U.S. Customs and Border Protection (CBP), an agency with more than 60,000 employees, now shares status with the likes of the FBI and the Secret Service.

CBP is designated as a “security agency,” according to a CBP staff memo on February 7, 2020, a move which allows the agency to shield information about personnel from the public. At a time when U.S. immigration agencies are becoming more aggressive enforcers and more of their actions are being challenged in court and in the media, transparency is being hindered.

Mark A. Morgan, Acting Commissioner of CBP, explained:

I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CBP employee data.

CBP’s main missions are border security, trade, and travel. According to its own Snapshot summary, CBP secures America’s borders by stopping inadmissible people and illicit goods, works to secure, safeguard, and facilitate imports, and welcomes international travelers and returning U.S. citizens. CBP currently employs:

  • 24,511 CBP officers
  • 2,465 agriculture specialists
  • 19,648 Border Patrol agents
  • 597 air interdiction agents (pilots)
  • 339 marine interdiction agents
  • 296 aviation enforcement agents
  • 979 trade personnel

CBP conducts operations in:

  • 52 countries
  • 328 ports of entry
  • 135 Border Patrol stations
  • 74 Air and Marine Operations locations

On a typical day, CBP processes more than a million people arriving to the U.S. CBP has broad discretion at the border to perform searches and determine whether foreign nationals are admissible to the U.S. or not.

Immigration attorneys are concerned that holding a “security agency” designation will limit accountability at the border. FOIA requests, one of the more effective means for gathering information about government actions and operations, will be less useful because CBP will have the authority to redact employees’ names, making it much harder to follow email trails and investigate possible illegal or irresponsible acts. For instance, when foreign national employees, students, and visitors are not permitted to enter the U.S., and are turned around on the next flight, it will be more difficult to determine the relevant details regarding the reasons such as the individuals involved, their intent, and where the decisions or policies originated.

Clark Pettig, Communications Director at American Oversight, said that this new designation “creates significant potential for abuse by an already secretive agency with a poor track record of public transparency.” CBP is an agency that “is at the center of some of this administration’s most troubled and troubling policies,” including actions at the southern border.

Jackson Lewis attorneys will continue to follow these developments.

Processing delays for immigration cases have increased by 46 percent in the past two fiscal years and 91 percent since FY 2014.

Businesses complain that they cannot obtain H-1B visas for key employees. Congress is looking into why these delays are taking place. In the meantime, foreign nationals become disenchanted and look for solutions in other, more welcoming countries.

The delays are not only hampering the IT industry (a primary consumer of H-1B visas), the healthcare industry is also suffering. Foreign medical students are delayed from starting fellowships and residencies in hospitals around the country and foreign doctors who are ready to practice in rural or underserved areas also are being delayed. Now, especially with a novel coronavirus brewing, healthcare workers are at a premium.

Federal agencies are preparing to protect the country from coronavirus (and other diseases) by:

  • Issuing guidances;
  • Developing diagnostic tests; and
  • Implementing screening.

One healthcare staffing company has sued Department of Homeland Security and U.S. Immigration and Citizenship Services, alleging the delays in issuing H-1Bs “is impairing [their] ability to effectively and efficiently meet the medical needs of individuals nationwide.” MedPro filed H-1B petitions for 156 laboratory medical technologists that have been pending with USCIS for close to a year now. The shortage of laboratory technicians has gone unnoticed, but it is real and affects everyone, because almost all healthcare decisions are based, at least in part, upon laboratory tests.

In its complaint filed in the U.S. District Court in D.C., MedPro asserts:

Our healthcare industry cannot serve its constituency—patients—without an adequate supply of highly skilled and qualified healthcare professionals. This is no more true than in times of health crisis, as we are experiencing now due to the threat of the coronavirus.

Processing delays at USCIS are not simply administrative annoyances, they have real world effects on businesses and families. The lack of healthcare professionals is an ongoing problem that is being exacerbated by continuing USCIS and visa processing delays.

New York Attorney General Letitia James is suing the U.S. Department of Homeland Security (DHS) in federal court (State of New York v. Wolf et al, 1:20-cv-01127) over its new policy prohibiting New Yorkers from registering or re-registering for various Trusted Traveler Programs.

New York residents were singled out by the Trump Administration in response to New York’s Green Light Law.  That law, which went into effect in December 2019, gave undocumented residents the right to apply for drivers’ licenses.  It also prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) unless the agencies presented a court order.  Thirteen states have passed similar laws but so far only New York has been targeted for punishment.

