Visa Lawyer Blog

Articles Posted in Executive Action

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On November 9, 2018, the President unveiled a new executive order, this time targeting asylum seekers from Central America.

Over the last few weeks, a large caravan of immigrants from Central America, bound for the United States, has made headlines. In a recent campaign ad, the Trump administration depicted individuals forming part of the immigrant caravan as criminals and violent gang members.

The President has not shied away from commenting on the caravan. In an October tweet, when news first spread of the caravan, the President said, “In addition to stopping all payments to these countries, which seem to have almost no control over their population, I must, in the strongest of terms, ask Mexico to stop this onslaught—and if unable to do so I will call up the U.S. Military and CLOSE OUR SOUTHERN BORDER!”

Trump is now delivering on his promise. Trump has now signed an executive order to temporarily suspend the entry of certain aliens entering through the southern border.

The executive order reads:

Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.  In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens — and all others arriving at our ports of entry — as efficiently as possible.

But aliens who enter the United States unlawfully through the southern border …. will be ineligible to be granted asylum …. Those aliens may, however, still seek other forms of protection from persecution or torture.

Who does the Executive Order apply to:

Aliens who enter the United States across the international boundary between the United States and Mexico after November 9, 2018. The suspension will expire 90 days after November 9, 2018, or the date on which an agreement permits the United States to remove aliens to Mexico.

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The United States Court of Appeals for the 9th Circuit has spoken. In their unanimous opinion, a three-judge panel of judges held that the President’s decision to rescind the DACA program by way of executive order was arbitrary and capricious.

After a long and contentious hearing in the case, Regents of the University of California v. the United States Department of Homeland Security, the judges of the Ninth Circuit Court of Appeals, were ultimately convinced that the government’s decision to rescind the DACA program, “was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment.”

The Court further decided to leave a preliminary injunction in place to give the district court an opportunity to consider whether the Plaintiffs are likely to succeed on the merits of their Equal Protection claim against the government.

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Image Courtesy of Gage Skidmore

USCIS has finally announced that the H-1B computer-generated lottery took place on April 11, 2017 to select the necessary petitions to meet the 65,000 visa cap for beneficiaries holding a U.S. bachelor’s degree or its equivalent, as well as the 20,000 visa cap for beneficiaries holding a U.S. master’s degree or higher. The announcement came a bit late this H-1B season, but you can now rest easy knowing that it has taken place.   On April 7th USCIS announced that they had received more than enough H-1B petitions necessary for fiscal year 2018. USCIS disclosed that they received 199,000 H-1B petitions this filing year.

Our office has already received 3 receipt notices for the “master’s” cap or advanced degree exemption, and 2 receipt notices for the “regular” cap as of April 20, 2017. 

USCIS will continue to mail receipt notices for selected petitions throughout the month of April and likely into early May.

If your petitioner has been monitoring their bank account closely and has noticed that the filing fees were charged to the account, that means that the H-1B petition was selected. Even if the filing fees have not yet been charged to your petitioner’s bank account, that does not mean that your H-1B petition was not selected. H-1B applicants must wait patiently to see if they were selected in this year’s lottery.

USCIS will not begin mailing out unselected H-1B petitions until around June through the month of July.

As a reminder, premium processing for H-1B petitions was suspended on March 3rd and will remain suspended for up to six months.

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Ninth Circuit Court of Appeals San Francisco, CA

A three-judge panel from the Ninth Circuit Court of Appeals has unanimously ruled that the President’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” banning the entry of immigrants and non-immigrants from seven Muslim-majority countries will not be reinstated. The Court refused to reinstate the Order after hearing oral arguments from the solicitor general of Washington state arguing for the states of Washington and Minnesota, and counsel from Washington D.C. The panel was tasked with reviewing a temporary restraining order (“TRO”) that was handed down by a federal judge from Seattle, an order which brought President Trump’s Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” to a screeching halt. Since then several lawsuits have been filed against the President’s executive order and are making their way through the courts.

The Court considered four central questions before reaching their decision:

  • Whether the stay applicant “Government” has made a strong showing that he is likely to succeed on the merits;
  • Whether the applicant “Government” will be irreparably injured absent a stay;
  • Whether issuance of the stay will substantially injure the other parties interested in the proceeding and;
  • Where the public interest lies.

