U.S. Supreme Court: Immigration Act Unconstitutionally Vague on Removal for Aggravated Felony

The Immigration and Nationality Act provides that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation. The Supreme Court has decided, 5-4, that the statute’s defining an aggravated felony as “a crime of violence” is unconstitutionally vague. Sessions v. Dimaya, No. 15–1498 (Apr. 17, 2018). Justice Neil Gorsuch sided with the liberals on the Court.

According to the INA, an aggravated felony includes “a crime of violence for which the term of imprisonment [is] at least one year.” In a residual clause, a crime of violence is defined as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

James Dimaya, a legal permanent resident, was twice convicted of first degree burglary. The Supreme Court held that the residual clause was too unpredictable and arbitrary and created “grave uncertainty about how to estimate the risk posed by the crime.” The Court, in an opinion by Justice Elena Kagan in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Gorsuch joined (at least in part), also stated that a high threshold on vagueness should apply in this case because of the “grave nature of [civil] deportation” versus other civil penalties.

Justice Gorsuch agreed that the statute was unconstitutionally vague. He noted that the law requires fair notice and that this notice requirement “serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution.” He also stated that the legislature may not “‘abdicate their responsibilities for setting the standards of the criminal law’ by leaving judges the power to decide” the issues. Gorsuch did not accept the government’s argument about the power of the executive in these matters as stated by Deputy Solicitor General Edwin Kneedler: “I think it is important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which Congress has vested authority.” He wrote in his concurrence: “To acknowledge that the President has broad authority to act [in the immigration area] supplies no justification for allowing judges to give context an impermissibly vague law.”

Where Gorsuch differed from the majority was that he does not believe in a hierarchy of notice thresholds for different types of cases or that deportation should be singled out. Fair notice is his touchstone throughout.

Dimaya was originally argued before the Supreme Court in 2017 after Justice Antonin Scalia’s death. At that time, the case ended in a 4-4 deadlock. It has been suggested that Justice Scalia would have stood with the liberals on the Court regarding the vagueness analysis in this case, in accordance with his prior opinions.

USCIS Announces FY 2019 H-1B Cap Reached, Total Down Slightly

USCIS received 190,098 H-1B petitions during the first week of April. The cap has been reached every year for the past six years but the total is down from last year’s total of 199,000. The Service conducted its computer-generated random selection process on April 11th.  In line with its usual practice, USCIS conducted the master’s cap lottery first and unselected petitions became part of the regular cap lottery.

USCIS will return all unselected petitions with their filing fees unless the returned petition is a prohibited multiple filing. In that case, the filing fees will not be returned. USCIS will also start the process of sending out receipts for accepted petitions.  Based on previous experience, receipts for cases which made the lottery selection may start to be received in approximately two to three weeks and the mailings will last for a few weeks due to the volume.  Since premium processing of this year’s cap cases was suspended, there will be no emailed receipts.

The H-1B lottery creates a stressful situation for employers and employees alike, perhaps even more pronounced this year. Not only did USCIS suspend premium processing just before the April 1 filing deadline, it also released at the end of March guidance regarding how to determine whether a petition is a “multiple filing” and the standards for third-party worksite H-1Bs. While possibly creating problems for employers who rely on H-1B workers, these announcements further President Trump’s Buy American and Hire American executive order, which directs DHS to protect the interests of U.S. workers and ensure that there is no fraud, abuse, or circumvention of the laws.

USCIS will continue to accept H-1B petitions that are filed for individuals who are not subject to the cap.


Chad Removed from Travel Ban 3.0 List

Chad is no longer on the Travel Ban 3.0 list of restricted countries. President Donald Trump lifted this restriction because “Chad has made improvements and now sufficiently meets the baseline. . . ” The President’s announcement was based on the first of an ongoing set of reports issued on March 30, 2018, by the Secretary of the Department of Homeland Security.  The Secretary is obligated to provide a report every 180 days regarding the countries on the restricted list and any progress those countries are making toward compliance with standards pertaining to identity management practices and information sharing on national security and public threats.

The Secretary’s report noted that Libya had made progress toward compliance but that lifting of the restriction for that country could not be recommended at this time.

Travel Ban 3.0 will also remain in place for Iran, North Korea, Somalia, Syria, Venezuela and Yemen. The Supreme Court has agreed to review Travel Ban 3.0. Until then, the ban, as “amended” by the President, will remain in effect.  Individuals may be eligible for waivers but, to date, few have been issued and the process for obtaining them may be lengthy.

ICE Raids Tennessee Meatpacking Plant, Apprehends and Detains Dozens

In what appears to be the largest worksite enforcement raid under the current administration, ICE arrested 97 immigrants at a meatpacking plant in Tennessee. Eighty-six of the people apprehended were arrested on immigration charges. According to reports, ICE has detained 54 individuals.

This ICE raid follows the arrest of 21 individuals during a nationwide ICE operation in January targeting 7-Eleven franchises.

