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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

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, 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.

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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 (S.1615) and the House of Representatives (H.R.3440). 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.

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White House and Congress
Propose Various Immigration Reforms

In the campaign leading up to the Trump presidency, it was made clear that immigration would be a focal point for the incoming Administration. In just days after assuming office, the President issued a series of executive orders that would drastically affect the immigration field. From preventing travel and increased ICE raids, to the border wall and expedited removals, to hiring American and terminating DACA, these actions from the White House have sparked a number of immigration reform bills in Congress, with some garnering bipartisan support.

However, in the wake of the broader immigration reform debate in Congress, the White House issued a series of reform priorities to be considered, the tone of which are tremendously punitive and draconian, and justify harsh consequences based on alleged rather than real problems. Some of these priorities are predictable: funding for the border wall, increased interior enforcement measures, and funding cuts for sanctuary cities. These priorities also include reforms to family-based immigration and inclusion of a merit-based visa system for employment-related petitions. The proposals of course will be considered by members of the House and the Senate, mostly to determine where there will be areas of needed compromise, given that the President will have to sign an immigration reform bill into law. (Sufficient votes to override a presidential veto is unlikely.)

Nevertheless, several efforts at piecemeal reform have taken shape in the legislative branch, with no small number originating from Republicans. In the Senate, the RAISE Act includes provisions that drastically curtail family-based immigration and promote a merit-based or points system. Additionally, the E-verify system would be federally mandated nationwide. The RAISE Act bill was endorsed by the President when it was first introduced and is complemented by a House version, the Immigration in the National Interest Act. Even more restrictive, that proposed legislation would cap legal immigration at 500,000 per year, transition to a merit-based system favoring English-language skills, and cut family-based immigration. Mandating E-verify is a staple of the Act as well. A third proposal, the Legal Workforce Act, is solely aimed at implementing the E-verify program nationwide.

Additional bills are more focused than the sweeping changes to legal immigration and mandatory E-verify. Another bill, the Protect and Grow American Jobs Act, alters the requirements for H-1B visas in a protectionist fashion and would attempt to limit the outsourcing of American jobs. Under this proposal, an H-1B visa would be contingent upon a $100,000 salary. Likewise, the Border Security and Deferred Action Recipient Relief Act simultaneously provides $1.6 billion for border security measures and green cards to DACA recipients, while at the same time making gang membership a removable offense. Gang membership has a bill all its own — the Criminal Alien Gang Member Removal Act. Passed by the House in September, this bill defines a "criminal gang" and a "gang member" and authorizes ICE to remove aliens based on their gang membership and gang-related activity regardless of whether the foreign national actually has been convicted of a removable act. The bill is currently under consideration in the Senate. Finally, a new Agriculture Guest Worker Act proposes a guest worker program that would allow an additional 500,000 foreign nationals to work year-round on American farms and ranches. The guest worker visa would be valid for 3 years but participants in the program would have to spend at least 45 days in their home country during that time.

However, the most notable legislative efforts to date have been those dedicated solely to protecting DACA recipients. Those efforts include the DREAM Act of 2017 and the SUCCEED Act, outlined above. In any case, it is clear that there is sincere interest in the legislative branch to "fix" our immigration system. As of yet, however, none of the proposed bills has passed both chambers of Congress and there will likely be significant negotiations and compromises before any of these bills are forwarded to the President's desk for signature.

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Administration Considers Imposing
Quota Requirements on Immigration Judges

When the White House issued its broad immigration reform proposal earlier this month, included was a provision that called for imposing numerical quotas on immigration judges. The Administration finds lengthy removal proceedings a constant source of frustration and is attempting to reduce the overall case processing times to speed up deportations. They are considering establishing a baseline number of cases that each immigration judge will be expected to meet, and performance evaluations will reflect a judge's ability to meet the quota.

While no doubt that this initiative may actually speed up case proceedings, it comes at too high a cost. Establishing a quota undermines the independence federal judges enjoy to handle their cases as they see fit, and it also threatens to weaken due process. That is why the immigration judges union explicitly prevented the inclusion of quotas in their collective bargaining agreement. By imposing a quota judges will find their discretion to grant continuances, consider evidence, reschedule cases, extend hearings to allow witnesses, and perform other judicial activities will be curtailed as meeting the quota takes precedence. This proposal is extremely unwise and probably unconstitutional. The Justice Department, which would implement the quota, has not commented on or responded to questions about the quota proposal.

