Third Travel Ban Blocked by Court

On the eve of its taking effect, President Donald Trump’s third attempt at a travel ban has been blocked by the District Court in Hawaii.

On October 17, 2017, Judge Derrick Watson granted a nationwide temporary restraining order holding that the newest travel ban executive order (dubbed “EO-3”) suffered the same legal maladies as its predecessor: “it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States’ . . . [a]nd EO-3 plainly discriminates based on nationality.” Judge Watson had granted injunctive relief blocking Trump’s second iteration of the travel ban.

Signed on September 24, 2017, the third travel ban placed various indefinite restrictions on the entry of nationals from Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela. The Judge’s Order does not block the restrictions on North Korea and Venezuela because those were not challenged by the State of Hawaii in its Third Amended Complaint.

The White House stated that this new ruling was “dangerously flawed” and “undercuts the President’s efforts to keep the American people safe . . . .”

Judge Watson has promised an expedited hearing schedule. The Department of Justice has stated that it would appeal expeditiously. In the meantime, the Department of State has instructed Embassies and Consulates abroad to disregard EO-3 for now and resume the processing of visas for nationals from Chad, Iran, Libya, Somalia, Syria, and Yemen.

Other cases challenging EO-3 are pending, and late Tuesday evening in a related case, District Court Judge Theodore Chuang of Maryland issued an order granting a preliminary injunction blocking the travel ban, finding it was the “inextricable re-animation of the twice-enjoined Muslim ban.”

 

State and Justice Departments to Share Information on Employment-Based Visa Fraud

As part of the Trump Administration’s “Buy American, Hire American” Executive Order, the State Department’s Bureau of Consular Affairs (BCA) is joining with the Department of Justice’s Civil Rights Division to combat both visa fraud and potential discrimination against U.S. workers. The partnership between the two agencies is based upon a Memorandum of Understanding (MOU) that focuses on information-sharing.

The Employee Rights Section (IER) of the Civil Rights Division enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) on citizenship or national origin discrimination in the hiring, firing, or recruiting of employees. Traditionally, this agency focused on discrimination against foreign-born workers, but the Trump Administration has shifted the focus to the impact of visas on the U.S. worker. The BCA, among other things, strengthens U.S. border security by reviewing and adjudicating immigrant and non-immigrant visa applications abroad.

Under the MOU, the agencies “will share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.” The MOU also says that, although injured parties can file complaints with the Civil Rights Division (the IER), the IER may initiate independent investigations “if there is reason to believe unlawful discrimination has occurred.” This agreement is part of the Department of Justice’s Protecting U.S. Workers’ Initiative, launched in February 2017, to defend U.S. workers from discrimination by employers who favor foreign visa workers.

This recent collaboration between the DOJ and BCA is another part of the Trump Administration’s efforts to scrutinize H visa applications. In August 2017, the Foreign Affairs Manual was changed to encourage Consular Officers to consider whether there might be some aspect of fraud being committed as they adjudicate H-1B and other visa applications. With the new agreement in place between the BCA and the IER, any information gathered through personal interviews of visa applicants at the Consulates can be transmitted easily not only back to the USCIS for possible revocation of a petition, but also to the IER for possible investigation.

If you have any questions about visa interviews abroad and their possible ramifications, please contact your Jackson Lewis attorney.

 

Update: The Diversity Lottery Will Restart Following Resolution of Technical Issue

We previously reported on the Department of State’s acceptance of applications for the diversity immigrant lottery. Since then, the DOS has announced on the Diversity Lottery website:

Due to a technical issue, the DV-2019 entry period that began on October 3 has been closed. Entries submitted during October 3-10 are not valid and have been excluded from the system; they will not count as a duplicate entry. The technical issue has been resolved and a new full entry period will begin at noon, U.S. Eastern Daylight Time on Wednesday October 18, 2017 and will run until noon Eastern Standard Time on Wednesday November 22, 2017. Only entries submitted during this period will be accepted and considered for selection in the lottery. Please throw away any confirmation number or other documentation that you have if you submitted an entry during Oct. 3-10.

Any individuals who applied between October 3 and October 10 must reapply. Additional information on the lottery can be found on the Diversity Lottery website.

 

 

Insights: AOS Interviews Begin

The USCIS has started conducting in-person interviews for all employment-based adjustment of status (AOS) applicants whose applications were filed on or after March 6, 2017. The AOS will not be approved until after a “successful” interview.

Although there is no formal guidance as yet, there have been some reports on what to expect.

