DHS Releases Memoranda Outlining Immigration Enforcement Priorities

Posted in Department of Homeland Security, Executive Actions, I-9 Audit, Immigration and Customs Enforcement (ICE)

John Kelly, Secretary of the U.S. Department of Homeland Security (DHS), issued two memoranda on Feb. 20, 2017 outlining the Department’s plans for immigration enforcement under President Trump’s administration: “Enforcement of the Immigration Laws to Serve the National Interest” and “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.” Both memoranda implement and provide further details in connection with immigration Executive Orders signed by President Donald J. Trump on Jan. 25, 2017. These memoranda further document the Trump administration’s desire to heighten immigration enforcement and for employers to establish a culture of compliance with U.S. immigration laws.

“Enforcement of the Immigration Laws to Serve the National Interest”

This memo reinforces DHS’s commitment to ramping up enforcement activities performed not only by Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), but also local law enforcement agencies. The memo limits DHS’s prosecutorial discretion, given broadly by the Obama Administration, and forbids its use to exempt or shield “any category of aliens from enforcement of the immigration laws.” It rescinds all conflicting directives, memoranda, and guidance with the exception of the memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (known as DACA), dated June 15, 2012, and the Nov. 20, 2014, memo which expanded prosecutorial discretion to protect DACA children as well as parents of U.S. citizens and lawful permanent residents. The Feb. 20 memo emphasizes enforcement of immigration laws, stating that DHS personnel “have full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws.” Specifically, the memo:

  • Sets enforcement priorities. 

Aliens prioritized for expeditious removal include those who: (a) have been convicted of any criminal offense; (b) have been charged with any criminal offense that has not been resolved; (c) have committed acts which constitute a chargeable offense; (d) have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency; (e) have abused any program related to receipt of public benefits; (f) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (g) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security. In effect, almost every person in the United States who lacks proper immigration documentation or has violated his or her status could be considered a priority under this guidance.

  • Empowers local law enforcement to enforce immigration laws.

The memo does away with the Priority Enforcement Program implemented by the Obama administration and restores a program started under the George W. Bush administration and greatly expanded by the Obama Administration called Secure Communities. The memo also re-emphasizes the powers granted to local law enforcement under the 287(g) program. Secure Communities and 287(g) are programs designed to give local law enforcement the authority to assist with identifying and detaining foreign nationals whom they perceive to be removable. The memo also calls for the devotion of all available resources to the Criminal Alien Program, which requires local law enforcement to assist in initiating removal proceedings against “all aliens incarcerated in federal, state, and local correctional facilities.”  

  • Establishes a Victims of Immigration Crime Engagement (VOICE) office.

The VOICE office will serve as a liaison between ICE and known victims of crimes committed by removable aliens, with a view toward ensuring crime victims are given information about the offender. The memo also eliminates Privacy Act rights and protections for persons who are not U.S. citizens or green card holders, broadening the scope of information that can be disseminated to the public through the VOICE office or other means.

In addition, the memo authorizes the hiring of 10,000 new ICE agents and officers; requires the establishment of programs for collecting civil fines and penalties from immigrants and “those who facilitate their unlawful presence”; and requires ICE to provide monthly reports to the public about apprehended immigrants and weekly reports about cities that release aliens from law enforcement custody (sometimes called sanctuary cities).

“Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” 

The second memo focuses on enforcement activities along the U.S. border, including the planning and construction of a wall along the border with Mexico. On Feb. 24, 2017, the federal government released a notice soliciting bids to build the wall, stating that the procurement process would be broken down into two phases to be completed by April 2017. In addition to formalizing plans for building the wall, the memo puts forth detention as “the most efficient means by which to enforce immigration laws” at the border. In putting this policy forward, DHS ends prior “catch-and-release” policies in favor of immediate detention of aliens apprehended while trying to cross the border without authorization, with exceptions for aliens who have been granted relief or protection from removal, or aliens who are seeking asylum. The memo directs extensive expansion of detention capabilities.

The memo also: instructs DHS to bolster the manpower available at the U.S. border, adding 5,000 CBP agents and using local law enforcement under 287(g); expands expedited removal for apprehended immigrants, with the exception of unaccompanied alien children and asylum seekers; and instructs DHS officers to exercise their advance parole authority sparingly. Finally, the memo carves out special exceptions and procedures for unaccompanied alien minors encountered at the border and sets forth stricter policies for identifying and punishing smugglers and traffickers of immigrant children.

