Amid all of Trumps bluster about Nationalism, building a wall at the Mexican border, and protecting American jobs, the Trump Administration has quietly and quickly raised the number of temporary unskilled labor visas to allow more Mexican farmhands, landscapers and hotel workers to legally work in the United States. In the past 9 months, the U.S. Labor Department has certified more than 160,000 H-2A agricultural visas, up 20% from last year. They then raised the cap on H-2B visas for unskilled laborers such as hotel housekeepers and restaurant workers, adding another 15,000 job openings for foreign and mainly Mexican workers. Trump’s real estate company and Mar-a-Lago annually apply for and receive H-2B visas to hire foreign labor to work in their hotels and private clubs. Raising the annual cap on H-2B visas is highly controversial, as some argue that it puts unskilled U.S. laborers out of work and keeps wages low.
Many people are concerned about the future of the Deferred Action for Childhood Arrivals (aka DACA) program. Despite White House assurances in the beginning of the administration that DACA would be safe, the Trump Administration now seems to be backing down on its commitment. In mid June of this year, the Texas Attorney General and AG’s from nine other Republican states sent an ultimatum to Attorney General Jeff Sessions – if the Trump Administration does not move to end the DACA program by September 5, 2017, they will file a court challenge to end the program. This would force the U.S. government to either defend the program in litigation, or abandon it. Then Secretary of Homeland Security John Kelly said that the administration would not commit to defending the program in Court if Texas and the coalition brings it’s lawsuit.
For now, the program remains in effect, with continuing uncertainty. What we know right now is that Department of Homeland Security still accepting and processing new applications for DACA, and is currently renewing work permits that are expiring. On the other hand, application to the program involves more risk, since it appears more likely that it could end at any time. Nearly 800,000 young adults have benefited by the program by gaining temporary work authorization, that is renewable every 2 years. But if you are considering applying for DACA for the first time, you should talk to a qualified immigration attorney to help you access your risk. In fact, the National Immigration Law Center (NILC) now recommends that if you are submitting a first time DACA application, that you do not do so without legal representation. The NILC suggests you consider the following negative factors. If DACA is withdrawn, there is no guidance on what USCIS will do about pending applications. Worse case scenario – you may lose your application fee and USCIS could share your personal information with Immigration and Customs Enforcement (ICE). Also, without proper legal advise, your application could identify you for deportation if you fit the administration’s expanded enforcement priorities. On the other hand, submitting an application now could have positive result if DACA continues, or DACA continues but is closed to new applicants, or if DACA is phased out gradually as work permits expire. Keep an eye on this blog for updates to the DACA program.
Congress is working on sweeping changes to our immigration system that will reduce large numbers of immigrants who receive their lawful status through Legal Permanent Residents or United State Citizens. The bill, Reforming American Immigration For A Strong Economy, introduced by Republican Senators Tom Cotton and David Peru, proposes a merit-based immigration system, favoring employment, skills, education and English speaking ability. Currently, most of the one million immigrant visas per year are obtained through family relationships. U.S. citizens can petition for spouses, minor children, stepchildren, parents, single or married adult children, and brothers and sisters. Some of these visa categories have annual numerical limitations; others, such as spouses, minor children and parents are unlimited. Legal Permanent Residents can petition for spouses, minor children and unmarried adult children, with numerical limitations in all visa categories. The proposed legislation will still allow the spouses and minor children of American Citizens and Permanent Residents, but will eliminate visas for extenuated relatives such as brothers and sisters and adult children. The proposed bill also eliminates the diversity lottery and cuts the number of refugees that are offered permanent residence. The number of Employment based green cards, however, will increase by reallocating 140,000 of the eliminated visas.
Said President Trump “This competitive application process will favor applicants who can speak English, financially support themselves and their families and demonstrate skills that will contribute to our economy.” The bill was praised by anti-immigration organizations; however, this legislation would need Democrat support to be successful, which is unlikely. Stay tuned to this blog for updates.
On June 29, 2017 the Department of Homeland Security revised their initial definition of the “close family” exception to the travel ban. (See Blog Entry June 27, 2017) [The designated countries are Syria, Iran, Somalia, Sudan, Libya, Yemen] Now, a close familial relationship is defined as a parent (including parent-in-law), spouse, fiance, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members. This means that those in the close family relationship category from the six designated travel countries (Syria, Iran, Somolia, Sudan, Libya and Yemen) are eligible to apply for immigrant and nonimmigrant visas, although they will need to establish a bona fide relationship with the person in the United States. DHS published FAQ’s stating that USCIS will continue to interview refugee applicants from the six designated countries, however they will also have to prove a bona fide relationship with a person or entity in the United States.
We at Kalita Law Group will continue to update you as DOS and DHS sort out implementation policy.
On Monday, the Supreme Court partially reinstated Trump’s travel ban against foreigners from six Muslim majority countries; Sudan, Iran, Somalia, Syria, Libya and Yemen. (mnemonic “SISSLY”). [ see the entire S.Ct. Order here] The ruling clears the way for the 90-day travel ban to begin excluding foreign travelers from the designated countries, except those who have bona fide relationships with Americans, or U.S. Entities, including spouses, other close family members, employers and universities. So how do we sort out those people excluded from those who are allowed in?
First of all, nothing has changed regarding the visa or entry process for countries not included in the list of six travel-banned designated countries. Moreover, those foreign travelers from the six designated countries who already have a valid immigrant or nonimmigrant visa into the United States will be most likely be allowed to enter the United States – as long as that Visa was issued before June 26, 2017. This includes student visas, visitors visas, employment visas, and legal permanent residents. Those people who wish to enter the United States to visit close family members will be allowed to apply for a visa; also, students who have been admitted to a U.S. university and workers who have accepted offers of employment from U.S. companies, and lecturers invited to address an American audience. Refugees processed overseas who have family or other connections to the United States, including refugee resettlement agencies will not be excluded. The court was not clear about what will happen with individuals who form bona fide relationships with American citizens, companies and universities prospectively, after June 26, 2017.
The original executive order banning travelers from the six designated countries is temporary, to allow for extreme vetting procedures to be put in place and will expire on its own terms 90-days from now, in October 2017. For now, until such terms as “close family relationships” and “credible claim of a bona fide relationship” are defined by the courts or USCIS policy, there will be confusion as to who will be denied admission to the U.S. We at Kalita Law Group will continue to post updates on this blog as the government’s order is implemented.
On June 15, 2017, Department of Homeland Secretary John Kelly issued a Policy Memo regarding two programs: the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of American Citizens (DAPA) and there was good news and bad news. The bad news – Secretary Kelly rescinded the November 20, 2014 memo that created DAPA. DAPA was an Obama program that awarded deferred action from deportation and a work permit to those parents of U.S. citizen children that met certain criteria, such as having lived in the United States continuously since January 1, 2010 and other factors. But before the program could be implemented, 26 states joined in a lawsuit against DAPA, and a Federal Judge from the District Court for the Southern District of Texas enjoined the DAPA program, preventing it from ever being executed. The good news – Secretary Kelly left in tact the Deferred Action for Childhood arrivals (DACA) program. Unfortunately certain provisions in the DAPA policy memorandum that expanded DACA such as allowing a 3-year work permit instead of 2 year, and eliminating the eligibility age cap of 31 years old were also eliminated. So DACA remains as is for now, pursuant to the June 15, 2012 Memorandum. Although this appears to be a reprieve for the DACA program for now, the Trump administration would not commit to the long-term fate of DACA. For now, Work permits for DACA recipients will not be revoked, and the program continues to be open to new and renewal applications. You can still apply for DACA if you meet the following requirements:
- You were under the age of 31 on June 15, 2012;
- You came to the United States before your sixteenth birthday;
Venezuela is now the top U.S. Asylum Seeking nation since the crash of the Venezuela economy and the government’s widespread persecution and harassment of opponents of Nicolas Maduro. Venezuela is in crisis, with its people enduring hyperinflation, scarcity of food and medicine, high crime and political corruption. Thousands of its citizens are fleeing to neighboring countries such as Colombia, Brazil, and also Spain and the United States. Since March 2017, 30 protestors of Maduro administration have been killed. Thousands of people have been arrested for political reasons since 2016. Over 14,700 Venezuelans sought asylum in the U.S. in FY2016. And halfway through FY2017, Venezuelan asylum applications are on pace to double again.
It should be noted that fleeing ones country due to hunger, the economy, or joblessness does not qualify you for asylum in the U.S. To qualify for asylum in the United States, you must meet the definition of a refugee, which means you are unable or unwilling to return to your own country because of persecution or well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. An asylum seeker will need to provide credible testimony, and genuine documentation to prove past persecution or well founded fear of persecution. Know that the the consequences for filing a frivolous claim of asylum, or counterfeit or false documentation to support an asylum application are grave. If USCIS or an immigration finds that a person knowingly filed a frivolous or fabricated asylum claim, that person will be forever barred from gaining a lawful immigration benefit or status in the United States.
We recommend you see a qualified immigration attorney for a consultation before you proceed with an asylum application, to help you evaluate whether your claim has merit. Then you can decide whether you wand to proceed on your own, or retain an attorney to help you through the process.
On April 11, 2017, Attorney General Jeff Sessions issued a memorandum to all federal prosecutors titled “Renewed Commitment to Criminal Immigration Enforcement,” in which he directs federal prosecutors to enforce the criminal laws against unlawful entry into the United States. In the past, offenses such as unlawful entry, unlawful re-entry, document fraud or identity theft had noncriminal resolutions such as deportation or voluntary departure. The policies recently outlined by Sessions now encourage criminal prosecution of non-violent immigration violations as follows:
- Offenses related to unlawful transportation of harboring of undocumented aliens, with priority on those smuggling three or more individuals.
- Any case where the defendant has two or more prior misdemeanor improper entry convictions, or one or more improper entry convictions with aggravating circumstances, such as criminal history, gang membership or affiliation or multiple prior voluntary returns, prior removal or deportation orders, will be referred for criminal prosecution.
The latest Trump Executive Order on Border Security makes some significant changes on Expedited Removal and who will be subject to this Administrative Procedure. Expedited Removal is a procedure that allows Department of Homeland Security to summarily remove or deport an undocumented individual without a hearing before an Immigration Judge. This type of procedure can be applied to any person who is apprehended at a port of entry with no valid documents, or false documents; and also to any person who is apprehended somewhere other than a port of entry, who is inadmissible because of misrepresentations or has not been lawfully admitted, and cannot show he or she has been continuously present in the United States for two or more years. Under the Obama administration, the use of expedited removal was limited and only applied for individuals who arrive at a port of entry, or individuals apprehended within 14 days of their arrival and within 100 miles of an international border.
Trump’s latest Executive Order on Border Security expands those individuals who can be subject to expedited removal to any individual who entered the U.S. without legal documents, who cannot show continuous presence in the United States for two or more years. This Expansion has not taken effect yet, and Secretary of Homeland Security John Kelly stated he was going to publish a notice in the Federal Register to designate who would be subject to the Expedited Removal provision. If use of Expedited Removal is expanded to the fullest extent of the law- then it could be applied to anyone without proper documentation to enter, no matter where they were apprehended, and cannot show two years or more of continuous presence in the United States prior to the date of the Expedited Removal.
The number of people who will be effected by this expanded use of Expedited Removal will depend on how Secretary Kelly plans to implement the expansion. This raises a number of questions – how will individuals be able to prove their continuous presence for two years prior to apprehension? Do these individuals need to carry documentation with them? Can the determination of less than two years of continuous presence be challenged? Certainly persons taken into custody for Expedited Removal or should contact an experienced immigration lawyer as soon as possible. Expedited Removal Orders may be subject to Administrative review.
On January 25th, President Trump signed and executive order “Enhancing Pubic Safety in the Interior of the United States.” Early this week, Department of Homeland Security Director John Kelly issued a memo further defining removal priorities of the undocumented. Although the new policy memo expands the deportation priorities to almost all undocumented immigrants, the DACA program (Deferred Action for Childhood Arrivals) remains in tact for now. Kelly states “the Department shall faithfully execute the Immigration Laws of the United States against all removable aliens.” Regarding prosecutorial discretion, DHS is directed to initiate removal proceedings against “any alien subject to removal under any provision of the INA.” Clearly every undocumented person is at risk for deportation (with the exception of those who have DACA approval)
With limited resources, it is unlikely that the current number of CPB, ICE, and USCIS officers and officials will allow for mass scale deportation. The priorities are meant to define individuals that the Department should seek out for deportation. Individuals who have been convicted of any criminal offense, charged with any criminal offense that has not been resolved, or have committed acts that constitute a criminal offense are priorities for removal. Criminal offenses are not defined and can presumably be anything from driving without a license to aggravated felonies. Other priorities for deportation are those who engaged in fraud or willful misrepresentation in connected with any official matter before a government agency, anyone who has abused any program related to receipt of public benefits, subject to a final order of removal but failed to leave, or those who pose a risk to public safety or national security. Within these categories, DHS is directed to fast-track removal of Criminal Aliens, bypassing the Immigration Court for any noncitizen convicted of an aggravated felony. To quote Trump “Were getting really bad dudes out of this country and at a rate that nobody’s ever seen before. . . And they’re the bad ones. And its a military operation.”
Enforcing the Immigration Laws of the country also includes the due process afforded to legal permanent residents and undocumented persons that meet certain criteria. In many most cases, undocumented persons are allowed a hearing before an immigration judge. There are certain defenses and waivers are available for some (not all) grounds of . Make sure you talk to an immigration lawyer experienced in removal hearings if you come to the attention of any ICE, CBP, or USCIS official and are eligible for deportation.