Articles Posted in Policy

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ICE Memo Discusses Immigration Enforcement of EOs 13767 and 13768  

In a new memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Policies,” U.S. Immigration and Customs Enforcement (ICE), outlines the President’s policies going forward in implementing Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” and Executive Order 13768 “Enhancing Public Safety in the Interior of the United States,” signed by the President on January 25, 2017.

The memorandum makes clear that enforcement and removal operations will be taken immediately against all removable aliens, prioritizing expedited removal of aliens with criminal history or prior immigration violations such as fraud or material misrepresentation. Accordingly, the Department of Homeland security “will no longer exempt classes or categories of removable aliens from potential enforcement” under EO 13767 and 13768.

Under these directives, officers will prioritize efforts to remove individuals who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts which constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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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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27053193071_ff14b4669a_zOn March 31, 2017, USCIS made legal news by issuing a policy memorandum that undid a memo that USCIS’s Nebraska Service Center issued nearly two decades ago. USCIS issues policy memorandums periodically, but the one that USCIS issued last March was newsworthy because some have claimed that the memo has altered – for the worse—the way USCIS will evaluate H-1B applications (petitions) for foreigners who seek to come to the United States and work as computer programmers.

But readers need not fear too much. The policy memo, when read correctly, is far more modest in its effects than some have feared. To begin with, the memo only affects those who aspire to work in the U.S. as “computer programmers” – not all those who aspire to do something I.T. related. Although lay folks may clump together all I.T. jobs within the phrase “computer programmer,” USCIS uses this phrase very particularly when it reviews H-1B applications. By USCIS’s lights, the phrase does not encompass Programmers/Analysts, Software Consultants, Computer Consultants, and the like.  Thus, whatever the reach of the policy memo (discussed below), it leaves untouched wide regions of the I.T. industry.

So, what exactly does the March 2017 memo do? To understand that, it is helpful to briefly consider the memo that the 2017 one rescinded – a memo issued by the Nebraska Service Center in December 2000. Back in the days when the world worried about the Y2K bug shutting down computers, USCIS struggled to understand whether, as a matter of law, computer programming was special-enough an occupation – in legal parlance, whether computer programming was a “specialty occupation”— such that the U.S. government should grant H-1B visas to foreigners skilled in this field. (A “specialty occupation” is one that requires a complex body of theoretical knowledge that is typically associated with a bachelor’s degree or higher.)   This struggle was reflected in a memo that the Nebraska Service Center issued. In that memo, the Nebraska Service Center asserted that computer programming is generally a “specialty occupation” because the majority of computer programmers employed in the field possessed at least a bachelor’s degree (according to 1998 statistics).  But the 2000 memo failed to “provide the specific specialties the [bachelors] degrees were in . . . . .”

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On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum providing new guidance relating to the adjudication of H-1B petitions for computer programmers. The new memorandum will supersede and replace the policy memorandum that had been in place since the year 2000, which previously governed adjudication procedures for H-1B computer related occupations.

The new memorandum seeks to update the outdated provisions of the 2000 memorandum because the policies set out in that memorandum no longer reflect the current policies of the agency. The main purpose for rescinding the 2000 memorandum is not to change the H-1B application process for employers who seek to employ foreign workers in computer related occupations, rather the new memorandum clarifies the proper adjudication procedures for computer related occupations at all service centers.

Why the Change?

The Occupational Outlook Handbook is a handbook published by the Department of Labor’s Bureau of Labor Statistics which includes information relating to the training and education required for various employment positions. The OOH is of particular importance for H-1B petitioners and practicing attorneys, because USCIS consults the OOH as a guide to inform their decision regarding the general qualifications necessary for a particular occupation, and whether the occupation is to be considered a “specialty occupation.” The OOH however does not on its own establish whether a position is a “specialty occupation,” rather adjudicating officers focus on the position itself and the job duties and qualifications of the beneficiary, to determine whether the position is to be considered a specialty occupation.

