Since President Donald Trump was elected to the office of the Presidency, a lot has changed in immigration law. From the very beginning, President Trump set out to shatter the status quo with his infamous campaign slogan “Make America Great Again” and immigration was one of the targets. With the help of his campaign advisers and his larger than life personality, President Donald Trump, defeated his biggest political rival, the famed career politician Hillary Clinton. Throughout his campaign it became clear that the Donald Trump persona was not simply made for TV. Whether you agree with his policies or not, Donald Trump has proven that he is a force to be reckoned with.
As Americans headed to the polls on that fateful morning on November 8th there was a tinge of uncertainty in the air—even an odd sense of silence. For those that disagreed with President Trump’s policies, the choice was clear, but for those that had endured eight years under Barack Obama, an unfamiliar face in politics was the answer. Everyone knew Donald Trump as a wealthy real estate mogul with an affinity for the spotlight, but few knew what Donald Trump would be like as a politician, let alone President of the United States. Despite the criticism, Donald Trump became a national phenomenon, capturing the hearts and minds of the American people with his no nonsense approach to politics, and his appeal to a large and growing conservative base. From the very beginning of his presidency, Donald Trump set out to become one of the most unconventional Presidents of the modern era, using his preferred method of Tweeting to reach the American people. Although his administration is only a year old, it has been marred with scandals, dozens of firings, resignations, and abrupt departures.
During just the first 8 months of his administration, prominent figures such as former National Security Adviser, Michael Flynn, former White House Correspondent, Sean Spicer, former Chief of Staff, Reince Priebus, Chief Strategist, Steve Bannon, and most recently former White House Communications Director Anthony Scaramucci, and others were fired or abruptly resigned from their positions. The Trump administration was also rocked by scandal in June when former F.B.I. Director James Comey was fired by the President and later testified in front of the Senate Intelligence Committee about several uncomfortable and inappropriate meetings he had with the President in which the President requested that he stop investigating Michael Flynn. Comey also confirmed that dozens of intelligence agencies had confirmed that the Russian government meddled in the 2016 election. This scandal prompted the appointment of special counsel Robert Mueller, who is currently investigating the President and his campaign to determine whether officials were involved in collusion with the Russian government. However, all of this was simply just a smoke screen to the President, or what he called “Fake News.” The President broke through the noise and began to go to war with immigration. Most of the President’s changes to immigration law during the last year have come in the form of executive orders.
Here is a summary of the major policies and executive orders that have changed or re-shaped immigration law:
Enhancing Public Safety in the Interior of the United States and Border Security E.O. 13767
On January 25, 2016, the President signed the executive orders “Enhancing Public Safety in the Interior of the United States,” and “Border Security and Immigration Enforcement Improvements,” in which the President called for (1) the immediate planning, funding, and construction of a wall along the southern border of the United States to prevent illegal immigration, drug and human trafficking, and acts of terrorism (2) construction of detention facilities to sustain the anticipated increase of detainees (3) the end of “Catch and Release” a policy in which aliens had been routinely released back into the U.S. population after apprehension for immigration elated violations (4) the end of the “Priority Enforcement Program”(5) the expedited removal of immigrants subject to deportation (immigrants who have been convicted of crimes in the US and have served their term will now not be released into society solely based on humanitarian grounds or because the country of origin is uncooperative in repatriating the offending immigrant) (6) sanctuary cities that have provisions designed to assist unlawful immigrants in eluding federal authorities and who evade detention and processing will be subject to withholding/denial of federal funds and other resources until and when cooperation from the local governments is achieved (7) increased cooperation with state and local law enforcement officials with federal authorities to perform the functions of immigration officers as it relates to the investigation, apprehension, or detention of aliens unlawfully present in the United States.
Protecting the Nation from Terrorist Attacks by Foreign Nationals
On January 27, the President went to work on the controversial executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” arguably one of the greatest accomplishments of his administration in reshaping immigration law. The executive order temporarily suspended the immigrant and non-immigrant entry of foreign nationals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, and suspended the admission of refugees indefinitely. Shortly thereafter the judiciary went on the offensive and blocked the travel ban from being enforced. Dozens of lawsuits flooded the circuit courts to prevent enforcement of the executive order. The Trump administration thereafter revised the executive order to pass constitutional muster, and the latest version of the ban was upheld by the U.S. Supreme Court.
