USCIS Issues Two New Policy Memoranda on Notices to Appear and Denials in Lieu of RFEs and NOIDs – What This Means for You

Posted in Denials, NOID, Notices to Appear, RFE

On June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Later, on July 13, 2018, the USCIS issued a Policy Memorandum titled “Issuance of Certain RFEs and NOIDs.” The two memoranda do not necessarily go hand in hand, but the question lingers whether a denial on an immigration benefit (that leads to no status) will automatically lead to a Notice to Appear (NTA).

To read the full GT Alert, click here.

TPS for Current Registered Yemen Beneficiaries Extended Until March 3, 2020

Posted in Department of Homeland Security, Temporary Protected Status, TPS

Today, the U.S. Department of Homeland Secretary, Kirstjen Nielsen, announced an extension of Temporary Protected Status (TPS) for approximately 1,250 Yemeni beneficiaries.  This extension is somewhat unique in that (1) Yemen is one of seven countries listed in the travel ban and (2) this extension goes against the current trend of not extending TPS for other countries.

The highlights of the DHS release include:

Individuals from Yemen with TPS will be eligible to re-register for an extension of their status for 18 months, through March 3, 2020. Prior to the conclusion of the 18-month extension, the Secretary will review conditions in Yemen to determine whether its TPS designation should be extended again or terminated.

There are approximately 1,250 Yemeni TPS beneficiaries. This 18-month extension of Yemen’s designation for TPS permits current Yemeni TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 3, 2020. To be eligible for TPS under Yemen’s current designation, along with meeting the other eligibility requirements, individuals must have continuously resided in the United States since January 4, 2017, and have been continuously physically present in the United States since March 4, 2017.

Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

Read the full press release here.

 

U.S. Supreme Court Upholds President Trump’s Proclamation on the Travel Ban

Posted in Executive Order, Immigration Law, President Trump's Administration

The U.S. Supreme Court, on June 26, 2018, upheld President Trump’s Proclamation on the Travel Ban in Trump v. Hawaii. As previously blogged, the Proclamation was issued by President Trump on Sept. 24, 2018. It was then blocked by the District Court, after which the Ninth Circuit partially stayed, and on Dec. 4, 2017, the Supreme Court issued an order allowing the Proclamation to go fully into effect.

Chief Justice Roberts delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring. Justice Breyer dissented, joined by Justice Kagan, while Justice Sotomayor dissented, joined by Justice Ginsburg. Chief Justice Roberts begins by reiterating the timeline for the Proclamation, as well as the two previous Executive Orders on the Travel Ban. A summary of the two Executive Orders can be found in our blog posts “Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals” and “New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries.”

Chief Justice Roberts discusses the two issues at hand: 1) whether the president has the executive power to limit the entry of certain individuals, and 2) whether this Proclamation in particular violated the Establishment Clause. The Supreme Court held that 1) the president does have this broad authority and that the issuance of the Proclamation (as well as its contents) are in his authority, and 2) the contents of the Proclamation do not violate the Establishment Clause, as the plaintiffs have alleged. The discussion is below on the two issues.

First Issue: Does the President have the authority to issue the Proclamation?

Chief Justice Roberts addresses the plaintiffs’ argument that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), and that the president does not have the authority to issue the Proclamation under the INA because the authority only allows a halt of entry for those entering to engage in harmful conduct and that it discriminates on the basis of nationality in the issuance of immigrant visas.

The Court addresses these arguments by citing Section 1182(f) of the INA, where it states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Chief Justice Roberts analyzes the Proclamation’s contents and writes in the opinion that President Trump met all the requirements as set forth. He cites the contents of the Proclamation, including the thorough review of the countries, the focus on exchange of information between countries, and also the review period that has allowed for countries to be removed from the list once they were deemed compliant. The Court cites examples of previous administrations that also issued Proclamations to suspend entry into the United States for certain individuals.

The plaintiffs also argued that Section 1182(f) does not give the president the authority to surpass congressional policies that have been laid out, specifically the vetting system designed by Congress to determine admissibility, and also the information sharing system created through the Visa Waiver Program. The Court addresses both issues and notes that the vetting system is only enhanced by the Proclamation and that the focus of the Proclamation is on the foreign country’s ability to provide the information needed. Second, the Visa Waiver Program is in place for countries that have already fulfilled the information exchange process, and that it does not necessarily apply here. For this sub-argument, the Court’s opinion is that the Proclamation only supplements the efforts of Congress.  In addition, the Court cites to historical practice of instances where Proclamations have been issued to limit the entry of certain groups of people.

Thus, the holding on the first issue is that the Proclamation is squarely within the scope of President Trump’s authority under the INA.

Second Issue: Does the Proclamation violate the Establishment Clause of the First Amendment?

The plaintiffs also claim that the Proclamation violates the Establishment Clause of the First Amendment because it targets Muslims/those in the Islamic faith. The Court looks at this issue and discusses statements made by the president and his advisors to understand the intent and rhetoric behind the Proclamation. The Court reviews the timeline and statements made by the president and his advisors and concludes “the President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”  In considering the statements made by the president, the Court also considers the president’s authority. In this particular case, the Court finds that the Proclamation has a legitimate purpose – it prevents entry of nationals who cannot be adequately vetted and induces other countries to improve their practices. Because the Court does not find any text on religion within the Proclamation and it notes that the policy only covers eight percent of the world’s Muslim population, the Court does not find a violation of the Establishment Clause of the First Amendment.

