Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 24, 2017

Bored yet?

With multiple significant issues simultaneously taking stage, one can be excused for not knowing how to prioritize your concerns.  In the midst of efforts to repeal existing healthcare law, (“will they or won’t they?”), nominating a new Supreme Court Justice to replace Antonin Scalia, (the specter of a filibuster is being raised), and wondering how far and deep the Russian connection goes, one can be excused for overlooking ‘yesterday’s news’ – immigration.  And yet, out of sight does not mean out of mind – or inactive.  Things are still happening, and we will continue to search for and provide insight into issues that may affect you.

And this week, clients were buzzing about the ’60 Minutes’ segment this past Sunday characterizing the H-1B program as an ill-advised program for bringing ‘cheap labor’ into the country to replace U.S. workers.

In other news…

The H-1B Program – Reform?

Yes – but for the right reasons.

This past Sunday, the news program ’60 Minutes’ broadcast an investigative report on the H-1B visa program characterizing it as a means for employers to ‘bring in cheap foreign labor to replace American workers.’

I was astonished to hear that the H-1B visa program – of all visa programs – would be accused of bringing in ‘cheap foreign labor’.

Without making a full response, here are a few facts about the H-1B visa program that gives insight into the credibility of that claim:

·         The filing fees to file a new H-1B visa petition for a foreign employee a U.S. company wants to hire is $2,460.00; if you want the petition expedited, you can pay an additional $1,225.00;

 

·         Federal regulations require the U.S. company to pay the costs relating to the H-1B visa petition; and if the employer terminates the H-1B visa employee early, the employer must pay the transportation costs of the employee’s return overseas;

 

·         To file an H-1B visa, the U.S. company must first apply for certification of a ‘Labor Condition Application’ with the U.S. Department of Labor to establish that the company is paying the foreign worker a wage that is known as the ‘required wage’.  The ‘required wage’ is either the prevailing wage (as determined by the U.S. Dept. of Labor) for any employee at the worksite who is similarly situated or the actual wage of any worker at the worksite who is similarly situated whichever is higher.

 

In other words, to be able to secure an H-1B visa, the U.S. company has to attest to the U.S. Department of Labor that it is paying the foreign worker as much as or more than other U.S. workers at the worksite who are in the same position.

 

Given these additional costs to an employer, it is hard to understand from a business standpoint how it is ‘cheaper’ for a U.S. company to hire a foreign worker under the H-1B visa program than to hire a U.S. worker.

The ’60 Minutes’ segment certainly found some compelling stories of U.S. workers who suffered hardship because they were replaced by persons, at least some of whom were in the U.S. on H-1B visas.  According to the U.S. workers being interviewed, the company they worked for did not pay their replacements a salary as high as theirs.  To add insult to injury, these U.S. workers were forced the indignity of training the very persons who were replacing them.

These are very sympathetic stories.

And if the U.S. company did not comply with federal regulations by paying their H-1B employees the ‘required wage’, then that is a problem.

If the U.S. company hired H-1B employees in one worksite in compliance with the U.S. Dept. of Labor regulations, but then sent them as contract workers to the worksite of another company – where they earned less as contractors than the U.S. employees of the second company - then that is a tough business decision that both companies made.

And if the U.S. company employing H-1B workers made the experienced employees train the new H-1B workers how to do their job before terminating them, then that would seem to be an unnecessary indignity to the loyal employees of the company.

It is not my place to criticize the U.S. companies for their HR management or the economics of their business decisions; I don’t necessarily have all of the facts.  But to place the blame on the H-1B visa program simply because these incidents involved employees who happened to have H-1B visas is misdirected.  And to characterize the H-1B visa program as providing ‘cheap foreign labor’ is a mischaracterization which seems designed to scintillate the already hypersensitive public who generally wouldn’t have the depth of knowledge in immigration law to critically evaluate the validity of such an assertion.

So does the H-1B program need reform?

Yes…but not for those reasons.

At the end of next week, it is likely that over 300,000 H-1B petitions will be filed in the hope of getting one of only 65,000 visas.