Takeaways for U.S. Employers 

With the new administration’s emphasis on both border and interior enforcement, it is expected that I-9 audits, worksite raids by ICE officers, and investigations by the Immigrant and Employee Rights Section of the Department of Justice will increase significantly.  Strict compliance with federal immigration laws is important in the current environment. Employers should consider performing I-9 self-audits, enrolling in E-Verify, and conducting training on immigration policies and procedures in order to limit exposure for potential immigration infractions. It is also very important for employers to be certain that employees on temporary work visas are fully compliant with their status and that any necessary amendments are timely made. GT will continue to monitor these changes and will continue to post information on our blog on this and other immigration matters.

Greenberg Traurig’s Laura Reiff Presented on Capitol Hill – Briefing on Immigration with Law Enforcement and Business Leaders

Posted in Awards & Recognitions, Immigration Reform

Laura Reiff provided a briefing on Capitol Hill to new members and staff of the 115th Congress on Thursday, February 23, 2017.  Laura discussed the impact on the business of immigration and the need for policy reforms. Please visit the National Immigration Forum for additional information.

The Trump Administration Contemplates an Executive Order Affecting Advance Parole

Posted in Executive Order, Green Card, H-1B, L-1, L-1B, Visas

It has been reported that President Trump’s administration is likely preparing to effectuate additional changes affecting immigration issues.  Specifically, in addition to the Executive Order executed on Jan. 27, 2017, the administration is reportedly working on additional Executive Orders, a released draft of which addresses the availability and use of advance parole, among other issues which pertain to employment-based immigration.  Advance parole enables return to the United States after international travel for those who are in the process of applying for permanent residence while living in the United States.  Parole is also available to other classes of foreign nationals, including asylees, as well as those granted this ability via the Deferred Action for Childhood Arrivals program.  Based on the released drafts of the Order, it is possible that, when signed and implemented, it could severely curtail the ability of foreign nationals to be able to re-enter the United States after international travel using Advance Parole.  Therefore, until further information is available, employers may consider advising their foreign national employees fitting the above description to refrain from international travel at this time.  Likewise, foreign nationals who have applied for or currently have valid advance parole should consider remaining in the United States until further information regarding the Order is available.

Importantly, those individuals who are maintaining temporary visa status such as H-1B, L-1A, or L-1B are not subject to this caution.  In fact, because the H-1B and L-1 regulations specifically allow for permanent intent while in the United States, foreign nationals are able to continue to maintain and extend these visa statuses even while their green card applications are pending in the United States.  Therefore, they have the ability to utilize their valid H-1B and L-1 visas for international travel, rather than the advance parole issued as part of the green card application process.  Based on this, as well as on the draft language of the administration’s Executive Order, foreign nationals and employers may wish to consider ensuring that, where possible, H-1B or L-1 visa status is extended throughout the green card application process and until green card approval.  Notably, those foreign nationals in the United States who were in F-1, J-1, O-1, H-1B1, E-1, E-2, E-3, TN, or a number of other visa statuses at the time of their green card applications will not be able to maintain their visa status throughout the green card application travel if they intend on traveling internationally, because of the temporary intent requirements of these visas.

Please contact your GT attorney to discuss temporary visa and green card application processes.  GT will continue to follow and report any developments with regards to the related Executive Order.

 

March 2017 Visa Bulletin Update

Posted in USCIS, Visa Bulletin

The Department of State’s (DOS) March 2017 Visa Bulletin showed some minor movement in some employment-based categories, with more significant movement in other employment-based visa categories.

The Worldwide EB-1 category remains current for all categories, including individuals born in mainland China, El Salvador, Guatemala, Honduras, India, Mexico, and the Philippines.

The cutoff date for worldwide chargeability in the EB-2 category is current but for mainland China and India.  There was significant movement for mainland China in the EB-2 category which moved from July 15, 2012 to Dec. 15, 2012, and for India, which moved from Nov. 1, 2007 to June 1, 2008.

In the EB-3 category, the cutoff date for worldwide chargeability, as well as El Salvador, Guatemala, Honduras, and Mexico moved five months from July 1, 2016 to Dec. 1, 2016.  The cutoff dates for mainland China and the Philippines both had significant movement, with nearly eleven months for both, with China advancing from April 15, 2013 to March 15, 2014, and the Philippines advancing from April 1, 2011 to March 15, 2012.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China, which moved its cutoff date by almost two months from March 8, 2014 to May 1, 2014.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Department’s Application Final Action Dates chart must be used for filing Form I-485.  This has not yet been updated with the March 2017 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for March as well.