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Premium Processing
for H-1B Petitions Restored

Earlier this month USCIS announced that it will once again begin accepting premium processing requests for all categories of H-1B petitions. In March, the agency had suspended premium processing for H-1B petitions to address their increasing backlog of H-1B petitions. Over the next six months, USCIS had been incrementally permitting certain H-1B cases to take advantage of the expedited adjudication process. However, the latest announcement allows petitioners to file premium processing requests for all H-1B categories, including H-1B visa extensions. For those responding to Requests for Evidence (RFEs), employers can upgrade pending petitions to premium processing. In fact, any pending H-1B petition filed under the standard program now can be upgraded to premium processing. Premium processing costs an additional $1,225 in filing fees and ensures that the case will be adjudicated in 15 days.

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The New 90-Day Rule

Preconceived Intent
and Activities After Entry

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 do 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.

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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.
  • USCIS 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.
  • 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.

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Keep an Eye on Your
Social Media Accounts

DHS continues to collect social media information on all visitors and immigrants, and disclosing that information is becoming a prerequisite on visa applications. Consular officials, CBP, ICE, and USCIS have been collecting this information for the past several years, but there has been a new push for extremely broad data collection. However, immigration officials cannot request social media information that is private (not available for public viewing) without a warrant, unless the subscriber has consented to disclosure when signing up for the service. We advise all foreign nationals to review their Facebook, Twitter, and other social media platforms, especially before applying for a visa or traveling to the U.S. It is also important to make sure your social media posts do not contradict your stated intentions regarding travel and activities in the U.S. In short, be smart about what you post online because the U.S. government is paying attention.

Meanwhile, in September, 10 U.S. citizens and one lawful permanent resident filed a lawsuit in federal court challenging, on First Amendment and Fourth Amendment grounds, searches and seizures of smartphones, laptops, and other electronic devices at the U.S. border (Alasaad v. Duke).

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Major Data Collection Program
Implemented by ICE

DHS has created and implemented a number of technology and data-driven programs to assist in locating, tracking, and removing foreign nationals. Last year, ICE began developing a data collection program that would assist in their interior immigration enforcement efforts. The program collects and analyzes varied data related to targeted individuals, essentially modernizing the gathering of utility bills, driving records, insurance claims, phone numbers and addresses, and other public and private information that ICE already uses. This includes access to local jail bookings, now available through the Secure Communities executive order. However, due to the aggressive surge in interior enforcement operations, the data has become so massive that ICE has to outsource the workload. Included in the contract terms was the capability to track up to 500,000 people at one time.

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Defense Department Reverses Policy on
Military Access to Expedited Naturalization

On October 13, 2017, 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.

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What to Do

Passport or Visa
Damaged by Flood?

In the wake of the hurricanes that have brought massive flooding to Texas, Louisiana, Florida, and Puerto Rico, many foreign nationals are reporting that their passports and visas have been water-damaged. Foreign nationals with water-damaged documents are advised to replace them prior to traveling internationally (if possible) or ensuring that they allow time to apply for a new visa or passport abroad before attempting to return to the United States. The ink that is used in the documents does not hold up to water, and if the damage is apparent by looking at the document, there is a high likelihood that the visa/passport will not be machine readable. Individuals who seek reentry to the United States by air will not be permitted to board an airplane if their passports cannot be scanned. There is very little room for discretion for those entering by air, as the airlines will likely deny boarding before CBP ever sees the applicant.

Those who seek reentry by land may receive greater favorable discretion, as they may be granted a waiver of the required entry document (on Form I-193). Such waivers are granted on a case-by-case basis at the discretion of the port, and there is no guarantee that it will be done in any particular case. In cases that merit favorable discretion (e.g., emergency travel due to hardship), an attorney may be able to facilitate the process by having the foreign national return to the United States through a land border port of entry and contacting that port in advance of reentry to discuss the case and explain why the case merits an I-193 waiver approval. Ports will never pre-adjudicate admissibility, but entry may be facilitated by making this type of inquiry in advance. The I-193 waives only the lack of a travel document and does not waive any other grounds of inadmissibility.

