In this issue
- DHS Issues Two New Immigration Enforcement Memos
- TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement
- DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to 'Immigrant and Employee Rights Section'; IER Publishes New Guidance
- Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration's Executive Order
- USCIS is Accepting Only New Forms as of February 21, 2017
- ICE Enforcement Actions Reported
- State Dept. Reports on Upcoming Employment-Based Visa Availability
- New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee
DHS Issues Two New Immigration Enforcement Memos
John Kelly, Secretary of the Department of Homeland Security (DHS), has signed two new memoranda that implement two of President Trump's recent immigration executive orders. The DHS memos call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things. As part of the new enforcement efforts, U.S. Immigration and Customs Enforcement (ICE) will seek funding to hire 10,000 new officers and agents and the Border Patrol will seek funding to hire 5,000 new agents.
Among other things, the DHS memos clarify that:
- Anyone who has committed any immigration violation is now at risk of being put into deportation proceedings.
- Many more people will be detained under the new guidelines.
- DHS will expand its 287(g) program to allow state and local police to identify and hand over suspected immigration violators.
- DHS will expand its existing expedited removal program so that many more people will be immediately removed without a hearing unless they are an unaccompanied minor, intend to apply for asylum or have a fear of persecution or torture in their home country, or claim to have lawful immigration status. Previously, expedited removal only applied to people who were caught within 100 miles of the border within 14 days after entering the country. Now expedited removal will apply to people who have been in the United States for less than two years. A Federal Register notice will soon follow to make this change.
- The executive orders and implementing memos do not affect the Deferred Action for Childhood Arrivals (DACA) program.
Below are details of the two memoranda:
Memo implementing "border security" executive order. A memorandum issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the "Border Security and Enforcement Improvements" executive order signed by President Donald Trump on January 25, 2017. The memo calls for detention of people arriving at the borders pending final removal determinations. The memo also ends "catch-and-release" policies and states that discretionary parole authority may be exercised only on a case-by-case basis and only for urgent humanitarian reasons or significant public benefit. Among other things, the memo calls for a "surge" in deployment of immigration judges and asylum officers to interview recent border entrants and adjudicate their claims, and the establishment of "appropriate processing and detention facilities."
The memo also orders immigration officers who determine that an arriving person is inadmissible to the United States under INA § 212(a)(6)(C) or (a)(7) to order the person removed from the United States "without further hearing or review" unless the person is an unaccompanied alien child, indicates an intention to apply for asylum or a fear of persecution or torture or a fear of return to his or her country, or claims to have a valid immigration status within the United States or to be a citizen or national of the United States.
The memo states that as DHS works to expand detention capabilities, detention resources should be prioritized based on potential danger and risk of flight. The guidance "does not prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the United States from which the alien is arriving pending a removal proceeding."
The memo also calls for enlisting state and local law enforcement agencies and personnel to assist in the enforcement of federal immigration law. Among other things, the memo also calls for identification and allocation of funding sources to build a wall along the southern border.
Memo implementing "public safety" executive order. A second memorandum also issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the "Enhancing Public Safety in the Interior of the United States" executive order signed by President Trump on January 25, 2017.
The memo states that with the exception of the June 15, 2012, memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children," and the November 20, 2014, memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,'' all existing conflicting directives, memoranda, or field guidance regarding the enforcement of U.S. immigration laws and priorities for removal are immediately rescinded, including the November 20, 2014, memoranda entitled "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants" and "Secure Communities."
The memo states plainly that other than Deferred Action for Childhood Arrivals (DACA) beneficiaries, DHS "no longer will exempt classes or categories of removable aliens from potential enforcement." Among other things, the memo states that DHS personnel should prioritize for removal "criminal aliens" and those who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
The memo also states that DHS "will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents."
Meanwhile, in other news, there are rumors that a revised travel ban executive order will be issued shortly. Stay tuned.