Final Action Dates for Employment-Based Preference Cases

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Dates for Filing of Employment-Based Visa Applications

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Immigration Raids and What They Mean for U.S. Businesses

Posted in E-Verify, Immigration and Customs Enforcement (ICE)

On Jan. 25, 2017, President Donald J. Trump signed an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” This order lays out the president’s plan for enforcing immigration laws, including, among other initiatives, increasing and expediting the deportation of removable aliens from the United States.  Specifically, the order prioritizes for immediate deportation foreign nationals who have committed crimes, as well as those who are suspected of committing crimes and those whom law enforcement deems are a threat to national security. This executive order broadens the class of individuals considered to be a priority for removal. Therefore, there will likely be an increase in the scope and number of immigration raids.      

What ICE Raids Mean for U.S. Employers

Last week ICE conducted a number of raids in cities across the U.S.  According to Secretary of Homeland Security John Kelly, the raids were a “series of targeted enforcements” focused on “public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated [U.S.] immigration laws.” Nonetheless, ICE’s focus could shift to include other foreign nationals or employers at any time.  Historically, immigration enforcement under Republican administrations has focused on worksite raids, while under Democratic administrations the focus has been more individualized. If this tradition continues, we anticipate an increase in worksite visits and I-9 audits in the coming years. Below are some ways U.S. employers can prepare for a more stringent immigration environment:

  • Ensure compliance with Form I-9 requirements.  

Employers are required to verify employees’ U.S. work authorization and identity on Form I-9. Companies should regularly self-audit I-9 forms to ensure proper procedures are being followed. Self-auditing includes ensuring all required fields were completed; verifying that the U.S. work authorization document provided in Section 2 has not expired; and re-verifying U.S. work authorization or other updated data in Section 3 when applicable.

Further, U.S. employers with foreign national employees should have a reliable system in place to track when foreign national employees’ U.S. work authorization is expiring and take steps to renew expiring immigration documents in a timely manner.

  • Become familiar with Federal and state E-Verify requirements. 

E-Verify is an Internet-based system that allows employers to confirm their employees’ U.S work authorization. Generally, E-Verify is a voluntary program; but, in some states and for certain types of employers, enrollment in E-Verify is mandatory. Companies should determine whether they are required to enroll in E-Verify and, if they are, ensure strict compliance with the program.

  • Be prepared for ICE site visits.

Coordinate with your immigration counsel to develop an action plan for handling ICE site visits. Consider instructing your receptionist on how to handle a visit by an ICE officer and provide him or her with contact information for the company representative who will liaise with the ICE officer. It is important to have all required immigration documents, including Labor Condition Application Public Access Files and I-9 Forms, in proper order in a location that is easily accessible upon short notice.

  • Develop a contingency plan.

In today’s heightened enforcement environment where a number of foreign national employees may be affected directly or indirectly by ICE raids, employers should develop a plan in the event key personnel are unable to perform their job duties. Cross-training other employees, creating relationships with staffing companies, using automation, and hiring backup workers are some ways companies can prepare in the event their workforce is affected by immigration raids.    

We will continue to update our blog as more details about ICE’s enforcement activities emerge.

Authors

Scott Decker
Scott Decker
EMAIL   

Kristin Aquino-Pham
Kristin Aquino-Pham
EMAIL

 

 

Greenberg Traurig Attorneys Kate Kalmykov and Nataliya Rymer Featured in the Legal Intelligencer

Posted in Awards & Recognitions

Greenberg Traurig Attorneys Kate Kalmykov and Nataliya Rymer were recently featured in The Legal Intelligencer, the oldest daily law journal published in the United States, which serves the legal community of Philadelphia and surrounding areas. In their article, Kalmykov and Rymer discuss how the new National Interest Waiver standards will benefit U.S. employers and start-ups. To read the full article, click here.

 

U.S. Court of Appeals Declines to Stay Temporary Restraining Order in connection with Executive Order

Posted in Executive Order, Temporary Restraining Order, U.S. Court of Appeals for the Ninth Circuit

On Feb. 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued a ruling keeping in force the temporary restraining order (TRO) that was issued last Friday by the U.S. District Court for the Western District of Washington. The TRO was issued in connection with the lawsuit filed by State of Washington and State of Minnesota challenging the Executive Order (EO) 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The TRO stopped the enforcement of some of the key provisions of the EO. Two days after hearing oral arguments, the Court of Appeals issued an Order declining to stay the TRO while the Government proceeds with its appeal of the lower court’s decision. In allowing the TRO to continue in effect, the Court noted that the States had standing to bring suit and that the Government was unable to establish that the TRO was “overbroad” or that persons identified in the TRO were not subject to Constitutional protections. In addition, the Court’s order maintained the national application of the TRO. While declining to address in detail the issue of religious discrimination, the Court noted that, in the interest of the emergent nature of the current legal proceedings, review and full consideration of these claims should be made at a later time. Finally, the Court found that keeping the TRO was in the general public interest.

