What's New in the World of Immigration?

02/16/2018 - Senate Bipartisan Efforts to Save Dreamers Destroyed by Veto Threat

AILA Doc. No. 18021635 | Dated February 16, 2018

WASHINGTON, D.C. - The American Immigration Lawyers Association (AILA) expressed deep disappointment in the failure of the Senate to pass commonsense reforms to protect Dreamers. At the same time, AILA commends the many Senators who stood firm against the nativist voices demanding legislation to gut legal immigration and make our country weaker.

The Senate's failure to pass a bill means that March 5, the day the Deferred Action for Childhood Arrivals (DACA) program formally expires, remains the critical deadline. Though court rulings have enjoined termination of DACA for those who have already received DACA protections, the Trump administration has asked the Supreme Court to take the issue up immediately. With such uncertainty, the urgency could not be greater for Congress to pass a bill that solves the crisis and provides permanent legal status for Dreamers.

"The Senate debate and votes this week are a wakeup call to this administration which has thus far broken every pledge to help Dreamers. The President now bears the responsibility to protect Dreamers and must cooperate with bipartisan lawmakers," said Annaluisa Padilla, AILA President. She continued, "This week was a rollercoaster, but the blame rests squarely with Stephen Miller and the extremist voices in the White House who maneuvered a veto threat to block any possibility of passing a bipartisan deal to protect Dreamers. Once again, the administration resorted to divisive politics over good policy, ignoring the fact that nearly 90% of Americans support legal status for Dreamers."

AILA Executive Director Benjamin Johnson noted, "It is time for the White House to stop holding Dreamers hostage for unreasonable demands that were soundly rejected by 60 Senators. The blame for the failure to pass legislation rests solely with the President whose misinformation and threats doomed this debate. He knows it, and we all know it. As we look back on this week's events, one thing is clearer than ever: the only path forward is a narrow deal that pairs the Dream Act with smart, sensible border security."

01/16/2018 - DACA RENEWALS NOW BEING PROCESSED!

USCIS Announcement: Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction

Jan. 13, 2018, Update: Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF).

Additional information will be forthcoming.

12/31/2017 - How Trump Went After Immigrants in 2017

Full Original Article from Vice News, Author Meredith Hoffman, 12/30/2017

Trump Has Moved to Restrict Legal Immigration

Trump is the first president in decades to fight for a major reduction in legal—not just illegal—immigration. Claiming immigrants are taking jobs from US citizens, he has begun a series of administrative changes to make it harder to obtain a visa to enter the US, along with supporting legislation that would drastically lower the cap of visas granted each year.

“The most historic change this administration has made is changing the conversation around legal immigration,” Sarah Pierce, a policy analyst for the Migration Policy Institute, told me. “Previously, it was just such a standard that legal immigration is a net positive and so tied up in our heritage. Before the idea of reducing legal immigration was fringe.”

The April executive order “Buy American, Hire American,” which Trump claimed would result in higher wages and employment rates for US workers, called on the government to increase scrutiny of applications for the H-1B, or skilled worker, visa, of which there are 85,000 granted each year.

Since then, US Citizenship and Immigration Services (USCIS) has issued more requests for evidence from applicants to show they serve a role that couldn’t easily be filled by a citizen. This has caused delays in the approval process, Anastasia Tonello, president-elect of the American Immigration Lawyers Association, told me.

“Things are very much in flux,” said Tonello, who noted that USCIS had also issued new guidelines for accepting applications from computer programmers and economists.

Approval rates for H-1B visas have already begun to drop: 86 percent and 82 percent of H-1B applications were approved this October and November, compared with 93 percent and 92 percent for the same months last year, according to data shared by USCIS.

“It is true that we’ve issued more Requests for Evidence recently. This increase reflects our commitment to protecting the integrity of the immigration system,” said USCIS public affairs officer Carolyn Gwathmey. “We understand that RFEs can cause delays, but the added review and additional information gives us the assurance we are approving petitions correctly. Increasing our confidence in who receives benefits is a hallmark of this administration and one of my personal priorities.”

Still, Gwathmey said the annual approval rate for visas remained above 90 percent*, and she noted that USCIS is still considering new measures to further implement Trump’s “Buy American Hire American” order, including a “thorough review of employment based visa programs.”

Trump has just begun his efforts to slash legal immigration, and more drastic cuts appear on the horizon for 2018, Pierce projected. This month Trump called for an end to “chain migration,” or visas based on family ties, and he has already begun the process of rescinding work authorizations to the spouses of H-1B recipients. And he has thrown his support behind legislation that would cut legal immigration in half (that bill, the RAISE Act, seems unlikely to pass).

To Mark Krikorian, executive director of the Center for Immigration Studies, which supports reductions to legal and illegal immigration, Trump’s proposals are “long overdue.”

