On April 22, President Trump, in a quick turn to interior immigration enforcement, issued a Presidential Memorandum (Memo) initiating a process to develop administration initiatives to address visa overstays in the United States. Last week, the Department of Homeland Security released the Fiscal Year 2018 Entry/Exit Overstay Report, stating a total overstay rate of 1.22%, or 666, 582 overstay events, among other metrics.

The Memo directs federal agencies to develop plans to address, mitigate, and enforce immigrations laws. The Memo deliverables include the following, among others:

  • Within 120 days of the date of this memorandum, the Secretary of State, in consultation with the Attorney General and the Secretary of Homeland Security, shall provide to the president recommendations to reduce B-1 and B-2 nonimmigrant visa overstay rates from the identified countries.  With respect to any of the identified countries, the recommendations may include, as appropriate and to the extent consistent with applicable law, a proclamation, relying on authorities such as sections 212(f) and 215 of the INA (8 U.S.C. 1182(f) and 1185(a)), suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; limits to duration of admission, to be implemented by the Department of Homeland Security; and additional documentary requirements.
  • Within 180 days of the date of this memorandum, the Secretary of Homeland Security shall provide to the president a summary of the Department of Homeland Security’s ongoing efforts to reduce overstays from countries participating in the Visa Waiver Program, to include any recommendations for additional action necessary and appropriate to ensure the integrity and security of that Program.
  • Admission Bonds. The Secretary of State and the Secretary of Homeland Security shall take steps to develop measures required for imposing admission bonds as a means for improving compliance with the terms and conditions of nonimmigrant visas. The secretaries shall provide a status report to the president within 120 days of the date of this memorandum.

Please see a previous post on the 2017 Entry/Exit Overstay Report and legislation addressing interior immigration enforcement in the last congress and the current congress (H.R. 2260, the ”E-bonding for Immigration Integrity Act of 2019”).

Please check back, as updates on this process and others will be posted as information becomes available.

For more on visa overstay policies, click here.

˘ Not admitted to the practice of law.

On Aug. 7, the Department of Homeland Security (DHS) released the Fiscal Year 2017 Entry/Exit Overstay Report (or Overstay Report). Visa Overstay Reports have been requested by Congress in recent fiscal years as a means to encourage development of a barometric Port of Entry visa checking system and to report on overstays that were identified as problematic in connection with the Sept. 11, 2001, attacks in the United States.

The 2017 Overstay Report calculated a total overstay rate of 1.33 percent, or 701,900 overstay events, versus an overstay rate of 1.25 percent (739,000 overstays) in FY 2016.

More FY 2017 Visa Overstay metrics from the release:

Visa Waiver Program (VWP) Country Overstay Rate This report separates Visa Waiver Program (VWP) country overstay figures from non–VWP country figures. For VWP countries, the FY 2017 Suspected In-Country Overstay rate was 0.51 percent of the 22,472,710 expected departures.

Non-Visa Waiver Program Participant Overstay Rate  For non-VWP countries, the FY 2017 Suspected In-Country Overstay rate is 1.91 percent of the 14,659,249 expected departures.

Student or Exchange Visitor Visa Overstay Rate For nonimmigrants who entered on a student or exchange visitor visa (F, M, or J visa), DHS has determined there were 1,662,369 students and exchange visitors scheduled to complete their program in the United States. However, 4.15 percent stayed beyond the authorized window for departure at the end of their program.

Canada and Mexico Overstay Rates  Unlike other countries, a majority of travelers from Canada and Mexico enter the United States by land. Figures pertaining to Canada and Mexico are presented separately from the other countries due to the fact that air and sea information represent a much smaller portion of the Canadian and Mexican travel population. For Canada, the FY 2017 Suspected In¬-Country Overstay rate for those traveling through air and sea POEs is 1.01 percent of 9,215,158 expected departures. For Mexico, the FY 2017 Suspected In-Country Overstay rate for those traveling through air and sea POEs is 1.63 percent of 2,916,430 expected departures. This represents only travel through air and sea POEs and does not include data on land border crossings. DHS is currently working to improve its monitoring capability for land POEs.

The Overstay Report continues to be an important accountability metric for Congress and has been used as the basis for oversight and new approaches to interior immigration enforcement such as H.R. 6089, the E-bonding for Immigration Integrity Act of 2018

Past Overstay Reports –

DHS Releases Fiscal Year 2016 Entry/Exit Overstay Report

Entry/Exit Overstay Report: Fiscal Year 2015 – Homeland Security

For more information on visa waiver programs click here.

