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.

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.

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

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.

 

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.

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.

The Trump Administration is considering the elimination of the J-1 Summer Work-Travel Program for students who come to tourist areas in the U.S. as temporary summer help and as participants in cultural exchanges. Like the numerical limitations placed on H-2B temporary seasonal visas, the elimination of this J-1 Summer Work-Travel Program would particularly affect the hospitality industry in areas that rely on these students to cook, wait tables, and run amusement park rides in tourist areas during the summer months.

Morey’s Pier Amusement Park in Wildwood, New Jersey, hired more than one-third of its 2017 summer workforce through the J-1 Summer Work-Travel Program. Its Director of Human Resources reported that it makes extensive efforts, including through job fairs, to hire U.S. workers, but cannot find enough people interested in the seasonal work. The Park hired 82 percent of the U.S. applicants who applied for jobs and the remaining 18 percent could not be hired because they were too young to be life guards or to serve alcohol.

Other tourist areas such as Hershey, Pennsylvania, and the Poconos also depend on the J-1 Summer Work-Travel Program. Congressman Bill Keating (D-MA), who represents Cape Cod and the Islands of Nantucket and Martha’s Vineyard, is critical of the reported plan to reduce these visas for students who he believes are vital to his area’s economy.

The review and possible elimination of the J-1 Summer Work-Travel Program arises out of the “Buy American, Hire American” Executive Order. The first hint that the Program might be cut was in a draft executive order that was leaked in January 2017. That draft, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” was never signed or formally released. It included specific provisions questioning the desirability of the J-1 program, the L-1 visa program, the use of parole authority, and the H-1B visa program, among others. To date, the Administration has been achieving some of the goals first set forth in that draft by conducting more L-1 site visits, scrutinizing H-1B and L-1 petitions by issuing a staggering number of post-filing Requests for Evidence (RFEs), postponing (and ultimately planning to eliminate) the International Entrepreneur Rule that relied on parole authority, and, now, focusing on the possible elimination of the J-1 Summer Work-Travel Program.

According to the State Department website, “The J-1 Exchange Visitor Program [overseen by the Department of States] provides opportunities for around 300,000 foreign visitors from 200 countries and territories per year to experience U.S. society and culture and engage with Americans.” There are more than a dozen J-1 programs. Others that are reportedly being reviewed for possible elimination are the J-1 internship and au pair programs.

U.S. Customs and Border Protection (CBP) is deploying staff and equipment for search and rescue efforts and to work at local, state, and federal emergency operations centers in Texas in response to Hurricane Harvey.

Hurricane Harvey hit Texas just as the state’s plan to outlaw sanctuary cities is about to go into effect.  Texas also has joined other states in threatening to sue President Donald Trump if he does not phase out DACA starting on September 5th.

Some of Houston’s more than 500,000 undocumented immigrants reportedly are afraid to seek shelter, fearing deportation.

To encourage undocumented workers in need of assistance to come into shelters, FEMA issued a statement, “Hurricane Harvey Rumor Control,” asking “all persons to follow the guidance of local officials and seek shelter regardless of their immigration status.”

ICE and CBP explained that:

It is not conducting immigration enforcement at relief sites such as shelters or food banks. In the rare instance where local law enforcement informs ICE of a serious criminal alien at a relief site that presents a public safety threat, ICE will make a determination on a case-by-case basis about the appropriate enforcement actions.

In an effort to assuage fears, the Mayor of Houston has offered to personally represent any individual facing deportation after seeking disaster relief.

In the meantime:

  • 50 CBP agents are staffing a U.S. Coast Guard Emergency Operations Center in Robstown, Texas
  • CBP is providing assistance to border patrol agents in Corpus Christi
  • CBP aircraft from Tucson are in Texas, along with 12 aircrew members, 5 support personnel and 3 agents certified in swift-water rescues
  • CBP’s Air and Marine Operations sent 4 hoist-capable Blackhawks to Houston to help with rescues
  • 50 Tucson area Special Operations Detachments agents are supporting public safety operations

Once the immediate danger subsides, workers will be needed to participate in the billion-dollar rebuilding effort. “Eduardo Canales, director of the South Texas Human Rights Center, said the state is at risk of losing much-needed low-wage workers – cleaners, cooks, carpenters and landscapers – who because of the crackdown may not stick around to help Texas communities recover from the storm.” Even before the hurricane, there was concern that undocumented workers would be leaving the state because of perceived anti-immigrant sentiment.

Beyond the emergency rescue and relief efforts, international trade and travel also has been affected and CBP is coordinating with the U.S. Coast Guard and port authorities to resume operations as soon as possible.

USCIS spokesperson Carter Langston confirmed that as of October 1, 2017, the employment-based green card process will include an in-person interview.

Formal interviews have been a possibility for employment-based permanent residency applicants. However, for the last 10 years, employment-based green card applicants generally had the interview waived. Historically, in-person interviews were a sign of trouble, indicating additional evidence was needed to be vetted at the interview. Langston reported that this is “part of a comprehensive strategy to further improve the detection and prevention of fraud and security risks to the United States.” He further clarified that conducting in-person interviews will provide officers the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

This increase in in-person interviews was part of President Donald Trump’s “extreme vetting” plan outlined his travel ban executive order.

Many employment-based green card applicants have already been in the U.S. for many years as non-immigrants, have been interviewed in-person for temporary visas at U.S. embassies or consulates abroad on numerous occasions, and have often been working for years for the same companies that ultimately have become their green card sponsors. Additionally, USCIS announced that family members of refugees or asylees will be required to have an in-person interview for provisional status. Reinstituting the interview requirements for employment-based applicants and adding requirements for refugees and asylees will amount to more than 100,000 additional applicants a year being interviewed at local USCIS offices. This undoubtedly will increase USCIS backlogs and lengthen the already years-long long process of obtaining a green card or entering as a refugee or asylee.

Jackson Lewis has experience and expertise in preparing clients for immigrant and non-immigrant interviews. If you have questions about the process, please let us know. We will continue to provide updates as more information becomes available about the new requirements.