Revised Travel Ban Coming?

The Trump Administration reportedly may replace the current travel ban with a country-specific set of restrictions.

In June, the Supreme Court allowed the government to begin enforcing the 90-day travel ban against individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who had no bona fide relationship to the United States. The 90-day ban will expire on September 24. The 120-day ban on refugees also went into effect in June. The Supreme Court plans to hear the full travel ban case on October 10.

The Department of Homeland Security’s recently finalized classified report on screening foreign travelers may support anticipated changes to the travel ban. Substituting a new ban could change the dynamics, potentially making the case before the Supreme Court moot or leading to a remand of the case for further hearing at the lower court level.

The new restrictions are expected to be open-ended and based upon the DHS review and identification of countries with deficient security standards. More than six countries may have been identified. Additional countries could be added to the banned list, others could be removed, and still others might become subject to certain visa restrictions.

Jackson Lewis will provide further updates.

DHS Updates Temporary Protected Status for Sudan and South Sudan

The Temporary Protected Status (TPS) for Sudan will terminate in 12 months on November 2, 2018, Acting Secretary of Homeland Security Elaine Duke announced on September 18, 2017. TPS is terminated when DHS determines that the country’s conditions no longer warrant such designation.

In addition, DHS announced that TPS for South Sudan has been extended for 18 months until May 2, 2019. This means that:

  • Current beneficiaries who wish to extend their status must re-register
  • The deadline for re-registration will be announced in the Federal Register during the week of September 18, 2017
  • Those who re-register and request a new Employment Authorization Document (EAD) may receive an automatic extension for up to 180 days from the date their current EAD expires – but not beyond November 2, 2018, for those from Sudan
  • The USCIS encourages TPS beneficiaries to re-register and apply for EADs as early as possible to avoid gaps in employment authorization

The termination of TPS does not affect a beneficiary’s ability to maintain any other immigration status they might have acquired while on TPS. The USCIS is encouraging Sudanese holders of TPS to obtain another immigration status or arrange for their departure.

South Sudan became independent from Sudan in 2011. Secretary Duke stated that TPS for South Sudan is being extended for 18 months “because the ongoing armed conflict and extraordinary and temporary conditions that prompted the 2016 TPS redesignation have persisted.”

Previously, DHS announced that TPS for those from Haiti would terminate on January 22, 2018.

Jackson Lewis attorneys are available to discuss these and other legal developments.

State Department Replaces Rule for Inconsistent Conduct by Aliens

The Department of State has quietly revised guidance to Consular Officers on the “30/60 Day Rule” regarding adjustment of status applications.

The Rule sets standards for determining whether an alien would be inadmissible for inconsistent conduct. It provides:

  • If an alien engaged in inconsistent conduct within 30 days of an entry, a willful misrepresentation could be presumed.
  • If the conduct occurred after 30 days, but within 60 days of an entry, there was no presumption of misrepresentation and the alien would be given the opportunity to present countervailing evidence.
  • After 60 days, the inconsistent conduct alone would not constitute a basis of inadmissibility.

The Rule provided aliens flexibility to postpone filings to avoid the presumption of misrepresentation. A foreign national making a willful misrepresentation to gain entry into the U.S. can be barred for life from entering the U.S.

Willful misrepresentations are not just false statements. Conduct inconsistent with representations made in order to procure an immigration benefit also are considered willful misrepresentations.

Inconsistent conduct (also known as “pre-conceived intent”) includes conduct that violates or is otherwise inconsistent with an alien’s non-immigrant status, such as:

  • Engaging in unauthorized employment
  • Enrolling in a course of academic study, if such study is not authorized for that non-immigrant classification (e.g., B status)
  • Being in B or F status, or any other status prohibiting immigrant intent, and marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S.
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment

The Department of State eliminated the Rule as of September 1, and substituted a stricter one. The “90 Day Rule” applies to all visa applicants (immigrant and non-immigrant). Under the revised FAM, if an alien engages in conduct inconsistent with the alien’s non-immigrant status within 90 days of an entry, a willful misrepresentation can be presumed and the burden of proof shifts to the alien to establish that “his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

While the FAM guidelines are applicable directly to consular officials adjudicating visa applications abroad, the prior “30/60 Day Rule” was generally followed by USCIS in adjudicating applications to adjust status in the United States. The full effect of this change to the FAM is not yet known. However, as USCIS has announced mandatory in-person interviews for employment-based adjustment of status recently, individuals and practitioners can expect additional scrutiny of prior entries. Please reach out to your Jackson Lewis attorney with any questions about inconsistent conduct and strategies to consider in light of recent developments.

