Another Travel Ban Halted by the Courts

The Trump Administration’s third attempt to ban from the United States foreign nationals from certain countries was halted on October 17, 2017 - a day before it was to take effect. Two federal judges prevented the ban from being implemented nationwide, one in Hawaii issuing a temporary restraining order and the other in Maryland issuing a temporary injunction. The Administration has announced it will appeal the cases to the circuit courts of appeal, and ultimately the Supreme Court will likely hear the cases. (The Supreme Court was scheduled to hear arguments on the second travel ban in October, but remanded the case to the lower court as moot.)

This was third travel ban issued in an executive order by the Administration, and included eight countries (Libya, Iran, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela), each with a different restriction.  Unlike the first two bans, this ban was of an indefinite duration. As of this writing (October 20), “Travel Ban 3.0” is only applicable to North Korea and Venezuela because those countries were not included in the lawsuits.

The majority of the countries were included in Travel Ban 3.0 because of their subpar information-sharing capabilities. Others, however, were more focused.  For Venezuela, leading government officials are banned, while North Korean, Syrian, and Somali nationals are subject to a blanket ban. Seven of the eight countries are subject to a complete ban on immigrant visas. The rationale provided by the Administration for the distinction between immigrant and nonimmigrant visas is that individuals awarded immigrant visas enter the U.S. as legal permanent residents and, by virtue of their status, become more difficult to remove. Because the banned countries have substandard information collection and sharing capabilities, the reasoning goes, the U.S. cannot properly vet these foreign nationals before granting them permanent residence. Refugee admissions remain in limbo, banned until the vetting process is further assessed.

In the meantime, the Administration announced that it will reevaluate the list of banned countries every six months to determine if information-sharing and security concerns have been addressed, though the lack of formal relations with Iran or North Korea does not bode well for these countries in the future. Likewise, Somalia has been included in the travel ban — not because its government doesn’t cooperate with the U.S., but simply because the government does not have control over all of the country’s territory. For that reason, it will be difficult for Somalia to get off the list of banned countries any time soon. Chad, an ally of the United States, is a curious inclusion.

More on DHS Expansion of In-Person Interview Requirement for Adjustment of Status Applicants

On October 1, USCIS began phasing in in-person interviews for all employment-based I-485 adjustment of status cases when the underlying petition is a Form I-140 (EB-1, EB-2, and EB-3) and when the case was filed after March 6, 2017. During several public informational meetings, USCIS provided further guidance on who is subject to the new requirement, what the process will be, and what applicants can expect.  Here are the highlights: 

·         I-360-based adjustment of status cases (Special Immigrant Visas) are currently not subject to the in-person interview requirement.

·         USICS will incrementally expand the requirement to I-730 petitions for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

·         Children under the age of 14 are eligible for a waiver of the interview requirement.

·         USCIS will endeavor to schedule family members together.

·         The National Benefits Center (NBC) will conduct pre-processing case review to ensure that the case is “interview ready.”  Interviews will be held at local USCIS field offices.

·         NBC will issue requests for evidence for a medical exam or Supplement J, if not submitted with the initial adjustment of status filing.

·         USCIS will entertain the possibility of permitting remote or Skype participation by attorneys so that applicants represented by out-of-district counsel can continue to be represented at the interview by that attorney rather than having to retain local counsel.

·         USCIS will not readjudicate the underlying petition but will seek to validate the evidence included with the I-140; thus, the interview itself will focus on the applicant’s work as well as issues of admissibility.

·         Derivative family members should be prepared to bring to the interview evidence of their relationship to the principal applicant.

·         USCIS anticipates a 17 percent increase in workload at USCIS field offices, which will affect family-based and naturalization application interview processing times.

·         The 10 most affected offices are San Jose, San Francisco, Newark, New York, Houston, Chicago, Dallas, Atlanta, and Los Angeles.

The overall impact of the expanded interview requirement will not be seen for several months, both in terms of its value and delays. 

Military Access to Expedited Naturalization Reversed

The Department of Defense reversed a Bush-era policy that offered expedited naturalization to lawful permanent residents (LPRs) enlisted in the military. Under the new policy, enlistees must undergo a new security clearance process that will take a year before entering basic training. Previously, enlistees could be shipped to basic training if the background investigation had been initiated and all other security screenings were met. Now, to receive the certification of honorable service in order to apply for expedited naturalization, the LPR military member must first complete the background screening, complete training, and have at least 180 consecutive days of active duty service or one year of satisfactory service in the selected reserves. The policy is effective immediately and will affect currently pending applicants — including by recalling and decertifying already received certificates of honorable service. It is also likely that service in the U.S. military will have an impact on the immigrant’s ability to process other immigration applications, including for work, travel, and sponsoring family. We caution any LPR interested in enlisting to review this new policy and see how it will affect their immigration status and ability to serve.

