Secretary John Kelly of the DHS has announced the establishment of the Victims of Immigration Crime Engagement Office (VOICE). The Office will enable victims or witnesses of crime allegedly perpetrated by illegal aliens to:

Victims’ rights organizations, both governmental and otherwise, are not new. Indeed, a database solution (Victim Information and Notification Everyday or VINE) used by most states was introduced in 1994 to allow crime victims and other concerned citizens to check on an offender’s custody status.  VOICE and VINE-DHS simply focus on crimes committed by undocumented aliens and provide immigration-related advice to crime victims.

From the earliest days of his campaign, President Donald Trump focused on the victims of crimes committed by undocumented aliens. He spoke of Mexican criminals crossing the border and, in his February 2017 speech to a Joint Session of Congress, referred to victims “who have been ignored by our media, and silenced by special interests” before introducing the family members of several of them.

VOICE was officially established in Trump’s Executive Order on “Enhancing Public Safety in the Interior of the United States.”  Section 13 of that Order directs ICE to establish an office “to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.” The Order also focuses on transparency with the “American public” and establishes quarterly reports “studying the effects of the victimization by criminal aliens” and reporting the immigration status of all incarcerated and convicted aliens. Section 14 of the Order, perhaps to allow dissemination of personally identifiable information, states that to the extent lawful, individuals who are not U.S. citizens or green card holders should be excluded from certain privacy protections. The President’s Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (aka, the “Travel Ban” Order) also calls for reports and data collection to be made publicly available regarding “any . . . information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign national charged with major offenses.” These public reports are perhaps a reinvention of the late-19th and early-20th century “big city” police practice of breaking down crime statistics by national origin.

While VOICE was established to help and serve the needs of crime victims and their families, protestors reportedly attempted to flood the website with reports of alien/UFO activity during the first days of the VOICE “hotline.”

 

To evaluate terrorism or national security-related ineligibilities of visa applicants, the Department of State has requested emergency review and public comment on a new rule on the collection of additional information from some visa applicants.

The proposed rule would “institutionalize” and expand Secretary Rex Tillerson’s “extreme vetting” directive.

The new or expanded areas of inquiry in the proposal are:

  • 15 years of travel history (including domestic travel in the country of nationality if it was under control of terrorist organizations) and sources of funding for travel;
  • 15 years of address history;
  • 15 years of employment history;
  • All passport numbers and country of issuance;
  • Names and dates of birth of siblings, children, and current and former spouses or civil or domestic partners;
  • 5 years of social media platforms and identifiers; and
  • 5 years of phone numbers and email addresses.

Requests would be sent by email or delivered in writing or orally during the visa interview. The proposed rule states:

  • Consular officers will not request user passwords or “attempt to subvert privacy controls” on social media platforms;
  • Data collection will not be used to discriminate or deny visas “based on applicants’ race, religion, ethnicity, national original, political views, gender or sexual orientation”; and
  • Additional requests will likely affect only 0.5% or approximately 65,000 visa applications annually.

Although DOS has estimated the number of applicants who will be affected by the proposed rule, no particular subsets of applicants are identified. Consular officers will have the discretion to decide, based upon “the circumstances of a visa applicant, a review of the visa application, or responses in a visa interview [that] indicate a need for greater scrutiny.” They also will have the discretion to grant visas even if all of the requested information cannot be supplied upon determining that the applicant has a “credible explanation” for the failure and that there is enough other information to make a decision about eligibility.

 

In a press release, the European Commission (EC) has announced, “[I]n view of the significant progress achieved during the last year and the positive momentum of ongoing work, the temporary suspension of visa waivers for nationals of Canada and the United States would be counterproductive at this moment and would not serve the objective of achieving visa-free travel for all EU citizens.”

The EC noted that in recent months, discussions with the relevant U.S. entities had “intensified” and that a process has begun that would move Bulgaria, Croatia, Cyprus, Poland, and Romania into the Visa Waiver category. Stressing time sensitivity, the EC hopes to have a path defined and ready to be endorsed at the EU-U.S. Justice and Home Affairs Ministerial Meeting scheduled for June 2017.

 

 

 

 

Back in December, President Barack Obama signed a stop-gap spending bill to keep the government running through April 28, 2017.  Immigration programs that were extended at that time included the Conrad 30 Waiver, the Non-Minister Religious Worker Visa, the EB-5 Regional Center, and E-Verify.

After weeks of tension, uncertainty and an interim agreement, it seems that the budget bill will pass and the government will be funded through the end of the fiscal year – September 30, 2017. While the bill includes funding for CBP to increase border security and repair existing fencing, there is no allocation for “the wall.” The bill, however, includes the continuation of the following:

While it is expected that President Donald Trump will sign the bill, he tweeted, “Our country needs a good ‘shutdown’ in September to fix mess!”

