Enforcement Priorities

May 18, 2018 § Leave a comment

Historically since 1996, Immigration policies have guided officials to prioritize arrests and investigations involving undocumented individuals. Top priority was given to those individuals charged with felonies and other high crimes. However, the Trump administration announced in January of 2017 through an executive order, “Enhancing Public Safety in the Interior of the United States”, that priority has been given a new meaning. Immigration forces have been directed to make any unauthorized individual at risk for being deported or arrested, regardless of how long they have been in the United States, how obedient they have been to United States laws, or how many of their relatives are U.S. citizens. The order also stripped money from sanctuary cities.

We have already seen an increase in arrests of undocumented individuals. Since fiscal year 2016, ICE arrests have increased by 42 percent. While ICE reported that 92 percent of these arrests were being charged or had been convicted for a criminal offense, it was found that they used the term “criminal offense” for traffic violation and other minor and non-violent offenses.

Setting these enforcement priorities allows law enforcement to have wiggle room for discretion. Discretion is the choice that officers, prosecutors and judges must determine if they want to pursue a case. Discretion plays an important role in a functioning justice system, primarily serving to make an effective use of the justice system’s limited resources, as there simply aren’t enough police, prosecutors, and other criminal justice personnel to act against every person who has broken the law, no matter how minor the offense.

Under the Obama administration and pursuant to the Morton Memo from 2010 that was rescinded and released again in 2011, law enforcement was told to give priority to those individuals who:

  1. Were threats to public safety or national security, specifically those with criminal convictions
  2. Undocumented migrants who recently crossed the border
  3. Migrants who didn’t heed a previous order of removal, or who re-entered after being deported

A criticism of the 2010 Morton memo was that it lumped individuals together who were convicted of very different crimes (for example: shoplifting and murder are two very different criminal convictions). Another issue with the memo is that the peopled referred to in numbers two and three often don’t know they are breaking immigration laws. The Obama administration realized their mistakes and wrote a more specific memo in June of 2011.

A concern of having no priorities set in place is that while we are catching undocumented individuals, we could be missing those who are actually a threat to society.

A November 2014 memo written by then-DHS secretary Jeh Johnson rescinded the 2010 Morton Memo. The Johnson Memo referred to not just ICE, but the entire Department of Homeland Security. The Johnson Memo was very similar to the Morton Memo, giving priority to those individuals who:

  1. are threats to national security, border security (specifically individuals who were arrested while attempting unlawful entry), and public safety
  2. misdemeanants and new immigration violators (including anyone apprehended after unlawfully entering the U.S. and who had not been present in the United States since January 1, 2014)
  3. “other immigration” violators, specifically those who had been issued a final order of removal on or after January 1, 2014

The Johnson Memo also elaborated on the extent of discretion. Johnson stated that discretion should not be limited to the prosecutorial processes of issuing, serving, filing, or cancelling a Notice to Appear, but should also include other discretionary decisions regarding enforcement such as “whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case”.

In February of 2017, then-DHS Secretary John Kelly strictly adjusted the limitations of discretion. For example, the Kelly Memo directed that officials should consult with the head of their department before making discretionary decisions. The Kelly Memo also directed the director of ICE to “immediately reallocate any and all resources that are currently used to advocate on behalf of illegal aliens…  to the new VOICE Office (Victims of Immigration Crime Engagement), and to immediately terminate the provision of such outreach or advocacy services to illegal aliens”.

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The Proposal of the I-Squared Act

February 21, 2018 § Leave a comment

Senators Orrin Hatch and Jeff Flake proposed the Immigration Innovation Act of 2018 (I-Squared Act) with intentions on improving the high-skilled immigration system with increased obligations for sponsoring employers. According to Hatch, this bill incorporates a merit-based system into immigration policy, which has been an important issue on the Trump agenda.  However, unlike the Raise Act, sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA) and supported by Trump, I-Squared would not cut legal immigration over a 10-year period. It will increase programs that support highly skilled foreign workers while protecting U.S. workers.

The I-Squared Act would increase the H-1B cap from a baseline of 85,000 per year up to 195,000 in high demand years. The bill would bring about unlimited cap exemption for U.S. advanced-degree graduates for whom an employment-based green card case is begun within a year after they obtain H-1B status. If the cap were reached in the first five business days of the cap season, a priority system would be used to allocate cap numbers. Priority would be given to (1) cap-subject U.S. advanced degree holders; (2) beneficiaries holding doctoral degrees earned outside the United States; and (3) foreign nationals holding U.S. bachelor’s degrees in designated STEM fields.