“Legal immigration is simply too high and badly run,” he told me. “What worked during our country’s adolescence doesn't work in our maturity.”

Trump Has Made More Undocumented Immigrants Vulnerable to Deportation

Hundreds of thousands of immigrants who were protected under the Obama administration are now in limbo, or being told to leave, after Trump decided to end two pivotal programs shielding them from deportation.

In September, Trump announced the end of DACA, the Obama-era program providing deportation relief and work permits to young immigrants brought to the US illegally as children. Roughly 800,000 of these immigrants—who often don’t remember a home other than the US—had status under DACA, a protection that has begun to expire.

"Every week since since Trump's termination of DACA, 850 immigrant youth have fallen out of status and lost their protections from deportation, their jobs, their driver's license, their ability to go to college, and peace of mind,” said Greisa Martinez Rosas, advocacy director at United We DREAM, a nonprofit created by and for immigrant youth.

Trump also removed temporary protected status from 60,000 Haitians who were granted it after the country’s 2010 earthquake, along with 2,500 Nicaraguans granted it in 1998 after Hurricane Mitch. That means that within months, these residents—some who have lived here for decades—must leave or they will be eligible for deportation.

Trump's Administration Is Prioritizing All Undocumented Immigrants for Deportation

Just five days after his inauguration, Trump sent shockwaves through the immigrant community with an executive order making all undocumented residents priorities for deportation. The Obama administration, by contrast, had focused its efforts on serious criminals and recent border crossers.

“Interior enforcement of our nation’s immigration laws is critically important to the national security and public safety of the United States,” Trump’s executive order explained. “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.”

Within weeks, a wave of raids proved Immigration Customs and Enforcement (ICE) agents would indeed pick up any undocumented immigrant in their wake. Out of ICE’s 110,568 arrests in fiscal year 2017, nearly one-third—31,888 detainees—had no criminal convictions, according to Migration Policy Institute’s analysis of ICE’s year-end removal data. More than 90 percent of the individuals removed from the interior by the Obama administration in fiscal year 2016 had been convicted of what the administration deemed “serious crimes.”

“We saw a lot of really sympathetic cases of deportations that shouldn't have taken place,” Stephen Legomsky, former chief counsel of USCIS under the Obama administration, told me of enforcement in 2017. “The Obama administration really did focus almost all its enforcement efforts on people who posed a real danger in the US or were apprehended at border, whereas the Trump administration has given free rein to ICE agents.”

Immigrant advocates say these deportations have separated families, struck fear throughout the immigrant community, and given ICE agents too much discretion in their enforcement.

But Krikorian said the change was “clearly a positive” development and “simply a restoration of normal immigration enforcement.”

“Under Obama, only the bad guys were targeted. Ordinary lawbreakers were in effect protected from law enforcement,” said Kriokorian. “That’s essentially saying breaking the law shouldn't have consequences.”

Trump Has Slashed Refugee Admissions

Just as the world reached a record high in displaced people since the end of World War II, Trump used his executive power to slash US refugee admissions to their lowest level in the history of the program. Where Obama had set the annual cap at 110,000, Trump slashed that number to 45,000 in a September proposal to Congress.

“The President has made clear that in the admission of refugees for resettlement, the safety and security of the American people is paramount,” Stephanie Sandoval, a spokesperson for the State Department, told me in an email, noting that all refugees were undergoing “enhanced security vetting procedures.”

To American citizens and politicians wary of the US resettlement program, this reduction was a welcome shift and served to help keep the country safe.

But the extreme reduction in resettlement numbers has been disastrous for the refugee community, according to Melanie Nezer, policy director of the resettlement organization HIAS. Refugees planning to reunite with relatives in the US lost their slots to enter the country, as did thousands of other individuals living in camps abroad.

The Trump administration also withdrew in December from the UN Refugee Pact, signaling “a “lower engagement overall in global refugee policy,” Nezer said.

“The US has always taken responsibility to be part of the solution for people who have been persecuted... rather than put[ing] responsibility all on countries neighboring conflict,” she added.

Finally, There's Trump's Travel Ban

The travel ban has been one of the highest-profile and most controversial policy changes of the Trump administration since it singled out individuals from specific countries as ineligible for US entrance. After his first two versions of the ban were struck down in court, Trump issued a third version in September that is currently being enforced as legal challenges move forward.

“Our government's first duty is to its people, to our citizens—to serve their needs, to ensure their safety, to preserve their rights, and to defend their values,” Trump said in his statement about the most recent version of the ban.

The current ban limits travel from six majority-Muslim countries—Chad, Iran, Libya, Somalia, Syria, and Yemen—as well as North Korea and Venezuela.

