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Implementation Memos Following Trump Immigration Executive Orders

On February 20, 2017, the Department of Homeland Security issued two memos, one of which is “Enforcement of the Immigration Laws to Serve the National Interest” (“2017 Enforcement memo”). This memorandum serves to implement the Executive Order President Trump issued on January 25, 2017 titled “Enhancing Public Safety in the Interior of the United States.”

The 2017 Enforcement Memo addresses a number of issues but the focus of this post will be the enforcement priorities and prosecutorial discretion.

On November 20, 2014, the Department of Homeland Security Jeh Johnson issued a memorandum titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (2014 Memo). The 2014 memo set forth the priorities for enforcement for the Department of Homeland Security. The priorities were those who posed a threat to national security; border security; and public safety; those who had multiple misdemeanor convictions, including driving while under the influence; those who had entered after January 1, 2014; those who had abused a visa or the visa waiver program; and those who had been issued a final order of removal after January 1, 2014. The 2014 provided clear guidance to DHS’ employees and implemented, it permitted individuals to obtain administrative closure of their case in the immigration court or stays of removal, if they had a final order of removal.

The 2017 Enforcement Memo says that the Department is no longer going to exempt from enforcement categories of individuals, as supposedly the 2014 did, and casts a much wider net. Under this memo, those who criminal convictions or have admitted to committing crimes, those who present a threat to national security, those who committed fraud or misrepresented to immigration in the course of requesting an immigration benefit or entry into the United States, and those who are arriving into the United States.

Similar to the 2014 memo, the 2014 Enforcement Memo prioritizes those who have been convicted of a criminal offense. However, it departs from it in significant respects because those who have been charged with any criminal offense are a priority for enforcement, even if the criminal matter has not yet been resolved. This memo also adds to the list of enforcement priorities those who have committed fraud or misrepresented in relation to any matter before a government official, not just immigration matters, and those who have abused any program related to receipt of public benefits.

Under the 2014 memo, DHS’ employees had clearer guidance about how to exercise their prosecutorial discretion. While the 2017 memo maintains prosecutorial discretion and permits its exercise on a case-by-case basis, in practice DHS’ employees are exercising it less and less and in extreme circumstances. The result is the disruptions if the lives of many families.

~Anielka S. Godinez

H-1B Premium Processing Suspended

Starting April 3, 2017, the first day of H-1B cap filing season, U.S. Citizenship and Immigration Services will temporarily suspend premium processing for all H-1B petitions. Premium processing requests received on or after April 3 will be rejected and USCIS will return any premium processing fees filed before April 3 if USCIS was unable to take action on the case within 15 days of receipt.

This suspension affects all H-1B petitions, including all those subject to and exempt from the cap and requests for extension of status or change of status. USCIS estimates the suspension may last up to six months and will notify the public prior to resuming premium processing of H-1B petitions.

Employers should therefore anticipate delays in the receiving of H-1B Receipt Notices for the FY 2018 Cap Season. Moreover, employers planning on filing premium processing requests for extensions of stay, changes of employer and changes of status should do so prior to April 3, 2017. While employment authorization is automatically extended for timely filed H-1B extensions for up to 240 days, it is important employers carefully track H-1B extensions to ensure individuals do not fall out of status.

While premium processing is suspended, petitioners may still submit requests to expedite H-1B petitions if they meet at least one of the expedite criteria such as severe financial loss to the company or individual, an emergency situation, humanitarian reasons, USCIS error or they can show a compelling interest. Please note that expedite requests are reviewed on a case-by-case basis and may be granted as the discretion of USCIS.

~Kelly A. Doolittle

 

President Trump’s Travel Ban

On March 6, 2017, President Trump issued an executive order entitled “Protecting The Nation From Foreign Terrorist Entry Into the United States” in which he ordered a “temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers.” The March 6 executive order was careful to carve out exceptions for certain travelers, including lawful permanent resident of the United States, foreign nationals with certain non-visa documents (for example, advance parole or boarding foils), dual nationals traveling on a passport from a country not listed in the executive order, diplomats, and those granted asylum, withholding of removal, or protection under the Convention Against Torture.

The March 6 executive order was issued after the President’s January 27, 2017 executive order temporarily banning entry into the United States of citizens from seven countries was stopped by a temporary restraining order that was upheld by the Ninth Circuit Court of Appeals. While the March 6 order rescinded and replaced Trump’s previous January executive order on travel, the March 6 executive order was quickly stopped when a Federal court in Hawaii (later joined by Maryland) issued a nationwide temporary restraining order, which puts the implementation of the executive order on hold while a court determines its legality.

The temporary restraining order decision issued by a Federal district court judge in Hawaii went as far as to note “a reasonable, objective observer . . .would conclude that the Executive Order was issued with a purpose to disfavor a particular religion[.]” Attorneys for the Department of Justice, who are arguing in support of the executive order, state that the purpose of the order is national security reasons, well within the purview of the President.  It’s the government’s position that the six countries mentioned in the executive order are state sponsors of terrorism.

While the executive order itself does not state that the travel ban is based on religious grounds, courts can and did look back in time to Trump as a candidate in order to give context to the executive order and the policy behind it. The temporary restraining order decision in Hawaii notes previous interviews that Trump gave as a candidate (In March 2016, Mr. Trump said, during an interview, “I think Islam hates us,” and later stated, “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, ‘It’s called extreme vetting.’”). Because such a policy would violate the Constitution’s Establishment clause (often referred to as the separation of religion and state), the executive order would therefore be unconstitutional.  The Hawaiian Federal court determined that, while the  constitutionality of the executive order is determine, that its implementation is put on hold due to the damage it may cause until the court determines whether the order is constitutional.

