Visa Lawyer BlogArticles Posted in Trump administration
Federal Judge Strikes Down Travel Ban 3.0, Leaving N. Korea and Venezuela In the Dark
Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.
The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.
The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOT prevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.
Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”
Trump to Extend March 5th DACA Deadline Should Congress Fail to Act
As the March 5th deadline approaches for Congress to pass legislation protecting Dreamers from deportation, new information has emerged providing insights into the President’s plans to shield Dreamers from deportation, should Congress fail to act by the March 5th deadline.
Republican Senator James Lankford recently told the press that if Congress does not act by the March 5th deadline, the President is willing to give lawmakers more time to pass legislation that would create a more permanent solution for DACA recipients to remain lawfully present in the United States.
Although the President has generally been sympathetic to the plight of undocumented immigrants who came to the United States as children, the President has made clear that any legislation that would protect Dreamers from deportation, would not include a path to permanent residency. In addition, the President recently issued a list of demands that must appear on any such legislation in order to receive his support. Some of these demands include Congress’ support for the construction of a border wall along the Southern border, cracking down on illegal immigrants, withdrawing federal funding from sanctuary cities, and cutting back on legal immigration by restricting the family based immigration system. Without these concessions, the President has stated that he will not throw his support behind the bill. It is still unclear how flexible the President’s list of demands will be. Of course, even if the President were to veto a bill that would not meet his demands, Congress can override a presidential veto by a two-thirds vote in the House and Senate.
Immigration Roundup: Supreme Court Dismisses One of Two Travel Ban Cases and White House Unveils List of Demands in Deal to Protect Dreamers
Supreme Court Dismisses One of Two Travel Ban Cases
On October 10, 2017, in a one-page order, the U.S. Supreme Court dismissed the Maryland case, Trump, President of U.S., Et Al. v. Int’l Refugee Assistance, Et Al., which sought to block a key provision of Executive Order No. 13,780 temporarily suspending the entry of aliens outlined under Section 2(c). The Supreme Court has dismissed the case because the provision at issue expired on September 24, 2017 and no longer presents a “live case or controversy” for the court to resolve. Accordingly, the Supreme Court vacated the judgment and sent the case back to the lower courts to dismiss the case as moot.
However, the Supreme Court did not act to remove the case, Trump, President of U.S., Et Al. v. Hawaii, Et Al., from its docket, in which the state of Hawaii joined by other states, called on the court to issue an injunction, stopping the federal government from enforcing a travel ban on individuals from six Muslim majority countries as well as refugees. The travel ban at issue, in that case, began on June 29, 2017 and expired on September 27, 2017. The refugee provision of the act however will not expire until October 24, 2017. Given the Supreme Court’s dismissal of the Maryland case, it is likely that the Court will also dismiss the Hawaii case once the refugee provision has expired.
On September 24, 2017, the President revised Executive Order No. 13,780 for a third time adding Chad, North Korea, and Venezuela to its travel ban, and removing Sudan. The third revision of the travel ban will go into effect on October 18, 2017. The Supreme Court did not address the administration’s newly revised travel ban in its order.
FAM: Presumption of Fraud for Non-Immigrants Seeking Adjustment of Status within 90 Days of Entry
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.
Trump Unveils Travel Ban 3.0 Suspending and/or Limiting Admission of Foreign Nationals from Chad, North Korea, Venezuela, and Somalia
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.
National Venture Capital Association Files Lawsuit to Enforce International Entrepreneur Rule
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On September 19, 2017, the American Immigration Council in cooperation with Mayer Brown LLP, filed a lawsuit in federal district court on behalf of the National Venture Capital Association (National Venture Capital Association, et.al. v. Duke, et. al.) challenging the President’s postponement of the International Entrepreneur Rule. The Plaintiffs in the lawsuit collectively argue that the United States Department of Homeland Security (DHS), unlawfully delayed enforcement of the International Entrepreneur Rule by circumventing key provisions of the Administrative Procedure Act.