The raid at Southeastern Provision in Tennessee was a joint operation involving ICE, the IRS, and the Tennessee Highway Patrol. Federal and state charges against the company include failure to comply with Tennessee’s E-Verify requirements, and the family-run business also is being investigated for tax charges, as well as immigration charges. The investigation began when bank employees reported Southeastern Provision had been making weekly withdrawals of large sums of cash since 2008 ($25 million in total). In a federal affidavit, it is alleged that the company hired undocumented workers, paid them in cash, and made them work in harsh conditions with long hours for which they were not properly compensated.

Company managers have not yet been charged, but it appears that the various agencies involved are executing search warrants to gather evidence. IRS enters into information agreements with federal and state authorities and banks have an obligation to report large cash transactions ($10,000 or more a day) under the Bank Secrecy Act, an anti-money-laundering law.

Religious leaders in the community have been critical of the raid. Bishop Richard Stika said in a statement, “The arrests of workers and undocumented immigrants in East Tennessee this week has placed an unnecessary stress on vulnerable families that have, in many ways, become victims in a much larger story.”

An ICE raid implicates potential civil and criminal charges and, therefore, it is essential to consult with counsel on these matters. Jackson Lewis attorneys are prepared to assist. For an overview of basic considerations in advance of a possible ICE raid, see our article, “When ICE Knocks.”  To discuss legal requirements and strategies related to compliance with stepped up enforcement by ICE, contact a member of the Jackson Lewis Immigration Practice Group.


USCIS Reaches FY 2019 H-1B Cap in First Week of April

On April 6, 2018, USCIS announced that it reached the 65,000 H-1B visa cap for FY 2019, including the 20,000 U.S. advanced degree exemption known as the “master’s cap.” Every year since 2014, the cap has been reached during the first week of April.

Once again, a lottery will be conducted and cases that are not exempt from the “cap” will no longer be accepted for inclusion in the lottery.

Exempt cases include those filed:

  • To extend H-1B petitions for those already in H-1B status;
  • To amend the terms and conditions of employment for current H-1B workers;
  • To allow current H-1B workers to change employers;
  • To allow current H-1B workers to work concurrently in another H-1B position; and
  • By exempt employers, such as institutions of higher education.

USCIS has not yet announced how many petitions it received for FY 2019. Except for last year, the number of petitions received has increased each year since 2014.

  • 2014:             124,000
  • 2015:             172,500
  • 2016:             233,000
  • 2017:             236,000
  • 2018:             199,000

Once the lottery is conducted, USCIS will reject and return filing fees for cases that are not selected.

Because premium processing has been suspended for H-1B cap filings, receipt notices for accepted cases will arrive by mail and will not be sent on an expedited basis.

Jackson Lewis will continue to provide updates on the H-1B Cap lottery as they become available.

L Intracompany Transfers Pilot Program for Canadian Citizens

USCIS and CPB at the Blaine, Washington, Port of Entry (POE) have formally announced that from April 30, 2018, until October 31, 2018, the agencies jointly will implement a pilot program for Canadian citizens seeking entry in L status pursuant to NAFTA.

L-1 admission is for intracompany transfers into the U.S. of managers, executives, and specialized knowledge employees who have been working outside the U.S. for your organization. Under NAFTA, Canadians may apply at the border for admission as an L-1, bypassing the service center filings and visa applications at U.S. consulates that apply to nationals of countries other than Canada.

Until now, the procedure for such application has been a same-day process in which the workers file the employer’s Form I-129 Petition for Nonimmigrant Worker with supporting evidence at a Class A Port of Entry to the U.S., where the petition is adjudicated and admission granted or denied all in one procedure at the POE.

Under this new program, petitioners will first submit the Form I-129 and supporting evidence to the California Service Center (CSC) by mail or courier using a cover sheet annotated “Canadian L” to ensure quick identification. USCIS and CBP encourage participating petitioners to make the initial filing with the USCIS as early as possible to avoid delays. This will not be a same-day process since a CSC approval will be needed ahead of the grant of admission by CBP at the port of entry. The announcement contained no specific information about processing times.

Once the petition is approved, applicants must bring a copy of the Form I-129 approval to the POE at Blaine. The POE will continue to make the final admissibility determination. If the applicant appears at Blaine with only the I-129 receipt notice before USCIS has adjudicated the petition, there “may be delays while USCIS remotely adjudicates the form.”

Although participation in the pilot program at Blaine is voluntary, it is “strongly encouraged” by USCIS and CBP. Any petitions filed at Blaine during the pilot period without the USCIS pre-filing will be adjudicated not at Blaine, but at the closest Class A POE optimized for L processing. Those stations are Point Roberts, Sumas, and Vancouver.

The stated purpose of the program is to facilitate Canadian L filings. At the conclusion of the six-month pilot, the agencies will determine the program’s efficiency and shortcomings in order to improve the process. The expectation is that the goal is to expand this program.

During the pilot, Canadian applicants can, of course, choose not to apply at Blaine at all. They may still apply for admission at any optimized Class A CBP POE or at an airport pre-clearance site.

There is still much more to know about how the pilot program will work particularly with regard to fees and timing. Jackson Lewis will provide updates as they become available.

