Reversing State Department, Judge Grants U.S. Birthright Citizenship to Twin Son of Same-Sex Couple

In 2016, a married gay couple in Canada became parents of twins using a surrogate mother. One father is a U.S. citizen, the other an Israeli citizen. The two fathers made a decision to contribute one embryo each to the surrogate mother so the twins would be biologically related to each of them. However, that turned out to be a determinative factor when the parents went to the U.S. Consulate in Toronto to register the twins for U.S. citizenship. Only one of the twins, Aidan, who was biologically related to his U.S. citizen father, was granted a U.S. passport. The family was devastated by this decision. When the Dvash-Banks family decided to move to California, the other twin, Ethan, had to enter as a visitor on a B visa. His B visa eventually expired, leaving him “undocumented.”

With regard to children born in wedlock, section 301 of the Immigration and Nationality Act states that a “child born outside of the United States . . . acquires citizenship at birth if at the time of birth one parent is a foreign national and the other parent is a U.S. citizen; and the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.” Section 309, which applies to children born out of wedlock, requires, among other things, that “blood relationship between the child and the father is established by clear and convincing evidence.” The State Department, in its published policy, apparently reads the “blood relationship” clause into section 301 and would not budge on that policy for the Dvash-Bankses.

The Dvash-Bankses challenged the Department of State’s (DOS) decision with regard to Ethan in the U.S. District Court, Central District of California. In response to a motion for summary judgement, Judge John F. Walter declared that Ethan was a U.S. citizen and ordered DOS to issue him a U.S. passport as soon as possible. The order applied only to Ethan and did not prevent DOS from applying its “blood relationship” policy to other families. In post-summary judgement proceedings, the Dvash-Bankses argued, “The State Department’s refusal to approve [Ethan’s] applications . . . and its persistence in litigating this action full-bore to summary judgement, was manifestly unreasonable and not substantially justified.” The Judge awarded $1.3 in attorney’s fees and costs to the couple.

Ethan’s fathers believe that a straight couple who had used assistive reproductive technology would never have been asked to submit to a DNA test, as they were required to do by DOS. In a similar case, a lesbian couple of one U.S. citizen and one Italian citizen whose children were born in London brought a claim in the federal district court in D.C. – using the same lawyers who represented the Dvash-Banks family.

Cases Over Controversial Citizenship Question in 2020 Census Proceed as Print Deadline Nears

The 2020 decennial census is scheduled to begin on April 1, 2020, but several cases challenging the Administration’s decision to include a citizenship question in the census are putting the Administration’s June 30, 2019, “go to print” deadline at risk.  The question asks, “Is this person a citizen of the United States?”

The case that is furthest along was filed in U.S. District Court for the Southern District of New York, New York, et al. v. U.S. Department of Commerce. Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors, and a group of NGOs filed suit challenging the inclusion of the citizenship question. After a bench trial, the judge, in a 277-page opinion, enjoined the U.S. Department of Commerce from including that question on the census primarily because of violations of the Administration Procedures Act (APA). But, on January 25, 2019, the Administration filed an appeal asking the U.S. Supreme Court to review the case directly because the Census Bureau needed to make its June 30th deadline. On February 15, 2019, the Supreme Court granted that request and set oral argument for April 23, 2019.

On March 6, following in the footsteps of the New York case, California federal Judge Richard Seeborg, in a 126-page opinion, blocked the Administration from adding the citizenship question to the census not only because of APA violations, but also on the basis of the Constitution. That court held that the citizenship question violated the “enumeration clause,” which requires an “actual enumeration” of the country’s population. The court said the question would discourage participation and thereby lead to an inaccurate count. The Administration has not yet acted to appeal this case.

Meanwhile, in a federal court in Maryland, the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several non-profit advocates for Latino and Asian residents are arguing that the inclusion of the citizenship question will improperly lead to an undercount of immigrants and people of color. The plaintiffs also allege a conspiracy to include the question based “on animus against Hispanics and immigrants.” The case is still pending.

All of the plaintiffs in these cases allege that a great deal is at stake because the inclusion of the citizenship question will discourage participation – particularly by immigrants – and affect:

  • The boundaries of Congressional Districts;
  • The number of Congressional Representatives per state;
  • The number of Electoral College votes per state; and
  • The amount of federal funding to states for programs, including low-income housing, medical assistance, and infrastructure projects.