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Turkey and U.S. Suspend
Nonimmigrant Visa Processing

Both the United States and Turkey have suspended all nonimmigrant visa services for travel between the two countries. The breakdown in relations was prompted by the arrest of a Turkish national employed by the U.S. consulate whom Turkish authorities charged with espionage and, essentially, treason. The Turkish crackdown on subversive nationals is a direct reaction to the failed coup in 2016, supposedly led remotely by Fethullah Gülen, who resides in the United States. This was the second arrest of a U.S. consular employee. Following the arrest, the Department of State stated: "Recent events have forced the United States government to reassess the commitment of the government of Turkey to the security of U.S. mission facilities and personnel."

Because of its geographic location, Turkey is a critically important ally in the fight against terror. Its proximity to Syria, Iraq, and other key areas in and around the Fertile Crescent make it an ideal staging point for U.S. military operations in the region. Turkey has been a helpful ally in the fight against terrorism, but U.S. and Turkish goals do not always align — especially when it comes to the treatment of the Kurdish ethnic group present in the southeast portion of the country. Moreover, Turkey has estranged itself from inclusion in the European Union due to the alleged human rights abuses committed in the wake of the failed 2016 coup attempt, and its list of Western allies is growing increasingly shorter.

The arrest of the U.S. consular employee prompted the United States to suspend all nonimmigrant visa processing for Turkish nationals. Turkey responded in like fashion, and then upped the stakes by refusing to recognize Ambassador Bass as the United States' representative in Ankara. At this point, we are unsure when diplomatic relations will be restored and nonimmigrant visa processing will resume. In the meantime, Turkish nationals who currently possess valid visas may continue to travel to the U.S., and U.S. consulates outside of Turkey will process visa applications.

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NEWS IN BRIEF

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

TPS for Sudan ending November 2018: DHS has determined that conditions in Sudan no longer support its designation for temporary protected status (TPS). The decision will affect over 1,000 Sudanese nationals living in the United States under a grant of TPS. In announcing the termination of TPS for Sudan, DHS extended the program for one additional year. TPS status for Sudanese nationals will thus officially terminate on November 2, 2018. Those who need to renew their work cards should do so immediately in order to take advantage of their TPS benefits all the way through to the November 2018 deadline.

TPS for South Sudan Extended: While country conditions in Sudan no longer support a TPS designation, conditions in South Sudan have prompted the DHS to the extend TPS benefits for those foreign nationals for an additional 18 months, through May 2, 2019. Acting DHS Secretary Elaine Duke stated that the country is "engulfed in an ongoing civil war marked by brutal violence against civilians, egregious human rights violations and abuses, and a humanitarian disaster on a devastating scale across the country."

Apply for Work Authorization and a Social Security Number at the Same Time: USCIS and the Social Security Administration have created an information-sharing partnership that will streamline getting an SSN. Instead of having to wait for USCIS to grant their application before applying for a Social Security number, foreign nationals can now apply for work authorization and a Social Security number at the same time, using the new version of Form I-765.

Immigration Judge Surge at Border Receives Mixed Results: After Executive Order 13767 (Border Security) was issued earlier this year, Attorney General Jeff Sessions relocated more than 100 immigration judges down to the Southern Border. The Justice Department stated that the surge resulted in about 2,700 more case completions. Despite this numerical success, however, the court backlog looms even larger due to interior enforcement efforts. More importantly, serious due process concerns have been raised regarding the accelerated immigration hearings taking place on the border.

ICE Plans New 1,000-Bed Facility in South Texas "Detention Alley": ICE is planning to increase the number of its detention facilities to include a new privately run 1,000 bed facility to house men and women in South Texas. Proposals are being accepted for the new location, which would add to the seven facilities currently located along the I-35 corridor between Laredo and San Antonio. Sharp increases in the number of individuals detained due to ICE raids have put a strain on the existing number of facilities. The new arrests have added to the existing 632,261 cases pending nationwide.

Largest Civil Settlement in Employer Sanctions Case: ICE announced that Asplundh Tree Experts, one of the largest privately held U.S. companies, pleaded guilty to unlawfully employing individuals and was sentenced to an $80 million criminal forfeiture judgment and $15 million in civil payment, the largest immigration payment ever levied.

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