Under the Act, H-4 dependents (children and spouse of the H-1B visa holder) can receive work authorizations providing the H-1B spouse has a pending or approved Labor Certification or I-140 and require H-4 employers to certify they will pay the spouse the greater of the actual wage or the prevailing wage. This change will make decisions related to cap-subject H-1B visas a priority based on the degree of the individual and speeds up the process for employers filing multiple immigrant or nonimmigrant petitions. The new bill would require that an H-1B employer can only hire an H-1B employee if there is no intent of replacing a U.S. worker unless the U.S. worker received a promotion, transferred, retired or left the company voluntarily.

In regards to the monetary aspect of the I-Squared Act, USCIS filing fees required for H-1B petitioners in accordance to the American Competitiveness and Workforce Improvement Act (ACWIA) would increase in order to contribute to STEM education funding; however, it is also planned to increase prevailing wages in the workforce.

The I-Squared Act not only affects the H-1B visa programs, but also green card programs. Currently, there are numerical limitations on each country on immigrant visas. The Act would eliminate these limitations and recapture unused visas from FY 1992 through FY 2013 to cut the backlogs. It will also increase employment-based immigration visas to 35,000 and create dual intent for student visa holders to make it easier for them to apply for a green card.

The Impact of the Termination of Temporary Protected Status on U.S. Employers

February 12, 2018 § Leave a comment

Temporary Protective Status (“TPS”) is given to foreign nationals who are temporarily residing in the U.S. due to negative conditions in their home country. TPS does not provide a pathway to citizenship, but protects the individual from deportation and allows the individual to legally work in the United States. The Trump administration has recently announced that they will be terminating this status for individuals from Sudan, Nicaragua, Haiti and El Salvador. The effective dates for termination are as follows:

  • Sudan – November 2nd, 2018
  • Nicaragua – January 5th, 2019
  • Haiti – July 22nd, 2019
  • El Salvador – September 9th, 2019

In the meantime, beneficiaries are able to register to extend their TPS status and apply for an extension of their Employment Authorization Document (“EAD”) during a specific 60-day time period announced by the Federal Register. The 60-day re-registration period for Sudanese and Nicaraguan TPS designees has already expired, while Haitian and El Salvadoran beneficiaries have until March 19th, 2018.

These changes are impacting the workplace as many in the TPS program have been living and working in the United States for several years. Thus, it is recommended that employers audit I-9 Forms to ensure eligibility for their employees.

EADs have most likely expired for individuals covered under TPS from the recently terminated countries; however, USCIS has extended the expiration date, allowing beneficiaries to re-register their EADs with the following cut-off dates: May 1, 2018 for TPS beneficiaries from Sudan; July 4, 2018 for TPS beneficiaries from Nicaragua; July 21, 2018 for TPS beneficiaries from Haiti; and September 5, 2018 for TPS beneficiaries from El Salvador. The “expired” EAD is only valid if shown with proof that they have received an extension. A form of proof can include a notice from the Federal Register stating that it was extended or a Form I-797 or Notice of Action with the expiring EAD (category A-12 or C-19) if an extension application has been submitted during the 60-day period.  Employees must then correct the expiration date on their Form I-9. Section 3 for Reverification should not be filled out until the employee has received their new EAD.

Before employees may begin work on the day following the last day of the automatic extension of their EAD, employers must re-verify their employment authorization. Employees may present any document from List A or List C from the Form I-9. Once they have presented an acceptable document, employers may fill out Section 3. If an individual is being newly hired, they should fill out their extended expiration date on their Form I-9.

If an employee wishes to stay in the United States and has relationships or other alternatives that make them eligible for immigration benefits, they should explore these options immediately.

While the administration has not yet announced the effect on DACA beneficiaries, it is recommended that employers take the same steps.

International Entrepreneur Rule Gets a Second Chance

January 23, 2018 § Leave a comment

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

A Change In Administrations

On January 25, 2017, President Trump issued an executive order that required all agencies to reexamine its parole admission policy and ensure it was not being abused. On July 11, 2017, six months after the President’s executive order and six days before the IER became effective, the USCIS announced it would be delaying the IER until March 14, 2018 to review its compliance with the President’s executive order. The USCIS did not engage in the rulemaking process when it delayed the IER.

International Entrepreneur Rule Overview

Prior to the IER, the Secretary of Homeland Security had the authority to grant parole admission into the United States on a case-by-case basis if a foreign national had been subject to a national disaster or the foreign national could provide sufficient evidence that his or her admission into the United States would provide a significant public benefit. However, Congress had never defined a “significant public benefit” and the IER established what criteria the USCIS should use in determining if an entrepreneur would be considered a “significant public benefit.”