The main problem with the 2000 policy memorandum was that it relied on an outdated OOH description of the position of “computer programmer,” creating inconsistencies that are no longer followed by adjudicating officers today.

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The newly appointed U.S. Secretary of State Rex Tillerson is quickly mobilizing government resources to increase scrutiny and implement tougher screening procedures for applicants who are applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad. Reuters has reported that Secretary Tillerson has sent a series of internal cables (four in total) to consulates and embassies abroad instructing them of new measures to increase vetting of visa applicants (both immigrant and non-immigrant). These cables are as follows: (1) Cable 23338 entitled “Guidance to Visa-Issuing Posts” issued on March 10, 2017; (2) Cable 24324 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 15, 2017; (3) Cable 24800 entitled “Halt Implementation” of President Trump’s new travel ban due to a temporary restraining order by a federal court, issued on March 16, 2017; and finally (4) Cable 25814 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 17, 2017.

In these cables, Tillerson has directed U.S. consulates and embassies to specifically identify population risks that warrant “increased scrutiny” and to implement tougher screening procedures for this particular group of people. Applicants who fall into one of the identifiable population groups will be subjected to a higher-level security screening. The cable does not identify whether embassies will be coordinating to provide a uniform standard for identifying populations who pose a security risk. This is a serious cause for concern, since U.S. embassies will likely vary in how they assess which groups pose a security risk. In addition, as part of these measures, the Secretary has ordered a mandatory social media check for all applicants who have ever visited or been present in any territory that is controlled by the Islamic State. Previously, social media screening was not a part of the regular screening process for U.S. visa applicants, however this screening process has always been a discretionary measure.

In addition, the cables provided instructions for the implementation of President Trump’s newly revised executive order on immigration which sought to temporarily bar the admission of foreign nationals from Syria, Libya, Sudan, Somalia, Iran, and Yemen, as well as Syrian refugees, including mandatory enhanced visa screening procedures. Several of these cables were quickly retracted by the Secretary of State after a federal judge from the state of Hawaii issued a Temporary Restraining Order blocking Trump’s embattled executive order from proceeding as planned. The Trump administration had envisioned strict new guidelines for vetting U.S. visa applicants, and this vision was reflected in Tillerson’s cables.

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On Monday, March 6, 2017 President Donald Trump rolled out a newly revised version of the executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States” following the Ninth Circuit Court of Appeals refusal to reinstate the controversial order that was originally released on January 27, 2017.  The January 27th order had called for a blank travel ban on citizens of seven Muslim majority countries, temporarily barring them from gaining admission into the United States for a period of 90 days, irrespective of their legal status in the United States. These seven Muslim majority countries were deemed “countries of particular concern” by the Trump administration based upon the Department of State’s reports designating these countries as countries presenting heightened security risks to the United States. In addition, in the original order, Donald Trump had called for a temporary 120-day suspension of the U.S. Refugee program preventing refugees from entering the United States, and finally the order suspended the Syrian refugee program indefinitely. These controversial measures threw the country into chaos as thousands of demonstrators flooded airports across the country to show their solidarity for the citizens of the seven Muslim majority countries affected by the order. The order was especially controversial because it affected all non-immigrants including immigrants with valid United States visas, as well as permanent residents. Although these measures were overruled by the Ninth Circuit Court of Appeals in February, the Trump administration has shown that it will not be discouraged by their actions.

In his new executive order, Donald Trump has scaled back the language used in the first executive order removing provisions that indefinitely banned Syrian refugees from seeking admission to the United States, and language which prioritized the admission of religious minorities persecuted in the Middle East. US officials will no longer prioritize religious minorities when considering applications for refugee admission. The new order calls for a travel ban blocking citizens from six Muslim majority countries including Syria, Iran, Libya, Somalia, Sudan, and Yemen from applying for and obtaining visas for a period of 90 days. The order leaves in place a temporary travel ban blocking the admission of refugees into the United States for a period of 120 days to allow more stringent vetting procedures to be put in place. The executive order removes Iraq from the list of Muslim majority countries, whose citizens will no longer be prevented from seeking admission to the United States.