“For the families affected, this is really heartbreaking—they're facing the prospect of never being able to live with their loved ones in this country,” said Cody Wofsy, an attorney with the ACLU's Immigrants' Rights Project. “And for millions of American Muslims this is a message of exclusion that is completely contrary to values our country was founded on.”

Individuals from the banned countries can apply for waivers to be accepted into the US, but Wofson said he had so far not heard of any waivers being granted.

But Department of State spokesperson Virgil Carstens said the ban was integral for national security. Carstens said he could not provide information on the number of visa waivers granted, nor could he share information about Begami’s case, but added waivers could be granted if a visa denial would cause undue hardship, and if the applicant’s entrance into the US would serve in the national interest.

“We will continue to work with identified countries to address information sharing deficiencies that resulted in their recommendation for travel restrictions,” Carstens told me in an email.

Meanwhile, Gerami, (a 73 year old Iranian surgeon with terminal cancer) has reapplied for his visa, waits in Montreal for word from the US embassy about whether he can seek life-saving treatment in California.

“He’s gotten depression and anxiety, and has lost his speech because of the tumor,” his daughter told me. “Sometimes he just cries.”

12/22/2017 - CBP Practice Alert: International Travel for Economist TN Holders

AILA Doc. No. 17122215 | Dated December 22, 2017

On November 20, 2017, USCIS issued a policy memorandum on TN nonimmigrant Economists. The policy points established in the memorandum are:

- For purposes of the TN classification, whether a job is that of an Economist is determined by the primary activity, not the job title.

- If the job duties for the position primarily include the activities of other occupations, including but not limited to Financial Analysts, Market Research Analysts, and Marketing Specialists, the individual will not qualify for TN status as an Economist.

- The Department of Labor (DOL) Standard Occupation Classification (SOC) system specifically excludes Market Research Analyst and Marketing Specialist from the definition of Economist. Therefore, persons who are engaged in activities associated with Market Research Analysts and Marketing Specialists as described in the SOC and the BLS Occupational Outlook Handbook (OOH) do not qualify as TN Economists.

- Though the occupations of Economist and Financial Analyst are related, Financial Analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions. Therefore, consistent with the SOC, USCIS considers Financial Analyst and Economist as two separate occupations for purposes of TN status.

While USCIS is bound by this guidance as of November 20, 2017, as of December 22, 2017, the Department of State (DOS) has not posted a Transmittal Letter to the Foreign Affairs Manual (FAM) revising its policy on NAFTA Professionals, located at 9 FAM 402.17. In addition, members should note that CBP does not always follow USCIS guidance and it is unknown at this time whether CBP policy has changed or will change its policy to align with the USCIS memorandum. Informally, AILA members have reached out to CBP officials at various ports of entry and have been informed that no guidance or musters have been issued to date. One port noted that if such guidance is issued, CBP may revoke the TN status of previously approved individuals encountered at ports of entry who are seeking readmission in TN status as Economists.

Other ports noted that CBP’s training and reference materials on TN adjudications have continually referred to the OOH as a tool for determining whether the applicant meets the requirements for the occupations listed in 8 CFR 214.6(c) and Appendix 1603.D.1 to Annex 1603 of NAFTA. It is therefore not clear whether CBP would consider the USCIS policy memorandum as meriting a muster.

CBP has the authority to refuse admission to anyone it deems inadmissible to the United States. This authority includes inadmissibility under INA §212(a)(7) for those who fail to present proper documents. This category could be used to deny admission to individuals with previously approved TNs who are classified as Economists and, upon review, are considered Financial Analysts, Market Research Analysts, or Marketing Specialists.

Before traveling with a TN approval in the Economist category about international travel, these uncertainties should be taken into consideration. It should be stressed, however, that at this time AILA is not aware of any official CBP policy on this issue.

AILA Doc. No. 17122215.

12/21/2017 - y To curb illegal border crossings, Trump administration weighs new measures targeting families

Author: Nick Miroff for The Washington Post

The Trump administration is considering measures to halt a surge of Central American families and unaccompanied minors coming across the Mexican border, including a proposal to separate parents from their children, according to officials with knowledge of the plans.

These measures, described on the condition of anonymity because they have not been publicly disclosed, would also crack down on migrants living in the United States illegally who send for their children. That aspect of the effort would use data collected by the Department of Health and Human Services (HHS) to target parents for deportation after they attempt to regain custody of their children from government shelters.

The Department of Homeland Security (DHS) has previously considered some of these proposals, but there is renewed urgency within the administration to address an abrupt reversal of what had been a sharp decline in illegal immigration since Trump took office in January.

In November, U.S. agents took into custody 7,018 families, or “family units,” along the border with Mexico, a 45 percent increase over the previous month, the latest DHS statistics show. The number of “unaccompanied alien children,” or UAC, was up ­­26 percent.