The Court concluded that the government failed to satisfy the first questions, and that arguments made by the government’s attorney in support of the last two questions did not justify the issuance of a stay to lift the temporary restraining order and reinstate the Executive Order. The Court reasoned that the government failed to show that it would be likely to succeed on appeal, noting the seriousness of the allegations raised by the States regarding religious discrimination and significant constitutional questions. In a powerful statement the Court noted that “the government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” The Court further stated that the States “offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple other interested parties.”

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Yesterday, January 29, 2017 the Department of Homeland Security released a statement regarding President Trump’s executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” which barred the entry of both immigrant and non-immigrant foreign nationals from 7 majority Muslim countries and suspended entry of Syrian refugees until proper vetting and security mechanisms could be put in place. The Department commented on the impact of a federal court order issued Saturday night which temporarily suspends enforcement of the executive order, until a federal judge can rule on its legality.

In their statement, the Department of Homeland Security noted that “upon issuance of the court order . . . U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.  We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S. Therefore, we do not anticipate that further individuals traveling by air to the United States will be affected.”

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Yesterday, January 27, 2017, President Donald Trump signed and handed down the controversial executive order, “Protecting the Nation from Terrorist Attacks by Foreign Nationals” on immigration to protect the nation from terrorist attacks by foreign nationals. Among its main provisions the order suspends IMMIGRANT AND NON-IMMIGRANT entry of foreign nationals from countries of “particular concern” including Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for 90 days, indefinitely suspends Syrian refugees from entering the United States until the U.S. refugee admissions program has been overhauled, and terminates the visa waiver interview process. The temporary ban will affect all non-U.S. Citizens from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen including green card holders and valid U.S. visa holders. Foreign nationals of these countries will not be allowed to return to the United States for a period of 90 days, after temporary foreign travel, even if they are green card holders or visa holders. For this reason, if you are a foreign national from one of these countries, you should not engage in temporary foreign travel until the temporary ban has been lifted. Visa and green card holders already in the United States will be allowed to remain without problems.

An exemption has been drawn for immigrants and legal permanent residents whose entry is in the U.S. national interest, however it is not yet clear how that exemption will be applied.

Below is a summary of the main provisions of the order per the OFFICIAL signed copy.

To read the complete version please click here.

  1. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern
  • The immigrant and nonimmigrant entry into the United States of aliens from countries designated (including Syria, Iraq, Iran, Libra, Somalia, Sudan, and Yemen) is suspended for 90 days from the date of the order January 27, 2017 (excludes foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visas for travel to the United Nations). This means that if you are a citizen of a country of “particular concern” as outlined above, you will NOT be allowed to re-enter the United States, after temporary foreign travel, until the ban has been lifted, even if you are a legal permanent resident (immigrant) or holder of a valid visa. If you are a foreign national of one of the above countries and you are an immigrant (green card holder) or non-immigrant (valid visa holder), you must NOT travel internationally. Otherwise, you will risk being denied re-entry.
  • The Secretary of State and Homeland Security may submit to the President the names of additional countries who pose a security risk and are recommended for suspension.
  • The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, must immediately conduct a review to determine the information needed from any country for adjudication of any visa, admission, or other benefit under the INA adequate to confirm the identity of the individual seeking the benefit and ensure that they are not a security or public-safety threat to the United States.

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President Donald Trump is expected to hand down a controversial Executive Order on immigration within the coming days to protect the nation from terrorist attacks by foreign nationals. Although the Trump administration has not made a formal announcement regarding the proposed order yet, a leaked, unsigned copy of the President’s order has been making the rounds. We do not know whether the President has made any modifications to the order since its leak, and we do not know when exactly the order will be issued. One thing is clear, an executive order on immigration is imminent. It is rumored that the executive order will include a temporary ban on refugees, the suspension of issuance of visas for citizens of Syria and six other Middle Eastern and African countries, which are rumored to include Iraq, Iran, Libya, Somalia, Sudan and Yemen, collectively referred to as “countries of particular concern,” as well as the end of Syrian refugee processing, and the visa interview waiver program.

The passage of such an executive order although extremely controversial and unpopular, would be within the President’s executive power, if his administration determines that limiting refugee admissions temporarily and restricting the issuance of visas to persons from specific countries is of significant public interest to the United States to combat the war on terror. The administration would need to balance our country’s need to secure its borders against terrorism with the need to resolve the global humanitarian crisis we face today. Donald Trump has already passed a series of executive orders on border security and immigration enforcement authorizing the construction of a U.S.-Mexico border wall, withholding federal grant money for sanctuary cities, hiring 5,000 Border Patrol agents, reinstating local and state immigration enforcement partnerships, and ending the “catch-and-release” policy for undocumented immigrants.