Even some Census Bureau officials opined that the question will chill participation. Judge Seeborg stated, “In short, the inclusion of the citizenship question on the 2020 census threatens the very foundation of our democratic system . . . .”

We will continue to follow the progress of these litigations and provide updates as they become available.

USCIS Clarifies Premium Processing for This Year’s H-1B Cap Cases Limited to Change of Status

As the start of the H-1B cap season approaches, USCIS has clarified that not all of this year’s cap cases can be premium processed.

Despite its notice on March 12, USCIS has announced that only cap-subject H-1B petitions requesting a change of status may request premium processing concurrently with the H-1B filing. But the agency stated that premium processing will not begin immediately for these cases to allow USCIS to prioritize data entry for all cap petitions.

The agency also stated that:

  • USCIS will make a future announcement about when it will begin reviewing the premium processing cap cases.
  • USCIS expects this first round of premium processing for cap cases to begin no later than May 20, 2019.
  • If a premium processing request is not filed concurrently with the petition on or about April 1, 2019, an interfiling for a change of status petition cannot be filed until USCIS announces that it is actually beginning premium processing of petitions.
  • USCIS will make another announcement about when (or if) premium processing will become available for cap cases that do not include a change of status application.

To increase transparency, USCIS said a data hub will be available on uscis.gov as of April 1, 2019. This hub will allow the public to search for H-1B petitions by fiscal year, NAICS industry code, company name, city, state, or zip code. The purpose is to allow the public to calculate approval and denial rates and to review which employers are using the H-1B program. Making all of this information easily available to the public is in accordance with President Donald Trump’s “Buy American, Hire American” Executive Order.

For questions about premium processing, please reach out to your Jackson Lewis attorney.

Agreement Delays Termination of Temporary Protected Status for Honduras and Nepal

Hondurans and Nepalis in the U.S. in Temporary Protected Status (TPS) just got a break.

TPS for beneficiaries from Nepal was set to terminate on June 24, 2019. TPS for beneficiaries from Honduras was set to terminate on January 5, 2020. On March 12, 2019, the Administration entered into an agreement with the plaintiffs challenging the termination of TPS from those two countries. The parties agreed to stay the case and not enforce the decision to terminate TPS for Nepal and Honduras until after a final decision in the Ramos case in California.

In Ramos, a preliminary injunction was issued stopping the government from terminating TPS for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan. In response, DHS automatically extended TPS for beneficiaries from those countries until January 2, 2020.

The government has agreed to take the following “equivalent” steps for TPS beneficiaries from Honduras and Nepal:

  • TPS designations will remain in effect until there is a final decision in Ramos;
  • Notices will be periodically posted in the Federal Register extending TPS designation;
  • Late re-registration notices from TPS holders from Nepal and Honduras will be adjudicated; and
  • If the Ramos injunction is lifted, the government will hold off terminating TPS for those from Honduras and Nepal for at least 120 days from the order or 180 days from when the stay is vacated.

We will provide updates as formal notices become available.

USCIS Resumes H-1B Premium Processing

Without warning, USCIS announced that as of March 12, 2019, it is resuming premium processing for all H-1B petitions. This means that for an additional fee of $1,410, USCIS will guarantee a 15-calendar day processing time. By the close of the 15th day, USCIS will issue an approval, a denial, or a Request for Evidence (RFE). If the 15-day guarantee is not met, USCIS will refund the $1,410 fee.

Requests for premium processing can be made with the initial filing, as an interfiling, or with an RFE response. USCIS has cautioned that if the original case was transferred, the request for premium processing must be sent to the USCIS Service Center currently handling the case.

Although this announcement appears to include all of the cap cases that are scheduled to be received by USCIS on April 1, 2019, it is possible that USCIS will change its policy and once again temporarily suspend premium processing for those cases, as it did last year. In the past, USCIS has given little advance notice of such a suspension.

If you have any questions about premium processing of H-1B petitions, please reach out to your Jackson Lewis attorney.

DHS and Other Agencies Announce Contest for Solutions to Detect Opioid in the Mail

There has been ongoing debate about how to stop the opioid crisis in the United States. To stem the flow of illegal drugs through the mail, DHS Science and Technology Directorate, in collaboration with CBP, the Office of National Drug Control Policy, and the U.S. Postal Inspection Service, has launched the Opioid Detection Challenge, a $1.55-million challenge to find new solutions to detect opioids.