One must ask – why would so many U.S. employers go to such great an expense (~$2,500 per petition – not including additional legal fees) just to get a 1 in 3 chance of having its H-1B petition selected at random for processing?  [Because there are more petitions than available visas, the U.S. Citizenship & Immigration Service holds a lottery to randomly choose 65,000 petitions to process.  This is known as the ‘H-1B Lottery’]

Clearly – there is an unmet labor need.

Reform Item #1:  increase the number of H-1B visas available each year so that U.S. companies can secure the workforce they obviously can’t fill with only U.S. workers

But there does seem to be abuse in the H-1B visa program.  There are, in fact, some U.S. companies that hire such a large number of foreign workers, especially for IT positions, that other employers have less of a chance of having their petitions randomly chosen in the H-1B lottery.  These few companies get a disproportionate share of the H-1B visas.  This leaves other, smaller companies who have legitimate needs to find highly-skilled employees in the foreign labor market left without key positions being filled.

I can think of many instances where a client has attempted to bring persons with highly specialized skills and experience to lead important business or service initiatives here in the U.S. – only to have the H-1B petition returned simply because of the ‘luck of the draw’.

Reform Item #2:  Limit the number of H-1B visas a single company can file to secure its workforce.  It may place an unfair burden on some companies, but it might even the playing field for the rest of the employers seeking persons to fill very specialized occupations.

Whether we like it or not, we are part of a larger global economy that requires highly trained and educated individuals to help U.S. companies compete on the world stage… regardless of where they come from.

I think we can come up with a better system to accomplish that.

EAD Alert:

Last week we discussed the unexpected news that USCIS would no longer be accepting ‘Premium Processing’ for H-1B petitions after April 3, 2017.  We discussed the inconvenient consequences of this decision.

To no one’s surprise, USCIS has been inundated with H-1B petitions seeking Premium Processing before the April 3 deadline.  So many, in fact, that it is causing delays in the adjudications… of EADs!

Why EADs?

An ‘EAD’ (Employment Authorization Document) is now available for a spouse of an employee in H-1B status – if the H-1B employee has an approved Immigrant Petition for Alien Worker (Form I-140) and the employee cannot apply for a ‘green card’ yet because their immigrant classification is oversubscribed for his or her country of origin.

This relatively new benefit for the spouses of certain H-1B employees is very popular and helpful for families living in the U.S.  It is common to file the application for an EAD along with the H-1B petition; and if the H-1B is adjudicated using Premium Processing, the EAD is customarily processed in an expedited fashion as well.  But now, because of the overload, USCIS has announced that processing of EAD applications accompanying Premium Processed H-1B petitions are being delayed.

Please plan and anticipate accordingly.

Have a nice weekend,

HS&D Immigration Group

 

[News Flash:  in answer to the question at the beginning of this blog post – the answer is “they won’t”]

Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 17, 2017

Happy St. Patrick’s Day!

As most schoolkids know, unless you intentionally want to get pinched – you had better wear green today.

One of the more enjoyable American holidays is St. Patrick’s Day.  No demands on your celebration.  You wear green, maybe you eat corned beef and potatoes or perhaps raise ‘a pint o’ Guinness’.  It is said that on St. Patrick’s Day, everyone is Irish.  We at least try to claim a little Irish heritage on this day.

But it wasn’t always so…

This might be a good moment to pause and reflect that a century ago, the Irish were unwanted immigrants.  They were marginalized and feared because their migration to the U.S. was somehow tainting what it meant to be ‘American’.

Adopting distinctive Irish traditions and heritage into our national culture has enriched our country and gives us reason to celebrate one of the fundamental features of American society: our rich diversity.  It’s a good time to remember that it’s okay to embrace new and different cultures, traditions, heritage…and people.

So enjoy!  Celebrate!  And remember who you are… and where you came from

Slainte!

HSD immigration group

In other news…

Travel Ban 2.0

On Wednesday, a federal district judge in Hawaii granted the state’s Motion for a Temporary Restraining Order on the implementation of  Sections 2 and 6 of President Trump’s revised Executive Order temporarily banning admission of immigrants from 6 predominately Muslim countries and refugees.  The Executive Order was scheduled to go into effect yesterday, but the TRO suspends its implementation until a hearing can be held on its merits.

