the creation of at least 10 full-time jobs for American Workers.

Also, in 2016, the prior Administration issued an executive order providing for ‘entrepreneurs’ who could provide a ‘significant public benefit’ by creating or maintaining a new commercial enterprise to be admitted into the U.S. to manage these investments.  The Order was purposely suited for high-tech entrepreneurs and was set to go into effect on July 17, 2017.  This executive order was ‘suspended’ by the Trump Administration on July 10^th for review and possible rescission or implementation on March 14, 2018.  

So to make a comparison between the proposed Bill’s intent to let in only 140,000 persons who reach a high score on age, education, job salary and/or extraordinary achievements, and the current system that offers employers the opportunity to seek foreign workers for specific needs, one needs to consider the benefits from an employer’s perspective.

First, one might consider whether average companies who typically utilize the H-1B, L-1A or L-1B visa programs to meet specific specialized needs would be able to compete with the largest well-sourced corporations for the top 140,000 individuals who might apply under the proposed bill.  (Remember, over the course of 5 days this past April, employers of all sizes filed over 235,000 petitions just for H-1B visas.).  Second, consider the challenge of employers planning to fill a position with the uncertainty of not knowing where a prospective employee might stand in the ‘applicant pool’, especially considering that only 70,000 visas would become available each 6-month period; (and that the family members of a successful applicant are also included in that limited number of 70,000).  It might also be useful to consider whether the top individuals who attain a high score under these metrics actually align with the specific needs of employers if they came to the U.S.  The proposed Bill does not necessarily clarify this, but presumably, a person in the ‘applicant pool’ does not necessarily have to work for a specific employer and might otherwise compete on the open marketplace for other employment. 

If the objective of the proposed Bill is to land the world’s ‘best and the brightest’ in the U.S. so that they can contribute to the American economy and possibly create new opportunities for U.S. workers, it is fair to question whether the sample of current immigration programs described above also seek the same goals.  A fair criticism of the current immigration system is that these immigration programs do a poor job of meeting these same goals.  In fact, when one considers that 2 out of every 3 H-1B petitions are rejected because there are too few visas to go around, and that many high-tech companies are moving operations to other countries because they cannot bring the world’s ‘best and brightest’ to the U.S., it is apparent that seeking creative solutions to identify and secure the highest qualifying individuals to come to the U.S. is a crucial need.  The proposed Bill helpfully exposes the flaws and limitations of our current employment-based immigration programs.

Here's hoping that the dialogue opened by the presentation of the prospective ‘RAISE’ Bill will help invigorate a bi-partisan legislative solution to our poorly functioning immigration system for U.S. employers.

 

Next:  ‘The Focus on Family-Sponsored Immigration for Spouses and Minor Children’

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.