Immigration has been in the forefront of the news since President Trump took office and will likely remain so in the near future. In our Immigration Alert, we discuss three key business immigration issues that have seen significant developments in the past few weeks: the Federal Appeals Court rules against President Trump’s Immigration Ban, proposed legislation disrupting work visas, and the new Form I-9. To see more, check out our alert here.
On February 13, 2017, Secretary John Kelly of the U.S. Department of Homeland Security, released a statement regarding the recent U.S. Immigration and Customs Enforcement (ICE) operations. According to the statement, Secretary Kelly acknowledged that ICE has conducted a series of targeted enforcement operations across the country and arrested more than 680 individuals who he claims “pose a threat to public safety border security or the integrity of our nation’s immigration system.” Secretary Kelly stated that ICE “conducts these kind of targeted enforcement operations regularly and has for many years.” During his Presidential campaign, Trump vowed to deport millions of undocumented immigrants. The Trump Administration has made immigration enforcement a key focus.
On January 27, 2017, President Trump issued an Executive Order (EO), titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among other provisions, the EO suspends immigrant and nonimmigrant entry for nationals from seven predominantly Muslim countries, for a minimum of 90 days, and establishes requirements for “extreme vetting.”
Acting attorney general, Sally Yates, was fired after she ordered Justice Department attorneys not to defend President Trump’s January 27th immigration Executive Order (EO). The EO restricts entry into the U.S. by refugees and nationals from seven different Muslim-majority countries. In a letter issued to the Justice Department on January 30, 2017, Yates stated that she was not convinced that the EO issued by Trump was lawful, saying “the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced it is appropriate to do so.” Ms. Yates had been running the Justice Department while President Trump’s attorney general nominee, Jeff Sessions, is still awaiting Senate confirmation. In a statement released by the White House, it was announced that Dana Boente, U.S. Attorney for the Eastern District of Virginia would fill her position. The White House statement went on to say Yates was “an Obama Administration appointee who is weak on borders and very weak on illegal immigration” and that she “betrayed the Department of Justice.” On the same day, it was announced that dozens of U.S. State Department diplomats had circulated a memo objecting to President Trump’s EO.
The American Immigration Lawyers Association (AILA)anticipates that an Executive Order (EO) will soon be signed by President Trump, which relates to visa issuance, screening procedures, and refugees. AILA reports that a leaked, unsigned copy of the EO entitled “Protecting the Nation From Terrorist Attacks by Foreign Nationals” has been circulated. The EO is not final or signed by the President yet, but it does shine a light on what the final EO may look like. Among the provisions, Section 3 of the draft EO would “suspend” the immigrant and nonimmigrant entry of nationals from certain designated counties for 30 days from the date the EO is signed. The countries that would be included are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, with an opportunity for the President to update this list and include additional countries. AILA points out that the draft EO does not define what it means to be “from” a designated country. It could include passport holders, citizens, nationals, dual nationals, etc. AILA further reports that the U.S. Department of Homeland Security “would be required to report whether countries have provided information ‘needed . . . for the adjudication of any . . . benefit under the INA . . . to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.’ If not, the country would have 60 days to comply, or the travel ban would become indefinite.” This could make it very difficult for people who have recently traveled to or from the listed countries, or hold dual citizenship in these countries. Other sections of the leaked draft EO relate to refugees, and would place a hold on all applications for asylum for 120 days, while the Secretary of State reviews procedures on the intake of refugees. In addition, applications from Syrian refuges would be suspended indefinitely.
On January 25, 2017, President Donald Trump issued two Executive Orders (EO) that will affect immigration. The first EO involves border security and calls for increased immigration enforcement, more deportations, and a promise to build a Southern wall along the U.S./Mexico border. As promised during his campaign, Trump has stated that Mexico will pay for the wall. This EO also instructs the Secretary of the U.S. Department of Homeland Security (DHS) to establish detention facilities near the border and staff them with asylum officers and immigration judges. The order directs the DHS Secretary to “allocate all legally available resources to immediately construct, operate, control or establish contracts to construct, operate or control facilities to detain aliens at or near the land border with Mexico.” In addition, the EO ends the policy commonly known as “catch and release.” This practice gave Border Patrol agents discretion when they caught an immigrant on the border without papers. They could deport immigrants immediately, or they could release them with the opportunity to show up to an asylum interview or court date, they could use an ankle bracelet or other monitoring system to keep track of them before a court date, or they could keep them in detention. The Trump EO changes that and now only allows immigrants to either be deported immediately or detained. The EO also notes that unaccompanied children detained at the border receive care and are sent back to their home nations.
The second EO is entitled, “Enhancing Public Safety in the Interior of the United States.” This order targets “sanctuary cities” – cities, states and other jurisdictions that shield undocumented immigrants from federal law enforcement through efforts such as not using municipal funds or resource to enforce national immigration laws. Specifically, the EO states, “the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with [federal immigration law] are not eligible to receive Federal grants.” This EO also prioritizes removing deportable immigrants who have been convicted of a criminal offense. Based on the definition in the EO, a criminal could include someone who’s been charged with a crime, but not actually convicted. The EO also brings back a program that was ended during the Obama administration, known as “Secure Communities.” This program requires local authorities to share fingerprints and other arrest data to help track down undocumented immigrants.
Both orders seek to increase enforcement in terms of staffing within DHS. The border security order instructed DHS to hire 5,000 additional Border Patrol agents, while interior EO seeks an additional 10,000 immigration officers. These actions require approval from Congress since it requires appropriating funds for more agents.