The Trusted Traveler Programs include Global Entry, SENTRI, NEXUS and FAST (Free and Secure Trade).  The first three are programs that allow registered individuals who have been pre-vetted to return to and enter the United States more efficiently.  FAST provides expedited entry for low-risk commercial carriers.  Ken Cuccinelli of both USCIS and DHS expects that this ban will ultimately affect more than 200,000 New Yorkers.  Attorney General James stated the new policy “will negatively impact travelers, workers, commerce, and our economy . . .”

The Administration contends that the Green Light law makes it impossible for DHS to review information necessary to approve individuals for Trusted Traveler Programs.  Others, such as New York Governor Andrew Cuomo, question that explanation. Indeed, Governor Cuomo said that there is “no rational basis for this ban.” “Time and time again,” he said, “President Trump and his Washington enablers have gone out of their way to hurt New York and other blue states whenever they can as punishment for refusing to fall in line with their dangerous and divisive agenda.”

New Yorkers with currently valid Trusted Traveler status will be able to continue to use that status, but once expired, will not be able to renew.  As of this date, registration in TSA Pre-Check is not affected.

 

 

International students at U.S. colleges and universities can feel a bit more secure now that a federal district court judge in North Carolina has permanently enjoined the government from enforcing its 2018 Policy Memorandum that changed how “unlawful presence” would be calculated.

Judge Loretta Biggs, in Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA).

In August 2019, DHS suddenly announced a policy change that reversed decades of previous policy and law. The new policy stated that foreign students would begin accumulating “unlawful presence” retroactively to the date when any sort of status violation occurred, whether the student had been aware of the violation or not. This meant that a student who, for instance, had inadvertently worked for too many hours or weeks or taken a course load that lacked the required numbers of credits or worked at a third-party site during a STEM OPT period could find they were accumulating unlawful presence and, thus, were possibly subject to three- and ten-year bars to admission to the U.S.

Before the new policy was unveiled, students could not accumulate unlawful presence unknowingly. A formal finding of a violation of status or a removal, deportation, or exclusion order were necessary precursors as due process measures.

Judge Biggs determined the government’s failure to conduct a formal Notice and Comment period violated the APA because the decision was “legislative,” not “interpretative,” in scope. Beyond that, perhaps hoping to preclude DHS from simply redoing the process and conducting Notice and Comment, she also held the new policy conflated a “status violation” with “unlawful presence,” thus, violating the plain language of the INA.

Sixty institutions of higher education across the country signed onto an amicus brief in Guilford College contending, among other things, that the new policy memo would have a chilling effect on international students planning to attend colleges and universities in the U.S.

In response to the permanent injunction, President Jane Fernandes of Guilford College stated:

International students and the campuses that depend on them are breathing a sigh of relief today . . . . Even though the policy was halted in May, campuses were already feeling the negative effects, with rising anxiety among international students and concerns that future students would be discourage from coming to study on our campuses.

President Fernandes also urged “the administration to not appeal this decision and instead recommit to restoring out nation’s competitiveness in regards to the international students.”

While the Administration has yet to respond, in its Regulatory Agenda, USCIS listed the “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions,” which may be its response to Judge Biggs’ efforts.

Please contact a Jackson Lewis attorney with any questions.

Approaching the three-year anniversary of the issuance of President Donald Trump’s “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States,” on January 31, 2020, Trump added six new countries to the list of affected countries: Eritrea, Kyrgyzstan, Myanmar (Burma), Nigeria, Sudan, and Tanzania.

Pursuant to the Executive Order, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, can determine that entry into the U.S. by foreign nationals from certain countries would be detrimental to the interests of the United States.

Beginning February 22, 2020, the additional six countries will be subject to restrictions that include:

Eritrea:                 Suspends entry on immigrant visas

Kyrgyzstan:         Suspends entry on immigrant visas

Myanmar:           Suspends entry on immigrant visas

Nigeria:                Suspends entry on immigrant visas

Sudan:                  Suspends entry on visas based on the Diversity Lottery

Tanzania:             Suspends entry on visas based on the Diversity Lottery

This expansion reportedly will affect more than 12,000 individuals. None of the new restrictions apply to non-immigrant temporary visas. The suspensions exclude individuals on Special Immigrant visas issued to people who have assisted the U.S. government, as well as individuals who have visas approved before February 22, 2020.

The new restrictions join those that were allowed by the U.S. Supreme Court and are still in effect:

Iran:                       Suspends entry of immigrants and non-immigrants, except those in valid student (F or M) or exchange visitor (J) status

Libya:                    Suspends entry of immigrants and non-immigrants in business and tourist status

North Korea:      Suspends entry of immigrants and non-immigrants

Somalia:               Suspends entry of immigrants

Syria:                     Suspends entry of immigrants and non-immigrants

Venezuela:         Suspends entry of certain government officials and their family members as non-immigrants in business or tourist status

Yemen:                Suspends entry of immigrants and non-immigrants in business and tourist status

Exemptions still apply, including those for lawful permanent residents (“Green Card” holders), dual nationals who are traveling on a passport issued by a non-designated country, individuals on diplomatic visas, asylees, and refugees. Waivers also may be granted, but they remain somewhat elusive.