Update on DACA

Under pressure from various states, President Trump opted to terminate the DACA program, leaving thousands of DACA recipients in a considerable bind. Although the President had previously promised that DACA recipients would not have to worry about their status, a handful of states threatened to settle the issue in court, which would likely have resulted in a court-ordered termination of the program. Rather than have the Justice Department put forward a lackluster defense of the program, the President has shifted the burden to Congress to legislate a permanent solution for DACA recipients before the program ends in March 2018.

Unlike the 112th to 114th Congresses, which refused to work with President Obama on this issue, the 115th Congress is actually poised to enact a concrete solution. The best approach has been the Dream Act of 2017, which has been introduced in both the Senate and the House of Representatives. Eligibility is predicated on entering the U.S. as a minor, being present for at least four years, and having no criminal background. For those eligible, a conditional green card is granted for an eight year period. In order to remove the conditions and become a full-fledged permanent resident, the applicant needs to accomplish two years of college, two years of military service, or three years of employment during the conditional period, as well as maintain residence in the U.S. and have no criminal offenses. Successfully removing the conditions will put these individuals on the path to citizenship. The Dream Act is focused, has the most bipartisan support, and would help the most people. Republican proposals, like the RAC (Recognizing America’s Children) Act and the SUCCEED Act, are similar but have more stringent eligibility requirements and reach fewer individuals. The American Hope Act introduced by Democratic Representative Gutierrez falls at the opposite end of the spectrum, and is the least restrictive and most generous, but lacks bipartisan support. However, the American Immigration Lawyers Association (AILA) has placed its support behind the Dream Act as the most reasonable bipartisan solution.

The most recent congressional hearing on DACA took place on October 3. Senators posed tough questions to DHS and DOJ officials, but received little specific details as to what sort of compromise the Administration would accept. It is difficult to predict which of these bills will eventually gain the support and momentum needed to resolve the long-term legal status of DACA recipients, but there is hope that Congress will act.

Preconceived Intent and Activities After Entry: The New 90-Day Rule

In September, the Department of State (DOS) updated its Foreign Affairs Manual — a guidebook used by consular officials for determining visa eligibility — as to what constitutes misrepresentation when applying for a visa abroad.  As part of the Administration’s heightened scrutiny, a broader scope of inconsistent conduct within 90 days of entry to the United States will be reviewed to find a presumption of willful misrepresentation. DOS will look to information provided on the visa application, during the interview, and at the port of entry to see if activity in the United States within the first 90 days of entry conflicts with those statements. Such activity includes: unauthorized employment, enrolling in unauthorized academic studies, marrying a U.S. citizen or permanent resident (LPR) and taking up residence in the United States (other than those with visas that allow dual intent such as Hs and Ls), and engaging in activities that would typically require a change in status where none was done. This is critically important for those looking to come to the United States because an individual may be barred for life (unless an appropriate waiver is obtained) if they are found to have misrepresented important facts. USCIS has not yet updated its agency guidance to mirror the DOS’s position, and it is unknown if the agency will to so, given that there is legal precedent that governs USCIS and it would be required to undertake formal rulemaking. In any case, foreign nationals should be extremely mindful that their activities during the first 90 days of entry can be detrimental to their longer term immigration options. Previously, if an applicant applied for change of status within 30 days of entry, this created a presumption of misrepresentation. If the applicant did so between 30 and 60 days from entry, that presumption of intent to misrepresent could be rebutted by the foreign national. After 60 days, there was no presumption of preconceived intent or misrepresentation.

New Travel Ban Announced by White House

On September 24, 2017, the President issued a new version of the prior travel bans, which includes an expanded list of countries whose nationals are affected, and the impact on those nationals varies.  The U.S. Department of State has published detailed information about each of the countries affected and how the new ban impacts the nationals of those countries: Presidential Proclamation on Visas.

Chenhalls Nissen, S.C. is watching this development closely, particularly in light of the recent delay in the Supreme Court's review of the prior travel ban.  If you are from one of the affected countries, please contact your attorney before any travel abroad.

