As many mourn the loss of the victims of the October 31st NYC attack, a parallel conversation surrounding immigration reform has emerged. Immigration reform has been President Trump’s long-standing campaign promise, but has found fierce judicial opposition since January. We have covered these developments in prior posts.

As details emerged regarding the suspect in the NYC attack, the Administration directly attacked the rarely-discussed Diversity Immigrant Visa Program, or the “diversity lottery.” Based on available information, the suspect in the NYC attack entered the United States from Uzbekistan on a diversity visa in 2010, and subsequently became a permanent resident, i.e., green card holder.

The diversity lottery was created in 1990, and issues up to 50,000 visas each year from a specified list of countries that are traditionally underrepresented in the United States. Applicants from these specified countries may register for the lottery at no cost. Thereafter, the Department of State randomly selects applicants from the pool based on the allocations of available visas in each region and country.

The Department of State has published its 2015 statistics for the selected entrants under the lottery. Some of the most represented countries under this program by region include Egypt, Cameroon, Cambodia, Iran, Russia, Turkey, Uzbekistan, Ukraine, Australia, Fiji, Cuba and Paraguay. The complete data set may be accessed here.

The unique aspect of this program is that unlike DACA, which was a result of executive action by President Obama, the diversity lottery is legislation passed by Congress, and therefore, Congress will have to act to amend or eliminate the program. Republican Senators Tom Cotton and David Perdue have introduced a bill that would eliminate the diversity lottery.

In a one page opinion, the United States Supreme Court remanded one of the two “travel ban” cases pending SCOTUS review. The Order remanded Trump v. International Refugee Assistance Project back to the 4th Circuit Court of Appeals because the case is now “moot” – the Court found no controversy because the challenged Executive Order 13780 “expired on its own terms.” The Court provided no opinion on the merits of the case.

In earlier posts, we also covered Trump v. Hawaii, another challenge to President Trump’s “travel bans.” This case remains pending because the challenged provisions of the March 6th Executive Order have not expired, unlike Executive Order 13780. Specifically, the March 6th Executive Order placed restrictions on the refugee program that remain in effect. The expiration date for this Executive Order is October 24th. We expect to see another iteration of the refugee restrictions or other immigration-related restrictions by October 24th.

More recently on September 24, 2017, President Trump also issued a Proclamation limiting entry into the United States from individuals from six countries – Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Unlike prior Executive Orders, this Proclamation is relatively more nuanced and does not contain a blanket ban on all travelers from the listed nations.

Shifting gears to the Deferred Action for Childhood Arrivals (DACA) controversy: Attorney General Jeff Sessions’ announcement last month ending DACA was followed by multiple lawsuits against the Administration. Several states including New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, California, Maine, Maryland, and Minnesota, and D.C all filed suits against the Administration citing Constitutional challenges, among others.

An estimated 800,000 individuals relying on DACA will face uncertainty as a result of DACA’s termination. The deadlines for first time and renewal applications have passed. Therefore, barring Congressional or Executive action on the matter, no individual currently working as a result of DACA may be permitted to legally work in the United States once their work permit expires.

Independent of the legal and political debate, ending DACA is likely to have an enormous economic impact on both DACA-authorized employees and their employers. Employers are called to maintain contingency plans should those working under DACA lose their work permits, and ensure continued compliance with immigration laws.

On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.

In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”

On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.”  The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.

In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place.  Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.

The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.

President Trump’s Second Executive Order acted to limit the entry of foreign nationals and refugees into the United States. Thereafter, the Fourth and Ninth Circuits granted preliminary injunctions barring the enforcement of the Executive Order specifically as related to Section 2(c), 6(a), and 6(b). On June 26, 2017, the United States Supreme Court in Trump v. International Refugee Assistance Project granted cert to the Government regarding the injunctions. The Court issued a unanimous opinion granting in part the Government’s applications to stay the lower courts’ injunctions.