Children’s shelters operated by HHS are at maximum capacity or “dangerously close to it,” an official from the agency said. Overall, the number of migrants detained last month along the Mexico border, 39,006, was the highest monthly total since Trump became president, according to DHS figures.

The proposals, which have been presented for approval to new DHS Secretary Kirstjen Nielsen, were developed by career officials at Immigration and Customs Enforcement (ICE) and other DHS agencies, administration officials said.

Tyler Houlton, a DHS spokesman, confirmed the agency has “reviewed procedural, policy, regulatory and legislative changes” to deter migrants. Without giving further details, he said some of the measures “have been approved,” and DHS is working with other federal agencies “to implement them in the near future.”

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders, and as a result we are continuing to review additional policy options,” Houlton said.

The most contentious ­proposal — to separate families in detention — would keep adults in federal custody while sending their children to HHS shelters. This was floated in March by then-Secretary of Homeland Security John F. Kelly, who is now White House chief of staff. He told CNN at the time that the children would be “well cared for as we deal with their parents.”

Kelly did not move forward with the plan, in part because of the backlash it triggered, administration officials said, and also because illegal migration had plunged to historic lows.

[DHS considers separating mothers and children who cross the border illegally]

Trump administration officials described the measures as unpalatable but necessarily tough policy options to discourage Central American families from embarking on the long, dangerous journey to the border — or hiring smugglers to bring their children north.

“People aren’t going to stop coming unless there are consequences to illegal entry,” one DHS official said.

Migrants from El Salvador, Guatemala and Honduras represent the largest share of families and children taken into U.S. custody along the border, with many telling border agents that they fear for their lives if sent back to their home countries. The three nations, known as the “Northern Triangle” of Central America, are crippled by gang violence and homicide rates that are among the world’s highest.

Trump administration officials say Central American migrants and the paid smugglers who bring them to the border shamelessly exploit Americans’ compassion, entering the United States illegally and gaming the asylum process.

If a migrant’s stated fear of being sent home is considered “credible,” they enter an asylum process that may take years to adjudicate, and the flood of such petitions in recent years has worsened the backlog of more than 600,000 cases pending in U.S. immigration courts.

Asylum seekers are typically issued work permits while they wait for the process to play out, and when their rejected appeals are exhausted, they often ignore court orders to leave the United States, choosing to remain in the country illegally.

The Trump administration wants to significantly expand immigration detention capacity, and hire more judges and expedite asylum cases to stop migrants from taking advantage of “loopholes” in the asylum process.

The proposal to separate parents from their children is viewed by the agency as a more immediate tool to halt the latest border surge.

DHS has three family detention centers — two in Texas, one in Pennsylvania — with about 2,200 beds available. But legal restrictions on its ability to detain children mean that families are typically given a court date and released from detention not long after they arrive. In November, the three detention centers reached their highest occupancy levels for the year, and they remain near maximum capacity, officials said.

“The parents that would undertake this perilous journey to the United States would be less likely to do it if they knew they would be separated from their kids,” said Andrew R. Arthur, a resident fellow at the Center for Immigration Studies, which seeks to reduce immigration. A former U.S. immigration judge and Republican congressional policy staffer, he called it “a reasonable step to take.”

“It might seem heartless, but it’s more heartless to give them the illusion they’re going to be able to enter the United States freely by hiring a smuggler to come here, because the dangers associated with smuggling along the southwest border are real,” Arthur said.

The unaccompanied minors are typically seeking to reunite with a parent already living illegally in the United States. By law, migrants under age 18 who arrived without a parent must be turned over to HHS within 72 hours of being taken into DHS custody. The shelters where they are housed are designed to be more like boarding schools than grim detention centers.

The minors are placed in the care and custody of the Office of Refugee Resettlement at HHS’s Administration for Children and Families (ACF), which seeks to identify an adult sponsor who can take custody of them.

The process takes about six weeks on average, HHS officials say. “It’s a little-known fact that over half of those who enter illegally are placed with a parent already in the United States,” ACF spokesman Kenneth Wolfe said.

The parents, or any other adult seeking to take custody of a child, must submit to an extensive background check that includes information about their immigration status. But administration officials say that information is neither checked against DHS biometric data nor shared with ICE for potential enforcement purposes. The new DHS proposals under consideration would change that.

If children are forcefully separated from their mothers and fathers, or if parents know they could be arrested or targeted for trying to reunite with their children, migrant advocates say the U.S. government will be inflicting “devastating” trauma on families fleeing Central America because they feel their lives are at risk.

“These measures will only drive families who are vulnerable to exploitation further into the hands of traffickers and smugglers,” said Greg Chen, director of government relations of the American Immigration Lawyers Association.

“These are families that have no other choice for their survival,” he said.