On January 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) finalized the International Entrepreneur Rule. This rule was proposed last summer by the Obama Administration, after Congress failed to pass any meaningful immigration reform. The new rule will allow certain international entrepreneurs to stay in the U.S. on a case-by-case basis, in order to start or grow their business. The rule allows USCIS to provide entrepreneurs a “parole” – or temporary stay – status if they can show their business would “provide a significant public benefit to the United States.” Eligible entrepreneurs who are granted this parole, will be able to stay in the U.S. for up to 30 months, with the possibility to extend this period by up to an additional 30 months if certain criteria is met. The rule would allow up to three entrepreneurs per entity, as well as spouses and children, to stay. The rule will take effect on July 17, 2017.
After receiving public input, the USCIS relaxed or reduced several provisions from the initial proposed rule to the final rule. The proposed rule would have required an investment of at least $345,000 from qualified U.S. investors to apply for parole. USCIS has reduced the minimum investment requirement to $250,000. The final rule also gives entrepreneurs more time to land funding — 18 months instead of 12 months. Also, in the proposed rule, the founder of the startup business had to possess 15% of ownership stake, but in the final rule that was reduced to 10%. In the proposed rule, a startup had to generate at least ten jobs during the initial parole period to qualify for an extension. That number has been reduced to five jobs in the final rule. The agency stated, “this final rule will encourage foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States, which are expected to facilitate research and development in the country, create jobs for U.S. workers, and otherwise benefit the U.S. economy through business activity, innovation, and dynamism.”
On January 12, 2017, the U.S. Department of Homeland Security (DHS) announced changes to the policies and regulations affecting Cuban nationals. DHS stated the “changes represent another important step in the normalization of the migration relationship between the two countries, and are intended to ensure regular, safe, and orderly migration between them.” Moving forward, there will be no “wet-foot/dry-foot” policy for arriving Cuban nationals. This policy gave those Cubans arriving in the U.S. residency, even if they did not have visas. If a Cuban was intercepted at sea (“wet foot”), they were returned to Cuba or resettled in a third country, while those who made it to U.S. soil (“dry foot”) were able to request permanent resident status. By eliminating this policy, President Obama stated the U.S. is “treating Cuban migrants the same way we treat migrants from other countries.” This policy was put into place after a revision was added in 1995 to the Cuban Adjustment Act, in an effort to isolate Cuba and prevent mass migration of Cubans to the U.S.
DHS also ended the Cuban Medical Professional Parole Program (CMPP), which was created in 2006. The program allowed Cuban medical personnel to seek asylum in the U.S. while on assignments abroad. President Obama reasoned that the program risked harming the Cuban people by undermining the work Cuba and the U.S. are involved with to combat diseases. The Cuban Family Reunification Parole program will remain in effect. This program allows certain eligible U.S. citizens to apply for parole for their family members in Cuba. DHS stated the “program seeks to expedite family reunification through safe, legal, and orderly channels of migration to the United States and discourage dangerous and irregular maritime migration.” Cubans already in the pipeline under both “wet foot, dry foot” and the CMPP will be allowed to continue the process toward gaining legal status.
On January 11, 2017, the U.S. Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) published an Advance Notice of Proposed Rulemaking (ANPRM) to gather information relating to the EB-5 Immigrant Investor Regional Center Program. This ANPRM comes after the Office of Management and Budget (OMB) published a notice that it had completed its review of a proposed rulemaking that USCIS drafted regarding changes to the current EB-5 program. This rule is entitled, “Improvement of the Employment Creation Immigrant Regulations.” The purpose of this ANPRM is to gather information and feedback from the public and various stakeholders on the regional center operations and EB-5 investors. The comments and information gathered by USCIS through this process will help shape the proposed rule. Comments on the ANPRM will be accepted for 90 days.
USCIS is seeking public comment on a range of issues, including: (1) the process for initially designating entities as regional centers, (2) a potential requirement for regional centers to utilize an exemplar filing process, (3) “continued participation” requirements for maintaining regional center designation, and (4) the process for terminating regional center designation. In addition to these general inquiries, USCIS also seeks public input on over a dozen specific questions relating to the regional program. These questions range from “How can USCIS improve the initial designation process?” to “What documentation should be required to accompany an exemplar application?” It has been 25 years since the EB-5 regional center program was implemented, and there have not been any updated improvements since that time. It is still unclear whether the incoming Trump Administration will continue to support the EB-5 program.
President-elect Trump’s winery in Charlottesville, Virginia recently filed visa applications with the U.S. Department of Labor (DOL). The winery said it will need six workers to prune grape vines six days a week , with a pay of $10.72 an hour, from January 31, 2017 to June 30, 2017. The visas requested fall under the H-2A program, which allows employers in the U.S. to fill seasonal agricultural jobs with foreign workers. CNN reports that in the last 15 years, Trump’s various businesses have been granted approval to hire at least 1,256 foreign guest workers. The report states that since June 2015, companies the President-elect owns have requested at least 190 foreign visa workers, through a variety of different visa programs. The H-2A program was created in the 1990s to help agricultural employers bring temporary foreign workers into the U.S. to do seasonal work. As part of the program, employers are required to offer certain wages, plus transportation, and housing when necessary. The H-2A visa holders live and work in the U.S. for several months at a time but are not considered immigrants, and the program is not seen as a pathway to citizenship.