Mid-July 2018 Immigration Update

Supreme Court Upholds Latest Trump Entry Ban – On June 26, 2018, the U.S. Supreme Court upheld 5-4 the Trump administration’s third travel ban order. The ban prevents the entry into the United States of certain nationals from specific countries, with some exceptions.

USCIS Updates Notice to Appear Policy Guidance to ‘Support DHS Enforcement Priorities’ – Under the new guidance, USCIS officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

DHS Issues Final Rule Eliminating Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to United States as H-2A Agricultural Workers – Effective August 6, 2018, DHS is eliminating the nonimmigrant visa exemption for certain Caribbean residents seeking to come to the United States as H-2A agricultural workers and the spouses or children who accompany or follow these workers to the United States. As a result of the interim final rule, these nonimmigrants must have both a valid passport and visa.

DHS Extends TPS for Yemen for 18 Months – DHS has extended the temporary protected status designation for Yemen through March 3, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Justice Dept. Settles Claims Against Landscaping Company for Discriminating Against U.S. Workers – The agreement resolves a DOJ investigation concluding that Triple H unlawfully discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas.

Dept. of State Partners with Hilton Hotels and Resorts on Passport Project – DOS employees have assisted Hilton’s “Passport Concierge Booths” across the United States to provide passport applications, photos, and opportunities to ask questions about applying for a passport.

Attorney General Rescinds 24 Guidance Documents – Attorney General Jeff Sessions announced on July 3, 2018, that he is rescinding 24 guidance documents that were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” A DOJ task force is continuing its “review of existing guidance documents to repeal, replace, or modify.”

Firm in the News

Supreme Court Upholds Latest Trump Entry Ban

On June 26, 2018, the U.S. Supreme Court upheld, by a 5-4 vote, the Trump administration’s third travel ban order under Presidential Proclamation 9645, issued September 24, 2017. The ban prevents indefinitely the entry into the United States of certain nationals from specific countries, with some exceptions.

A Department of Homeland Security (DHS) fact sheet noted that, among other things, the government:

• Maintained, modified, or eased restrictions on five of six countries designated by Executive Order 13780, issued in March 2017: Iran, Libya, Syria, Yemen, and Somalia.
• Lifted restrictions on Sudan.
• Added restrictions and/or additional vetting on three additional countries (Chad, North Korea, and Venezuela) found not to meet baseline requirements, but that were not included in Executive Order 13780. Effective April 13, 2018, Chad was removed from this list.

The Court observed that plaintiffs alleged that the primary purpose of the entry ban was religious animus and that the President’s stated concerns about vetting protocols and national security were pretexts for discriminating against Muslims. At the heart of their case was a series of statements by the President and his advisers both during the campaign and since the President assumed office. Chief Justice Roberts, writing for the majority, said the issue was not whether to denounce the President’s statements, but the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.  In doing so, he said, the Court must consider not only the statements of a particular president but also the authority of the presidency itself.

Justice Roberts noted that the Proclamation “is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Three additional features of the entry policy supported the government’s claim of a legitimate national security interest, Justice Roberts noted. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review,” the majority concluded.

Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented. Justice Sotomayor said, among other things, “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus rather than by the Government’s asserted national-security justifications.” Ultimately, she said, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has morphed into a Proclamation putatively based on national-security concerns. “But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.”

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf. Presidential Proclamation 9645 is at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/. A related fact sheet from the Department of Homeland Security is at https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.

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USCIS Updates Notice to Appear Policy Guidance to ‘Support DHS Enforcement Priorities’

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

USCIS said that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.” As explained in concurrently issued DACA-specific guidance, USCIS said it will continue to apply NTA guidance issued in 2011 to these cases. USCIS said it will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

The new policy memorandum updates the guidelines USCIS officers use to determine when to refer a case to U.S. Immigration and Customs Enforcement (ICE) or to issue an NTA. USCIS said the revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

USCIS noted that the revised policy does not change agency policy for issuing an NTA in the following categories:

• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary protected status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status; and
• DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA, as noted above.

Under separate policy guidance issued concurrently, USCIS officers will continue to apply “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” dated November 7, 2011, to the issuance of NTAs and referrals to ICE for DACA recipients and requestors.

The USCIS notice is at https://www.uscis.gov/news/news-releases/uscis-updates-notice-appear-policy-guidance-support-dhs-enforcement-priorities. The updated policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. The separate policy guidance issued concurrently is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0161-DACA-Notice-to-Appear.pdf. The 2011 NTA guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf.