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On February 20, 2017, the U.S. Department of Homeland Security released a memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” The memorandum establishes new policies that call for the detection, apprehension, detention, and removal of undocumented immigrants residing in the United States unlawfully. The policies outlined in this memorandum will replace the former President’s deportation policies. According to the directive, the removal of undocumented immigrants will be prioritized based upon the potential danger the individual poses to citizens of the United States and the potential risk of flight.

Among other things the directive mandates the following:

  • Expand the 287(g) program, which authorizes state and local law enforcement officials to assist federal law enforcement in investigating, identifying, apprehending, arresting, detaining, transporting, and searching undocumented immigrants;
  • Immediately begin planning, design, construction and maintenance of a land border wall between the United States and Mexico;
  • Expand the scope of expedited removal of undocumented immigrants pursuant to section 235(b)(1)(A)(iii)(I) of the Immigration and nationality Act, to detain and expeditiously remove undocumented immigrants apprehended at the border, who have been ordered removed from the United States after being denied relief from deportation;

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Reports have recently surfaced revealing that a Dreamer, 23-year-old Daniel Ramirez Medina, has been arrested and is currently in the custody of Immigration and Customs Enforcement Agents in Seattle, Washington. Medina was brought to the United States when he was only 7 years old and maintains Mexican nationality. In 2014, Medina first applied for the Deferred Action for Childhood Arrivals (DACA) program and was approved after satisfying the specific and rigorous criteria outlined by DHS qualifying him for the program. As part of the routine application process, Medina underwent an extensive background check, and was cleared by USCIS, resulting in the approval of his application for Deferred Action. The approval granted him the opportunity to remain in the United States under lawful “deferred status” for a 2-year period, subject to renewal. Two years later, Medina applied for a renewal of his deferred action status, and was approved for a second time, granting him an additional two-year period of “deferred action.” Medina underwent a second background check as part of the renewal process, and again was cleared.

On February 10, 2017, Immigration and Customs Enforcement agents arrived at the home of Ramirez’s father with an arrest warrant to detain his father. His father granted ICE officers permission to enter the home so that they could inform his sons about his arrest. ICE agents questioned Daniel Ramirez asking him if he was lawfully present in the United States. Daniel notified the agents that he was lawfully present and had a work permit. His brother, also a DACA recipient, who was present during the immigration raid, suggested that he remain silent and decline to answer additional questions. Ramirez was then arrested and detained by ICE agents, although Ramirez presented the agents with his employment authorization card that was issued pursuant to his approval under the DACA program, and clearly identified him as a DACA recipient with a ‘C-33’ classification code. Ramirez also told the officers several times that he was a DACA recipient lawfully present in the United States.

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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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On Saturday night, a federal judge granted an emergency stay on Donald Trump’s executive orderProtecting the Nation from Terrorist Attacks by Foreign Nationals” which temporarily bans the entry of immigrant and non-immigrant foreign nationals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for a 90-day period. The stay filed by the American Civil Liberties Union, on behalf of two Iraqi men detained at New York’s John F. Kennedy airport, prevents immigration authorities from detaining foreign nationals from the 7 Muslim majority countries, who have already arrived on U.S. soil, as well as those mid-flight. The stay does not invalidate the executive order signed by Trump, but limits its enforcement on individuals who have already arrived in the United States. Individuals who have attempted to enter on valid visas, refugee status, or LPR status must be released from detention. Trump’s temporary ban on immigrants and non-immigrants from these countries sent the country into chaos, as protestors swarmed international airports across the nation calling for an end to the ban and the release of persons detained. U.S. Customs and Border Protection, and law enforcement officials are struggling with the executive order, absent clear policy and guidance from the Department of Homeland Security.

This is a developing story. More information soon.