Read the Executive Orders and related fact sheets, the two DHS memos, press releases, and additional information
TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement
The Transportation Security Administration (TSA) is notifying travelers via signs posted at airports that effective January 22, 2018, it will start enforcing REAL ID requirements at airport security checkpoints. The Department of Homeland Security (DHS) said this means that travelers seeking to use their state-issued driver's licenses or identification cards for boarding commercial aircraft may only use such documents if they are issued by a REAL ID-compliant state or a non-compliant state with an extension.
TSA's notification follows former Secretary of Homeland Security Jeh Johnson's announcement in 2016 of the final phase of implementation of the REAL ID Act. DHS noted that as always, travelers may use alternate forms of identification such as a passport, military ID, or permanent resident card.
The REAL ID Act, passed by Congress in 2005, establishes the minimum security standards for state-issued driver's licenses and identification cards and prohibits federal agencies, like TSA, from accepting licenses and identification cards for certain official purposes, including boarding federally regulated commercial aircraft, from states that do not meet these minimum standards and have not received an extension for compliance from DHS.
DHS said it continues to work with states to encourage compliance and may grant extensions or determine compliance for additional states as warranted. TSA said it will update signage if and when states that are currently listed receive extensions.
Read the DHS announcement
Read the announcement from Former Secretary Johnson
Read the complete list of identification documents accepted at TSA checkpoints
Click here for an interactive map showing the current REAL ID status of states and territories
DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to 'Immigrant and Employee Rights Section'; IER Publishes New Guidance
The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been renamed the Immigrant and Employee Rights Section (IER). IER enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits certain types of employment discrimination based on citizenship, immigration status, and national origin. IER's mission and functions remain the same as OSC's. A related final rule also made other clarifications.
The Department of Justice said in a statement announcing a webinar series to educate the public about the recent changes that IER's revised regulations, effective January 18, 2017, conform the regulations to the text of the INA's anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office's name change from OSC to IER.
Some commenters on the rule objected to the proposed revisions for not requiring that an employer act with ill will or animus to violate the statute (8 USC § 1324b). The DOJ said its position remains that ill will or animus is not required to commit discrimination under the statute. The final rule explains the DOJ's position in more detail "to address any confusion about the meaning of discrimination and to reiterate that discriminatory intent is required in order to violate the statute." The final rule notes that the statute makes clear that any discrimination must be "because of" a protected characteristic; for example, citizenship status or national origin. However, the final rule states that an employer cannot justify discriminatory conduct "simply by claiming a lack of ill will or animus." Explicit discrimination is disparate treatment even absent a malevolent motive, the final rule notes; an otherwise discriminatory employment action cannot be rendered lawful because the employer's motives were benign.
The final rule also notes that a number of the commenters' examples would not violate the statute as long as the employers were not treating employees differently because of a protected characteristic. In one example, an employer allows an employee's friend or family member to help translate the Form I-9 for the employee. Such an act would not be considered discrimination, the final rule states, unless the employer allowed only certain employees to have a friend or family member assist in completing the I-9 based on citizenship status or national origin.
The final rule states that many of the examples provided by commenters characterize the act of asking for specific documents from workers during the employment eligibility verification process as "assistance." The DOJ said it disagrees with this characterization: "Requesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents [from the I-9 form] and explain to them that they may present one List A document or one List B document and one List C document."
IER also issued guidance for employers on January 18 on avoiding discrimination against citizens of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As the guidance discusses, citizens of the FSM, the RMI, and Palau (collectively referred to as the Freely Associated States, or FAS) are eligible under the Compacts of Free Association between the United States and the FAS for admission to the United States as nonimmigrants, and are eligible to live and work indefinitely in the United States. FAS citizens are eligible for a variety of documentation that can satisfy the Form I-9 requirements, IER notes, and employers should allow FAS citizens to choose which documents to present from the I-9 Lists of Acceptable Documents to establish their identity and work authorization.