The challenge calls upon innovators in many fields (including forensic science, industrial quality assurance, and artificial intelligence) “to submit novel plans for rapid, nonintrusive detection tools that will find illicit opioids in international mail” without disrupting mail flow. Plans must be submitted by April 24, 2019.

The solutions will have to be highly innovative as they must meet the following requirements:

  • Solutions cannot physically penetrate the parcels;
  • Solutions cannot involve pretreating parcels;
  • Solutions cannot rely on external data such as information about the sender or recipient that cannot be gleaned directly from the parcel;
  • Solutions must be moderate in size; and
  • Solutions must be able to process parcels up to 27” x 17” x 17”.

Up to eight finalists will participate in a 14-week prototyping accelerator leading to a mandatory live test event.

President Donald Trump has championed the border wall as part of the solution to the opioid problem, while others, including the Drug Enforcement Administration (DEA), have noted that although illegal drugs do come into the United States over the Mexican border, most come through “legal ports of entry, followed by tractor-trailer, where the heroin is co-mingled with legal goods.” In addition, DEA is apparently not certain that the Mexican border is the “main front,” indicating that “[f]entanyl can be ordered through the mail from China, and it is typically much purer, and thus more potent and deadly, than Mexican-sourced fentanyl.” According to CBP, “large-scale drug trafficking can occur via small packages sent in the mail.”

In 2018, Congress passed and President Trump signed the Synthetics Trafficking and Overdose Prevention (STOP) Act in part to plug a loophole in the USPS system that may have been making it easier to traffic in illicit drugs by mail. According to Senator Rob Portman (R-Ohio), one of the bill’s sponsors, the STOP Act requires the “U.S. Postal Service [to meet] the same screening standard as private mail carriers.” That is, the USPS will have to screen for fentanyl from overseas. Private carriers had been screening packages abroad and providing “advanced electronic data” (AED) regarding the contents of these shipments, which allowed CBP to then more-efficiently target questionable packages. The USPS had not been providing any AED.

The results of the Opioid Detection Challenge may be a boon to the USPS, as well as private carriers and CBP, making the detection of illicit drugs sent through the mail much more effective.

Temporary Protected Status Extended to 2020 for El Salvador, Haiti, Nicaragua, Sudan

TPS employment authorization has been extended automatically until January 2, 2020, for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan.

In October 2018, a preliminary injunction was issued in Ramos v. Nielsen, preventing implementation of the Administration’s decision to terminate TPS for the four countries.  At that time, DHS announced that if the injunction were still pending in March 2019, it would extend all TPS-related documents until January 2020 – and that is exactly what it did. Detailed information about the automatic extension is published in the Federal Register.

The TPS extension does not apply to Nepal or Honduras because neither country was included in the Ramos lawsuit. However, in February 2019, TPS beneficiaries from those two countries filed a class action similar to Ramos in the federal court for the Northern District of California.  That case is pending.

If you have questions about how these developments affect your employees, please reach out to your Jackson Lewis attorney.  We have also updated our TPS tool which may provide relevant information.

EB-5 and Its European Counterpart Subject to Expected Changes, Oversight

In June 2018, Congress held a hearing on “Citizenship for Sale: Oversight of the EB-5 Investor Visa Program.”  The current EB-5 program allows wealthy individuals to apply for and obtain green cards by investing anywhere from $500,000 to $1,000,000 in U.S. enterprises.  Like any other green card holders, after five years, the beneficiaries can apply for citizenship.  The title of the hearing reflected Congress’ concerns about EB-5 program: fraud, abuse, and national security risks related to the program.  At that hearing, L. Francis Cissna, Director of USCIS, explained that legislative reform was necessary, but in the meantime USCIS was taking steps to improve the integrity of the program:

  • Using the Fraud Detection and National Security Directorate (FDNS) to visit project sites;
  • Expanding security checks;
  • Partnering with the SEC, FBI and ICE;
  • Publishing revised forms to improve vetting;
  • Creating a Compliance Division to review annual certifications of regional centers; and
  • Publishing regional center termination notices.