What does the executive order mean for citizens from the six countries listed for the temporary pause on travel? For now, until a Federal court determines the legality of the executive order, the travel ban will not be implemented and citizens from all countries with valid visas should be able to board planes and enter the United States.

It’s unclear whether the Trump administration will continue to fight for this executive order in Court, or whether it will continue to refine its attempted travel ban through further executive orders. Until there is a decision on the merits of the constitutionality of the March 6 executive order, which is expected in the coming weeks, the travel ban has itself been banned by Federal courts, nationwide.

~Brian M. Doyle

I-601A Provisional Waiver Expansion

Effective August 29, 2016, U.S. Citizenship and Immigration Services expanded the provisional waiver process. Prior to this date, only immediate relatives were eligible to apply for the I-601A application.  Immediate relatives include spouses and children under 21 years of age of U.S. citizens.  Family members in other preference categories, such as adult sons and daughters may now apply for an I-601A waiver.  Additionally, lawful permanent resident spouses and parents now constitute qualifying relatives for purposes of demonstrating extreme hardship.  You cannot apply for an I-601A Application if you have a removal order.

A new pathway: The Conditional I-212 Waiver.

Form I-212 is an application most often used to waive inadmissibility due to having been removed or ordered removed from the U.S. Traditionally, Form I-212 was filed after a person left the United States and was pursuing consular processing.  The downside to that process was that the individual was already outside of the U.S. and would be stuck abroad for a period of ten years if the I-212 application was not approved.  As of August 29, 2016, applicants may now file Form I-212 with their local field office while residing in the U.S.  Once the I-212 Application is conditionally approved, applicants may pursue an I-601A application if required.

~Kaitlyn L. Jones

 

L-1A and L-1B Visas

There is a literal alphabet soup of employment-based visas that professionals may consider in order to live and work in the United States.  Today I’d like to discuss L1-A and L1-B visas, which are a great option for foreign national professionals.  L1 visas are specifically designed for foreign nationals who have developed professional experience as either a manager or an executive (L1-A) or in a specialized field (L1-B) such as engineering or finance, and who would like to transfer jobs within their company to a U.S. office.  They allow L1 beneficiaries to live and work in the United States, and for businesses to transfer much-needed expertise to U.S. branches, or even to open a new office in the U.S.

L1 visas can be processed more quickly using premium processing, and they allow the beneficiary to have dual intent.  Allowing dual intent means that although L1 visas are classified as nonimmigrant visas, an L1 beneficiary is eligible to apply for adjustment of status to permanent residence.  One thing to keep in mind for companies setting up new offices in the U.S. is that “new office” L1 petitions may face higher scrutiny as USCIS wants to ensure that an office is not being set up merely for immigration purposes.  In a “new office” situation, we can work with clients to showcase the business plan for the U.S. office, in terms of its marketing initiatives, upcoming contracts with customers, and potential for expansion within the U.S. market.thanks

Joyce & Associates has represented many individuals throughout the L1 process, from assistance with contracts drafting and/or corporate formation to compiling the L1-A package to highlight the beneficiary’s qualifications and the foreign entity’s business needs and ability to pay the beneficiary’s wage, and then to preparing the client for consular processing and for filing future applications for L1 extensions and/or adjustment of status.

If you are interested in discussing your eligibility for an L1 petition, or for employment-based visas generally, contact us for a consultation to discuss your options.

~Christina M. Elder

Family Law and It’s Impact on Immigration Cases

One issue that may affect an immigration case is whether a divorce from a previous spouse is final. Ensuring that someone is actually divorced and free to re-marry is crucial, especially if a new spouse will be filing an immigration petition. If the divorce occurred in Massachusetts, the divorce does not become final the day of the final hearing before the judge. Under the law, the parties have to wait for what is called the nisi period to expire. This period may be 90 or 120 days after this final hearing, depending on the circumstances of the case. At least in Massachusetts, the court does not automatically send a divorce decree when the divorce becomes final. It is a good idea to obtain a certified copy of the divorce decree from the court showing that the divorce is in fact final. Call the clerk’s office of the Probate Court in the county where the divorce case was filed to request this.

Another issue that may affect an immigration case, is getting a divorce abroad. Whether a foreign divorce will be valid for immigration purposes depends both on the law in the foreign country and the laws of the place where the remarriage occurred. Difficulties may be encountered in an immigration case if neither of the spouses was residing or present in the country where the divorce was obtained. The fact that a marriage occurred in a foreign country does not necessarily mean that the divorce has to occur there. It may be possible to obtain a divorce in the United States instead. Seeking advice and information on the divorce process in the United States is important before trying to obtain one abroad.

And, one last point on divorces, if a (former) spouse says he or she was able to get a divorce without involving the other spouse in the process, it is advisable to corroborate this information. It may be that a divorce has not occurred or they may be issues with the divorce that may affect the validity of a recent marriage and, possibly, an immigration case.

Ensuring that someone is properly divorced may be very important to an immigration case. If you have any questions regarding this type of matter, feel free to schedule a consultation.

~Anielka S. Godinez