The Process

  • After review, the USCIS Service Centers will send cases to the National Benefits Center (NBC).
  • The NBC will get the case file into an “interview ready state” and generate the interview notice based upon availability at the appropriate local office.
  • The expectation is that interview notices will be sent at least 30 days in advance of the appointment.
  • The case file will be transferred from the NBC to the appropriate local office for the interview.
  • The NBC will try to schedule interviews for family groups together.
  • All dependents will be interviewed, although there may be a waiver for children under 14 years of age.

The Questions

The USCIS announced that “[c]onducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjustment process, and to determine the credibility of the individual seeking permanent residence in the United States.” Applicants can expect to have their credibility tested by the Field Officer regarding any information in their filings including:

  • Work Experience
  • Current Job
  • Educational Background
  • Potential grounds of inadmissibility
  • Maintenance of status
  • Job portability
  • Bona fides of the relationships between any dependents and the principal beneficiary

The subject of the interview is the AOS. In most cases the employer’s underlying I-140 (Immigrant Worker Petition) will have been approved prior to the interview and is not being adjudicated through the interview. However, where work experience or other employment-related facts on which the I-140 was based are called into question, local offices may return the I-140 to the appropriate Service Center for review.

Each applicant, including dependents, will receive their own interview notices. The notices will contain lists of documents to bring to the interview. These notices at least initially will be boilerplate but applicants should expect to be asked to bring the originals of all relevant civil documents, letters and degrees submitted as copies with the filing. Dependents should plan to bring evidence of the bona fides of their relationship with the primary beneficiary. The above-listed issues will impel the production of different types of documentation depending on the circumstances of individual cases. We encourage clients to contact their Jackson Lewis immigration counsel for guidance on appropriate documentation for the interview.

Because of the additional interview workload, delays are expected especially in San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles. Since the required medical examinations are only valid for one year, applicants may want to consult with their attorneys as to when and where to submit their medical examinations. Depending upon the rules at the time of filing, submission of the medical exams in response to a later agency request or at the interview may be both possible and preferable.

Attorney representation has always been allowed at adjustment of status interviews. Jackson Lewis attorneys have substantial experience preparing applicants for these interviews. Because AOS applications are fact-specific, each application should be reviewed and judged individually by an attorney to identify issues that may need to be addressed at the interview. Once an interview notice is received, please reach out to your Jackson Lewis attorney for an assessment and advice on what to bring and how to prepare.

Official Notice: TPS for Sudan to Terminate on November 2, 2018

DHS published the official announcement in the Federal Register terminating TPS for Sudan as of November 2, 2018. Information on how to re-register for TPS and extend EADs until the termination date can be found at https://www.federalregister.gov/documents/2017/10/11/2017-22074/termination-of-the-designation-of-sudan-for-temporary-protected-status. Individuals whose current EADs expire before November 2, 2018 and who wish to extend to that date should not wait until their EADs expire.  Such individuals must re-register during the 60-day re-registration period that began on October 11, 2017 and ends on December 11, 2017.

Trump Administration Issues “Principles” in Exchange for Relief for DACA Recipients

Deferred action for DACA recipients will start to expire in March 2018 and there is still no certainty about what will happen to them.  Amidst legal challenges to the rescission of DACA, the introduction of a number of statutory fixes, and a supposed “deal” between President Trump and Democratic leaders to protect the “Dreamers,” there is now a new twist.  The Trump Administration has announced a list of principles to include in any deal for the Dreamers.  Those principles, some of which derive from the President’s various Executive Orders, include:

  • Construction of a wall across the US southern border;
  • Improve infrastructure and security on the northern border;
  • Eliminate loopholes that make it difficult to return Unaccompanied Alien Children (primarily from Central America) and their families to their home countries;
  • Hire 10,000 immigration agents and 300 Federal prosecutors;
  • Hire 370 Immigration Judges and 1,000 ICE attorneys;
  • Increase scrutiny of asylum petitions and impose penalties for baseless or frivolous claims;
  • Terminate “catch and release” policies;
  • Expand grounds of inadmissibility and deportability;
  • Deny federal aid to sanctuary jurisdictions;
  • Discourage visa overstays by classifying overstays as misdeameanors;
  • Require use of E-Verify by all employers and increase penalties for a pattern or practice of violations;
  • Eliminate extended family “chain migration” and establish a new merit-based green card system; and
  • Eliminate the diversity lottery.