Last week we alluded to the possibility that the origin and heritage of the Executive Order has so stained it that it cannot be separated from the President’s prior expression of intent to exclude persons of the Islamic faith from entering the U.S.  The federal district judge’s Opinion echoed that very problem in finding that the Executive Order was in violation of the Establishment Clause, the First Amendment to the U.S. Constitution.  [ As interpreted by the courts, the 1^st Amendment states that the government cannot take action “respecting an Establishment of Religion, or prohibit the free exercise thereof….” ]. Exercising the analysis set forth in the 1971 seminal U.S. Supreme Court case Lemon v. Kurtzman, the Hawaii District Court found that the government action did not have a ‘primarily secular purpose’ and therefore violated the ‘Establishment’ clause.  Additional evidence from the U.S. Dept. of Homeland Security concluding that the country of origin provided an insufficient link to the likelihood that a person might commit a terrorist act was entered into the Record and served to undermine the government’s own argument that its purpose was for the sake of national security.  It would seem that for the Administration to succeed, it would need to convince a court – perhaps the U.S. Supreme Court – that the President’s valid legal authority to make decisions regarding who may be admitted to the U.S. supersedes any limitation on that authority expressed in the Establishment Clause of the U.S. Constitution and/or other discrimination prohibitions found in federal law.

Stay tuned…

The Federal Budget

Perhaps one of the more obscure immigration-related news items this week was the issuance of the President’s new Budget Proposal.  One of the recommendations found in the proposed Budget was the elimination of the Appalachian Regional Commission ('ARC') and the Delta Regional Authority, ('DRA') among other regional commissions.

How does that affect immigration?

Because the Appalachian Regional Commission and Delta Regional Authority offer J-1 visa waivers to primary care physicians who are willing to provide direct patient healthcare to persons living in medically underserved areas – or more specifically, where there is a shortage of primary care physicians.

This is important because in many states that offer J-1 visa waivers to attract physicians to underserved areas, the primary program is what is known as the ‘Conrad 30’ J-1 visa waiver program.  As the name indicates, there are only 30 slots available for physicians who want to secure a J-1 visa waiver. 

[For explanation, foreign physicians who come to the U.S. to train in Residency programs often get a ‘J-1 visa’ to enter the U.S.  The catch is that the physician is required to return to her home country for 2 years before she can seek an H-1B visa that allows her to provide direct patient care.  A ‘waiver’ of that 2-year home residency requirement allows the new Residency graduate to immediately practice medicine in the U.S.].

Many states use up the allotment of 30 J-1 waivers under the Conrad 30 program fairly quickly.  Fortunately, the ARC and DRA provide an unlimited supply of J-1 Waivers for physicians who are not able to get a Conrad 30 waiver.  The ARC and DRA waivers are a bit more complicated, rigorous and narrowly defined than a Conrad 30 Waiver, but they at least offer an alternative for physicians who are willing to serve where other primary care doctors avoid serving.  In fact, some states like Virginia require physicians who qualify for a J-1 Waiver under the ARC program to seek a waiver there first – so that it can preserve the limited 30 Conrad waivers for physicians who have no other alternatives.

The Budget process may end up preserving the Appalachian Regional Commission – and the many other valuable services that it provides, for the sake of persons living in medically underserved areas and the foreign physicians who serve them. 

Comprehensive Immigration Reform

This takes the prize as the most unexpected news item this week - but there seems to be ‘chatter’ that the turbulent immigration developments over the past two months have somehow energized momentum for comprehensive immigration reform.  In a bi-partisan sort of way!

If this is an accurate development, it would be most welcome.  As you may recall, there was a remarkably successful period of bi-partisan collaboration on a Senate Bill in 2013.  Led by a ‘gang of eight’ Republican and Democratic senators, a Bill that ‘fixed’ many of dysfunctions of our immigration system – both on security and accommodation of visas – and passed fairly easily.  Unfortunately, it languished in the House of Representatives until it ultimately died with no action taken.