In order for a federal rule to become effective, the Act requires federal agencies to abide by a notice-and-comment rule making procedure, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. After the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on the content of the rules. The Supreme Court has ruled that the notice-and-comment procedure is required for “legislative” or “substantive” rules that intend to “bind” the public, and that similar to a statute, these types of rules have the “force and effect” of law. The notice-and-comment rule making requirement, however does not apply to interpretive rules, which are rules that do not bind the public or have the “force” of law in the same way that legislative or substantive rules do. The National Venture Capital Association argues that the government unlawfully invoked the “good cause” exception of the APA to postpone the Rule, and that the Rule was unlawfully halted under the pretext that doing so would prevent harm to the public interest, when no emergency situation existed which would allow such a delay.
The International Entrepreneur Rule was first published in the Federal Register on January 17, 2017, and the notice-and-comment period was set to begin 30 days from the date of the rule’s publication in the federal register. However, the government never announced a comment period for the Rule. On July 13, 2017, the Department of Homeland Security announced that the implementation of the rule would be delayed to March 14, 2018, at which time the government would seek comments from the public, with a plan to rescind the rule.
President Trump Will Support Legislation for Dreamers If Congress Funds Border Wall
President Trump and Democratic leaders met on Thursday in an unexpected meeting to negotiate the future of the now defunct Deferred Action for Childhood Arrivals (DACA) program, a program that allowed undocumented immigrants, who came to the United States as children, the opportunity to apply for employment authorization and obtain “deferred status” to shield them from deportation. During the meeting, the President made clear that any legislation that would protect Dreamers from deportation would need to make important concessions that would fall in line with the President’s hard line stance on immigration, such as enhancing border security along the Southwestern border, and funding the construction of a wall between U.S. and Mexico.
A day after the meeting, the President denied reports that the he had struck a deal with Democratic leaders, Nancy Pelosi and Chuck Schumer, that would exclude the construction of a border wall between the United States and Mexico, after the duo released the following statement implying that such a deal had been made, “We had a very productive meeting at the White House with the President. The discussion focused on DACA. We agreed to enshrine the protections of DACA into law quickly, and to work out a package of border security, excluding the wall, that’s acceptable to both sides.”
According to the Trump administration, the President stated during the meeting that he would only support legislation to protect Dreamers from deportation, if that legislation included “massive” border security enhancements.” After the meeting, the President tweeted, “No deal was made last night on DACA. Massive border security would have to be agreed to in exchange for consent. Would be subject to vote.”
ICE Cancels Large Scale Nationwide Immigration Raids Amid Hurricane Crisis
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.”
Debunking Common Immigration Law Myths
Given the recent termination of the Deferred Action for Childhood Arrivals (DACA) program and the controversy surrounding the immigration system as of late, in this post we address the numerous myths surrounding the DACA program and of immigration law in general. Although there are numerous studies and empirical research debunking the common myths attributed to the immigration system, as well as detailed economic reports published by governmental agencies corroborating the positive effects of immigration, Americans continue to hold a negative perception of immigrants and are increasingly skeptical of the immigration process. In truth, much of these perceptions are perpetuated by the unwillingness of Americans to obtain readily available information on the internet, to discover that the immigration process for individuals who entered the United States illegally is riddled with obstacles. More and more we are seeing Americans rely on news stations to accurately deliver the news and do the work for them. Unfortunately, the best way to understand the immigration process itself is to go straight to the source, and not rely on such sources for information.
The public needs to know the facts to better understand that the average immigrant actually has very few immigration options available to them under the current immigration system.
MYTH #1 It is easy to get a green card under current immigration laws
Most Americans believe that it is relatively easy to get a green card. This cannot be further from the truth. Immigration laws are highly complex and are designed to make it more difficult for extended family members, low-skilled workers, and undocumented immigrants to immigrate to the United States. Under current immigration laws, there are generally only two ways to immigrate to the United States and obtain permanent residency, outside of special immigrant categories specifically reserved for special categories of individuals including: asylees, refugees, certain witnesses of crimes, victims of abuse, and individuals who may qualify for withholding of removal. It is extremely difficult for individuals to qualify for permanent residency under one of these special categories.
Outside of these special categories, foreign nationals may immigrate to the United States and obtain permanent residency, only if they have a qualifying family member (such as a US Citizen or LPR spouse, child, etc.) who may petition for them or if the beneficiary works for a U.S. employer on a valid visa who is willing to sponsor the foreign national by petitioning for their permanent residency.