Maryland Judge Blocks Part of Trump’s Revised Executive Order

A federal Judge in Maryland issued a ruling to block provisions of President Trump’s March 6th Executive Order. The Executive Order (EO) was a revision from a previously blocked EO, which bans foreign nationals from six countries identified as being state sponsors of terrorism. The EO was scheduled to take effect on March 16th, but first a Judge from the Federal District Court in Honolulu, Hawaii granted a temporary restraining order that enjoined the Trump Administration from implementing the EO. Then, U.S. District Judge Theodore D. Chuang in Maryland issued an injunction that enjoined the Trump Administration from barring entry into the U.S. by immigrants from six majority-Muslim countries. Like the Judge in Hawaii,  Chuang cited Trump’s negative statements about Muslim immigrants during the campaign. The scope of each Judge’s ruling is different. In the challenge brought by Hawaii, Judge Derrick Watson blocked the federal government from enforcing its travel ban from the six majority-Muslim countries and its suspension of the U.S.’s refugee program. While Judge Chuang only blocked the travel ban.

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USCIS Suspends Premium Processing for H-1B Petitions

On March 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced it will temporarily suspend premium processing for all H-1B Petitions. The suspension begins on April 3, 2017, which means USCIS will continue to premium process all petitions filed properly before that date. After this date, petitioners will not be able to file the Form I-907, Request for Premium Processing Service for a From I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. Also, if a petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, both forms will be rejected. USCIS has said this is a temporary suspension and may last up to 6 months. This premium processing suspension does not apply to other eligible nonimmigrant classifications filed on Form I-129. Petitioners will still be able to request to expedite an H-1B petition if they meet the USCIS criteria on the “Expedite Criteria” webpage. Since all new H-1B cap cases will be filed no sooner than April 3, this year no new H-1B cap cases will be able to use the premium processing option.

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New Immigration Ban Executive Order Issued

President Trump issued a revised Executive Order (EO) that bans migrants from predominantly Muslim countries. This replaces a previous EO, which was blocked by a federal judge in Washington state in early February and a three-judge panel of the 9th Circuit Court of Appeals upheld the lower court’s order. The revised order targets travelers from Iran, Libya, Syria, Somalia, Sudan and Yemen, but leaves out Iraq, which was included in the original EO. The order blocks the issuance of only new visas for these countries. The new ban will go into effect on March 16, 2017, and includes shutting down the U.S. refugee program for 120 days in order to develop “extreme vetting” procedures to prevent terrorists from entering the country. There is also a 50,000-person cap on refugees admitted into the country this year. In the original EO, Syrians were banned indefinitely, which is not the case with this current EO. The new EO also excludes a preference for “religious minorities” such as Christian claiming prosecuting in mostly Muslim nations, which was included in the original EO. The U.S. Department of Homeland Security provided a fact sheet and Q&As on the revised EO.

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DHS Releases Memos on Immigration

On February 20, 2017, Secretary John Kelly of the U.S. Department of Homeland Security (DHS), issued two immigration memos entitled, “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” and “Enforcement of the Immigration Laws to Serve the National Interest.” Under the new guidelines, Federal authorities will have increased power to detain and deport illegal immigrants living in the United States.

The memo regarding border security outlines an implementation plan for President Trump’s January 25, 2017 Executive Order, “Border Security and Immigration Enforcement Improvements.” The aim of the memo is to “stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States.” This new policy lays out a pathway for the massive expansion of detention by requiring DHS to detain any immigrants it apprehends, including those people with no criminal convictions. The guidance also calls for the immediate hiring of 5,000 additional border patrol agents and other personnel to “ensure operational control of the border.” In addition, the memo directs immediate construction of the Southern border wall; and directs DHS personnel to develop guidance and training for all employees on how to deal with unaccompanied alien minors.

The memo regarding enforcement outlines an implementation plan for President Trump’s January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States.” The memo states that effective immediately, DHS shall execute U.S. immigration laws against “all removable aliens” and will no longer “exempt class or categories of removable aliens from potential enforcement.” The guidance directs DHS personnel to make full use of all statutory authority to “remove aliens expeditiously,” which means they will likely bypass court proceedings. The memo also rescinds previous guidance on prosecutorial discretion and directs DHS personnel to arrest, apprehend, and initiate enforcement actions against any alien the “immigration officer has probable  cause to believe” has violated immigration laws. In addition, the memo calls for the hiring of 10,000 additional ICE agents and officers.

These memos do not overturn President Obama’s previous executive action on deferred action for childhood arrivals.

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Three Key Immigration Developments in President Trump’s First Weeks

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.

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Secretary Kelly Issues Statement on Recent Ice Enforcement Actions

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.

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President Trump Orders Far-Reaching Suspension of Entry: The Response and What to Expect Next

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.”

 

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Trump Fires Acting Attorney General

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.

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Another Trump Executive Order Expected Soon

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.

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Trump’s Immigration Executive Orders

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.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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