If in fact there is a renewed interest in coming to agreement on how to repair our immigration system, this would be a very positive development.

Have a nice weekend –

HSD Immigration Group

Navigating Uncertain Times: Friday Roundup

Friday March 10, 2017

H-1B Alert!

Summary:

As most people know, the President issued a new and revised ‘Travel Ban’ this week – which we will discuss in more detail later – but a more obscure announcement was made that can have a wide-ranging impact on foreign nationals already living here on H-1B visas.

USCIS announced that it would be suspending ‘Premium Processing’ of H-1B visas beginning on April 3, 2017 (the first day of receiving new H-1B visas under the ‘H-1B cap’).

Those who will be most greatly affected by this development will by physicians who are completing their residencies in J-1 status – and need a Conrad 30 J-1 waiver to file a new H-1B petition.

H-1B Premium Processing Suspension

Late last Friday, USCIS announced that it was temporarily suspending ‘Premium Processing’ for all H-1B petitions filed on or after April 3, 2017.  It will be suspended ‘up to 6 months’.

And they are serious about it.  In fact, if one mistakenly files a ‘Premium Processing’ request after April 3, 2017 with the regular filing fee and the Premium Processing fee on the same check, they will reject the entire H-1B package petition.

Here’s why it matters:

As you may know, ‘Premium Processing’ is an application that one can file to request expedited processing of the H-1B petition.  It is accompanied by a filing fee of $1,225 – in exchange for a guaranteed decision within 15 calendar days.  This used to be a luxury – back when the normal processing times for H-1B visas was 4-5 months.

But now, the current processing time for someone filing an H-1B extension to continue working in H-1B status in our region is approximately 8-9 months.  Since employers are prohibited from filing an H-1B petition more than 6 months ahead of time, it is nearly impossible to get a new H-1B extension Approval Notice before the present H-1B status expires under regular processing. 

Since federal law and regulations permit a foreign employee working in H-1B status to continue working for 240 days following the expiration date of her existing H-1B status if her employer files an extension before her H-1B status expires, this would not be a particularly big deal…except that most states now issue driver’s licenses with an expiration date that corresponds to the H-1B validity date.  Thus, while someone who has timely filed an H-1B extension may still work, she cannot drive to work.

Thus, since most driver’s license offices require an H-1B Approval Notice to renew a driver’s license,  for about the past year it has become routine for foreign employees in H-1B status to use Premium Processing – just so that they continue driving to work.

 So the ability to use Premium Processing can make a big difference to employees in H-1B status.

But it’s an even bigger deal to a Physician who intends to use H-1B status to provide clinical care to patients following her Medical Residency.

Most foreign-educated physicians who complete their Medical Residencies in the U.S. complete their training using a J-1 visa.  But there is a catch.  The J-1 visa status requires the Physician visa holder to return home for 2 years following completion of her Residency in J-1 status.

Unless she gets a waiver of the 2-year home residency requirement

Typically, this is done with a Conrad 30 J-1 visa waiver.

Without going into great detail about the process, it is sufficient to say that it’s a lengthy process going through several state and federal agencies over several months before getting a decision.  But here’s a peculiarity of the Conrad 30 program:  it requires the Physician to begin work in H-1B status within 90 days of receiving an Approval of the J-1 Waiver.  Since nearly all Physician residencies conclude on the same day – (June 30) – this means that there is a window of time to get the J-1 waiver approved.  For a July 1 start date, one must actually get the Approval sometime after April 1.

What’s more, some states – like Tennessee – won’t issue an unrestricted Medical License until the Physician completes her Residency.  On the other hand, Conrad 30 J-1 waiver recipients are exempt from the H-1B cap – so we don’t have to worry about trying to get a petition filed on April 1 (while the Physician is still in Residency).

But the bottom line is – by the time the Physician is ready to file an H-1B petition, it is usually already May, June or July.

Luckily, we always had Premium Processing to make sure the Physician could begin work within 2 weeks of Residency completion….   I think you can see the problem.

If the Physician’s employer cannot use Premium Processing… and the processing time is 8-9 months… it’s possible that a Physician completes her Residency in June, but cannot begin to work until February of the following year. 