 

 

 

 

 

 

 

 

 

The Transportation Security Administration has expanded its Pre✔ program to 11 new airlines for a total of 30 participating airlines.  This expedited process enables trusted travelers to be screened without removing shoes, laptops, 3-1-1- liquids, belts, or light jackets. Members are pre-screened and pay $85 for five years or $17 a year for this service. The average wait in line for TSA Pre✔ passengers is said to be five minutes.

Some travelers have found themselves with TSA Pre✔ status even though they never applied for or paid for the service. Some years ago, TSA started “managed inclusion programs” for travelers who were thought to be “low risk” or who were vetted by behavior detection officers or canines. These travelers were granted the special status on a per flight basis. There were calls (often from individuals who had paid for TSA Pre✔) to eliminate the managed inclusion programs. However, managed inclusion cuts the screening times for everyone and can encourage individuals to sign up for TSA Pre✔. A drop, however, has been reported this year in the number of people selected for managed inclusion. Only about 4 million paying customers are in TSA Pre✔, far short of TSA’s goal of 25 million people.

TSA wants to provide more customer service and uses both Twitter and Facebook Messenger to answer questions and solve problems for passengers.  Many of the questions at @AskTSA are about TSA Pre✔, but many others are about what items are allowed to be carried onto airlines, particularly medical devices. @AskTSA has received questions about live bees, massage masks, saws, a bucket of Marshmallow Fluff, and fresh-baked pies. The bees, mask, and pies were allowed. The saw was not and the Fluff lost out because it was considered to be a liquid. The program appears to be quite successful – answering 300 to 600 queries a day, more during peak travel times, and quickly solving passenger problems.

CBP also is trying to speed things up at airports by expanding Mobile Passport Control. MPC is an app that expedites a traveler’s arrival into the U.S. Eligible travelers submit passport information and answers to inspection-related questions by smartphone or tablet to CBP before arrival. MPC started as a pilot program in 2014 at Hartsfield-Jackson Atlanta International Airport and is now available at 21 airports.  This app is free on the Google Play Store and the Apple App Store and does not require pre-approval.

 

If Congress cannot pass a funding bill by April 27, 2017, only “essential” government workers will continue to work as of May 1 and immigration processes will be affected.

Department of Labor: H Petitions and PERMs

DOL workers are not classified as “essential” workers:

  • iCERT visa portal system will be inaccessible;
  • Labor Condition Applications (LCAs) will not be processed;
  • Prevailing Wage Requests will not be processed;
  • PERM 9089 Forms for permanent labor certification will not be processed; and
  • Audit responses will not be processed.

It is not clear whether any of these applications would be accepted or considered to be timely filed if hard copies are mailed to the DOL.

USCIS

Since the USCIS is user-funded, employees will not be furloughed and applications would continue to be processed.

  • H-1B filings, however, will be affected because LCAs will not be processed.
  • Expect the USCIS to advise as to whether some H petitions will be accepted without certified LCAs.

E-Verify will be inaccessible.

  • Employers will still need to complete Form I-9s in a timely fashion and create E-Verify cases later.
  • Expect the USCIS to advise regarding the “three day rule” and whether the due date for Tentative Non-Confirmation Process responses will be extended.

Customs and Border Protection

  • CBP officers are “essential” employees, but visa applications at ports of entry or at pre-inspection locations could be affected.

Visa Issuance at Consulate’s Abroad

  • Consular Processing should not be immediately affected.

Department of Justice

  • Immigrant and Employee Rights section attorneys would be furloughed, shutting down investigations of workplace discrimination temporarily.

We will continue to provide updates as they become available. You should consult your Jackson Lewis attorney regarding the timing of filings.

Once again, a U.S. District Court has blocked part of one of President Donald Trump’s Executive Orders – the January 25th EO “Enhancing Public Safety in the Interior of the United States.”.  In explaining the purpose of that EO, President Trump stated “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”  To further that purpose, President Trump stated in Section 9(a) of the EO that these jurisdictions that refuse to cooperate with federal immigration authorities “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes. . . “  In a lawsuit filed by the cities of Santa Clara and San Francisco, California, U.S. District Court Judge William H. Orrick of the Northern District of California issued a preliminary injunction specifically blocking enforcement of Section 9(a) nationwide.

The government in defense of the EO argued that Section 9(a) had not actually done anything yet, that the President was only using the EO as a “bully pulpit” and that the cities could not show that they would be harmed. But like the various courts that ruled on the travel ban, Judge Orrick cited a list of comments made by President Trump, his advisors and Attorney General Jeff Sessions to cast doubt on the government’s argument and show that the administration planned to use the EO as a “weapon” against sanctuary cities.  He found that: “[t]he order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation-of-powers principles.”

