Supreme Court Decision Affecting Trump's Travel Ban
On June 26, 2017, the Supreme Court granted certiorari and consolidated two key cases in the travel and refugee ban litigation. In addition, the Court granted a partial stay of the injunctions that had been preventing implementation of Section 2(c), Section 6(a), and Section 6(b) of Executive Order 13780 (EO 13780). In its ruling, the Court held that Section 2(c) and 6(a) of EO 13780 “may not be enforced again foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The Court clarified that the sort of "bona fide relationship" that qualifies for individuals is a "close familial relationship" to a person in the U.S. As for a "bona fide relationship" to a U.S. entity, the Court indicated that the relationship must be “formal, documented, and formed in the ordinary course.” The Court also held that a refugee with a credible claim of a "bona fide relationship" with a U.S. person or entity may not be excluded, even if the 50,000 cap on refugees has been reached.
HAITI’S DESIGNATION FOR TPS IS SET TO TERMINATE ON JULY 22, 2017
US Citizenship & Immigration completed a review of the conditions in Haiti and has concluded that the conditions no longer support its designation for TPS. As a result, USCIS has recommended that the Department of Homeland Security to terminate Haiti’s TPS designation effective January 22, 2018. This will allow for the extension of TPS benefits for affected individuals for an additional 6 months and for a period of orderly transition before the TPS designation is terminated.
USCIS WILL ISSUE REDESIGNED GREEN CARDS AND EMPLOYMENT AUTHORIZATION DOCUMENTS
On April 19, U.S. Citizenship and Immigration Services (USCIS) announced it was redesigning the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.
NEW MEASURES TO DETECT H1-B VISA FRAUD
Today U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. USCIS believes that the H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country; yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.
Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.
Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.
EAD FOR SALVADORIANS
The validity for Employment Authorization (EAD) Validity has been extended for TPS El Salvador Beneficiaries.
United States Citizenship & Immigration Services is automatically extending the validitu of certain EADs issued under Temporary Protected Status (TPS) for El Salvador for an additional 6 months.
On July 8, 2016, The Department of Homeland Security announced the extension of the designation of El Salvador for TPS for a period of 18 months. Hence the EADs issued pursuant to TPS were also automatically extended for 6 months,
through March 9, 2017. In order to avoid gaps in work authorizations USCIS is now automatically extending the validity of these EADs for an additional 6 months, through September 9, 2017.
This means that if you currently have an EAD that was issued under the TPS designation for El Salvador, which has a September 9, 2016 expiration date printed on the front of the card, your EAD will now expire on September 9, 2017.
To proce that you are authorized to continue working legally, you may sow the following documentation to your employer and government agencies:
- Your TPS-related EAD; and
- A Copy of the Federal Register notice announcing this automatic extension
You can find the notice by going to: https://www.federalregister.gov/documents/2017/03/06/2017-04454/automati...
USCIS WILL SUSPEND PREMIUM PROCESSING FOR ALL H-1B APPLICATIONS
On Friday March 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy.
This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.
The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months:
- H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.
- Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals, and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
- H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
- H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved.
USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.
NEW MEMORANDUMS HAVE SERIOUS CONSEQUENCES FOR UNDOCUMENTED IMMIGRANTS
On Tuesday, February 21st, 2017 two (2) guidance memorandums were signed by Homeland Security Secretary John Kelly implementing the President's Executive Orders on immigration enforcement. The new memos direct the Department of Homeland Security (DHS) to escalate immigration enforcement nationwide. The memos reveal that DHS intends to take a much more "enforcement-oriented" position with regard to U.S. Immigration law.
How do these memorandums affect foreign nationals?
1. AN END TO LONG-STANDING PROTECTIONS FOR CHILDREN. DHS intends to strip many children arriving alone at our border of basic protections and to penalize their parents for seeking to reunite with their children in the United States. DHS will do this by narrowing the definition of "unaccompanied alien child" in order to limit those protections and by launching either civil or criminal enforcement against the parents.
2. A MASSIVE EXPANSION OF DETENTION. The memos contemplate a massive expansion of detention, including a requirement that DHS officers detain nearly everyone they apprehend at or near the border. This detention space expansion will benefit the private prison industry-means that children, families, and other vulnerable groups seeking protection in the United States will end up detained, at great financial and human cost.
3. PROSECUTION PRIORITIES AND DISCRETION ARE GONE. The new memos rescind earlier policies on whom to prosecute and deport and whom to de-prioritize because they pose no threat to our communities. The new enforcement priorities are extremely broad and cover nearly all undocumented individuals in the United States. In fact, they even include individuals simply charged or suspected of having committed crimes.
4. CREATION OF A DEPORTATION FORCE. The memos order the hiring of 5,000 additional Customs and Border Protection (CBP) agents and 10,000 additional Immigration and Customs Enforcement (ICE) agents. They direct a massive expansion of 287(g)-a provision that allows DHS to deputize State and Local law enforcement officers to perform the functions of immigration agents. The memos reinstate Secure Communities [terminating the Priority Enforcement Program (PEP), which targeted only criminal foreign nationals or individuals who had an outstanding order of removal/deportation], which expand the ways in which local police collaborate with ICE.
5. PLANS TO BYPASS IMMIGRATION COURTS AND SHORT-CIRCUIT DUE PROCESS. The memos indicate that many people in the interior of the country - not just those at the border - could be subject to expedited removal or expedited deportation without going before an immigration law judge, the details of which DHS said will be forthcoming in a notice in the Federal Register. This expansion of "expedited removal," will allow the government to bypass the backlogged immigration courts in order to remove or deport people rapidly and with little-to-no due process.
FEDERAL JUDGE IN VIRGINIA SUSPEND THE APPLICATION OF TRUMP'S EXECUTIVE ORDER TARGETING PREDOMINANTLY MUSLIM COUNTRIES
On February 13, 2017, U.S. District Judge Leonie Brinkema granted a preliminary injunction barring the Trump administration from implementing its travel ban in the State of Virginia. This ruling comes after other restraining orders imposed by federal judges across the U.S. The ruling is significant from a legal standpoint because the Judge found an unconstitutional religious bias is at the heart of the travel ban, and therefore violates First Amendment prohibitions on favoring one religion over another.
In her 22-page ruling, Brinkema writes that Trump's promises, during the campaign to implement what came to be known as a "Muslim ban," provide evidence that the current executive order unconstitutionally targets Muslims.
"The president himself acknowledged the conceptual link between a Muslim ban and the EO (executive order)," Brinkema wrote. She also cited news accounts that Trump’s adviser Rudy Giuliani said the executive order is an effort to find a legal way for Trump to be able to impose his Muslim ban.
This ruling differs from others insofar as this order is a permanent injunction rather than the temporary restraining order issued in other courts and in the Washington state case. Nevertheless, this injunction is limited in scope and it applies solely to the State of Virginia and does not cover the portion of the executive order directed at refugees.
ICE RAIDS IN CALIFORNIA: 100 ARRESTED
Last night, Immigration Customs Enforcement (ICE) carried out raids throughout the State of California.
The targets were foreign nationals with outstanding removal/deportation orders and criminal records. ICE took into custody about 100 foreign nationals.
Rumor has it that President Trump will add the following countries to the immigration ban purproted by his Executive Order: Egypt, Lebanon, Afghanistan, Pakistan, Colombia, Venezuela, Philippines, Mali, and Indonesia.
This rumor is not confirmed! It is advisable to speak with an experienced immigration lawyer before traveling in-and-out of the U.S.