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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

Experiencing Immigration in the Trump Era

The election dust has settled and the candidate who based his campaign on tough immigration enforcement is in the White House. While change takes time, just seven months into President Trump's term, the nation is starting to fully understand the reality of working with the Trump Administration. Indeed, for the first time in American history, a president has put immigration as the very first order of business for the executive branch; just days after his inauguration, the President issued the travel and refugee ban. Below we summarize the big changes and most important developments in immigration over the past several months and provide a broader picture of the state of immigration-related affairs. There is not an area of immigration that has remained untouched or unmentioned: undocumented immigrants, skilled workers, family-based claims, refugees, and border security protocols.

Clearly, there have been drastic revisions to the treatment of undocumented immigrants in this country. Border security has been tightened, regardless of whether "The Wall" is being built. While the total number of border crossings have dropped dramatically since January 2017, Border Patrol officers have been successful at apprehending a greater percentage of foreign nationals who attempt to enter the country illegally. Those caught are no longer released into the U.S. with a court date, but are being detained in jail while they await their immigration hearing. This includes children and families. Expedited removals are increasingly employed, which limits these aliens' ability to make an asylum claim or receive representation. Furthermore, U.S. Immigration and Customs Enforcement's (ICE) authority to arrest and remove any foreign national who is unlawfully present or has committed a crime is at its peak. Immigration raids and sweeps have resulted in thousands of people being arrested and deported, some of whom have been here for years and have strong ties to America. Undocumented immigrants who have been cooperating with ICE for years are being arrested when they appear for their check-in. Several local police precincts and even some states have agreed to assist in identifying immigration violators, while the federal government has threatened sanctuary cities if they refuse to cooperate with DHS officials. Successful court challenges to any of this have been scarce. In short, it is not a good time to attempt to enter the country illegally. And, if you are in the United States without status, you should have a plan of action should you or a family member be arrested by ICE. Such a plan must include identifying good lawyers or pro bono advocacy groups and keeping their information close by at all times.

The other major campaign platform for President Trump was reducing Muslim immigration. While Trump distracted the media and the public with the travel ban, some U.S. consulates in Muslim-majority nations were arbitrarily denying visas. These were countries not included in the ban and received very little notice. Muslim foreign nationals should expect increased processing times, heightened security checks, and unwarranted denials at consulates over the next few years. Because of the nonreviewable discretion of consular officers, this is a reality that is unlikely to change anytime soon. So, if you are applying for a visa in Pakistan or Saudi Arabia, for example, you should ensure you have a strong application to establish your eligibility for the visa you seek. If you are from a country identified in the travel ban you may want to keep international trips to a minimum, at least until the ban expires.

Unlike his stance on undocumented immigrants and Muslim foreign nationals, the President's opinion on H-1B visas has been ever-changing. At one point while on the campaign trail, President Trump came out in strong support of the H-1B visa — even proposing to raise the annual numerical limit — after acknowledging how high-skill workers drive the nation's economy. President Trump even met with industry leaders in Silicon Valley who made the case for more visas. However, instead of pushing for legislative changes to the numerical limit, the Administration is attempting to undercut small businesses seeking to hire skilled labor and transfer those H-1B visas to giant tech companies who can pay highest salaries. Just recently, there has been an onslaught of H-1B requests for evidence challenging the wage to be paid to foreign nationals. For the foreign students considering the H-1B as a viable option after graduation, this visa is likely to become increasingly restrictive and difficult to get for lower salary jobs.

The PERM labor certification process for employment-based green cards is also being reviewed for fraud prevention, with the Administration encouraging the Department of Labor (DOL) to step up its enforcement measures against employers who underpay foreign workers. However, the DOL does not have the requisite resources to be able to adequately address any policy proposals that come down from the White House, and as of yet, processing times and audit rates for PERM applications have not seen any significant increase. For now, it is business as usual for filings with the DOL, but if Congress increases its funding in an upcoming appropriations bill, we could see intensified screening of applications and more site visits.

Meanwhile, USCIS has intensified its scrutiny given to all filings, from I-140 immigrant visa petitions to work card extensions. The agency is reviewing cases more closely, which has increased the number of requests for evidence (RFEs) issued. This, in turn, increases average processing times for all applications. Several forms have been revamped to collect more information on each applicant. Site visits for H, L, and R visas are up as well. Of course, these actions require more money and time for each case filed, and we should expect the agency to demand increased funding to better support these actions.

