Visa Lawyer Blog

Articles Posted in Court Injunction

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On Monday morning, the United States Supreme Court announced that it will hear arguments for and against the President’s controversial executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “travel ban,”when it reconvenes in October of this year. The President’s executive order seeks to block the admission of foreign nationals from 6 predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) for a period of 90 days, and suspend the admission of refugees for a period of 120 days.

This announcement sets in motion the end of a long legal battle challenging the scope of the President’s executive power on immigration. This Fall, the Court will be tasked with determining whether the ban violates the establishment clause of the U.S. Constitution, as well as key provisions of the Immigration and Nationality Act, signed into law by Congress.

In the meantime, the Supreme Court has announced, in their per curiam opinion, that a limited version of the President’s executive order will remain in effect, until the Court makes its final ruling. In their opinion, the Court ruled that foreigners who have no ties or relationships in the United States may be prohibited from entering the country. This would include individuals applying for visas who have never been to the United States, or have no family, business, or other ties.

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The United States Court of Appeals for the Ninth Circuit has dealt yet another blow to President Donald Trump’s embattled executive order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” an order which temporarily prevented the admission of foreign nationals from six predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) and the admission of all refugees. As previously reported, the case reached the Ninth Circuit Court of Appeals, where a three-judge panel heard arguments against the President’s travel ban, brought by the state of Hawaii as well as other individual Plaintiffs.

Together, Judge Hawkins, Gould, and Paez, grilled the U.S. Solicitor General, Jeffrey Wall, representing the U.S. government, and attorney Neal Katyal, representing the state of Hawaii, concerning the constitutionality of the President’s executive order. Like the Fourth Circuit Court of Appeals, the Ninth Circuit Court once against decided against the President’s executive order, albeit for different reasons. The Ninth Circuit Court’s ruling against the travel ban is the latest in a string of court rulings rejecting the President’s executive order on statutory grounds.

In their 86-page opinion, the Ninth Circuit Court of Appeals rejected the executive order on statutory grounds, stating that the President had exceeded his executive power and made an inadequate judgment call with the issuance of his executive order. “The Immigration and Nationality Act (INA) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show,” stated the Court, referring to the nation’s system of checks and balances. The Court added “we conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The Court further stated that the President’s executive order is at odds with various provisions of the Immigration and Nationality Act established by Congress, including a provision that prohibits nationality-based discrimination and a provision that requires the President to follow specific protocol when setting the annual cap on admission for refugees. The lower’s courts injunction on the travel ban will remain in place until a decision is issued by the U.S. Supreme Court.

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In this series, our office brings you up to speed on all things immigration.

Reminders for H-1B applicants for Fiscal Year 2018

Beginning April 3, 2017 USCIS will begin to accept cap-subject H-1B petitions for fiscal year 2018. USCIS has recently announced that premium processing has been temporarily suspended beginning April 3, for a 6-month period, that means that petitioners CANNOT file Form I-907 request for premium processing while premium processing has been suspended. As a reminder, for the general cap (U.S. bachelor’s degree holders or the foreign equivalent) only 65,000 H-1B visas are available per fiscal year, while 20,000 H-1B visas have been allocated for the advanced degree exemption (U.S. Master’s degree holders or higher level of education). Our office has estimated that this H-1B season, advanced degree holders will have a 65 to 70% chance of being selected in the lottery, while individuals qualifying for the general U.S. bachelor’s cap will have a 35 to 40% chance of selection.

For more information about the H-1B visa please click here.

I-130 Consular Processing

If you have applied for an immigrant visa with the National Visa Center, a process that is also known as consular processing, and you are preparing your civil documents for shipment to the National Visa Center or for your immigrant visa interview, please be aware that the Department of State has recently made changes to the Country Reciprocity tables, requiring new or additional documents for certain foreign nationals depending on their country of nationality. All original civil documents must be presented at the immigrant visa interview by the intended beneficiary.

To view the updates please click here.

To review the complete Visa Reciprocity Table, please click here.

What is happening with Trump’s Muslim Travel Ban and what is a Temporary Restraining Order?

Trump’s revised executive order banning the admission of foreign nationals from 6 Muslim-majority countries (Syria, Somalia, Sudan, Libya, Iran, and Yemen) and the admission of refugees is currently on hold. A federal judge from the state of Hawaii has issued what is known as a TRO or Temporary Restraining Order.

What is a TRO?

A TRO is a provisional form of relief granted by the federal courts that prevents a party from doing a certain thing so that the moving party does not suffer harm. The relief provided by a TRO is immediate, because the order is only granted under emergency circumstances. A TRO goes into effect for 14 days and can be extended for another 14 days (maximum 28 days). A TRO is not permanent.

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Following a dramatic turn of events, on Friday, February 3, 2017, a federal judge from the Western District of Washington, issued a Temporary Restraining Order (“TRO”) halting enforcement of the President’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” nationwide. The temporary restraining order was issued in response to an emergency motion filed by the state of Washington and Minnesota. The states collectively filed the motion seeking declaratory and injunctive relief against the controversial executive order which bans the entry of immigrant and non-immigrant foreign nationals from seven Muslim-majority countries (Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen) for a 90-day period, suspends the U.S. Refugee Admissions Program for a 120-day period, and terminates the Syrian refugee program indefinitely.