We can hope that perhaps USCIS will reinstate Premium Processing  sometime in October or November, but that is well past the 90-day window in which the Physician is mandated to begin employment,(not to mention that it is a long time after Residency just waiting to begin work).

It’s still a big deal.   

 

The Trump Travel Ban: version 2.0

On Monday of this week, the President issued a second Executive Order addressing the admission of refugees and certain persons from certain countries into the U.S.

The second effort is much narrower and tailored to address the flaws in the first ban which the 9^th Circuit Court of Appeals concluded were unenforceable.

Here is a snapshot view of some of the major differences:

·         Iraqi nationals were removed from the list of foreign nationals from predominately Muslim countries who were prohibited from admission to the U.S.

·         It eliminates the ban on persons from the remaining 6 predominately Muslim countries who have ‘green cards’

·         It re-establishes a 120-day ban on the admission of any refugees – but Syrian refugees are no longer ‘indefinitely’ banned; they are subject to the same 120 day ban just as other refugees

·         It reduces the total number of refugees resettled in the U.S. under the U.S. Refugee Assistance Program from 110,000 to 50,000

·         It no longer gives a preference to ‘religious minorities’ [most likely Christians in predominately-Muslim countries]

 

Several states have already filed lawsuits to block the new travel ban, fundamentally on the same basis as before.  However, since the Travel Ban 2.0 was crafted more carefully to avoid some of the legal flaws that led to the demise of the first ban, the outcome will be less predictable.

Here is a sample summary of some of the issues presented by the new Executive Order banning travel:

·         It appears that there is still an evidentiary weakness in naming Syria, Iran, Libya, Somalia, Sudan and Yemen as countries from which its citizens are prohibited from entering the U.S. because of fear that they may commit harm when they arrive in the U.S.  Although the sectarian violence and conflict in these countries is well-known, the relationship between the threat that exists in these countries with the threat that their citizens pose to the U.S. is tenuous from an historical precedent.

 

·         In the absence of historical precedent, the court may decide that a ‘blanket’ ban on entire nations is not well-suited  - ‘too broad’ - for the intended purpose of the ban.  A court may decide that the Department of Homeland Security and Department of State can ameliorate this perceived threat by less-dramatic means, such as simply scrutinizing the background of citizens from these countries on a ‘case-by-case’ basis.

 

·         The core intent and effect of the ‘Travel Ban’ is inextricably derived from the President’s earlier pledges to create a ban to prevent persons of the Islamic faith from entering the U.S.  Such a ban is clearly unconstitutional.  However, the Travel bans 1.0 and 2.0 maintain a restriction from at least 6 countries that are predominately populated by persons of the Islamic faith.  This tainted legacy of the ‘Travel Ban’ will be hard to disentangle from the very real security threats that the U.S. indeed faces from individuals and groups around the world who want to do harm to the U.S.  The origin and history of these ‘Travel Bans’ may doom their viability.

 

·         One final point to consider:  the Executive Order banning admission of certain persons from certain countries is stated to be ‘temporary’.  It’s a 90-day ban on nationals of the 6 predominately-Muslim countries and a 120 day ban on refugees.  The indefinite ban on Syrian refugees has been removed, so it is fair to consider whether or not this Executive Order is actually a temporary restriction.  A brief suspension of immigration benefits in response to an imminent threat – for the purpose of addressing security measures – would not in itself seem to be unreasonable.  The question for the courts would be – are the security measures actually in response to a verifiably real – or simply perceived – threat; if so, what actions are the Department of Homeland Security and Department of State taking to institute necessary ‘fixes’ to the system; and has the Administration placed too many restrictions on the ability to reinstate the normal travel accessibility once the ‘review measures’ and ‘fixes’ have been concluded after 90 or 120 days?

 

This is why our Constitution created a third and independent branch of the U.S. Government: to examine and determine whether or not an Executive action as controversial as this adheres to the body of law established by the Courts’ interpretation of the U.S. Constitution throughout our history.

 

Stay tuned as these cases make their way through our Court system.   

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.