On the other side of the Atlantic, the European Commission has expressed similar concerns about lack of oversight.  It is planning to establish a team to review the risks associated with “citizenship-by-investment” plans throughout the EU.  Similar to the EB-5 program, these programs actually provide European passports to wealthy individuals from anywhere in the world in exchange for hefty investments.  Having these passports can provide individuals with free movement and work authorization throughout much of Europe as well as visa waiver travel to the United States.  The identified problem is that these “golden visa” programs are regulated inconsistently at the country level and, like the EB-5, can become vehicles for fraud such as money laundering and tax evasion.

A year before Director Cissna’s testimony, USCIS published a Notice of Proposed Rulemaking regarding the EB-5 program.  The rule languished awaiting assessment by the Trump Administration, but on February 22, 2019 a final regulation was sent to the Office of Management and Budget (OMB) and is now pending review.  That means that the rule might become effective within the next three to four months.  Subject to the publication of the final rule, the expected changes include:

  • Raising minimum investment amounts from $1 million to $1.8 million for standard direct investment and from $500,000 to $1 million for targeted employment areas;
  • Allowing certain EB-5 petitioners to retain older EB-5 priority dates; and
  • Changing the designation process for targeted employment areas.

The increase of investment amount and the silence on the reduction of current processing times and the extremely long visa number availability backlogs appear to discourage investment.  Meanwhile, the European Commission expects to publish a report by the end of 2019 with the hope of developing more consistency among the member states so that “[t]here should be no weak link in the EU, where people could shop around for the most lenient.”

For information about strategies to deal with the changing EB-5 landscape, please reach out to your Jackson Lewis attorney.  We will continue to provide updates on the EB-5 regulations and the progress of the European Commission.

Crackdown on Birth Tourism Industry in U.S. Continues with First-Ever Arrests of Operators

Traveling to the U.S. to give birth to a U.S.-citizen child, or birth tourism, is not a new industry. In January 2018, DHS raided 20 “maternity hotels” in Los Angeles suspected of housing “birth tourism” operations. A neighbor who lived near one of the apartment buildings reported that “a forklift delivered an excessive quantity of diapers to the building, but [she] did not realize the extent of the scheme.” Authorities are most interested in identifying and charging the owners of the so-called travel agencies, i.e., organizations set up in the U.S. to provide services to women who want to give birth to a U.S. citizen. These agencies charge as much as $100,000 for their services and allegedly engage in various criminal schemes to overcome U.S. immigration laws. In January 2019, for the first time ever, law enforcement officials made arrests and charged birth tourism operators with conspiracies to commit immigration fraud and money laundering.

Currently, no immigration restrictions explicitly forbid a woman from traveling to the U.S. to give birth to a U.S.-citizen child, as long as she can prove she has the assets to pay for medical care and housing. Nevertheless, believing consular officers or officers at a U.S. port of entry would use their discretion to bar near-term pregnant women from entering the U.S., the travel agencies reportedly coach the women on how to gain entry to the U.S., including making misrepresentations about their job opportunities, familial situation, and educational background. They also encourage the women to enter the U.S. prior to their third trimester in order to conceal the pregnancy, and even go so far as to suggest that the women make their initial entry into Hawaii, posing among other tourists, before traveling to the mainland U.S.

Birthright citizenship was introduced into the U.S. Constitution in 1868, when the 14th Amendment was passed at last, granting citizenship to former slaves who were born in the U.S. but denied citizenship.

Birthright citizenship is not unique to the U.S., but it exists only in a minority of countries.

A former Assistant Attorney General in the Clinton Administration, Walter Dellinger, explained:

We believe in a clean slate principle. . . . Whatever questions there are about the legitimacy of parents or grandparents, in our country you get a clean slate. Every new child who is born here is simply and indisputably an American. And that is part of our almost unique national identity.

The topic of birthright citizenship has become more controversial since President Donald Trump raised the notion of eliminating it with an executive order. Others have suggested that the President need not challenge the current interpretation of the 14th Amendment.  Instead, legislation, for example, could make it illegal to come to the U.S. for the sole purpose of giving birth, and highlighting to potential “birth tourists” the downsides to obtaining U.S. citizenship, such as taxation and possible conscription into the U.S. armed services, could depress the incentive to come to the U.S.

The stance against birth tourism will affect thousands of people, primarily from China, Taiwan, Russia, and Turkey, who want to be able to give birth to children who will be eligible immediately for U.S. passports and the attendant longer term benefits, even if they have no current intention of permanently residing in the U.S.

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