The admission of refugees has been limited over the past seven months as well. The expedited processing of illegal entries has precluded some Northern Triangle (Guatemala, Honduras, El Salvador) refugees from filing asylum claims, and the travel ban included a temporary halt to Syrian refugees. It is no secret that President Trump wants to reduce the overall number of refugees accepted into the U.S. on an annual basis. To be fair, the U.S. policy on processing and accepting refugees is not above scrutiny — our program needs to be constantly evaluated to ensure that it is both safe and accomplishing its purpose. But the proposal to reduce refugee admissions comes at a time when the number of displaced persons is rising worldwide. Refugees, especially from Syria, are likely to find the process more laborious and take more as we move forward.

In all, it is an increasingly difficult time for immigrants, immigration lawyers, and immigration advocates. Most of what the Administration is doing is within the bounds of the law and will be very difficult to challenge in the federal courts. That means that tough enforcement is the status quo for a while and the U.S. immigration community needs to react accordingly. Pro-immigration advocates must find ways to resist restrictive policy and mean-spirited practices that ultimately hurt American businesses and communities.

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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 that, however, 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;
  • 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.

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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.

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Supreme Court to Hear
Travel Ban Case in October

Despite strong opinions from the Fourth and Ninth Courts of Appeal, the U.S. Supreme Court lifted the injunction on President Trump's travel ban and allowed a version of it to go into effect. The Supreme Court will hear the arguments for the case in October, shortly after the ban is set to expire for nationals in the six identified countries. The ban on Syrian refugees is set to remain in effect until the end of October. Although the Supreme Court allowed the travel ban to be implemented, it remains unclear how the Court will ultimately decide the limits of the President's powers in this area.

Although originally included, Iraq was removed from the list of countries targeted by the President's executive action. In negotiating Iraq's removal from the list of banned countries, Baghdad agreed to accept repatriates. (Iraq was among a number of countries that had refused to take back their deported nationals.) The result was targeted immigration sweeps in June in communities in Michigan and Tennessee with concentrated populations of ethnic Iraqis.

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DHS and DOL Increase
Cap for H-2B Visas by 15,000

On July 17, DHS and the DOL issued a temporary rule increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of fiscal year (FY) 2017. To file for one of these additional H-2B visas, a petitioner must meet all existing H-2B eligibility requirements. In addition, petitioners must submit an attestation (and keep the paperwork evidence) that if they do not receive the requested workers under the cap increase, they will likely suffer irreparable harm or a permanent and severe financial loss. In addition to the recruitment already conducted, employers with current labor certifications containing a start date before June 1, 2017, must conduct a fresh round of recruitment for U.S. workers.

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USCIS Delays Effective Date
of International Entrepreneur Rule

On July 11, 2017, USCIS released a final rule delaying the effective date of the International Entrepreneur Rule from July 17, 2017, to March 14, 2018. The final rule would have allowed international entrepreneurs to use the parole program to stay temporarily in the United States to grow their start-up businesses and create U.S. jobs. The delay will provide USCIS the opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order 13767, "Border Security and Immigration Enforcement Improvements." Comments were due August 10, 2017.

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USCIS Reinstates Premium Processing
for Certain H-1B Categories

USCIS has begun to accept premium processing I-907 requests for three cap-exempt H-1B classifications. A petitioner can file an I-907 if it is (1) an institution of higher education, (2) a nonprofit related to or affiliated with an institution of higher education, or (3) a nonprofit research or governmental research organization. This applies to beneficiaries who will be employed at these entities as well. Earlier in the year, USCIS again permitted premium processing for H-1B petitions associated with Conrad 30 waivers for foreign medical graduate beneficiaries.

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Where You Live Greatly Affects Ability to Find
Attorney for Immigration Court Representation

The Transactional Records Access Clearinghouse (TRAC) released new data showing that the odds of obtaining representation in immigration deportation proceedings varies widely, depending upon the community in which an immigrant lives. According to the report, if you happen to live in Honolulu, then the odds are good that if an ICE agent comes knocking at your door, you will be able to find an attorney to represent you — even a pro bono attorney. Likewise, the odds of finding representation is particularly high if you live in Manteca, California, or in Pontiac, Michigan. But, if you live in Roma-Los Saenz or Huntsville, Texas, or in Coral Springs–Margate, Florida — or even in Atlanta-Decatur, Georgia — you won't be so lucky. Those places rank among the worst in the proportion of their residents who have found an attorney in their proceedings before the immigration court.

