Articles Posted in Immigration Enforcement

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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In a continuing saga, the President is maintaining his hardline stance on immigration, this time expanding into the realm of legal immigration. Earlier this month, the Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies as a manual, which directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

The manual sets out a list of activities which may support a presumption of fraud or material representation by an individual applying for any immigration benefit:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Old Rule: Previously, the rules set out by the Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (e.g. as a tourist, business visitor, student, trainee etc.) and subsequently married a U.S. Citizen and applied for adjustment of status within the first 30 days of entering the United States.

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On September 24, 2017, the President issued a Presidential Proclamation expanding the list of countries subject to the travel ban outlined in Executive Order 13780 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” As you may recall, as part of that executive order, in March 2017, the President had asked the Secretary of Homeland Security and Attorney General to conduct a worldwide review to assess the dangers that foreign nationals from designated countries of concern pose to the national security of the United States. Under Executive Order 13780, DHS was directed to implement additional security mechanisms and vetting procedures for countries identified as potential threats to national security.

The Secretary of Homeland Security, Secretary of State, and Attorney General identified 16 additional countries which “remain deficient . . . with respect to their identity-management and information-sharing capabilities, protocols, and practices,” and as a result pose a potential threat to our country’s national security.  By proclamation, the entry of foreign nationals from eight of these countries will remain suspended and limited for the time being.

The President has determined that the immigrant and non-immigrant entry of foreign nationals from the following countries would be detrimental to the national interests of the United States, at least until increased security mechanisms can be implemented, and identity and information-sharing capabilities can be improved.

Per Section 2 of the Proclamation

Suspension of Entry for Nationals of Countries of Identified Concern

“The following countries continue to have “inadequate” identity-management protocols, information-sharing practices, and risk factors . . . such that entry restrictions and limitations are recommended:”

The entry of foreign nationals from the designated countries listed below will be suspended and limited to a few exceptions and case-by-case waivers beginning October 18, 2017.

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In early August of this year, reports began to emerge indicating that Immigration and Customs Enforcement (ICE) was planning a large-scale nationwide immigration operation, to crack down on undocumented criminals and gang members. The coordinated effort which purported to detain criminals and gang members, known within the agency as “Operation Maga,” was set to begin on September 17th and was expected to continue over a five-day period.

Thanks to an internal memo circulated within the agency, details quickly came to light of the operation. According to an internal memo, ICE had been planning to conduct the nationwide immigration raids since at least mid-August of this year. In addition, law enforcement officials reported that the immigration raids were expected to target 8,400 undocumented immigrations, which according to the internal memo would make Operation Maga, “the largest operation of its kind in the history of ICE.” Officials familiar with the operation reported that while the agency instructed officials to target only persons of interest, including gang members or perpetrators of serious crimes, DACA recipients not suspected of crimes, could inevitably have been detained in the frenzy.

When news outlets began to question ICE regarding the rumored raids, the agency had reported that it was “not able to speculate about potential future targeted enforcement actions.”

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Now is a good time to file your green card application. Significant wait times are expected given a new policy passed by the Trump administration that will require in-person interviews for LPR applicants filing based on employment sponsorship

In yet another controversial move, the Trump administration has recently adopted a new policy change that will require an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship. The new policy will be implemented beginning October 1st.
Previously, foreign nationals applying for permanent residency, based on employment sponsorship, were not required to attend an in-person interview, although this allowance was discretionary. In recent years, the in-person interview requirement was typically reserved for individuals applying for permanent residency based on a qualifying familial relationship, and not for individuals applying based on employment sponsorship.

A USCIS spokesperson announced the new policy change on Friday August 25th, a change that will delay the process of obtaining a green card significantly, given the increased number of individuals that will be required to attend an in-person interview. According to USCIS this change in policy will apply to any individual adjusting their status to legal permanent residency from an employment-based visa category.

What’s more, family members of refugees or asylees, holding a valid U.S. visa, will also be required to attend an in-person interview when applying for provisional status.

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On August 02, 2017, Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced a new Act called “Reforming American Immigration for a Strong Economy” before the U.S. Senate, otherwise known as the RAISE Act, which is a new piece of legislation that has recently been backed by President Trump.

The RAISE Act aims to overhaul the employment-based immigration system and replace it with a skills-based system that awards points to immigrants based on the immigrant’s level of education, age, ability to speak the English language, future job salary, level of investment, and professional achievements. In addition, the RAISE Act would terminate the Diversity Visa Program, which awards 50,000 visas to foreign nationals from qualifying countries, and would ultimately reduce the number of family-sponsored immigrants allowed admission to the United States. The Act intends to focus on the family-based immigration of spouses and minor children and would reduce the number of refugees allowed into the United States.

Among other things the RAISE Act would:

  • Terminate the Diversity Visa Program which awards 50,000 green cards to immigrants from qualifying countries;
  • Slash the annual distribution of green cards to just over 500,000 (a change from the current issuance of over 1 million green cards annually);
  • Employment-based green cards would be awarded according to a skill-based points system that ranks applicants according to their level of education, age, ability to speak the English language, salary, level of investment, and achievements (see below);
  • The issuance of employment-based green cards would be capped at 140,000 annually;
  • Limit the maximum number of refugees admitted to the United States to 50,000;
  • Limit admission of asylees. The number of asylees admitted to the United States on any given year would be set by the President on an annual basis;
  • Amend the definition of “Immediate Relative” to an individual who is younger than 18 years of age instead of an individual who is younger than 21 years of age;
  • Adult children and extended family members of individuals living in the United States would no longer be prioritized to receive permanent residence. Instead the focus would remain on the immediate relatives of U.S. Citizens and legal permanent residents such as spouses and children under the age of 18;
  • The Act would allow sick parents of U.S. Citizens to be allowed to enter the United States on a renewable five-year visa, provided the U.S. Citizen would be financially responsible for the sick parent.