In concluding the opinion, Chief Justice Roberts writes that the activities surrounding the Travel Bans, starting with the Executive Orders, have already supported the fact that it was issued in response to a legitimate national security interest. First, three Muslim-majority countries have already been removed from the list of covered countries. Second, the Proclamation includes text that will provide exceptions to certain individuals from the listed countries such as permitting students and exchange visitors from Iran). Third, the Proclamation includes the ability to apply for a waiver.

 

U.S. House of Representatives Concludes Second Week of Debate on Immigration Policy

Posted in Immigration Law, Immigration Reform

As reported last week, The U.S. House of Representatives (House) continued negotiating and debating U.S. immigration policy this week. After intense negotiations that lauded a favorable Tweet and Statement of Administration Policy supporting HR 6136, Border Security and Immigration Reform Act, the bill failed passage by 121-301.

The action today concludes the scheduled House votes on immigration policy.  Given no satisfactory conclusion to the matters of debate (Border Wall funding, DACA participants status etc.), we expect continued discussion on Capitol Hill.  Please check back for information as events unfold.

 

U.S. House of Representatives Debates U.S. Immigration Policy

Posted in Deferred Action for Childhood Arrivals program, Immigration Law

On Thursday, the U.S. House of Representatives began debate on two immigration bills aiming to enhance border and interior enforcement of immigration law, among other matters. The two bills were the result of House Republican Majority discussion on approaches to effectively address the Administration’s call to secure America’s borders and provide for Deferred Action Childhood Arrival (DACA) participant status in the United States.

Both bills were similar in major concepts with differences in method of “wall” funding and treatment of DACA and DACA-related DREAMer populations. The two bills, HR 4670, Securing America’s Future Act, and HR 6136, Border Security and Immigration Reform Act, were considered under closed rules providing for up and down votes without amendment.

The House rejected HR 4760, Securing America’s Future Act, by a vote of 193-231 on Thursday. After this bill failed to gain the majority to pass and with many questions surrounding the Border Security and Immigration Reform Act, House Leadership held a lengthy conference education session late Thursday while delaying any further votes on the Border Security and Immigration Reform Act until, reportedly, “sometime next week.”

As of this writing, House Leadership has not rescheduled consideration of HR 6136, Border Security and Immigration Reform Act. Please check back for additional updates.

For more information on U.S. Immigration Policy, click here.

President Trump Signs Executive Order Addressing Family Separation

Posted in Affording Congress an Opportunity to Address Family Separation, EO, Executive Order, Temporary Detention Policy for Families Entering this Country Illegally

On June 20, 2018, President Donald Trump signed an Executive Order (EO) titled “Affording Congress an Opportunity to Address Family Separation.” The stated purpose of this EO is to confirm the policy of the Administration with regard to immigration and entry of persons at the border.  The text of the EO restates the policy stance of this Administration to enforce the immigration laws with regard to entry at the border.  The text in the EO restates that a crime of improper entry is subject to a fine or imprisonment.  The Administration will continue to initiate proceedings to enforce this provision, among others.  In addition, under the “Policy” section of the EO, the Administration states that its policy is to “maintain family unity, including detaining alien families together where appropriate and consistent with law and available resources.”  The text of the EO encourages Congress to act upon legislation that will maintain family unity so that the Administration will not need to separate families to enforce the law.

The EO includes a section titled “Temporary Detention Policy for Families Entering this Country Illegally.”  This section includes provisions for illegal entries that will attempt to detain an alien family together, unless there is concern that the welfare of the child is at risk.  The Secretary of Defense is tasked with taking all measures to provide facilities, either those already in existence, or to construct them, to be able to house alien families.  The heads of other executive departments and agencies are also asked to make available any appropriate facilities. To keep alien families together, the EO contains a provision requiring the Attorney General to file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, so that alien families can be detained together throughout the pendency of criminal proceedings.

As events surrounding the signing of this Executive Order emerge, we will continue to update our blog.

Designation of Honduras for TPS Terminated

Posted in Department of Homeland Security, Employment Authorization Documents (EAD), TPS

As we previously reported, in January 2018 the Department of Homeland Security (DHS) automatically extended Temporary Protected Status (TPS) for nationals of Honduras for six months through an automatic extension, given that DHS did not make a decision regarding Honduras’s designation which was set to expire.  At the time, Honduras’s TPS designation was automatically extended to July 5, 2018, and the employment authorization document (EAD) cards were automatically extended for 180 days, until July 4, 2018.

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DHS Announces Additional 15,000 H-2B Visas for 2018

Posted in Department of Homeland Security, H-2B, Visas

Today, Secretary of Homeland Security, Kirstjen Nielsen, announced an additional 15,000 H-2B temporary nonagricultural visas will be available for Fiscal Year 2018.  DHS had been under political pressure to release additional H-2B visas by businesses and industry groups citing labor workforce needs.  Groups had been calling for the immediate release of additional H-2Bs to help meet workforce needs in the tourism industry, among others.

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Honduran TPS Transmitted to OMB for Final Review

Posted in TPS

On Jan. 5, 2018, The Department of Homeland Security (DHS)  extended Temporary Protected Status (TPS) for nationals of Honduras for six months with a July 5, 2018 expiration date.  On May 24, 2108, DHS transmitted a Notice to the Office of Management and Budget (OMB) that indicates final action on Honduran TPS will occur soon.

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USCIS Announces Termination of TPS for Nepal; Continues Trend with Other TPS Nations

Posted in Department of Homeland Security, TPS, USCIS

On April 26, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced, after reviewing country conditions and consulting with various U.S. government agencies, that the grounds for Nepal’s TPS designation on the basis of an environmental disaster are no longer met and as such, termination of the designation is required by statute. As a result, Nepal’s TPS designation will end on June 24, 2019.

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