Articles Posted in Trump administration

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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On November 20, 2017 acting Secretary of Homeland Security, Elaine Duke, announced the Department’s decision to terminate the Temporary Protected Status (TPS) designation for Haiti, with a delayed effective date of 18 months, giving Haitians enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on July 22, 2019.

As you may recall, in May 2017, former Secretary Kelly announced that because the country of Haiti had significantly improved its condition since the 2010 earthquake, granting temporary protected status to Haitian nationals beyond January 2018 no longer appeared necessary. Secretary Kelly ominously concluded that Haiti’s designation of TPS status would likely not be extended past six months.

Acting Secretary Duke made the decision to terminate Haiti’s TPS designation after reviewing the country’s conditions and determining that those conditions were not extraordinary enough to justify continuing the TPS designation. Duke found that the extraordinary conditions caused by the 2010 earthquake that devastated Haiti, no longer exist, and that the government of Haiti is sufficiently equipped to adequately handle the return of their foreign nationals. After speaking with Haiti’s Foreign Minister, Haiti’s Ambassador to the United States, and other government officials, the United States determined that Haiti has taken steps since the 2010 earthquake to improve the quality of life for Haitian nationals, and that the Haitian government is prepared to receive Haitian nationals living under TPS status in the United States. According to DHS since the 2010 earthquake that ravaged Haiti, “the number of displaced people in Haiti has decreased by 97 percent.”

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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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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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At the end of September, recipients of DACA were in a frenzy to file for a final 2-year renewal of their DACA status. The deadline to file for the final 2-year renewal was October 5th, 2017. Only individuals currently receiving DACA, whose status was to expire before March 5th, were eligible to apply for a final renewal of their status, provided their application was properly filed and received by the United States Citizenship and Immigration Services (USCIS) by October 5, 2017.

Following the October 5, 2017 deadline, USCIS rejected nearly 100 renewal applications, even though the cause for their delay was the fault of the United States Postal Service (USPS). At least 74 of the applications received after the deadline were mailed from the New York area and Chicago. USPS has taken responsibility for these delays, stating that the packages containing the DACA renewal requests were rejected as a result of mail problems in Chicago. Last week, USCIS flatly denied any responsibility for these late petitions, and said that nothing could be done, and that the decision to reject petitions received after the deadline was final.

However, USCIS recently had a change of heart. Yesterday, November 16, 2017, USCIS released a statement notifying affected individuals that USCIS will accept DACA renewal requests from individuals who re-submit their DACA renewal requests, and provide individualized proof that their DACA renewal request was originally mailed to USCIS in a timely manner, and that the cause of the petition’s receipt after the October 5th deadline was the result of USPS mail service error.  

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As of today, lawmakers in Congress have 115 days to pass legislation allowing more than 800,000 undocumented immigrants, known as Dreamers, who were brought to the United States as children, the opportunity to remain in the United States lawfully.

If Congress does not act by the March 5th deadline terminating the DACA program, it is likely that the President will give Congress more time to pass such legislation. The President has reiterated that he wants the solution to come from Congress, and will not act unilaterally to shield Dreamers from deportation.

Attorney General Jeff Sessions has signaled to Congress that the future of DACA remains in their hands, recognizing that they have an “opportunity to do something historic.” Republican politicians have thus far shown their willingness to work with Democrats to pass legislation that would grant Dreamers not only protection from deportation and the ability to reside in the United States lawfully, but an opportunity to obtain citizenship. Notoriously conservative Republican Senator, Roy Blunt, along with others has said that he would be willing to support legislation granting Dreamers a path to citizenship, and said as early as Tuesday that deporting Dreamers to a country they did not grow up in would be “totally unreasonable.”

President Trump of course has said that he does not support legislation that would give Dreamers a path to citizenship, however a majority of Congress could override a Presidential veto should such a piece of legislation come to pass. Legislation to protect Dreamers from deportation would however come with certain conditions. The President, as well as Republicans, are pushing for provisions that would secure funding for the wall to be constructed along the U.S./Mexico border and enhance border security. Republican Congressman Dan Newhouse has said that the consensus among Congress is that “it is the responsibility of Congress, and not the administration to make immigration law.”