Then, according to the National Venture Capital Association decision, meeting the requirements did not automatically grant admission to an applicant; but rather, streamlined the agency’s [DHS] treatment of entrepreneurs. In forming the IER, the DHS had initially undergone the notice and comment proceedings under the APA, made significant changes, and delayed the final implementation of the rule until July 17, 2017, to ensure the USCIS had adequate time to allocate the resources necessary to implement the new rule without sacrificing any of its current services.

However, under President Trump’s executive order IER did not go into effect on July 17, 2017, and a lawsuit followed.

Challenging the Delay

On September 19, 2017, two foreign entrepreneurs and the National Venture Capital Association filed suit arguing the USCIS bypassed the APA mandatory notice and comment requirements when it delayed the IER.

The district court noted that national elections have consequences, but that the APA shapes how federal agencies may react to the results of elections. The APA’s notice and comment requirements are mandatory when an agency makes a rule as well as when an agency “seeks to delay or repeal a valid final rule.” An agency can only bypass the notice and comment requirements if the agency can prove it acted with “good cause.”

The district court found that the USCIS did not have a good cause for delaying the IER for several reasons. First, an agency cannot act with “good cause” if the agency delays implementing its decisions. Here, the USCIS waited six months after the President’s executive order to delay the IER and the DHS was unable to explain why the agency needed six months to reach its decision to delay the rule. The court found the agency’s delay inconsistent with the “good cause” expectation to the notice and comment requirements.

Second, the DHS argued that the IER had to be delayed because if the IER went into effect it would place the DHS in “fiscal peril,” i.e. the IER was too expensive. The district court dismissed this argument noting that the DHS previously admitted the IER’s filing fees would “ensure recovery of the full costs of providing services.”

Third, the DHS argued that allowing the IER to remain in place or going through the lengthy notice and comment proceedings would add confusion to the parole process because companies or individuals may misguidedly rely on it and invest significant capital and resources into a startup on the belief that the entrepreneur could be granted admission to the United States. The court dismissed this argument for two reasons. First, it ignored the foreign nationals or companies that had already relied on the IER before it was delayed, and second, the plaintiff’s argued that they would have applied even knowing their admission in the United States may be revoked early because even a short stay could aid their business.

The district court concluded that the USCIS’s delay of the IER must be vacated and the IER must remain in effect, at least, until the DHS undergoes the proper APA procedures.

Going Forward

In dicta, the district court mentioned that the IER could be repealed at any time so long as the DHS followed the rule and comment procedures under the APA. Therefore, while this decision is a temporary win for the IER it does not guarantee its fate.

Under the Obama administration, the DHS took approximately six months to comply with the notice and comment rulemaking procedures before publishing the final IER; the DHS under the Trump administration could revoke the IER in a similar amount of time. To revoke the IER the DHS would need to propose the change, solicited comments, respond to the comments received, and publish a final rule.

From here, the DHS could either decide to appeal the district court’s decision, the DHS could undergo the notice and comment proceedings and revoke the IER, or the DHS could let the IER remain in effect. Only time will tell, but future updates to regarding the IER will be provided.

With Immigration status under the IER potentially subject to change, speaking with an attorney may help determine if admission under the IER is right for you.

(Also see the original post on www.attorneyjanelee.com for an additional detailed discussion of IER)

Current Status of DACA

January 22, 2018 § Leave a comment

DACA currently has Congress in limbo, resulting in a federal government shut-down after failing to pass budget by the January 19 deadline as a result of unsuccessful negotiations on a host of issues, including the Deferred Action for Childhood Arrivals program. The Republicans and Democrats are split on the intentions and the goals of the bill. The Democrats are focused on a “clean” reform (only addressing DACA) and continue to push the Dream Act to allow former DACA recipients a pathway to citizenship, while the Republicans are concerned about adding border security and potentially other items, and claim that the Democrats were pushing for a government shutdown. President Trump is encouraging Congress to develop comprehensive immigration reform, which has not happened since the Reagan era.

A problem with developing comprehensive immigration reform is that Congress was given the budget deadline of January 19th and a DACA reform deadline of March 5th. It’s nearly impossible to develop a budget for a bill that hasn’t been decided on yet. However, a 9th Circuit Federal judge in San Francisco has ruled that the administration must continue to process DACA renewals until a new bill is complete. This is a relief for former and current DACA recipients because President Trump gave a 30-day window between September and October to renew, but many weren’t able to do so for financial reasons. Application fees are $465 per person alone.

DACA recipients have already made the United States their home and place of growth. They have contributed to the economy by getting degrees, developing professional fields, buying cars and homes, serving in the military and paying federal and state income taxes. As of September 2017, there were over 800,000 DACA recipients. Deportation of DACA recipients would have devastating impact on the economy.

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