The Department of Homeland Security (DHS) has published a notice of proposed rulemaking to develop a comprehensive biometric entry-exit system that would allow the collection of biometrics from travelers entering and departing from airports, land ports, seaports, or any other authorized point of entry/departure. The rule would enable U.S. Customs and Border Protection (CBP) to photograph all aliens entering and/or departing the United States, as well as to use facial recognition technology to identify aliens entering the United States. The rule would also eliminate exemptions for young people and diplomatic visa holders, and only permit U.S. citizens to opt out of participating in CBP’s biometric verification program. According to the proposed rule, the photographs would be used to “determine [a traveler’s] identity or for other lawful purposes,” such as to address national security concerns arising from the threat of terrorism, the fraudulent use of legitimate travel documentation, aliens who overstay their authorized period of admission or are present in the United States without having been admitted or paroled, and incorrect or incomplete biographic data for travelers.

Written comments on the proposed rule can be submitted via the Federal eRulemaking Portal using docket number USCBP-2020-0062 through Dec. 21, 2020.

On Oct. 8, 2017, the White House released the promised Immigration Principles & Policies (Principles & Policies) which outline the Trump Administration’s position on immigration. This document is broken into three parts: 1) Border Security, 2) Interior Enforcement, and 3) Merit-Based Immigration. A summary of each part is broken down below.

Continue Reading The White House Releases Immigration Principles & Policies

Whitehouse

On Jan. 25, 2017, President Donald J. Trump signed two Executive Orders impacting U.S. immigration which are summarized below.

  1. Executive Order: Border Security and Immigration Enforcement Improvements

This Order addresses the recent surge of immigration by foreign nationals without proper documentation at the United States’ southern border with Mexico. The Order directs the government’s “executive departments and agencies to deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”

Specifically, the Order implements a policy to secure the southern border through the “immediate construction of a physical wall on the southern border…” The Order goes on to define “wall” as “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier.” The Order itself instructs the Department of Homeland Security (DHS) Secretary to identify and allocate all sources of federal funds and to project and develop long-term funding requirements for the wall.

This Order also mandates the DHS Secretary to ensure the detention of undocumented foreign nationals apprehended for violating immigration law pending the outcome of their removal proceedings. It calls for action and fund allocation for new detention facilities at or near the Mexico border. Additionally, the Order commands the prompt removal of individuals whose legal claims to remain in the United States have been lawfully rejected after any appropriate civil or criminal sanctions have been imposed. In particular, the policy known as “catch and release,” whereby undocumented foreign nationals are released in the United States shortly after their apprehension for violating immigration law, is terminated. Subject to funding, an additional 5,000 Customs and Border Protection Border Patrol agents will be hired to execute new detention protocols.

In addition, the Order also establishes a policy “to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” The text of the Order indicates that immigration law has thus far been “exploited to prevent the removal of otherwise removable aliens.” It calls for more training of DHS personnel. In fact, new policy guidance in line with the Order is expected to be issued soon to all DHS personnel regarding the detention of undocumented immigrants.

The Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the president a progress report on this Order’s directives within 90 days and 180 days, respectively.

2. Executive Order: Enhancing Public Safety in the Interior of the United States

This Order addresses unlawful immigration’s potential effects on U.S. national security and public safety. In particular, it states “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat… This is particularly so for aliens who engage in criminal conduct in the United States.” The Order also states “Many of these aliens are criminals who have served time in our Federal, State, and local jails.”

To improve the country’s security and safety, the Order seeks to impose the “faithful execution” of U.S. immigration laws by executive agencies. In doing so, the executive branch will ensure that “sanctuary jurisdictions” do not receive federal funds (except as mandated by law) if they fail to comply with applicable federal law. Generally in these jurisdictions (also known as “sanctuary cities”), undocumented immigrants are not prosecuted for lacking the proper immigration status. The Order states that the practice of “shield[ing] aliens from removal… [has] caused immeasurable harm to the American people…” and requires a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens, publicly published on a weekly basis. Following the Executive Order, representatives of several sanctuary cities stated they will remain as such, including New York City, Chicago, San Francisco, Los Angeles, Philadelphia, and Seattle.

The Order further calls for the enforcement of immigration laws, prioritizing removable aliens who have been convicted of or charged with criminal offenses. Subject to funding and law, an additional 10,000 Immigration and Customs Enforcement officers will be hired to carry out the enforcement. At the press conference, Press Secretary Spicer indicated that other enforcement tools would include withholding visas from countries to ensure they accept their nationals back following removal from the United States.

This Executive Order also encourages sanctions against countries that deny or unreasonably delay accepting a deportable national of that country. This could result in the discontinuation of granting immigrant and/or nonimmigrant visas to residents of that country. A blanket discontinuance of visa issuance could result in reciprocal treatment against U.S. visa applicants. To date, the U.S. government has identified 23 such countries, including China and India.