The Administration stated that one reason for focusing on immigrant visas in the new ban is that it is “more challenging to deport someone who has emigrated to the US rather than a tourist or visitor.”

Jackson Lewis attorneys are available to assist you with developing strategies to deal with all these suspensions.

The long-promised new Form I-9 is now available for use and downloading from the USCIS website. Although it became available for use starting January 31, 2020, there is a grace period.  Employers have up to 90 days (until May 1, 2020) to start using the new form which has the Revision date 10/21/19 on the bottom corner. Failure to use the new form on and after May 1, 2020, will lead to penalties in case of an audit.

There are no changes on the paper form itself.  But there are a couple of changes to the online form and a few non-substantive changes to the instructions.

Here is what is new:

  • On the Online Version of the I-9
    • The addition of Eswatini (previously Swaziland) and North Macedonia (previously Republic of Macedonia) to the Country of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 on the online form
  • In the instructions
    • A new paragraph has been added to the Completing Section 2: Employer or Authorized Representative Review and Verification clarifying that the employer has wide discretion when choosing an authorized representative to complete Section 2 on employer’s behalf.  However, the new instructions also clarify that the employer remains liable for any violations their chosen representative commits.
    • The instructions clarify that when completing Section 2, the employer should not fill in empty boxes with “N/A.” In other words, if you enter a List A document, you can leave the List B and List C section blank.
    • USCIS has also updated various website addresses and other contact information (eliminating phone numbers for the Immigrant and Employee Rights Section), the process for requesting paper Form I-9s, and the DHS Privacy Notice.

It is important to remember that just because a new form has been issued, employers must not complete the new Form I-9 for current employees who already have a properly completed form on file.  In fact, doing so could constitute document abuse.  However, if the employer needs to do a reverification, the new form should be used and attached to the old form.

Jackson Lewis attorneys are available to assist you with any questions regarding the new Form I-9.

USCIS has announced the new Public Charge Rule will become effective on February 24, 2020, now that the U.S. Supreme Court has lifted the injunction.

This Rule affects legal immigrants (those who are legally in the United States and those who are seeking admission to the United States) and illegal immigrants (who have never been eligible for the benefits covered by the Rule).

The Rule will be felt primarily by lower-income legal immigrants, but it also will affect those with higher incomes who are elderly or who, due to illness, pregnancy, and other temporary disabilities, may have taken advantage of benefits, such as prescription drug subsidies, Supplemental Nutrition Assistance Program (SNAP), or housing assistance.

According to USCIS:

  • The Rule will apply to all applications and petitions postmarked on or after February 24, 2020. For applications and petitions sent by commercial courier, the postmark date is the date on the courier receipt.
  • USCIS will start to issue new forms that include public charge queries during the week of February 3, 2020.
  • “Old” forms submitted after February 24, 2020, will not be accepted and applicants and petitioners will be told to submit the “new” forms.
  • The Rule will not apply to benefits received prior to February 24, 2020.
  • The Rule does not apply in Illinois (at this point) where an injunction is still in place.

USCIS plans to issue guidance on the implementation of the Rule starting the week of February 3, 2020. The new forms that will need to be used have been released.

According to the Migration Policy Institute:

Taken as a whole, the public-charge rule stands to slow the integration of immigrant families, overturn state choices regarding the services they have opted to provide to their residents, and to alter the composition of future immigration to the United States—all without the benefit of endorsement or direction from Congress.

Jackson Lewis attorneys will provide updates on implementation as they become available.

The recent news of an outbreak of a new coronavirus first identified in Wuhan, Hubei, Province, China raises issues for employers and employees about the appropriate workplace responses. Please see our legal update and impact for employers and employees here.

In addition, the U.S. Department of State (DOS) has announced it is allowing all non-emergency personnel at US embassies and consulates in China to leave the country due to the coronavirus. DOS confirmed to the American Immigration Lawyers Association (AILA) that consular services will continue “as resources allow” but may be “significantly limited.”

If you have questions or  concerns about employees seeking visas in China, please reach out to your Jackson Lewis attorney.

The Trump Administration’s new Public Charge Rule can go into effect (for now, at least).

The U.S. Supreme Court, in a 5-4 ruling, has lifted the injunction that prevented DHS from enforcing its new Public Charge Rule despite New York’s argument that doing so would “inject confusion and uncertainty” into the process.