Section 2(c) suspends the entry of nationals from Iran, Libya, Somalia, Sudan and Yemen for 90 days from the effective date of the Order. The Supreme Court stayed the injunctions where foreign nationals lack “any bona fide relationship with a person or entity in the United States.” However, where individuals have a credible claim of such a relationship Section 2(c) may not be enforced against them. A “bona fide relationship” may consist of: (1) close familial relationships; (2) formal and documented entity relationships formed in the ordinary course of business; (3) students admitted to American universities; (4) employment with an American company; or (5) a lecturer invited to address an American audience.

The Court reasoned that individuals from one of the six listed countries who lack a bona fide relationship in the United States may be denied entry based on the Second Executive Order. The Justices found that the Government has a compelling interest in preserving national security, and that the Executive’s authority to enforce the suspension is at its peak when there is no tie between the individual and the United States.

Section 6(a) suspends decisions on applications for refugee status and travel for refugees into the United States under the USRAP for 120 days following its effective date. The Supreme Court left the injunctions in place as to refugees that have credible bona fide relationships with American individuals or entities. On the other hand, due to the Government’s compelling interest in national security, if the refugee does not have such a connection, then Section 6(a) stands.

Section 6(b) suspends any entry of refugees in excess of 50,000 in 2017. The Court ruled where a refugee has a credible relationship with a person or entity in the United States, they may not be excluded even if the 50,000 person refugee cap has already been reached or exceeded.

While the United States Supreme Court provided some clarity through this decision, many unanswered questions remain. Most notably, immigration attorneys now seek to understand the contours of what constitutes a “bona fide relationship” for immigration purposes. The Court provided some examples of a “bona fide relationship,” however, not every relationship, for example, is likely to fall neatly into one of the examples provided. Further, as with the prior immigration Executive Orders, implementation remains a major concern. In the days following the Court’s decision, Department of Homeland Security is likely to issue guidelines which seek implements the changed guidelines.

Looking forward, the Government’s case will be heard on the merits in the Supreme Court’s first session of October 2017. Moreover, the parties have been directed to address whether the challenges to 2(c) have become moot on June 14, 2017 as this was its effective date before President Trump issued a memoranda to the Executive Branch extending the effective date until the “injunctions are lifted or stayed.”

In an earlier post, we discussed President Trump’s second Executive Order (E.O.) aimed at restricting entry into the United States of certain foreign nationals. In a 10-3 decision, the Fourth Circuit Court of Appeals blocked President Trump’s E.O. stating that it “drips with intolerance, animus, and discrimination.” Similarly, the Hawaii decision, which ruled against the E.O., was appealed to the Ninth Circuit; that court has not yet made a ruling.

Next stop, the United States Supreme Court (SCOTUS). Although SCOTUS has not granted review of the E.O., the Justice Department has requested the Court for an urgent review. However, before SCOTUS rules on the substantive issues surrounding the E.O., the Court must first grant cert, i.e., at least four of the nine Justices must agree to review the matter. SCOTUS will review the merits of the case only if cert is granted.

Notwithstanding the passionate debate surrounding the E.O., the key legal issue here is the scope of the President’s authority, specifically in the arena of immigration and national security. Stemming from this are a plethora of other issues for the Justices to evaluate, including (1) whether President Trump’s campaign statements may be used as evidence; (2) whether the E.O. violates the Establishment Clause of the First Amendment; and (3) determining what is the appropriate precedential standard for this case.

SCOTUS review of an executive order is not unprecedented. The first of two notable examples: the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, SCOTUS reviewed President Truman’s executive order, and held that the President lacked the authority to seize private steel mills during the Korean War. Second, in the 1981 case Dames & Moore v. Regan, the court ruled in favor of President Reagan’s executive orders, providing deferential review given the national security context of the Iran Hostage Crisis.

Given the confusion surrounding the E.O., litigation in multiple jurisdictions, and the political importance of the matter, SCOTUS is likely to grant review, establishing the appropriate standard and providing clarity nationwide. Haynsworth Sinkler Boyd, P.A.’s immigration team will provide further updates.