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Last week, Thursday, July 13, 2017, U.S. District Court Judge Derrick K. Watson handed down a ruling which exempts extended family members from President Trump’s travel ban including: “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” These familial relationships are to be considered bona fide relationships that qualify such foreign nationals from gaining admission into the United States.  Thursday’s ruling also makes refugees with assurances from a resettlement agency, exempt from the President’s travel ban.

Last month, the U.S. Supreme Court announced that they would hear arguments challenging the President’s travel ban when the Court reconvenes in October of next year. As part of their announcement, the U.S. Supreme Court ruled that, in the interim, the President could enforce the travel ban against foreign nationals from Iran, Syria, Sudan, Libya, Yemen, and Somalia, who lack a credible “bona fide” relationship to a person residing in the United States, or entity such as an employer, religious, or academic institution.

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In their ruling, the Supreme Court however provided little guidance on what types of familial relationships would qualify as a credible bona fide relationship. The Supreme Court vaguely stated that “close familial” relationships would qualify as a bona fide relationship, citing mother-in-law’s and spouses as an example of a qualifying familial relationship. However, the Court was silent regarding extended family members.

This prompted the State of Hawaii to seek clarification from federal judge Watson, regarding what types of familial relationships would be subject to the ban. The State of Hawaii argued that the Trump administration had wrongfully interpreted the Court’s ruling to exclude close family members such as grandparents, after the administration issued a diplomatic cable to U.S. consular posts and embassies abroad that defined a “close familial relationship” to include parents, children, and in-laws, but not grandparents, grandchildren, aunts, uncles, and cousins.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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New developments have recently unfolded since the passage of Texas’ controversial SB4 law—a law that bans sanctuary cities in the state of Texas, and requires local jurisdictions and law enforcements officials to cooperate with federal immigration authorities to apprehend undocumented immigrants in the state of Texas.

The controversial bill has suffered its first blowback. The border town of El Cenizo has sued the state arguing that the ban is unconstitutional. The Mayor of El Cenizo, Raul Reyes, told reporters that the bill “hinders the relationship between police departments and the community,” and “decreases criminal activity reports which opens up the door to more domestic violence and more sexual assaults against immigrants.” The city of El Cenizo has been joined in their lawsuit against the state by Maverick county, El Paso county, and the League of United Latin American Citizens. The small town of El Cenizo, Texas first came to national attention when the Spanish language was declared the city’s official language.

The Texas Attorney General envisioned a pushback from “sanctuary cities.” At about the same time that the governor of Texas signed SB4 into law, the attorney general sought to protect the state against future challenges to the law, by filing a lawsuit against known “sanctuary cities” in the state of Texas that have limited the federal government’s power to detain undocumented immigrants by refusing to cooperate with federal immigration officials. The lawsuit was filed on May 7, 2017 in the United States District Court for the Western District of Texas. The state of Texas filed the lawsuit so that they could have a single court ruling upholding the constitutionality of SB4 that would invalidate any lawsuits filed against the state.

Among the cities which have been identified as “sanctuary cities” that have been noncompliant with the federal government’s demands are: Travis County, the city of Austin, and other local officials including Travis County Sheriff Sally Hernandez, who has limited cooperation between local law enforcement and federal immigration officials.

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Today in a Seattle courtroom the Ninth Circuit Court of Appeals heard arguments on Trump’s revised travel ban. As you may recall President Trump issued a revised executive order in March to salvage his embattled travel ban, barring the entry of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period and refugees for 120 days. For over an hour, a three-judge panel listened to arguments from the U.S. Solicitor General Jeffrey Wall arguing on behalf of the Trump administration and Neal Katyal, an attorney representing the state of Hawaii and individuals challenging the President’s revised travel ban. The three-judge panel included Judge Ronald Gould, a moderate judge from Seattle, Washington, Judge Michael Hawkins, a moderate to liberal judge from Phoenix, Arizona, and Judge Richard Paez a liberal judge from Pasadena, California. The central question before the court was whether the President’s revised travel ban amounts to a violation of the U.S. Constitution based on religious discrimination.

The mood in the courtroom was contentious. Judges probed the Solicitor General to determine whether the President’s revised travel ban was specifically aimed at Muslims. The Solicitor General argued that the executive order was neutrally worded and that there were no indications in the language of the President’s executive order to indicate that there was any intent to discriminate the Muslim population. In a heated exchange, liberal Judge Richard Paez countered that even if the President’s executive order was “neutrally worded,” taking a seemingly “neutral” stance does not mean an executive order is devoid of discriminatory intent. Judge Paez noted that the executive order that interned Japanese Americans during World War II was also neutrally worded given that there was no reference to Japanese people specifically, but that the President at the time did intend to discriminate that particular demographic. During oral argument, Judge Paez commented on remarks made by the President during his campaign which have indicated his intent to target Muslims specifically with his executive order. Paez stated that Trump made references to a Muslim ban “in the midst of a highly contentious campaign” raising questions about whether the court should consider taking that into account.

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