Lawsuits Over Rescission of DACA

On September 6, 2017, the day after Attorney General Jeff Sessions announced the rescission of DACA, 15 states and the District of Columbia filed a lawsuit challenging President Donald Trump’s DACA rescission. The states included in the lawsuit are Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

Separately, on September 11, 2017, California, together with Minnesota, Maryland, and Maine, also filed a lawsuit challenging the rescission.

The contentions in both lawsuits are similar and bear similarities to the contentions raised in the suits filed against the President’s travel ban. They include:

  • The rescission and Trump’s statements about Mexicans (who comprise more than 78% of DACA grantees) target individuals for discriminatory treatment based on their national origin and violate the equal protection guarantee in the Fifth Amendment.
  • A refusal to prohibit the use of DACA information for purposes of immigration enforcement violates the due process clause of the Fifth Amendment.
  • The implementation of the rescission memorandum violated the Administrative Procedures Act because it was both substantively and procedurally arbitrary and capricious. More than 800,000 people have relied on DACA since 2012, Sessions’ explanation for the rescission is not persuasive enough. His belief was that President Barack Obama did not have the authority to enact DACA, and it would not survive a legal challenge that had been threatened by a number of Attorney Generals and the Governor of Texas. Of course, if a court were to find that DACA was legally enacted, Sessions’ argument falters.

For relief, the plaintiffs have requested that the rescission be declared unauthorized and contrary to the Constitution and in violation of the APA. Plaintiffs also have requested that the government be enjoined from using information obtained in any DACA application for immigration enforcement purposes.

A number of private companies are expected to file supporting briefs and some are vowing to pay the legal costs to fight the deportation of any of their DACA employees.

Insights: The Recent Rescission of DACA Is Not an I-9 Re-Verification Event

The California Labor and Workforce Development Agency announced the rescission of DACA did not require employers to re-verify work authorization documents for DACA employees, stating: “[a]ny action or attempt by employers to re-investigate or re-verify work authorization documents in order to retaliate against any immigrant worker is unlawful in California.”

The same holds true across the board in all states. DACA employees with valid, unexpired Employment Authorization Documents (EADs) may continue to work without reverification until their EADs expire.  Any early attempt to re-verify their work authorization may violate the anti-discrimination provisions of the Immigration and Nationality Act.

You may want to encourage employees with DACA/EAD expiration dates before March 5, 2018 to file to renew their status prior to October 5, 2017 – the last date when such applications will be accepted under the new rescission policy. For DACA employees whose EADs expire after March 5, 2018, you may decide to give them at least 90 days’ notice of the expiration to provide them with an opportunity to gather and present other List A, B, or C documents for re-verification purposes when their EADs expire.

Government Agrees to Inform Travelers Denied Entry to U.S. of Right to Reapply for Visas

During the chaos that followed the issuance of the travel ban in January and before it was blocked by a court, at least 140 individuals from the seven named countries were denied admission to the U.S. with then-valid visas.

In Darweesh v. Trump, No. 17-CV-480 (CBA), Iraqi nationals challenged the first iteration of President Donald Trump’s January 27 travel ban on the morning after the ban went into the effect, because they were detained and threatened with deportation even though they had valid visas to enter the U.S. That evening, a federal judge in Brooklyn, New York issued an injunction blocking the travel ban. The proposed class action arguably became moot once Iraqis were removed from the list of named countries in the next iteration of the travel ban, issued on March 6th. Nevertheless, the parties have decided to settle.

Under the settlement, the parties agreed to the following:

  • The Administration will email in English, Arabic, or Farsi any individuals from the seven countries included in the January 27 travel ban who were barred from entry to the U.S. before the travel ban was enjoined (and who have not returned to the U.S.)
  • The email will advise them of their right to reapply for a new visa and include a list of free legal service providers who will assist them with their renewed applications
  • The Department of Justice must coordinate the processing of the renewed applications

Insights: USCIS Denying Pending Advance Parole Applications Due to International Travel

USCIS is adopting a new approach for international travel and Form I-131 Advance Parole (AP) applications.

Until recently, USCIS has approved AP applications even where the beneficiary travelled internationally during the pendency of the application. This was the case even though the I-131 application states, “If you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”

Now, USCIS has started basing its denial of AP applications on applicants’ travel during the pendency of those applications, thus considering them abandoned. It has done so even when beneficiaries are travelling on valid and unexpired AP documents or on valid H, K, L, or V nonimmigrant visas.