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DHS Issues Final Rule Eliminating Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to United States as H-2A Agricultural Workers

The Department of Homeland Security (DHS) issued a final rule on July 6, 2018, that eliminates the nonimmigrant visa exemption for certain Caribbean residents seeking to come to the United States as H–2A agricultural workers and the spouses or children who accompany or follow these workers to the United States. As a result of the related interim final rule, these nonimmigrants must have both a valid passport and visa. The Department of State (DOS) revised its regulations in a parallel interim final rule and is issuing a parallel final rule. Both the DHS and DOS final rules take effect August 6, 2018.

DHS noted that one commenter on the interim final rule stated that eliminating this longstanding exemption creates new costs and inconveniences for individuals from these areas, which could dramatically decrease or essentially prevent these workers from coming to the United States. The commenter stated that the cost of securing a visa would be more than the average Jamaican worker could likely afford. DHS responded that while the visa exemption for agricultural workers from the specified Caribbean countries dates back more than 70 years, it was created primarily to address U.S. labor shortages during World War II by expeditiously providing a source of agricultural workers from the British Caribbean to meet the needs of agricultural employers in the southeastern United States. This basis for the exemption no longer exists, DHS said, and continuing to provide an exemption for these individuals would be incongruent with the visa requirements for H-2A workers from other countries. While removing this exemption may make the process more difficult for individuals from these specified areas, it “creates an equitable standard for everyone who would like to enter the United States as an H-2A agricultural worker or as the spouse or child accompanying or following such an individual,” DHS said. The agency added that it also “better ensures that individuals from the specified Caribbean areas seeking admission as H–2A nonimmigrants, and their spouses and children, are in fact eligible for admission under the desired classification and permits greater screening for potential fraudulent employment.” Furthermore, the agency said that by eliminating this exemption, the U.S. government is “better situated to ensure that workers are protected from illegal employment and recruitment- based abuses,” including the imposition of prohibited fees.

DHS also stated that the exemption “posed a security risk” because exempt workers did not undergo the same visa issuance process as H-2A applicants from other countries, including undergoing a face-to-face consular interview and associated fingerprint and security checks.

The DHS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14534.pdf. The parallel DOS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14513.pdf.

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DHS Extends TPS for Yemen for 18 Months

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Yemen for 18 months, through March 3, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Individuals from Yemen with TPS will be eligible to re-register for an extension of their status through March 3, 2020. Before the conclusion of the 18-month extension, DHS Secretary Kirstjen Nielsen will review conditions in Yemen to determine whether its TPS designation should be extended again or terminated.

DHS said there are approximately 1,250 Yemeni TPS beneficiaries. This 18-month extension of Yemen’s designation for TPS permits current Yemeni TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 3, 2020. To be eligible for TPS under Yemen’s current designation, along with meeting the other eligibility requirements, such individuals must have continuously resided in the United States since January 4, 2017, and have been continuously physically present in the United States since March 4, 2017.

The announcement is at https://www.dhs.gov/news/2018/07/05/secretary-nielsen-announcement-temporary-protected-status-yemen. Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

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Justice Dept. Settles Claims Against Landscaping Company for Discriminating Against U.S. Workers

On June 26, 2018, the Department of Justice (DOJ) reached a settlement agreement with Triple H Services LLC, a landscaping company based in Newland, North Carolina, that conducts business in Virginia and four other states. The agreement resolves a DOJ investigation concluding Triple H unlawfully discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas.

The DOJ investigation found that although Triple H went through the motions of advertising more than 450 landscape laborer vacancies in five states, it did so in a manner that misled U.S. workers about the available positions and prevented or deterred some from applying. The agency found that Triple H did not consider several qualified U.S. workers who applied for positions in Virginia during the recruitment period, and instead hired H-2B visa workers. In several states where jobs were available, DOJ found that Triple H prematurely closed the online job application process for U.S. worker applicants, filled positions with H-2B visa workers without first advertising the jobs to U.S. workers in the relevant locations, or advertised vacancies in a manner that did not make the postings visible to job seekers using state workforce agency online services. DOJ concluded that in taking these actions, Triple H effectively denied U.S. workers access to jobs based on its preference for hiring temporary H-2B visa workers to fill the positions.

Under the settlement, Triple H must establish a back pay fund, with a cap of $85,000, to compensate certain individuals who were harmed by its practices. The agreement also requires Triple H to pay $15,600 in civil penalties, engage in enhanced recruitment activities to attract U.S. workers, and be subject to DOJ monitoring for a three-year period.

