On July 31, 2018, the Department of Justice (DOJ) and the Department of Labor (DOL) signed an agreement that sets guidelines for inter-agency collaboration to combat suspected employer non-compliance with immigration laws. The agencies have agreed to share resources, including records, and education and training where necessary, and refer cases to one another when an agency learns of employer non-compliance. Continue Reading DOJ and DOL Combine Forces to Combat Employment Discrimination Against U.S. Workers
In a 5-4 decision, the United States Supreme Court reversed the Ninth Circuit’s grant of a preliminary injunction on President Donald Trump’s September 2017 proclamation – Proclamation No. 9645, more commonly known as the “travel ban.” Proclamation 9645 restricted entry into the United States by citizens of Iran, North Korea, Somalia, Syria, Chad (subsequently removed from the list), Libya, Yemen and Venezuela. The majority held that the authority to suspend the entry of aliens into the United States flows from the clear statutory language of §1182(f) of the Immigration and Naturalization Act, which “enables the President to suspend the entry of all aliens or any class of aliens whenever he finds that their entry would be detrimental to the interests of the United States.” Continue Reading Yesterday’s SCOTUS Ruling on the Travel Ban
In May 2018, the United States Citizenship and Immigration Services (USCIS) made two changes affecting foreign students – (1) calculating unlawful presence for students in the U.S. and (2) third-party placements for STEM OPT students.
Calculating Unlawful Presence
“Unlawful presence” in the U.S. is defined as being present in the U.S. after the expiration of a period of stay or any presence without being admitted or paroled into the U.S. However, different rules govern what counts as “unlawful presence.” Recently, USCIS updated its policy on how unlawful presence is calculated for individuals in F (student), J (exchange visitor), and M (vocational student) status. Generally, an individual who “was unlawfully present in the United States for a period of more than 180 days but less than 365 days” may be barred from re-entry for three years; and if an individual has overstayed for more than 365 days, then a ten year bar to re-entry applies. See INA 212(a)(9). In a Policy Memorandum dated May 10, 2018, USCIS set out new rules for calculating unlawful presence for individuals in F, J, and M status. Under the former rule, a student in the U.S. would begin to accrue unlawful presence only after USCIS or an immigration judge made a formal finding of a violation of status, whichever came first. However, under the new rule effective August 9, 2018, unlawful presence is calculated as follows:
F, J, or M individuals who failed to maintain their status before August 9, 2018 will start accruing unlawful presence on August 9, 2018, unless such individual has already started accruing unlawful presence on the earliest of any of the following:
- The day after Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after their I-94 expired, if the individual was admitted for a date certain (versus Duration of Status (D/S)); or
- The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).
F, J, or M individuals will begin to accrue unlawful presence for a failure to maintain status on or after August 9, 2018 on the earliest of any of the following:
- The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity;
- The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
- The day after the I-94 expires, if the individual was admitted for a date certain (versus D/S); or
- The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
USCIS seeks to implement this updated policy to lower overstay rates for students and exchange visitors. According to the FY 2016 Entry/Exit Overstay Report published by DHS, “the total overstay rate is 6.19 percent for the F visa category, 11.60 percent for the M visa category, and 3.80 percent for the J visa category.” In FY 2016, DHS calculated nearly 1.5 million students and exchange visitors who were expected to change status or depart the U.S.
Restricting Third-Party Placement for STEM OPT
The second policy change is with regard to third-party placements for STEM OPT students. F-1 students may engage in a twelve-month optional practical training (OPT) after completing their studies. Students who receive a science, technology, engineering, or mathematics (STEM) degrees may apply for a twenty-four month extension to their OPT. So far, no regulations or policy memoranda specifically prohibit STEM OPT students from being placed at third-party sites. However, USCIS updated its website to prohibit third-party placements – “a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The website requires that training take place on-site exclusively. USCIS’ stated rationale includes the ability of Immigration and Customs Enforcement, the enforcement arm of the DHS, to conduct site-visits to ensure OPT compliance.
It is expected that USCIS will issue a policy memorandum addressing this issue in the near future, as the enforceability of publishing material on the website could be challenged. Therefore, students and employers are well-advised to consult immigration counsel in considering a third-party placement and the associated risks in light of these developments.
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.
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.