DACA Rescinded

On September 5, 2017, the Trump Administration rescinded the Deferred Action for Childhood Arrivals (DACA) program that was put forth by President Obama in 2012.  DACA authorized the government to utilize prosecutorial discretion in the case of certain children brought to the U.S. who met specific requirements, and allowed those children to apply for employment authorization (and in some cases travel authorization). The Trump Administration's decision will phase out the DACA program by March 5, 2018.  

Those DACA recipients with current employment authorization documents (EADs) may continue to use the EAD cards.  No new DACA applications will be accepted after September 5, 2017. Renewal applications, however, will continue to be accepted until October 5, 2017 for those whose benefits expire on or before March 5, 2018.

New I-9 Form Required as of September 18, 2017

U.S. Citizenship and Immigration Services (USCIS) has published a new I-9, Employment Eligibility Verification form.  Until September 17, 2017, employers may continue using Form I-9 with a revision date of 11/14/2016, or use the new revised version.  Starting on September 18, 2017, employers must use the revised form with a revision date of 7/17/2017.  USCIS has removed the prior version from its website. The only version that is available on the USCIS website is the new I-9 form (7/17/17 version).

Further information on the new edition of the I-9 form from USCIS can be found here: https://www.uscis.gov/i-9-central/whats-new.

USCIS to expand interview requests to include employment-based filings

USCIS is developing a new policy that may go into effect on October 1, 2017 expanding the interview requirement for all employment-based adjustment applications and I-730 refugee/asylee petitions.  This new policy is apparently part of an "incremental expansion of interviews for benefits that lead to permanent residence", indicating that the policy could be expanded to other benefits applications.

Chenhalls Nissen, S.C. is watching these developments closely and will keep updated as they are implemented.

The Fate of Our Dreamers: Will DACA Remain?

Deferred Action for Childhood Arrivals, or DACA, was set in place by President Obama five years ago in response to the realities of enforcing immigration laws. It was another way to allow ICE to prioritize enforcement: the agency has limited funds and it is best dedicated to the removal of those that pose real, serious threats to public safety or national security. Because the current Administration has stepped back from a prioritized approach in favor of a free-for-all, the fate of DACA recipients is in jeopardy. Will this Obama era benefit be honored by President Trump, or has America given another “bad check?”

As of this moment, the President has honored DACA relief and not subjected recipients to deportation proceedings, with only a few exceptions. DHS has flatly stated it will continue to honor all DACA benefits, such as work permits. But the fate of the program is in immediate jeopardy. Former DHS Secretary (and current White House Chief of Staff) John Kelly stated that Congress must step in to solve this problem as the question properly lies with the legislative branch. Representatives Ileana Ros-Lehtinen (R-FL) and Lucille Roybal-Allard (D-CA) proposed a bill in the House that will provide permanent residence for DACA recipients. Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) have proposed a similar bill in the Senate. But, in the meantime, several states have threatened to sue President Trump if he keeps DACA in place, giving him a deadline of September 5. If sued, it is likely the case will be tied up in court for months.

Immigration Reform Efforts

Several reform proposals have been introduced in recent weeks, but the RAISE Act, introduced in the Senate with strong support from Trump, has garnered much public attention.  Reforming American Immigration for a Strong Economy (RAISE) Act (S.354) seeks to cut legal immigration numbers in half.  The bill would:

  • create a “points-based” system of merit that does not take into account the needs of U.S. businesses;
  • all but eliminate family-based immigration, by limiting U.S. citizens and permanent residents to sponsoring only their spouses and minor children for green cards;
  • reduce the number of refugees admitted to the U.S. to 50,000 per year; and
  • eliminate the Diversity Immigrant Visa Program, which has awarded 50,000 green cards annually to people from countries with historically low rates of immigration to the United States.

A recent report found that reducing legal immigration will not increase wages for U.S. workers and will actually reduce U.S. economic growth. It further observes that the U.S. political system makes it unlikely for a points system to operate effectively or in a manner similar to Canada or Australia.

On the other end of the spectrum. another bill introduced in the House, the Agricultural Worker Program Act of 2017 (H.R. 2690), would allow agricultural workers and their families to apply for work authorization if they meet certain requirements. This is the House companion to S.1034.

While it is doubtful that these bills will progress very far, clearly immigration continues to remain front and center from the executive, legislative, and judicial branches of government.