The question whether to apply for L-1 admission through the pilot program or another procedure will vary depending on the facts and circumstances of your case and the options available at the time. We recommend that you reach out to your Jackson Lewis immigration counsel to evaluate the options on any petition that you are considering.


Update on Deferred Enforced Departure for Liberians

Deferred Enforced Departure (DED) for Liberians will terminate on March 31, 2019.

USCIS has now published filing instructions in the Federal Register for those Liberians affected who wish to extend their employment authorization through the DED termination date.  Employment authorization is automatically extended until September 30, 2018 for Liberian DED beneficiaries who have employment authorization documents with an expiration date of March 31, 2018.  Those who wish to extend their employment authorization until the 2019 termination date must apply by filing a Form I-765.  USCIS started accepting these applications on March 30, 2018 and advises beneficiaries to apply as soon as possible to avoid possible gaps in employment authorization.

U.S. Customs Remind Travelers of Restrictions on Confetti-Filled Eggshells

The hollowed-out, colored eggshells known as Cascarones that children (and adults) fling at each other often appear around the time of the Easter holiday and the Department of Homeland Security’s U.S. Customs and Border Protection (CBP) unit is reminding travelers that Cascarones are a restricted commodity.

When the Cascarones hit their targets, they explode with a shower of confetti. These “confetti eggs” reportedly first appeared in Asia and were brought to Italy by Marco Polo. At that time, the eggs were filled with perfumed powder. The commodity later made its way to Spain and then were further popularized in Mexico where they are thrown during fiestas that take place during Lent.

CBP regulates these Easter “eggs” to prevent the spread of Newcastle Disease and Highly Pathogenic Avian Influenza (HPAI) through contaminated eggshells. Travelers are restricted to 12 Cascarones per person. “[T]he shells may be decorated, etched, or painted but they must be clean, dry, and free of any egg residue. They may contain confetti or other unregulated items.” Newcastle Disease is highly contagious and has a mortality rate of up to 90 percent for exposed birds, including chickens, turkeys, ducks, partridges, pheasants, quail, pigeons, and ostriches. Because Mexico is affected with Newcastle Disease and HPAI, all fresh eggs, raw chicken, and live birds or poultry from Mexico are prohibited from the United States.

Easter is not the only religious holiday that concerns CBP when it comes to controlling harmful pests and diseases from the United States. The Jewish harvest festival of Sukkot also raises some agricultural concerns when it comes to ethrogs (a yellow citrus fruit), palm fronds, and twigs of willow and myrtle that are used as ceremonial objects. Most of these objects are allowed into the United States after inspection by a CBP agricultural specialist if no pests or symptoms of disease are found.

CBP jurisdiction includes using specialists to defend the United States from potential agricultural threats. While traditionally, agricultural inspections focused on the unintentional introduction of pests or diseases, CBP has increased its focus on agro-terrorism.



Deferred Enforced Departure for Liberians to End

Deferred Enforced Departure (DED) for Liberians, a humanitarian relief program similar to TPS (Temporary Protected Status), will terminate on March 31, 2019 according to a formal memo released by President Donald Trump. Liberian DED was set to expire on March 31, 2018. President Trump announced that there will be twelve-month wind down period to ease the transition for as many as several thousand Liberians – many of whom have been in the United States for close to twenty years.

The DED program for Liberians was initiated by President Bill Clinton in 1999 and has been renewed in one form or another by Presidents George W. Bush and Barack Obama – until now. Prior to the announcement, approximately 50 bipartisan members of Congress asked the President to extend the DED program for at least three years to allow Liberia to strengthen its infrastructure and stabilize following two ruinous civil wars and the Ebola outbreak. But President Trump responded in his memo that “Liberia is no longer experiencing armed conflict and has made significant progress in restoring stability and democratic governance.”

President Trump’s decision to terminate the program is similar to the decisions he has recently made regarding DACA and TPS for individuals from Haiti, El Salvador and Nicaragua, among others. As with DACA, the President again noted that “[o]nly Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status for those currently protected by DED who have lived and worked in the United States for many years.”

USCIS will automatically extend employment authorization documents for six months until September 30, 2018, for current Liberian DED beneficiaries who have EADs expiring on March 31, 2018. To obtain work authorization for the final six months, beneficiaries will have to apply for employment authorization. Updates on how to apply will be published in the Federal Register likely within the week.

If you have questions about verification of work authorization for Liberian beneficiaries of DED, please reach out to your Jackson Lewis attorney.




ALERT: Possible Change in Processing of L-1 NAFTA Applications

According to CBP personnel, a pilot program is being developed that would eliminate “instant” border adjudications of L-1 NAFTA applications. The pilot program is expected to be introduced at the Blaine, Washington port of entry.  At this time, processes and procedures are still under review and consideration but it appears that the current CBP border application process (with a post-adjudication notification to USCIS) would be replaced by a process that would continue to permit submission to CBP at the border (as the regulations mandate), but would require that USCIS first approve the L-1 petition in what is hoped would be a quick turnaround.

The pilot program could begin as early as April 30, 2018, but we await a formal announcement about the program and its future implications. Jackson Lewis will provide updates as they become available.