As a result of today’s decision, the TRO remains in effect, preventing the application of the key provisions of the EO. It is likely that the Government will quickly announce their proposed next steps in this litigation. GT will continue to monitor and report on these important events.

Court Issues Temporary Restraining Order Against Enforcement of January 27, 2017 Executive Order; Agencies Cooperating

Posted in Executive Order, Temporary Restraining Order, U.S. Customs and Border Protection

On February 3, 2017,  U.S. District Judge James L. Robart of the U.S. District Court for the Western District of Washington at Seattle issued a Temporary Restraining Order (“TRO”) halting the enforcement of the Executive Order (“EO”) “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27th, 2017.  The TRO was issued in connection with State of Washington, et al v. Donald Trump, et al (C17-0141JLR), filed with the Court earlier this week.

The TRO is effective nationwide and prohibits the enforcement of the ban on entry of nationals of the impacted countries with nonimmigrant (temporary) and immigrant (permanent) visas, refugees, and the permanent ban on Syrian refugees.

In granting the TRO, the Court found the State of Washington, and the other States in the U.S. have shown that the litigation against the EO is likely to be successful, that the States will suffer irreparable harm with respect to familial relationships, employment, travel, business, and education due to the enforcement of the EO.

It has been reported that U.S. Customs and Border Protections (CBP) has informed the airlines that they may board foreign nationals of the impacted countries who have visas and that they will be allowed entry to the U.S. in compliance with the TRO.  It has also been reported that the State Department has reversed its prior provisional revocation of valid visas of the impacted foreign nationals, allowing them to utilize these visas for entry to the U.S.

On February 4, 2017, the White House released a statement that they intend to seek a Stay of the TRO immediately and consider the provisions of the EO to be lawful and within the President’s authority.

Update:  On February 4, 2017, subsequent to the filing with the court of a notice of its intent to appeal the TRO, the U.S. Department of Justice (DOJ) filed an Emergency Motion to stay (or stop) the TRO with the U.S. Court of Appeals for the Ninth Circuit, pending a full hearing in connection with the lower court’s decision to grant the TRO.  The Ninth Circuit denied DOJ’s Emergency Motion and ordered briefing from both parties in connection with the lower court’s decision.  DOJ’s brief is set to be due at 11:59 pm on February 5, 2017, with the State of Minnesota et al having to file their reply brief by 3 pm on February 6, 2017.

GT will continue to monitor this constantly changing situation and provide updates.

GT Alert – President Trump’s Executive Order (EO) “Protecting the Nation from Foreign Terrorist Entry into the United States”: Q&A

Posted in Executive Order, Immigration Law, Screening Procedures, Visa Issuance

We have prepared a serious of Questions and Answers below addressing some of the most commonly asked questions with regard to this Executive Order (EO). GT will continue to monitor developments and provide up to date information.

Q1:         What do the provisions of the EO address?

A1:         The provisions of the EO address several issues:

1. Ban of entry to the United States for nationals of seven countries: Iran, Iraq, Sudan, Somalia, Yemen, Libya, and Syria, whether with nonimmigrant (temporary) or immigrant (permanent) visas for 90 days. At the conclusion of 90 days, the ban is not automatically lifted; instead, there are a number of affirmative steps listed in the EO to once again enable such entry.

2. Suspension of the Visa Interview Waiver program for all visa applicants. Instead, the U.S. Department of State will mandate visa interviews for all applicants for nonimmigrant visas, with the following exceptions:

a. Diplomatic and official visa applicants (A-1, A-3, G-1, G-2, G-3, G-4, NATO-1 through-6, C-2, and C-3);

b. Visa applicants who are under 14 or over 79 years of age;

c. Visa applicants who previously held a visa in the same category, which expired less than 12 months before the present visa application.

3. Ban of entry to refugees to the United States from Syria indefinitely.

4. Reduction of the total number of refugees to enter the United States in Fiscal Year 2017 to 50,000.

5. Establishment of requirements for “extreme vetting” for a finding of eligibility of refugee status.

To read the full GT Alert, click here.

Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals

Posted in Executive Order, Screening Procedures, Visa Issuance

As we previously reported, President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional Executive Orders related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.

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