This settlement is part of the Civil Rights Division’s “Protecting U.S. Workers Initiative,” which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. Under this initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with three employers. Since the initiative’s inception, employers have agreed to pay or have distributed over $285,000 in back pay to affected U.S. workers, DOJ said. The Division has also increased its collaboration with other federal agencies to combat discrimination and abuse by employers using foreign visa workers.

The DOJ’s press release is at https://www.justice.gov/opa/pr/justice-department-settles-claims-against-landscaping-company-discriminating-against-us. The Triple H settlement agreement is at https://www.justice.gov/opa/press-release/file/1074821/download.

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Dept. of State Partners with Hilton Hotels and Resorts on Passport Project

The Department of State (DOS) is working with Hilton Hotels and Resorts on the “Hilton Passport Project,” which “seeks to inspire and encourage U.S. citizens to apply for a passport.” DOS noted that approximately 60% of U.S. citizens do not have a U.S. passport.

DOS employees have assisted Hilton’s “Passport Concierge Booths” across the United States to provide passport applications, photos, and opportunities to ask questions about applying for a passport.

A passport application typically takes around six to eight weeks from the time of application to be processed, including mailing time. Expedited Service is an additional $60 and takes two to three weeks.

More information on the Hilton Passport Project is available at https://travel.state.gov/content/travel/en/News/passports/hilton-passport-project.html and https://www.hiltonpassportproject.com/.

DOS separately announced “special passport acceptance events.” Most such events are for first-time applicants and children using Form DS-11 to apply. Those eligible to renew should do so by mail, DOS said. A city-by-city list is at https://travel.state.gov/content/dam/passports/content-page-resources/Acceptance%20Event%20PDF%207.2.18.pdf. The announcement is at https://travel.state.gov/content/travel/en/News/passports/special-passport-acceptance-fairs.html. For information on renewal by mail, see https://travel.state.gov/content/travel/en/passports/apply-renew-passport/renew-by-mail.html.

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Attorney General Rescinds 24 Guidance Documents

Attorney General Jeff Sessions announced on July 3, 2018, that he is rescinding 24 guidance documents that were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” A DOJ Task Force is continuing its “review of existing guidance documents to repeal, replace, or modify.”

The list of guidance documents that DOJ has withdrawn in 2018 includes, among others:

• Bureau of Justice Assistance (BJA) State Criminal Alien Assistance Program Guidelines, 2016
• Federal Protections Against National Origin Discrimination, April 30, 2006
• Look at the Facts, Not at the Faces: Your Guide to Fair Employment, Approx. July 2009
• Refugees and Asylees Have the Right to Work, May 2011
• Language Assistance Self-Assessment and Planning Tool for Recipients of Federal Financial Assistance, on or before February 12, 2003
• FAQs About the Protection of Limited English Proficiency (LEP) Individuals under Title VI of the Civil Rights Act of 1964 and Title VI Regulations, March 1, 2011
• Draft Language Access Planning and Technical Assistance Tool for Courts, December 18, 2012

The DOJ announcement is at https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-rescinds-24-guidance-documents
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Firm in the News

At the recently concluded AILA Annual Conference in San Francisco, June 13-16, 2018, all of the Firm’s partners were invited to serve as Discussion Leaders of their panels.

Cora-Ann Pestaina was Discussion Leader of a panel entitled Labor Cert. 102: Recruitment on June 15, 2018. David Isaacson was a Discussion Leader of a panel entitled Common Non-Criminal Inadmissibility Issues in Today’s Turbulent Climate, AILA Annual Conference 2018, San Francisco, CA, June 16, 2018. Cyrus Mehta was the Discussion Leader of a panel entitled To Err is Human: Addressing Mistakes Made in Business Immigration Cases, June 16, 2018. The details of the program are available at https://www.aila.org/conferences/in-person/annual.

Mr. Mehta was  invited to present at a CLE organized by the First Judicial Department Attorney Grievance Committee, New York,  on the latest developments relating to asylum and family separation on July 12, 2018.

Mr. Mehta was quoted by the BBC in “Travel Ban: Trump Hails ‘Tremendous’ Supreme Court Ruling.” Mr. Mehta said the majority opinion “gave in to President Trump’s hate and bigotry and will be viewed as a blemish.” The article is at https://www.bbc.com/news/world-us-canada-44619976.

Mr. Mehta participated in a show on TV Asia, “Skilled Immigrants: To Stay or Not?,” that highlights the plight of skilled immigrants and their families caught in green card backlogs. The show is available at https://bit.ly/2ufcx7T.