In most cases, concurrent EAD (Employment Authorization Documents) and AP applications can be filed up to 180 days in advance of their expiration dates. These may take more than 90 days after filing to adjudicate. Individuals who are planning to travel during the holidays at the end of this year and seeking to renew AP documents should keep the new restrictions in mind and plan their travel accordingly.

Please reach out to your Jackson Lewis attorney to determine the best filing strategy.

 

Texas Anti-Sanctuary Law Blocked

In a ruling that may help to diminish the fears of some undocumented individuals seeking aid in the aftermath of Hurricane Harvey, U.S. District Court Judge Orlando Garcia enjoined some key provisions of Texas’ anti-sanctuary law, S.B. 4. City of El Cenizo v. Texas and Texas v. Travis County, Civil No. SA-17-CV-404-OLG. The law was to become effective on September 1. The Judge found that there were possible preemption issues, as well as First Amendment violations.

According to the court, the bill did not have widespread public support. In fact, during the February 2, 2017, hearing in the Texas Senate, eight witnesses came out in support of it while over 1,600 individuals came out to oppose the bill. Many city leaders, public safety officers, and university officials called the legislation poorly drafted, unreasonable, impractical, and contrary to the public interest. Cities that also opposed the bill and joined the lawsuits against it include San Antonio, El Paso, Austin, Dallas, and Houston. After hearing of the court’s ruling, the Mayor of Houston tweeted:

“Happy to learn a federal judge blocked the Texas law aimed at making local police immigration enforcers. Need them for fighting local crime.”

Based on the ruling, localities will continue to be able to implement sanctuary policies. The State of Texas cannot:

  • Require local agencies to comply with immigration detainer requests
  • Ban local policies and practices that would limit the enforcement of immigration laws
  • Stop local entities from preventing staffers to provide assistance in immigration enforcement efforts
  • Punish local agency staffers from speaking out in favor of policies that limit immigration enforcement

According to the court, probable harms that could result from S.B. 4 include:

  • Local officials, including state employees on college campuses, would be chilled by the fear of penalties for speaking out against immigration enforcement;
  • Local law enforcement officials would lose some of their ability to allocate resources as they deemed necessary;
  • The Hispanic community might anticipate racial profiling;
  • Undocumented individuals and their families would be afraid to report crimes and cooperate with local law enforcement; and
  • Undocumented individuals might be afraid to send their children to school for fear of exposure.

Texas Governor Greg Abbott said that he would file an appeal:

“Today’s decision makes Texas’ communities less safe. Because of this ruling, gang members and dangerous criminals, like those who have been released by the Travis County Sheriff, will be set free to prey upon our communities . . . .”

Please contact us if you have any questions.

Trump to End DACA Program?

Indications are that President Donald Trump likely will end the DACA (Deferred Action for Childhood Arrivals) program while signaling the Administration’s willingness to work with Congress on an alternative program. Vice President Mike Pence, speaking in Texas, noted, “President Trump has said all along that he’s giving very careful consideration to that issue and that when he makes it he’ll make it with, as he likes to say, ‘big heart’.”

Since 2012, close to 800,000 people brought to U.S. illegally as children have been allowed to remain in this country with work authorization – their deportations having been “deferred.” Eliminating DACA was a staple of Trump’s campaign, but, once he became President, he indicated that it would be a hard decision to make and even noted that the “dreamers” “should ‘rest easy’ about his immigration policies.” The Administration’s decision on whether to discontinue DACA has been made more urgent by a number of Republican attorneys general and the Texas Governor’s announcement that they will ask a federal judge to rule on the legality of DACA by September 5 if the President does not announce he is ending the program.

President Barack Obama put DACA into place by way of an executive order as a temporary measure when Congress failed to enact immigration reform that would protect these individuals because, he believed, “It [was]. . . the right thing to do.”  Ending DACA likely will mean that new applications for status and work authorization will not be accepted and existing authorizations will not be renewed once they expire.

Hundreds of tech and business leaders sent a letter to the President and Congressional leaders expressing their support for DACA. It said, in part:

All DACA recipients grew up in America, registered with our government, submitted to extensive background checks, and are diligently giving back to our communities and paying income taxes. More than 97 percent are in school or in the workforce, 5 percent started their own business, 65 percent have purchased a vehicle, and 16 percent have purchased their first home. At least 72 percent of the top 25 Fortune 500 companies count DACA recipients among their employees.

Senator Orrin Hatch (R-Utah), who supports tougher immigration enforcement, tweeted that he has “urged the President not to rescind DACA . . . .” Speaker Paul Ryan (R-Wis.) has done the same.

Should DACA be rescinded, it would be up to Congress, working with the Administration, to agree upon legislation to provide legal status to these individuals. We will provide updates on any formal announcements.

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