The immigration court system was established by Congress to conduct deportation proceedings and to decide whether a foreign national should be ordered removed from the United States. Over the past five years, only about half the number of individuals in these court proceedings were represented. While the government is always represented by an attorney, this is not true for the immigrant. Unlike in criminal proceedings, the federal government is not required to provide legal counsel to those without the means to hire an attorney. Few dispute the importance of having an attorney to effectively argue one's case. Representation can also lead to a number of efficiencies in the handling of court proceedings. Yet, only 37 percent of all immigrants (and only 14 percent of detained immigrants) obtain representation. More importantly, individuals who were represented had five times a greater chance of prevailing than those who did not have a lawyer. Because immigration attorney availability varies widely by location, the practical reality is that individuals residing in different communities differ greatly in their ability to find an available attorney and ultimate prevail in their case.

TRAC has an online interactive mapping application that individuals can use to determine the odds of finding appropriate representation.

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New Scrutiny of
I-9 Misrepresentations

All new employees are required to complete a Form I-9 when they are hired. While many new employees do so with little thought, the consequences for foreign nationals of improperly completing the form can be disastrous, leading to serious immigration consequences. Some USCIS districts have been scouring I-9 forms to see if there are any problems that could amount to fraud, misrepresentation or worse.

Foreign nationals are reminded that when describing their immigration status, they should never check the "citizen" box on a Form I-9. Making a false claim to citizenship is a very serious immigration offense and could lead to a permanent bar to immigration. The citizen box should never be checked even if other options — "non-citizen national," "permanent resident," and "alien authorized to work" — are not applicable.

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NEWS IN BRIEF

The following additional items may be of interest to our readers:

Indian Nationals Eligible to Join Global Entry and Can Avoid Long Immigration Inspection Lines: Citizens of India now join a select group of countries — including the United Kingdom, Switzerland, Germany, Colombia, Mexico, Panama, and South Korea — whose nationals can participate in the U.S. Customs and Border Protection (CBP) Global Entry Trusted Traveler Program. Global Entry gives pre-screened, low-risk travelers a faster entry process into the United States. While the individual application requirements vary depending on the traveler's country of citizenship, all travelers must undergo a rigorous background check and in-person interview to apply. The application fee is $100 and once approved, it is valid for 5 years. Global Entry members are also eligible for the Transportation Security Administration's (TSA) PreCheck program, which allows for expedited airport screening at TSA checkpoints in specific airports. Global Entry members who are not U.S. citizens or U.S. lawful permanent residents must maintain updated visa information with CBP. If a Global Entry member obtains a new visa, or obtains a new petition for a work visa, the member must notify CBP in-person at a Global Entry Enrollment Center.

Express Deportations: The Attorney General has instructed his federal prosecutors practicing before district courts to request "judicial orders of removal" from the judge in their cases involving aliens. This ensures that a convicted foreign national will be deported on completion of the criminal sentence instead of being sent to an immigrant detention center to await proceedings in immigration court and then a deportation order from an immigration judge. A district judge can legally issue such an order, but under previous administrations, it would only be requested in the most extreme circumstances.

Biometrics Required of All Naturalization Applicants, with Some Exceptions: USCIS has announced that every naturalization applicant must provide biometrics regardless of age, unless the applicant qualifies for a fingerprint waiver due to certain medical conditions. For some 20 years, USCIS has waived the fingerprint requirements for naturalization applicants age 75 or older because of difficulty in capturing readable fingerprints from this age group. However, electronic processing of applications and improved technology now allows USCIS to capture fingerprints for applicants of all ages. USCIS will continue to make special arrangements to accommodate the needs of applicants with disabilities and homebound or hospitalized applicants.

Immigration Courts Still Backlogged and Unlikely to Change Soon: The Trump Administration is doing everything in its power to address the backlog in immigration courts. It received funds from Congress to hire additional judges and current judges have been relocated to the Southern border. But, with a 40 percent average increase in immigration arrests since President Trump assumed office, more people are before the immigration court. Given the numbers, it will be extremely difficult to reduce the overall court backlog anytime soon.

New I-485 and I-9 Forms: Applicants for adjustment of status are reminded that as of 8/25/2017, a new Form I-485 (version 6/27/2017) is required. A new Form I-9 (version 07/17/17 N) is mandatory on 9/18/17.

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