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Yesterday, November 6, 2017, the acting Secretary of Homeland Security, Elaine Duke, announced her decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua, with a delayed effective date of 12 months until the termination of that designation, giving Nicaraguans enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on January 5, 2019.

Furthermore, Duke announced that the TPS designation for Honduras will be automatically extended for six months “from the current January 5, 2018 expiration date to the new expiration date of July 5, 2018.” This automatic extension has been granted because additional information is necessary to determine whether conditions have changed in Honduras that would justify termination of  the country’s TPS designation.

According to Duke’s announcement, the decision to terminate the TPS designation for Nicaragua was made after it was determined that the conditions in Nicaragua have changed since the country’s original 1999 designation that no longer justify granting protected status to this class of individuals. Furthermore, because the Secretary received no formal request from the Nicaraguan government to extend TPS status, and there was no evidence to indicate that the Nicaraguan government could not adequately handle the return of Nicaraguan nationals, the TPS designation for Nicaragua was no longer justified.

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It did not take long for President Trump to capitalize on the terrorist attack which took place several days ago in New York City, to attack the Diversity Visa Program and the process by which US Citizens, and in some cases green card holders, can petition for extended family members to immigrate to the United States.

Following the terrorist attack in New York City, which claimed the lives of 8 Americans, the President fired off a series of tweets calling on Congress to terminate the Diversity Visa Program, claiming that the perpetrator of the attack, Sayfullo Saipov, had gained admission to the United States seven years ago through the diversity immigrant visa program, a congressionally mandated program made possible by section 203(c) of the Immigration and Nationality Act (INA). According to CNN, the Department of Homeland Security has said that Saipov came to the United States in 2010 on a diversity visa. Department of Homeland Security archives confirm that Uzbekistan was a country participating in the Diversity Visa program as early as 2007, and continues to participate in the Diversity Visa Program.

The Diversity Immigrant Visa Program

The Diversity Immigrant Visa program is a program enacted by Congress, which allocates up to 50,000 immigrant visas per fiscal year to a special class of immigrants known as “diversity immigrants.” Each fiscal year diversity applicants register for the visa program electronically at no cost. Applicant entries are selected at random through a computerized “lottery” system to allocate the 50,000 available immigrant visas for the Diversity Immigrant Visa Program. Only diversity immigrants who are natives of countries with historically low rates of immigration to the United States qualify for the Diversity Immigrant Visa program. In other words, to qualify for a diversity visa, essentially a green card, you must be a native of a country participating in the diversity visa program. Countries with historically high rates of immigration to the United States DO NOT qualify.

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On October 24, 2017, the President issued Executive Order 13815 entitled, “Resuming the United States Refugee Admissions Program (USRAP) with Enhanced Vetting Capabilities.” As the title suggests, the U.S. Refugee Admissions Program also known as (USRAP) is no longer suspended and the policies set forth in section 6(a) of Executive Order 13780 also known as “Protecting the Nation from Foreign Terrorist Entry into the US,” are no longer in effect as they pertain to refugees. As outlined in Executive Order 13780, beginning October 24, 2017, “Presidential action to suspend the entry of refugees under the USRAP [is no longer needed] to protect the security and interests of the United States and its people.”

Section 6(a) of Executive Order 13780 imposed a temporary freeze on the admission of refugees to the United States, and provided for a temporary 120-day window in which the Department of Homeland Security would review the application and adjudication process for the Refugee Admissions Program to prevent foreign terrorist entry to the United States. This 120-day window expired on October 24, 2017. Section 6(a) contained a provision which stipulated that refugee travel and application decisions would resume after the 120-day window had terminated, “for stateless persons and for nationals of countries which the Secretary of State, Secretary of Homeland Security, and Director of National Intelligence jointly determine that the additional procedures identified through the USRAP review process are adequate to ensure the security and welfare of the United States.”

At this time, the Secretary of State, Secretary of Homeland Security, and Director of National Intelligence have advised the Trump administration that sufficient improvements have been made to prevent foreign terrorist entry through the Refugee Admissions Program, such as the implementation of enhanced vetting procedures. These improvements have been deemed sufficient to ensure the “security and welfare of the United States,” for the time being. In accordance with this order, the Department of Homeland Security will only apply special measures restricting the travel of refugees to those categories of refugees that “pose potential threats to the security and welfare of the United States.”

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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