The leaked copy of the executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives two policy reasons for enacting the executive order. First, the purpose of the order is to protect American citizens from foreign nationals who intend to enter the United States to commit acts of terrorism. Second, the order serves to prevent the admission of foreign nationals who intend to enter the United States to “exploit” the country’s immigration laws for malevolent purposes. The order highlights that following the September 11 attack on the World Trade Center, hundreds of foreign nationals have successfully entered the United States on an asylum, visitor, student, or employment visa, and have been subsequently convicted or implicated in terrorism related crimes. The order goes on to blame the State Department’s consular officials for their failure to scrutinize the visa applications of the foreign nationals who went on to commit the September 11 attacks, which resulted in the deaths of thousands of Americans.

The main provisions of the leaked order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are as follows:

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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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This morning, President Obama announced his nominee to fill the vacant seat of Antonin Scalia on the Supreme Court. Contrary to what was believed, President Obama chose the most experienced and respected nominee among his top contenders, as opposed to the most progressive choice. The final decision came down to Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick B. Garland. The President’s choice reflects political concerns to seat a Justice in time for oral arguments to begin in the case, United States v. Texas, a case that challenges the President’s modified Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In the coming weeks, Judge Garland will need to face the Republicans in the Senate, who have vowed to block him from sitting on the Supreme Court. In order to be confirmed, he must receive votes from Republicans in the Senate.  It is expected that Republicans will vote in Garland’s favor since he is not inclined to take leading positions on ideological questions such as DACA/DAPA. If appointed, Garland is unlikely to take a progressive approach on the bench. Throughout his career, Garland has taken a centrist or neutral view of the law. The Supreme Court is expected to hear oral arguments for United States v. Texas in April. For more on DACA/DAPA please click here.

Profile: 

In this photo taken May 1, 2008, Judge Merrick B. Garland is seen at the federal courthouse in Washington, Thursday, May 1, 2008. Garland has been in this position before. The last time a seat opened up on the U.S. Supreme Court, in 2010, he was widely considered a top candidate for the job and interviewed with President Barack Obama. But the slot ultimately went to Justice Elena Kagan. (AP Photo/Charles Dharapak)
Chief Judge Garland was appointed to the United States Court of Appeals in April 1997 and became Chief Judge on February 12, 2013. He graduated summa cum laude from Harvard College in 1974 and magna cum laude from Harvard Law School in 1977. Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. From 1979 to 1981, he was Special Assistant to the Attorney General of the United States. He then joined the law firm of Arnold & Porter, where he was a partner from 1985 to 1989 and from 1992 to 1993. He served as an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992, and as Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993 to 1994. From 1994 until his appointment as U.S. Circuit Judge, he served as Principal Associate Deputy Attorney General, where his responsibilities included supervising the Oklahoma City bombing and UNABOM prosecutions.

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The Obama administration may announce its choice for the Supreme Court nomination as early as this week. We have learned that there are three contenders being considered for the Supreme Court nomination. All three candidates serve as judges for the United States Court of Appeals for the District of Columbia, and are well respected by both parties. They include Sri Srinivasan, Merrick Garland, and Paul Watford, who is rumored to be at the top of the President’s list. The Supreme Court nominee will be required to face a Republican Senate, in order to be formally appointed to the Supreme Court. Senate Republicans have already warned the White House that they will not hold hearings for any Supreme Court nominee suggested by President Barack Obama. As soon as Republicans heard of the passing of Justice Antonin Scalia, they urged caution from the White House. Senate Republicans anticipate that the next President of the United States will be the party’s Presidential nominee. It is for this reason that they claim that the Supreme Court nomination should be made by the next President of the United States, and not by Barack Obama. In a televised announcement, following the death of Antonin Scalia, President Obama made it very clear that his intentions were to choose the Supreme Court nomination, despite warnings from Republicans. Senate Republicans responded by stating that they would block any of the President’s advancements.

President Obama will need to choose a Justice that will have a tendency to vote liberally in order for his expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program to survive. The expanded DACA and new DAPA program were introduced in November 2014 as part of President Obama’s executive actions on immigration. These programs have been temporarily suspended following a federal court order filed by Texas and other states. The Supreme Court is expected to hear oral arguments in the case, United States v. Texas, this April with a final ruling made by summer time.

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