In addition, this Order calls for the reinstitution of the Secure Communities “SCOMM” program, whereby arrestees’ fingerprints are submitted to both criminal and immigration databases to facilitate their removal where appropriate. SCOMM’s reinstitution terminates the Priority Enforcement Program, which had replaced the original Secure Communities program in July 2015. To further address Americans’ public interest, the Order directs the establishment within ICE of an office to provide “proactive, timely, adequate, and professional services to victims [and their family members] of crimes committed by removable aliens.” The office is required to provide quarterly reports on the “effects of victimization by criminal aliens present in the United States.”

Both the Department of Homeland Security Secretary and the U.S. Attorney General are expected to submit to the President a progress report on this Order’s directives within 90 days and then again within 180 days.

It is expected that there will be additional immigration-related Executive Orders addressing DACA (Deferred Action for Childhood Arrivals), restricting immigration from certain Muslim-majority countries deemed to be a national security risk, and a review of legal immigration procedures and visa categories. Greenberg Traurig will continue to monitor activity on executive action related to immigration. To receive updates, please subscribe to our Inside Business Immigration blog and our EB-5 Insights blog.

Typhoon Soudelor, which passed directly over Saipan on August 2, 2015, caused significant damage to the island, which is the largest island of the Commonwealth of the Northern Mariana Islands (the “CNMI”). The CNMI is one of two commonwealth territories of the United States, the other is Puerto Rico. When Soudelor hit Saipan, its strength was approximately that of a Category 2 hurricane with a wind speed ranging from 96-110 miles per hour. This caused extensive damage to the electrical grid, cars, roads and many structures on the island.

Due to the extensive damage suffered, USCIS issued a reminder that those individuals affected by Typhoon Soudelor may be eligible for temporary immigration relief measures. Because of the lack of ability to return to the CNMI, eligible individuals may request or apply for relief measures, such as the following:

  • Change or extension of stay for an individual in nonimmigrant status, even if the individual has overstayed his or her lawful status;
  • Extension of parole for individuals in the United States temporarily;
  • Expedited adjudication of employment authorization applications;
  • Assistance to lawful permanent residents who are stuck overseas without travel documents to enable them to travel back to the United States;
  • Extensions for filing delays or interview resulting from the typhoon, such as inability to appear at an interview or inability to provided requested documents;
  • Extensions of the deadlines to respond to requests for evidence and notices of intent to deny by 30 days if the deadline for such request for evidence or notice of intent to deny fell between August 2, 2015 and September 2, 2015; and
  • USCIS will not issue denials based on abandonment of an application or petition in the CNMI.

It is important to note that these measures are temporary, and will not continue indefinitely. It is expected USCIS will issue further guidance as necessary if conditions worsen in the CNMI. Additional benefits, such as a fee waiver, document replacement or expedited processing may also be granted. Generally, the ability to derive the benefit of these temporary measures will require a showing by each individual that Typhoon Soudelor has affected his or her ability to comply with USCIS’ normal regulations and procedures.

Additionally, these temporary relief measures are different from temporary protected status (“TPS”), which generally prevents removal from the United States and allows travel and employment permission until such time as the country designated for TPS is no longer designated.

As we reported earlier this month, South Africa instituted some important changes to its immigration laws this year. South Africa has utilized the familiar “carrot and stick” approach in its immigration overhaul: while it has extended the validity of its major employment visas, South Africa has also imposed additional immigration compliance requirements and penalties on both employers and visa holders. Global employers should particularly be aware of the following:

New requirements for all sponsoring employers. South Africa now requires all companies that employ visa holders to maintain the following on file: a certified copy of the foreigner’s passport; a copy of the visa or permanent residency permit; proof of the capacity in which the foreigner is or was employed; a copy of the foreigner’s IRP5 form or certificate of earnings and job description, respectively.

Continue Reading South Africa Tightens its Immigration Laws

Over the last several years, the Canadian government has increased scrutiny on the activities of employers and foreign workers to ensure compliance with Canadian local and federal agreements regarding the hiring of temporary foreign workers. Instructions and amendments to the Immigration and Refugee Protection Regulations were announced recently by the Citizenship and Immigration Canada (CIC) and Service Canada. These regulations further the goals of compliance requiring employers of foreign workers to provide evidence that they have complied with the terms and conditions of the positions offered to the foreign workers. These terms and conditions include abiding by the information provided regarding job title, job responsibilities, wages, job locations and working conditions.

The increased scrutiny and protectionist stance on the part of the Canadian government is similar to practices employed by both the United States and the United Kingdom, among others. Indeed, with increased activity involving companies transferring employees to the country under the improper visa classifications and/or without proper work authorization, it is no surprise that more countries are increasing scrutiny and enforcement to ensure compliance with local immigration laws. In particular, Canada has faced increased scrutiny within the restaurant industry. (For examples of recent immigration enforcement see the following: U.S., UK.)

Continue Reading Global Immigration Series – Canada/U.S.: The World’s Longest Border is Creating Challenges for Business Travel