The Public Charge Rule is meant to limit the admission or immigration of individuals who are not basically self-sufficient. In the past, the Rule primarily affected individuals who accepted cash welfare benefits. The new Rule will make it harder for low-income immigrants and non-immigrants who might use even non-cash welfare benefits to obtain admission to the United States.

The new Rule, more than 400 pages long and complex, applies to:

  • Those applying for immigrant or nonimmigrant status abroad
  • Those seeking admission as an immigrant or nonimmigrant
  • Those applying for Adjustment of Status
  • Nonimmigrants seeking a change of status or extension of status

The benefits that may be subject to a Public Charge determination include:

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), i.e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project Based Rental Assistance
  • Public Housing

Critics have argued that low-income immigrants will be intimidated into not accepting benefits that are not covered by the new Rule out of fear and that this will end up having a substantial financial impact on some states. Indeed the “chilling effect” of the Rule and the Rule itself could be particularly harsh on pregnant women and young children, including infants and pre-schoolers, who may forego health benefits and nutritional assistance in order retain all of their immigration options.

The Court’s Order, like the injunction, applies nationwide. The case below, State of New York et al. v. U.S. Department of Homeland Security, et al., will continue to be litigated in the Second Circuit. The litigation likely will result in a petition for writ of certiorari. Accordingly, the Court probably will hear the case again. In a separate, companion case in the U.S. District Court for the Southern District of New York, Make the Road New York et al. v. Ken Cuccinelli, the District Judge enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice. Those forms, which themselves are more complex, may go into effect.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, filed a concurring opinion with the Court’s brief Order. Judge Gorsuch expressed his general dislike for nationwide injunctions. These nationwide injunctions have frustrated the Trump Administration, and Attorney General William Barr expressed his desire to see them curtailed.

Jackson Lewis attorneys are available to assist you with your questions about the effects of the new Public Charge Rule.

 

The Trump Administration is turning its attention to birth tourism again. President Trump was reportedly considering trying to end the practice with an executive order or by way of a constitutional challenge. But accomplishing the goal through regulation has been on the Department of State’s (DOS) agenda. DOS published a final rule on January 24, 2020 that clarifies that an individual cannot obtain a B visa in order to enter the United States to give birth to a child who will automatically obtain U.S. citizenship.

This move can be seen as part of the Trump Administration’s “extreme vetting” efforts. According to one DOS official: “This change is intended to address the national security and law enforcement risks associated with birth tourism, including criminal activity associated with the birth tourism industry . . .” Officials have already made arrests and charged operators of birth tourism companies with conspiracy to commit immigration fraud and money laundering. The new regulation would do more to try to stem the tide at its source – making it illegal to enter the United States for the purpose of birth tourism. The Administration recognizes that this would not prevent women who already have B visas from entering the United States, at a later date after they become pregnant.  Despite that, the Administration sees this as a first step toward establishing that the practice is wrong. As a second step, such regulations could also be used by Customs and Border Protection (CBP) to deny admission to some pregnant women at the ports of entry if they are suspected of coming to the United States to give birth to a new U.S. citizen.

Birth tourism made it into the news in early January 2020, when Hong Kong Express Airways would not let a Japanese woman board a flight to Saipan because they suspected she was pregnant and wanted to give birth on U.S. soil. Saipan is the largest island in the Commonwealth of the Northern Mariana Islands, U.S. territory. It has become a popular birth tourism location in part because Chinese nationals can visit Saipan without obtaining a visa. Chinese tourists have been able to enter Saipan without visas since 2009. In 2009, 12 Chinese tourists gave birth on the island. By 2018, the number was 575.  Authorities in the Commonwealth have resolved to limit birth tourism. Due to health concerns and concerns about tourism in general, the length of stay for Chinese tourists has been cut to 14 days – down from 45 days.

Knowing that pregnant women might be turned back at the border and because airlines have the obligation to fly such passengers back to their departure locations, airlines themselves have initiated various pre-screening efforts. Hong Kong Express went quite far and required the Japanese woman to take a pregnancy test because she looked as though she might be pregnant. She was not. The airline apologized and has suspended this practice.

Under the new B visa regulations:

  • Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B visa;
  • B visa nonimmigrant applicants who seek medical treatment in the U.S. must demonstrate that a medical practitioner or facility has agreed to provide treatment, the projected duration and cost of the treatment, and that arrangements have been made for payment for the treatment as well as incidental costs;
  • There is a rebuttable presumption that a B nonimmigrant applicant who a consular officer has reason to believe will give birth during her stay in the U.S. is travelling for the primary purpose of obtaining U.S. for the child; and
  • That rebuttable presumption may be overcome based upon specialized medical treatment or other reasons such as visiting a dying relative or a showing that the child has other access to the U.S. citizenship.

If you have questions about how the effect of this new Final Rule, please reach out to your Jackson Lewis attorney.