It is not clear whether these principles represent a first offer in a negotiation or if these principles are non-negotiable. Some Democrats in Congress have threatened the possibility of a government shutdown in December if DACA recipients receive no relief. Senator Jeff Flake (R-Ariz.) has pieced together parts of other proposed legislation and introduced what he believes would be a compromise bill, the Border Security and Deferred Action Recipient Relief Act. This Act provides:

  • DACA recipients or other children who have been in the U.S. since 2012 can obtain Conditional Resident Status for 10 years by pursuing vocational or higher education, are gainfully employed or by enlisting in the military. Upon meeting certain conditions, after the 10 years, they will be eligible to apply for Green Cards.
  • $1.6 billion for border security measures: 74 miles of border fortifications and funding to plan for further construction.
  • Construction of border access roads to simplify CBP patrols of the border.
  • Targeting of gangs and cartels for deportations.

JL will continue to provide updates as they become available.

New California Laws Provide Protections to Immigrant Employees

On October 5, 2017, California Governor Jerry Brown signed 11 bills essentially making California a sanctuary state.  The California Values Act (SB 54) aims to protect undocumented immigrants living in California.  Brown stated that “this bill strikes a balance that will protect public safety while bringing a measure of comfort to those families who are now living in fear every day.”  The law, which will become effective on January 1, 2018, stops state and local enforcement agencies from using state resources to enforce federal immigration laws.

While the California Values Act has received a good deal of press, it is the Immigrant Worker Protection Act (AB 450), that is most relevant to employers.

With the signing of the IWPA, California became the first state to explicitly affirm the rights of immigrant workers at the worksite. The bill imposes an affirmative obligation on California employers to provide employees notification that ICE has determined they are lacking work authorization, thereby giving them advance warning that ICE may be considering their apprehension and removal from the U.S. through a workplace raid. Beyond union support, the IWPA is designed to protect an immigrant workforce essential to California’s economy – especially its agriculture. “According to [California] state Controller Betty Yee, undocumented immigrants’ labor is worth more than $180 billion a year.”

To protect immigrant employees, the IWPA:

  • Requires employers to ask for a warrant before allowing federal immigration officials into a workplace to interview employees
  • Bars employers from sharing employees’ confidential information (i.e. Social Security numbers) without a subpoena except for I-9s or other documents when a Notice of Inspection has been provided
  • Establishes penalties ranging from $2,000 to $10,000 for employers that:
    • Fail to give employees public notice within 72 hours of an upcoming federal immigration inspection of employee records including written notice to any Collective Bargaining Representative
    • Fail to provide affected employees with a copy of any Notice of Inspection and a copy of any inspection results within 72 hours

In late September, just prior to the signing of these bills, ICE implemented “Operation Safe City.” During the four-day operation about 500 people were arrested in California, Colorado, Illinois, Maryland, Massachusetts, New York, Oregon, and Pennsylvania, in cities and counties specifically targeted for their sanctuary policies.  Thomas Homan, ICE’s Acting Director stated:  “Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration . . . As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.” Now, in response to the California Values Act and the IWPA, ICE announced it would have to target California neighborhoods and worksites.

The above provides only a general outline of these laws. For further information and advice on the specifics and how to establish appropriate policies and processes at worksites, please reach out to your Jackson Lewis attorney.

Insights: Options for Haitians in TPS

In May, the Temporary Protected Status (TPS) program for Haitians was extended for six months, until January 22, 2018. Generally extended in 18-month intervals, then-Secretary of Homeland Security John Kelly had extended the Haitian TPS for six months only because “Haiti has made progress across several fronts since the devastating earthquake . . . [and] [t]he Haitian economy continues to recover and grow, and 96 percent of people displaced by the earthquake and living in internally displaced person camps have left those camps.”

Many have argued that there should be a longer extension because, since the earthquake, Haiti has experienced other disasters, including a cholera outbreak, floods, drought, and Hurricane Matthew. Moreover, there are questions about whether Haiti is prepared economically to absorb the nearly 60,000 individuals who are currently in the U.S. in TPS status.

The DHS mentioned in its May announcement that “[p]rior to the expiration of this limited six-month period, Secretary Kelly will re-evaluate the designation for Haiti and decide anew whether extension, re-designation, or termination is warranted.” Nevertheless, Haitians in TPS status and those who employ them need to prepare for the likely termination.

There may be some options for retaining status and possibly gaining work authorization before January 22, 2018. For instance, a TPS holder who is an “immediate relative” of a U.S. citizen (a child, spouse, or parent of a U.S. citizen who is over 21 years old) may be able to file an adjustment of status application and thereby be authorized to remain in the U.S. beyond January 22, 2018, and obtain an employment authorization even before obtaining a green card. There also may be some employment-based green card options. These options and others may be possible even for individuals who entered the U.S. without “inspection” because two Circuit Courts of Appeal (the 9th and the 6th Circuits) have held that a grant of TPS is an “admission” for purposes of adjustment of status.