This case is highly likely to find its way to the 9th Circuit Court of Appeals and perhaps to the Supreme Court.  President Trump has already tweeted his disapproval:  “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities – both ridiculous rulings.  See you in the Supreme Court!”

Jackson Lewis attorneys will continue to follow the path of this case.

 

When President Donald Trump issued his “Travel Ban,” there were fears that the physician shortage in the U.S. would be exacerbated.  It has been reported that there is currently a deficit of 8,200 primary care physicians that will balloon to 94,700 by 2025 as the population ages.  For many years, many foreign physicians from Muslim-majority countries have been helping to fill the shortage of primary care physicians in the U.S. Those individuals may now be rethinking their plans due to fears of anti-immigrant sentiments and possible long delays in obtaining visas.

To exacerbate the problem, the Conrad 30 J-1 Waiver Program will expire on April 28th if it is not renewed.  More than 15,000 physicians have participated in the Conrad 30 program that allows foreign physicians to remain in the U.S. after completion of their clinical medical training without having to fulfill the two-year home residence requirement, as long as they agree to work in federally designated underserved areas for at least three years.  Upon obtaining these Conrad 30 waivers, physicians then change to H-1B visa status to commence their employment.  Senators Amy Klobuchar (D-MN), Susan Collins (R-ME) and Heidi Heitkamp (D-ND) have introduced bipartisan legislation to extend and improve the program to increase the number of physicians in those areas.

The Conrad State 30 & Physician Access Act would:

  • Extend the program to 2021;
  • Allow for more than 30 (“Conrad 30”) slots for doctors per state;
  • Provide work authorization for spouses of physicians in the programs; and
  • Provide contractual protections to the physicians by prohibiting non-compete agreements and spelling out medical malpractice coverage.

The American Medical Association strongly supports the bill, stating that:  “Many communities, including rural and low-income urban areas, struggle to attract physicians to meet their patient needs.  This legislation will help to ensure continued access to care in medically underserved communities across the U.S.  The American Hospital Association has urged “swift action to extend [the] program.”

The travel ban and the possible suspension of the Conrad 30 program are not the only issues affecting the number of foreign physicians in the U.S. The USCIS’ suspension of premium processing for H-1B visa petitions is complicating the problem because it is delaying the start dates for physicians to begin serving patients and communities in these underserved areas.  Senators Klobuchar, Collins and Heitkamp also sent a letter to the USCIS asking the agency to continue premium processing of H-1B petitions for physicians to begin their post-waiver employment.  Medical associations would also like to see medical professionals exempted from the H-1B cap.

As the end of April approaches and a possible government shutdown looms, we will continue to follow events in Congress.

Finding that although the F-1 visa plaintiffs had standing to sue and that their claim was ripe, they had not alleged sufficient facts to support their claim, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia has ruled, upholding the Department of Home Security’s 2016 STEM OPT Rule Program in a detailed opinion. Washington Alliance of Technology Workers v. DHS, No. 16-1170 (D.D.C. Apr. 19, 2017).

The court granted the government’s motion to dismiss, concluding that the rule was within the statutory authority of the DHS. No word yet on whether the ruling will be appealed.

 

 

After May 1, 2017, be on the lookout for redesigned Green Cards and Employment Authorization Documents (EADs). The USCIS will start issuing newly styled cards on May 1 as part of the “Next Generation Secure Identification Document Project” to make cards highly secure and more tamper-resistant.

New Green Cards and EADs will:

  • Display the individual’s photo on both sides;
  • Have embedded holographic images; and
  • No longer have the individual’s signature.

Further, Green Cards will no longer have an optical stripe on the back, but will have an image of the Statue of Liberty and a predominately green palette.

EADs will have an image of a bald eagle and a predominantly red palette.

Existing and “new style” Green Cards and EADs will remain valid until the expiration dates shown on the cards. Both versions will remain acceptable for I-9, E-Verify, and SAVE (Systematic Alien Verification Entitlements) purposes.

Older Green Cards with no expiration date also will remain valid, but holders of such cards may consider applying for replacement cards to reduce the likelihood of tampering or fraud if the card is lost or stolen. Any new Green Cards that are issued will have an expiration date.

Some Green Cards and EADs issued after May 1, 2017, still may be in the “old style” because the USCIS will continue to use its existing stock of cards until the supplies are depleted. Such cards will still be valid until their expiration dates.

Automatic extensions of EADs based on timely filings or Temporary Protected Status (TPS) will not be affected.

Please contact a Jackson Lewis attorney if you have any questions.