In his ruling, Judge Robart stated that after hearing arguments, the States adequately demonstrated that they have suffered immediate and irreparable harm because of the signing and implementation of the order, and that granting a TRO would be in the public interest. In addition he stated “the Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States. . . are significant and ongoing.” A three-judge panel from the Ninth Court Court of Appeals is expected to issue a final ruling on the Executive Order tomorrow.

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In today’s post, we will discuss how green card holders may be affected by President Trump’s Executive Order imposing a temporary travel ban on foreign nationals of seven Muslim-majority countries (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen), including green card holders as well as non-immigrants. Since the release of the Executive Order, several courts have issued temporary injunctions preventing green card holders (LPRs), legally authorized to enter the United States, from being detained and/or removed from the United States until a federal court can decide the constitutionality of the orders.

In response to these court orders, the Department of Homeland Security and Customs and Border Protection (CBP) has provided further guidance on the enforcement of these actions, and the impact on green card holders from these seven Muslim-majority countries. While both agencies have indicated that they are complying with the court orders, the consensus is that immigration officials will continue to enforce President Trump’s Executive Orders, and they will continue to remain in place.

What does this mean for green card holders? The Secretary of the Department of Homeland Security has stated that the entry of lawful permanent residents remains in the national interest, therefore “absent receipt of derogatory information indicating a serious threat to public safety and welfare,” lawful permanent resident status will be a deciding factor in allowing an LPR entry. The entry of lawful permanent residents will continue to be discretionary and green card holders will be evaluated on a case-by-case basis.

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Men in a Huddle

On June 15, 2012 President Barack Obama first unveiled the Deferred Action for Childhood Arrivals (DACA) initiative to the world. In his 2012 announcement the President divulged that the DACA initiative would allow certain undocumented individuals who came to the United States as children the opportunity to be shielded from deportation and the right to a temporary work permit. To be eligible individuals were required to meet several guidelines to receive ‘deferred action’ for a period of two years, subject to renewal. USCIS began to accept applications for the DACA initiative on August 15, 2012.

At its core, ‘deferred action’ is the use of prosecutorial discretion to defer removal from the United States for a certain period of time. Although deferred action grants such deferment, it does not provide the individual lawful status and it is not a path to permanent residency.

On November 20, 2014 the President unveiled two initiatives that would expand the population eligible to obtain Deferred Action. Additionally, the President announced a new initiative called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). To be eligible for the expanded DACA program applicants were required to a) have entered the United States before the age of 16; b) demonstrate continuous residence in the United States since January 1, 2010; and pass required background checks. The initiative would also extend the period of ‘deferred action’ and work authorization to three years rather than two years.

Similarly, parents of U.S. Citizens and LPRs would be also be eligible for deferred action and employment authorization for a three-year period if a) they could demonstrate continuous residence in the United States since January 1, 2010 and b) pass required backgrounds checks. On February 16, 2015 just two days before applications would begin to be accepted for the expanded DACA and DAPA programs, a temporary injunction halted these programs from going into effect. The controversy that followed regarding these programs led to a federal lawsuit known as United States v. Texas which made its way to the Supreme Court of the United States. There the Supreme Court deadlocked in a 4-4 vote preventing these programs from going into effect.

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Today the Supreme Court of the United States dealt a strong blow to President Barack Obama’s executive actions on immigration issuing a single one-line decision on the ruling “the judgment of the lower court is affirmed by an equally divided court.” Nearly two years ago, President Obama announced a series of executive actions on immigration after the Republican controlled House of Representatives refused to tackle the issue of comprehensive immigration reform. As part of his executive actions on immigration, President Obama announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program, and introduced a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, (DAPA) designed to shield nearly five million undocumented immigrants from deportation. Following these initiatives, USCIS announced that applications for expanded DACA and the new DAPA program would begin to be accepted on February 18, 2015.

The DACA program would have expanded the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. The new DAPA program would have granted parents of U.S. Citizens and lawful permanent residents the opportunity to request deferred action and employment authorization for a three year period, on the condition that they have lived in the United States continuously since January 1, 2010 and pass required background checks.

On February 16, 2015 just two days before the programs were scheduled to go into effect, Texas along with 25 other states, filed a temporary court injunction ultimately suspending both programs from going into effect. This action prompted the Obama administration to intervene. For months, the federal government and the State of Texas battled one another in federal court. The court ultimately determined that Texas and at least 25 other status had sufficient ‘standing’ to challenge these programs. In response, the federal government filed an emergency motion to stay, however the motion was eventually denied by the court. This led the government to file a writ of certiorari before the Supreme Court. The fate of Obama’s executive actions grew all the more uncertain with the sudden death of conservative Supreme Court Justice Antonin Scalia on February 13th.  President Obama made desperate attempts to fill the vacated seat by nominating Merrick Garland to the Supreme Court, the Chief Judge of the United States Court of Appeals for the District of Columbia. Efforts to fill the seat were unsuccessful as Republicans vowed to keep Garland from sitting on the bench. Thus, Scalia’s death left behind an eight-person bench, and with no one to fill his seat, the growing possibility of a deadlock within the Supreme Court.