The U.S. Citizenship and Immigration Services recently announced that it redesigned the Permanent Resident Card (“Green Card”) and the Employment Authorization Document (“EAD”) as part of its Next Generation Secure Identification Document Program. The redesigned credentials utilize enhanced graphics and contain fraud-resistant security features to enhance document security and deter counterfeiting.

The new Green Card and EAD will now display the individual’s photo on both sides of the credential; contain unique graphics and color palates; include embedded holographic images, and no longer reflect the individual’s signature. The new Green Card will contain an image of the Statute of Liberty and will be predominately green, while the EAD will contain an image of a bald eagle and be predominately red.

The U.S. Citizenship and Immigration Services began issuing the new Green Card and EAD on May 1, 2107, but will continue to use existing card stock until current supplies are depleted. Note that both existing and new credentials remain valid until the expiration of the date stated on the individual Green Card or EAD and both are acceptable for Form I-9, Employment Eligibility Verification and Systematic Alien Verification for Entitlement purposes.

Source
Source www.uscis.gov
Source
Source www.uscis.gov

 

On March 15, 2017, the United States District Court for the District of Hawaii issued an Order granting a nationwide Temporary Restraining Order (“TRO”) against President Trump’s Executive Order No. 13,780 which was to be effective March 16, 2017 (the “Executive Order”). This Executive Order replaces the January 27, 2017 Executive Order. Both Executive Orders restrict the entry of foreign nationals from certain countries and refugees on a temporary basis.

The State of Hawaii and Ismail Elshikh, Ph.D. sought a nationwide TRO prohibiting the enforcement of Sections 2 (six country ban) and 6 (suspension of the U.S. Refugee Assistance Program) of the Executive Order. The Court found that the Plaintiffs met their burden by demonstrating a strong likelihood of success on the merits and granted the TRO. Specifically, the Court addressed (i) the Plaintiffs’ Establishment Clause claim, (ii) whether irreparable injury is likely to occur, and (iii) whether the balance of equities favors the Plaintiffs.

The Court addressed the three issues above in turn. First, on the issue of the Establishment Clause, the Court found that the six-country ban showed religious discrimination in violation of the Establishment Clause of the First Amendment. The government sought to demonstrate a lack of religious discrimination by stating that the six countries comprise of only 9% of the world’s Muslim population. However, the Court was not convinced – “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.” State of Hawaii and Ismail Elshikh v. Donald J. Trump, CV. No. 17-00050 DKW-KSC (D. Hawaii March 15, 2017). Second, since the Plaintiffs demonstrated a likelihood of success on the Establishment Clause claim, the Court found that irreparable harm may be presumed. Lastly, the Court considered the balance of equities and the public interest. In analyzing this last issue, the Court weighed the national security concerns against the constitutional injuries and found that the “balance of equities and public interests justify granting the [] TRO.” Id.

As of now, individuals from the six countries listed in the Executive Order are subject to the same immigration rules as individuals from any other nation. The U.S. Refugee Assistance Program will remain unaffected. However, other unchallenged portions of the Executive Order such as the suspension of the Visa Interview Waiver Program will take effect as scheduled.

On March 6, 2017, President Trump signed a new immigration-related Executive Order. This anticipated Executive Order comes on the heels of his controversial January 27, 2017 Executive Order which temporarily suspended the refugee program and temporarily banned individuals from seven countries from entering the United States. The earlier Executive Order was halted in part by a Ninth Circuit Court Order, and met with widespread protests nationwide. The March 6th Executive Order repeals the January 27th Order in its entirety, and will take effect starting March 16, 2017.

The March 6th, Executive Order opened with an approximately two-page clarification of the earlier Executive Order. In response to popular outcry against the January Order and judicial disapproval of alleged religious discrimination, this Executive Order addressed the idea of a “Muslim Ban,” explaining that the earlier Order “did not provide for a basis for discrimination for or against members of any particular religion.” It further set forth the Administration’s policy objectives surrounding national security and cited a 2016 Department of State report justifying a temporary ban for individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen on the basis of national security.