Determining what options might be available for any particular individual is a fact-specific and complex legal inquiry. Please reach out to your Jackson Lewis attorney if you are interested in discussing the possibilities.

Bills in Congress Would Give Undocumented Children Path to Citizenship

Introduced by Senators Thom Tillis (R-N.C.) and James Lankford (R-Okla.), the “Solution for Undocumented Children through Careers Employment Education and Defending Our Nation” (SUCCEED) Act would provide undocumented children with the opportunity to earn and keep legal status. SUCCEED provides a 15-year path to citizenship.

To be eligible under SUCCEED, an individual must:

  • Have arrived in the U.S. before the age of 16 no later than June 15, 2012
  • Pass various background checks
  • Pay off existing tax liabilities
  • Waive future immigration benefits if they violate their status

SUCCEED has the following steps:

  • If under 18 years old, apply for Conditional Permanent Residence (CPR)
  • At age 18, apply for 5-year renewal of CPR
  • Commit to one or a combination of 3 merit tracks: (1) gainful employment for 48 out of 60 months; (2) earn a postsecondary/vocational degree, or (3) serve in the military for at least 3 years
  • If merit requirements are met, CPR can be renewed for 5 more years
  • If individuals demonstrate they are productive and law-abiding through CPR, they can apply for Lawful Permanent Residence (LPR)
  • After 5 years of LPR, they become eligible to apply for citizenship

The SUCCEED Act is not the first of its kind. The Dream Act, sponsored by Senator Dick Durbin (D-Ill.), Lindsey Graham (R-S.C.), Jeff Flake (R-Ariz.), and Chuck Schumer (D-N.Y.), was first introduced in 2001. It became part of larger immigration reform bills that passed in one or the other chamber of Congress in 2010 and 2013, but never became law. The Dream Act was reintroduced in July 2017 to fend off legal challenges to DACA. The proposal provides a 13-year path to citizenship for individuals who arrived in the U.S. before their 18th birthday and have lived in the U.S. for at least 4 years.

The Recognizing America’s Children (RAC) Act, introduced by Representative Carlos Curbelo (R-Fla.) in March 2017, also provides a path to citizenship. The American Hope Act, sponsored by Representative Luis Gutierrez (D-Ill.), expands the eligibility requirements, provides an 8-year path to LPR, extends higher education benefits to state residents regardless of legal status, and provides certain higher education assistance benefits for conditional permanent residents. The BRIDGE (Bar Removal of Individuals Who Dream and Grown our Economy) Act, sponsored by Representative Mike Coffman (R-Colo.) is a more temporary solution designed only to replace DACA until other legislation takes effect.

Each bill has somewhat different eligibility requirements, but Senators Tillis and Lankford note that unlike its predecessors, the SUCCEED Act’s provisions deter illegal immigration, prevent chain migration, and make paying off tax liabilities a requirement for maintaining legal status.

Department of State Begins Accepting Applications for Diversity Immigrant Visa Lottery on October 3

Registration for the Department of State’s Diversity Lottery will be opened from noon EDT on October 3, 2017, to noon EDT on November 7, 2017.

This program makes 50,000 immigrant visas available to individuals from countries with low rates of immigration to the U.S. The lottery registration and application process is conducted completely online and the eligibility requirements are minimal. There is no fee to register for the lottery. Random selection of qualified lottery applications will begin on May 1, 2018.

Eligible individuals must have:

  • At least a high school education or its equivalent; or
  • Two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.

Individuals cannot apply if they were born in any of the following countries:

  • Bangladesh
  • Brazil
  • Canada
  • China, mainland-born (those born in Hong Kong SAR, Macau SAR, and Taiwan are eligible)
  • Colombia
  • Dominican Republic
  • El Salvador
  • Haiti
  • India
  • Jamaica
  • Mexico
  • Nigeria
  • Pakistan
  • Peru
  • Philippines
  • South Korea
  • United Kingdom (except Northern Ireland) and its dependent territories
  • Vietnam

These countries are not eligible because more than 50,000 natives from those countries have emigrated to the U.S. in the past five years.

If you were not born in a qualifying country, you might still be eligible if:

  • Your spouse was born in an eligible country
  • Neither of your parents was born or legally resident in the country of your birth at the time of your birth, in which case you could claim eligibility based upon one of your parents’ countries of birth

Full details on how to apply to the Diversity Lottery (DV-2019) can be found on the Department of State website, which includes Frequently Asked Questions: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html

President Donald Trump has said he wants to eliminate the diversity lottery and he supports the RAISE Act. The Act would eliminate the program. Nevertheless, for this year, the program remains intact.

LexBlog