IER is offering information about its revised regulations in its monthly employer and worker webinars and in stand-alone presentations. Topics include the changes to the regulations, how these changes affect the public, and resources for those who would like more information about IER and its regulations. IER also published "Employment Rights and Resources for Refugees and Asylees" on January 18, which discusses several rights that asylees and refugees have in the workplace and how to contact relevant federal agencies if they believe their rights are being violated.
For more information on the webinars/presentations and to register click here
Read additional information about IER
Read the guidance on FAS nondiscrimination
Read the "Employment Rights and Resources for Refugees and Asylees"
Read the related final rule in the Federal Register
Additional information for employers about nondiscrimination and the I-9 process is available here and here.
Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration's Executive Order
Below is a summary of the immigration-related actions of the Trump administration through the first several weeks, and related counteractions:
- President Trump signed an executive order on January 27, 2017, "Protecting the Nation from Foreign Terrorist Entry into the United States." Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion.
- On January 30, the state of Washington filed suit in the U.S. District Court for the Western District of Washington at Seattle, challenging several provisions of the executive order. On the same day, Washington filed an emergency motion for a temporary restraining order. Among other things, Washington alleged that the executive order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the state's economy and public universities in violation of the First and Fifth Amendments to the U.S. Constitution and several statutes. Washington also alleged that the true intent of the executive order was not to protect against terror attacks but rather to enact a "Muslim ban." Minnesota joined the motion.
Among other things, Washington and Minnesota alleged that the teaching and research missions of their universities were harmed by the executive order's effect on their faculty and students who are nationals of the seven affected countries. The two states said that as a result of the ban, these students and faculty were prevented from traveling for research, academic collaboration, or personal reasons, and their families abroad could not visit. Some had been stranded outside the country, unable to return to the universities at all, the two states noted. The affected schools also could not consider attractive student candidates and could not hire faculty from the seven affected countries, which they had done in the past.
- On February 1, Donald F. McGahn II, Counsel to the President, issued guidance exempting lawful permanent residents of the United States from the entry ban.
- On February 2, U.S. Citizenship and Immigration Services (USCIS) issued a memo to all its employees indicating that the executive order does not apply to USCIS adjudications of any immigrant or nonimmigrant petition, regardless of the nationality of the beneficiary, as USCIS approval notices do not confer travel authorization. USCIS therefore resumed case processing according to existing policies and procedures.
- On February 3, the U.S. District Court for the Western District of Washington at Seattle issued a temporary restraining order (TRO) temporarily disallowing the provisions of the executive order noted above, along with a reduction of the total number of refugees from 110,000 to 50,000 for fiscal year 2017, on a nationwide basis. The White House immediately appealed the TRO to the U.S. Court of Appeals in the Ninth Circuit.
- On February 9, a three-judge panel of the Ninth Circuit denied the Trump administration's request to overturn the TRO and reinstate the executive order. Among other things, the three judges reiterated Washington's and Minnesota's claims and held that the states had standing. The panel rejected the government's argument that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable even if those actions potentially contravene constitutional rights and protections. "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the panel said. The judges noted that the Supreme Court "has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context."
- President Trump disagreed with the Ninth Circuit's decision via Twitter and promised to challenge the Ninth Circuit's order in court. He also reportedly told reporters on Air Force One that he was considering issuing a "brand new" executive order very soon to ban certain people from entering the United States, although details and a timetable were unclear at press time.
- The Department of Homeland Security (DHS) issued a statement after the Ninth Circuit's decision that the agency "has suspended any and all actions implementing the affected sections" of the executive order. U.S. Customs and Border Protection immediately communicated to airlines worldwide to resume boarding passengers as normal.
- The Department of State communicated that it reversed its provisional cancellation of valid visas for nationals from the seven affected countries. Further guidance indicated that individuals who arrived during the ban who had their visas physically cancelled as a result of the executive order do not need to apply for a new visa. These individuals reportedly can receive an I-193 Waiver upon arrival at a U.S. port of entry, provided that U.S. Customs and Border Protection deems them otherwise admissible.