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26762616905_3855617f27_zAs previously reported, the Department of Justice is currently facing off in court against a federal judge from the State of Texas, who has accused federal prosecutors of misrepresenting, and withholding information in federal court, related to the implementation of the expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that was scheduled to take effect on February 18, 2015, as part of President Barack Obama’s executive actions on immigration. All of that changed, when Judge Hanen filed a temporary injunction in court, blocking these executive orders from taking effect, just days before February 18, 2015. Judge Hanen is asking the court to punish federal prosecutors working for the Department of Justice by forcing them to attend mandatory ethics courses.

In addition, Hanen has requested that the Department of Homeland Security hand over the names, addresses, and other information of individuals who were unlawfully granted immigration benefits under these programs. On Friday, a group of undocumented individuals came forward, asking an appellate court to respect their privacy by not turning over their personal information to the State of Texas, and other interested parties. This group of undocumented individuals is currently being represented by the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC). Attorneys for the group are expected to argue before the U.S. Court of Appeals for the Fifth Circuit in order to block Judge Hanen’s order.

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Authority of Law Statue

On April 18, 2016 the United States Supreme Court heard arguments in the lawsuit United States v. Texas, a lawsuit brought by 26 states, led by the state of Texas, challenging President Barack Obama’s executive actions on immigration. These executive actions include the expanded Deferred Action for Childhood Arrivals (DACA) program, and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program announced by President Obama in November of 2014. Following this announcement, the Obama administration received push back from the Republican led House of Representatives. There was also public outcry from conservatives, when President Obama announced that these programs would not only shield eligible individuals from deportation, but allow them to obtain employment authorization. In February 2015 these initiatives came to a screeching halt, when a federal district court granted these states a preliminary injunction preventing the implementation of expanded DACA and DAPA to take place. Since then, the lawsuit has moved through the courts, and now remains at the Supreme Court. On Monday April 18th eight justices heard oral arguments in the case arguing for and against these executive actions on immigration. A final decision is expected from the justices in June. The Director of Advocacy at the American Immigration Lawyers Association (AILA) Greg Chen, AILA’s Legal Director Melissa Crow, and UCLA Law Professor Hiroshi Motomura weighed on what happened in the court Monday morning and what we can expect from the Court moving forward.

The experts identified 2 key issues that were discussed during Monday’s oral arguments.

The court mainly focused on:

  1. Threshold question: Whether or not the Supreme Court should consider the case in the first place. The court asked themselves if the plaintiff states have standing to sue in the first place to bring the case to the court.
  2. The Merits of the case: Whether or not the President has the authority to implement these executive actions based on the ‘Take Care’ clause of the constitution.

Greg Chen highlighted that this case is particularly important because for the first time in 20 years, we have not seen any real immigration reform from any of the three branches of government. Chen also noted that these executive actions on immigration, if implemented, would shield millions of undocumented immigrants from deportation. States also have a huge interest in passing these executive actions for the economic and tax revenue benefits alone, since undocumented immigrants have not been able to properly abide by tax laws due to their unlawful presence in the United States.

Melissa Crow highlighted that in Court proceedings, the traditionally four ‘liberal’ justices on the bench Breyer, Sotomayor, Ginsburg, and Kagan seemed to be sympathetic to the Obama administration in the questions they posed to the attorneys representing both sides in this lawsuit. Melissa noted that in order to overturn the federal injunction halting expanded DACA and DAPA, a fifth vote is required from the conservative camp either from Chief Justice Roberts or Justice Kennedy. The questions posed by the traditionally ‘conservative’ justices did not necessarily provide clues into their stance on these issues. Their questions simply showed that they were engaged in the issues and mostly focused on the issue of standing to sue.

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Today the Supreme Court of the United States will begin hearing arguments in the case United States v. Texas, a lawsuit challenging Obama’s executive actions on immigration. As you have heard, a federal court order temporarily froze the expanded DACA and new DAPA programs from going into effect as expected. The Supreme Court will decide the fate of these programs by June of this year.

It is truly an exciting time of the year for immigration law. United States v. Texas is the biggest immigration case of our generation. The Supreme Court’s ruling will set an important precedent for the future of immigration policy. The court will also determine whether the President had authority to enforce the executive actions on immigration. As a member of the American Immigration Lawyer’s Association (AILA), we invite you to join a live webcast with AILA experts Greg Chen,  Legal Director Melissa Crow, and UCLA School of Law Professor Hiroshi Motomura on Tuesday, April 19, 2016, at 1:00 pm (ET), as they recap and offer expert analysis of Monday’s Supreme Court oral arguments in the United States v. Texas case.

Click here to watch the live stream.

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