With this backdrop, the March 6th Executive Order’s key points are as follows:

  1. 90-day ban on individuals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq was left off the list this time. The Administration reasoned that a ban on Iraqis is unnecessary given the “close cooperative relationship between the United States and the . . . Iraqi government . . . .” While Iraq is not subject to the 90-day ban, Section 4 of the Order calls for a “rigorous evaluation” of applications by Iraqi nationals. The remaining countries present an “unacceptably high” threat.
  2. The Executive Order only applies to foreign nationals of the designated countries who:
    (a) are outside the United States on March 16, 2017;
    (b) did not have a valid visa at 5:00 P.M., eastern standard time on January 27, 2017; and
    (c) do not have a valid visa on March 16, 2017.
  3. There are several notable carve-outs narrowing the Executive Order’s scope. The Executive Order does not apply to: Green Card holders, dual nationals when traveling on a passport issued by a non-designated country, foreign nationals who have been granted asylum and certain others who hold select visas.
  4. Immigration officials are permitted to make case-by-case determinations to issue visas or permit the entry of foreign nationals for whom entry is otherwise suspended. The foreign national must demonstrate “undue hardship” and that the foreign national’s presence would not pose a threat to national security. The Order outlines instances in which such a waiver may be appropriate, including when the foreign national:
    (a) has been previously admitted for work, study or other long-term activity, and seeks to re-enter the United States to resume this activity;
    (b) seeks to enter for significant business or professional obligations;
    (c) seeks to visit a close family member who is lawfully in the United States; or
    (d) seeks urgent medical care or has a special circumstance.
  5. The United States Refugee Assistance Program (USRAP) is temporarily suspended for 120 days, and the 2017 refugee numerical cap is set at 50,000 refugees. However, the suspension does not apply to those who have been formally scheduled for transit by the Department of State.
  6. The Visa Interview Waiver Program is suspended, meaning that in most instances, a non-immigrant visa applicant will have to undergo an in-person interview.
  7. Several other provisions from the January Executive Order remain in place including the visa reciprocity review and the data collection directives in Section 10 and 11 of the new Order, respectively.

The Executive Order is clear that any immigrant or non-immigrant visa issued before March 16, 2017 shall not be revoked pursuant to the new Order. While this Executive Order is far more specific than the January Order, the implementation by the various agencies will be worth watching to understand its practical impact. Travelers are well-advised to ensure that all immigration-related documentation is in order, account for delays when traveling to and from one of the six listed countries, and maintain a contingency plan in case of unforeseen events in transit.

Haynsworth Sinkler Boyd will continue to monitor further developments in this dynamic immigration climate.

On November 14, 2016, the United States Citizenship and Immigration Services (USCIS) released a revised version of the I-9 Employment Eligibility Verification Form which will be mandatory on January 22, 2017.  The revised form can be accessed and now completed online from the USCIS website.

The revised form includes a number of changes designed to make it more “user-friendly” and alleviate common mistakes during the completion process, such as drop-down menus, instructional text and real-time error messages.  Additionally, a user will now be alerted if certain fields are left blank or completed incorrectly.  The new form is also designed to ensure that identity and employment authorization credentials, provided by the employee for use in completing Section 2 of the form, are consistent with the employee’s citizenship/immigration status reflected in Section 1. Printed instructions are no longer attached to the actual form, but can be accessed directly through links on the form or as a separate document which is consistent with current USCIS practice.  Despite the new features, employers can continue to print a blank form from the website and complete it by hand.

Although the current form with a revision date of 03/08/2013 is still valid, we recommend that employers begin familiarizing themselves with the revised form prior to the effective date of January 22, 2017.

The I-9 Employment Eligibility Verification Form (OMB Control No. 1615-0047), which employers use to verify and document the identity and employment authorization of each new employee hired after November 6, 1986, contains an expiration date of March 31, 2016.  Based upon information received from the USCIS, employers should continue to use the current form until the USCIS releases an update.  Note that the USCIS is working to develop a “smart” version of the I-9 Form to reduce user error and make the form easier to complete. The USCIS will release information about this new version of the I-9 Form if and when it becomes available.

Click here for a copy of the current form.