For now, the TRO remains in effect nationwide.
For advice on specific situations, contact Hodkinson Law Group. If you have a foreign accent, and you are traveling within 100 miles of any U.S. border (including the oceans), we strongly recommend that you carry your U.S. passport, passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, we recommend keeping a photocopy of these documents in a safe place, such as at your home, so that if necessary, someone will have access to it.
Read the Executive Order
Read the memo from Mr. McGahn
Read the U.S. Citizenship and Immigration Services statement on implementation of the January 27 executive order
U.S. Customs and Border Protection FAQ issued on February 2
Read the Washington state complaint
Read the Seattle order
Read the Department of Homeland Security's statement
Read the initial statement from Department of State
Read the Ninth Circuit's order
USCIS is Accepting Only New Forms as of February 21, 2017
New fees for U.S. Citizenship and Immigration Services (USCIS) forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of 12/23/16. As of February 21, 2017, USCIS is no longer accepting previous editions of these forms.
A complete list of the new fees is available here. USCIS will reject filings that do not include the new fees. The updated forms are here. Paper copies can be requested through the USCIS forms request line (800-870-3676) and forms-by-mail service here.
USCIS also reminded applicants and petitioners to pay the $85 biometric services fee at the time of filing for benefit requests that require biometrics, to avoid rejection of the request.
Click here to read the reminder
ICE Enforcement Actions Reported
According to news reports, U.S. Immigration and Customs Enforcement has been conducting a series of targeted enforcement actions and has removed hundreds of people. ICE's focus reportedly includes immigrants with criminal convictions, fugitives, and those who reentered the United States after removal. Others with no criminal histories but who had removal orders were included. ICE said the actions were routine and were planned before an executive order on interior security was issued. President Trump issued that executive order, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017.
Click here to search for location of detainees 18 years of age or older who are currently in ICE custody
Click here for contact information for field offices with jurisdiction over the location of local arrests
Click here for ICE's detention center locator
Read the Executive Order on public safety
State Dept. Reports on Upcoming Employment-Based Visa Availability
The Department of State's Visa Bulletin for March 2017 estimates potential movement in several categories in the coming months. The Department noted that the final action date projections indicate what is likely to happen "on a monthly basis through May or June based on current applicant demand patterns," but that these projections are not guaranteed:
Employment First: The category will remain "Current" China and India: A Final Action Date is likely to be imposed by August
China: Up to five weeks
India: Up to one month
Worldwide: Up to three months
China: Up to six months
India: Extremely limited forward movement
Mexico: Will remain at the worldwide date
Philippines: Up to six months
Employment Fourth: Current for most countries.
El Salvador, Guatemala, Honduras, and Mexico: Some movement may be possible during the summer months
Employment Fifth: The category will remain "Current" for most countries
China-mainland born: Up to two weeks.
Read the Visa Bulletin for March 2017
New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee
U.S. Citizenship and Immigration Services (USCIS) announced on February 21, 2017, that new immigrants now can create a USCIS online account when they pay the USCIS Immigrant Fee. The account allows new immigrants to track the status of their green cards, receive electronic notifications and case updates, and change and update their mailing addresses.
Although anyone can pay the USCIS Immigrant Fee on behalf of a new immigrant, only the immigrant can create a USCIS online account. To create the account, a user must verify his or her identity by correctly answering questions about personal immigration history. USCIS recommend having documents such as a passport, immigrant visa, and copies of the visa application and immigrant petition available for reference when answering the questions. Those who cannot answer the questions correctly may schedule a free appointment to visit a local USCIS office to have their identity verified in person after they arrive in the United States.
Creating a USCIS online account is voluntary, and those who choose not to create an account can still track the status of their green card and other cases with Case Status Online.
Read the USCIS announcement
Read the Case Status Online
Click here to arrange a free appointment to verify identity
Click here for the change-of-address tool
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: