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.
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.
In this posting, lets briefly take a look at Provisional Waivers. Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States. Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated. In the past, families often had no choice but to be separated for periods of time of one year or more. The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule. With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process, but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending. If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and re-enter the United States with permanent residence status.
Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:
- You are physically present in the United States
The Immigration Court system in the United States is notorious for its backlog of cases. This story gets attention every not and again from the national press. A little under a year ago, in order to help the chronic backlog facing the Immigration Courts, Congress provided funding for 55 new immigration judges. To put this is perspective, an immigrant rights group estimates that over 200 new immigration judges would be necessary to even make a dent in the chronic backlog of cases before the court. Fortunately, it appears there are plans to boost the number of immigration judges even more, but still short of the number necessary to reduce the persistent backlog of cases.
But despite these new judges, the backlog persists. According to the Hill, over 500,000 cases currently sit waiting to be heard by an immigration judge across the United States, the largest backlog in our nation’s history. In Illinois alone, there are over 20,000 cases waiting to be heard by an immigration judge. The average number of days cases have been pending in the United States is 672 days. Human Rights First also notes that the average number of days between when an immigrant files a case before the court and that case is actually heard is over 1,000 and just under 3 years. While these cases sit, the lives of the immigrants impacted by the case remain in immigration limbo.
According to a recent article from the Chicago Reporter, several groups are calling on Mayor Rahm Emanuel to enact reforms in the way Chicago Police are allowed to interact with the undocumented population in Chicago. Right now it is estimated that nearly 7% of the Chicago population is undocumented. That equates to over 180,000 individuals that these reforms would protect.
Under current city ordinances and executive orders, it is against city policy for city employees to deny benefits based on the immigration status of an individual. Additionally, city employees are prohibited from inquiring about the immigration status of an individual. Mayor Emanuel also limited how Chicago Police can cooperate with federal immigration officials in order to deport individuals detained by Chicago Police. But Reform groups say those protections aren’t enough and would like to strengthen those prohibitions. According to the Chicago Reporter, under a proposal suggested by a collection of immigration reform groups, several more projections would be enacted, such as:
- “Eliminate exemptions that allow police to work with federal authorities when dealing with undocumented immigrants who are either wanted on a criminal warrant, convicted felons, charged with a felony, or identified gang members,
Last week, the United State Supreme Court issued its ruling in the case regarding President Obama’s executive actions on immigration. In United States v. Texas, the Supreme Court was split 4 to 4. Because the Supreme Court was unable to come up with a majority, the ruling of the 5th Circuit Court of Appeals is affirmed. The decision, which affects millions of individuals without status in the United States, was just nine words long: “The judgment is affirmed by an equally divided court.” As you may recall, the 5th Circuit struck down President Obama’s executive actions on immigration last year. That ruling is effectively still in place because the Supreme Court 4-4 split affirms that judgment.
This decision is a major setback for President Obama as he had hoped to have the new DAPA and expanded DACA in place prior to leaving office in January 2017. Because the 5th Circuit decision struck down the president’s executive actions, President Obama will not be able to implement his much anticipated reforms. After the decision, many politicians and activists criticized the Supreme Court as well as Congress for failing to pass comprehensive immigration reform.
Responding to the decision, President Obama said “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to this country we all love in an open way.” While the Supreme Court split effectively ends the legal battle regarding the president’s executive actions, attention will now shift to the presidential election as the two major candidates will have to outline their immigration policies for the country as the campaign wages on.
The United States Supreme Court heard oral arguments in the case involving President Obama’s executive action on immigration, United States v. Texas. During oral arguments, it appeared from the questioning that the eight justices on the Supreme Court were divided among ideological lines, with the four liberal justices strongly questioning the twenty-six states challenging the President’s DACA and DAPA orders while the four conservative justices strongly questioned the government lawyers defending the President’s immigration orders.
In an extended oral argument session, each side laid out their case as to why the President’s expanded DACA/DAPA order should be upheld or struck down. Lawyers in favor of the President’s executive orders argued that Congress only gave the government so much money to deport alien’s unlawfully present in the United States so prioritization had to take place. Government lawyers argue that the President’s order simply grants Lawyers opposed to the President’s executive orders saw things differently, arguing that the President exceeded his discretion under the current immigration laws passed by Congress.
While it remains uncertain what the Supreme Court will do with the case, there are a number of scenarios that can play out. Firstly, a majority of justices might be able to agree on an opinion for the case, thus resolving the legal issues presented; however, most experts seem to agree that this outcome is unlikely. Secondly, the justices can decide to hold the case over to the next term for re-argument in the hopes that a new justice will be seated to replace the late Justice Antonin Scalia. Thirdly, a divided Supreme Court can issue no opinion and let the decision of the lower court stand. If you remember back in August of 2015, the 5th Circuit affirmed the injunction against the President’s expanded DACA and DAPA executive orders, which would mean the President’s executive action, could still not be implemented.
Today, the United States Supreme Court announced that it will hear an appeal that from the Obama Administration involving President Obama’s executive action on immigration. The case, while not scheduled for oral arguments yet, will be heard later this spring, likely in April, with a decision likely in June. Twenty-six states sued the federal government over President Obama’s plans to expand DACA and create DAPA. A federal district judge enjoined the Obama Administration from proceeding with implementing its new immigration plans while the lawsuit was heard in court. An appeals court upheld the injunction late this summer. The name of the case is United States v. Texas. For more information about this case, view our previous blog posts and be sure to monitor our blog for future updates.
If you have any questions of for more information you should contact an experienced immigration attorney.