From February up until today the Trump administration has been aggressively cracking down on immigration by authorizing ICE to launch a series of immigration enforcement operations nationwide otherwise known as “immigrations raids.” The first of these raids took place over a five-day period in the metropolitan cities of Los Angeles, Chicago, Atlanta, San Antonio, and New York City, and resulted in the arrest of more than 680 people. Reports soon surfaced that Dreamers were being arrested during these raids. That same month, DHS released a memorandum called “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” establishing new policies for the detection, apprehension, detention, and removal of undocumented immigrants residing in the U.S. unlawfully. Among other things the directive focused on expanding the scope of expedited removal of undocumented immigrants and prioritizing the removal of undocumented immigrants.
Increased Vetting of Visa Applicants
In March, the newly appointed U.S. Secretary of State Rex Tillerson, issued a series of internal cables to consulates and embassies abroad instructing them of new measures to increase vetting of immigrant and non-immigrant visa applicants. In sum, the cables set out policies to implement tougher screening procedures for applicants applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad.
Enforcement of EO 13767
In April, DHS issued a progress report that outlined how the agency planned to implement the provisions of Executive Order 13767 “Border Security and Immigration Enforcement Improvements.” The report called for a plan to design and construct a physical wall on the Southern border, establish additional detention facilities in Texas, limit prosecutorial discretion and other relief for undocumented immigrants, prioritize repatriation, increase the presence of customs and border patrol agents, establish cooperation and coordination between federal and local law enforcement, detecting fraudulent applications for parole and asylum.
Buy American, Hire American
On April 18, the President signed executive order “Buy American and Hire American,” calling on several government agencies including the Secretary of State, Labor, and Homeland Security to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance . . . to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” More importantly, section 5 of the executive order establishes that the policy of the Department of Homeland Security will be to “ensure that H-1B visas are awarded to the most-skilled or highest paid petition beneficiaries.” This executive order has prompted a huge wave of requests for evidence and a surge in denials of H-1B visas.
Enhanced Screening of Visa Applicants from “Countries of Concern”
On June 6, the U.S. Department of State began using a supplemental questionnaire called the DS-5535 which asks applicants for U.S. visas from “countries of concern” a series of 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 was used in response to the March memorandum calling for enhanced screening of visa applicants. Among other things, the form asks for the applicant’s social media information within the last 5 years.
International Entrepreneur Rule
In July, the Trump administration announced that the enforcement of the International Entrepreneur Rule would be delayed until March 14, 2018, at which time the Trump administration would roll out plans to rescind the Obama era rule. The Obama era rule was designed to give international entrepreneurs the opportunity to apply for parole into the United States for a 30-month period (or 2.5 years), for the purpose of starting or scaling their start-up business enterprise in the United States. In a federal ruling handed down on December 1st, a federal judge overturned the administration’s delay of the rule, allowing the International Entrepreneur Rule to take effect immediately.
Mandatory In-person interviews for employment based green cards
In August, the Trump administration announced a new policy change requiring an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship, a policy that would further delay the issuance of permanent resident cards for immigrant workers. Beginning October 1st USCIS began to observe this policy for all foreign nationals applying for permanent residency based on employment, and family members of refugees or asylees, holding valid U.S. Visas who apply for provisional status.
End of DACA
In September, the Trump administration announced the end of the Deferred Action for Childhood Arrivals Program also known as DACA. The President gave Congress until March 5, 2018 to pass legislation protecting Dreamers from deportation. The administration allowed DACA recipients with permits expiring before March 5, 2018 to apply for a final 2-year renewal of their status by the deadline of October 5, 2017.
Amended FAM New Presumption of Fraud Rule
In late September, the U.S. Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies. The amended FAM provides that beginning September 1, 2017 the 30/60-day rule for presumption of fraud will no longer be followed for persons wishing to adjust their status to permanent residency based on marriage. Instead the new rule provides that a presumption of fraud will be imposed for persons who have married a US Citizen and applied for adjustment of status to permanent residency within 90-days of their entry to the United States. In the language of the rule: “If the beneficiary violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, the officer may presume that the applicant’s representations about engaging in only status complaint-activity were willful misrepresentations of his or her intention in seeking a visa or entry.”
The Year Ahead
In the year ahead we can expect many more changes as Republicans in Congress gear up to pass legislation to protect Dreamers from deportation before March 5, 2018. We can also expect the Trump administration to aggressively push for the construction of a wall along the U.S. Mexico border, as well as the possible end to the diversity visa lottery program, which the President has publicly opposed. As always we will keep you up to date on these developments and how these changes are impacting foreign nationals.