In this issue
- Fourth Circuit Upholds Rejection of Trump Travel Ban
- USCIS Reaches CW-1 Cap for FY 2018
- Recent Fraud Investigations Led to Convictions, USCIS Announced
- Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall
- USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions
- USCIS Implements New Interpreter Policy, Form
- State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories
- IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says
- New Publications and Items of Interest
Fourth Circuit Upholds Rejection of Trump Travel Ban
The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration's revised executive order barring entry into the United States of people from certain countries.
Chief Judge Roger Gregory noted that the question for the court, distilled to its essence, was whether the Constitution protected plaintiffs' right to challenge the executive order, which "in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination." He noted that "[s]urely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another." He said that Congress granted the President broad power to deny entry to the United States, but that this power is not absolute. "It cannot go unchecked when, as here the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation."
Among other things, the court took into account not just the text of the executive order but also the context of statements made by President Trump both before and after his election and assumption of office. For example, the court noted that on December 7, 2015, then-candidate Trump published a "Statement on Preventing Muslim Immigration" on his website that proposed "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Among other things, the statement noted "great hatred toward Americans by large segments of the Muslim population." The court noted that this statement remained on President Trump's campaign website at least until February 12, 2017, and was highlighted on Twitter. On March 9, 2016, then-candidate Trump said, "I think Islam hates us," and renewed his call for a ban on Muslim immigration in a March 22, 2016, interview. And when asked about a tweet that said that calls to ban Muslims from entering the United States were offensive and unconstitutional, then-candidate Trump responded, "So you call it territories. OK? We're gonna do territories." In an interview a week later, he said, "I'm looking now at territories. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim. Remember this. And I'm okay with that, because I'm talking territory instead of Muslim." With respect to people revering the part of the Constitution that guarantees religious freedom, he said, "I view it differently."
The court said, among other things, that it was "unmoved by the Government's rote invocation of harm to 'national security interests' as the silver bullet that defeats all other asserted injuries." Citing a 1967 case, United States v. Robel, the court noted that implicit in the term "national defense" is "the notion of defending those values and ideals which set this Nation apart....It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties...which makes the defense of the Nation worthwhile." National security "may be the most compelling of government interests," the court observed, "but this does not mean it will always tip the balance of the equities in favor of the government." The court noted that unconditional deference to a government agent's invocation of "emergency" has a "lamentable place in our history" and that the government's asserted national security interest appeared to be a "post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country." The court said it remained unconvinced that the relevant section of the executive order "has more to do with national security than it does with effectuating the President's promised Muslim ban."
Circuit Judge Wynn, concurring, noted that "[i]nvidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination." In this case, he said, the invidious discrimination is "layered under the guise of a President's claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their national origin." Laid bare, he said, "this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims," which he said contravenes the authority Congress delegated to the President under the Immigration and Nationality Act, and is unconstitutional under the Establishment Clause.
Several judges dissented. The government stated that it intends to appeal to the Supreme Court.
Read the 205-page decision, including the dissents.
USCIS Reaches CW-1 Cap for FY 2018
U.S. Citizenship and Immigration Services (USCIS) announced that as of May 25, 2017, it had received a sufficient number of petitions to reach the numerical limit (cap) of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year (FY) 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017.
USCIS said it will issue subsequent guidance when the FY 2018 cap is set and when the agency is able to announce the final receipt date. Because the final receipt date will depend on the FY 2018 cap, it is also possible that USCIS will not accept some petitions it received on or before May 25, 2017.
The agency noted that it will reject CW-1 petitions received on or after May 26, 2017, that request an employment start date before October 1, 2018. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.
If USCIS rejects an extension petition, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition, USCIS noted. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the Commonwealth of the Northern Mariana Islands (CNMI) within 10 days after the CW-1 validity period expires, unless they have some other authorization to remain under U.S. immigration law.
New employment petitions and extension-of-stay petitions are generally subject to the CW-1 cap.
All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 derivative family members.
USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS noted, however, that it will reject a petition if it is filed more than 6 months in advance.
Click here for more information.
Read the petition.
Recent Fraud Investigations Led to Convictions, USCIS Announced
U.S. Citizenship and Immigration Services (USCIS) assisted in several recent investigations leading to convictions in immigration fraud cases.
In one case, USCIS assisted in an investigation that led to a federal jury finding Jason Shiao guilty in a marriage fraud scheme. Mr. Shiao, of Santa Fe Springs, California, posed as an attorney in an elaborate scheme in which at least 87 foreign nationals, mostly Chinese citizens, paid up to $50,000 to enter into sham marriages.
As part of the scheme, according to USCIS, Mr. Shiao falsely claimed to be an attorney, paid U.S. citizens up to $15,000 to participate in the scheme, introduced would-be immigrants seeking benefits to U.S. citizens to facilitate the sham marriages, instructed his clients to pose for wedding photographs, and told clients to lie to USCIS officials. The defendants went to considerable lengths to make the fake marriages appear real, USCIS said. Mr. Shiao and his daughter prepared documentation that was filed with USCIS to bolster the validity of the fraudulent marriages, including staged photographs of "wedding ceremonies" and bogus tax returns, life insurance policies, joint bank account information, and apartment lease applications.
Mr. Shiao was sentenced to two years in prison. Mr. Shiao's daughter was sentenced to six months in prison. A third defendant was transferred to the Eastern District of Pennsylvania, where he is also being prosecuted for drug trafficking charges based on crimes allegedly committed while on pre-trial release in the immigration fraud case.
In another case, USCIS assisted in an investigation that led to sentencing of Rosa Cingari to 12 years and seven months in federal prison and Domenico Cingari to eight years and one month in federal prison for conspiracy, making false statements in immigration applications and petitions, and mail fraud. The court also ordered the Cingaris to forfeit real property that was used to facilitate the offenses. As part of their sentence, the court also entered a money judgment in the amount of $740,880, the proceeds of the charged criminal conduct.
According to evidence presented at trial, the Cingaris owned and operated R.E.P.C. Accounting and Translations out of their home on West Park Street in Lakeland, Florida. They assisted undocumented people in obtaining Florida driver's licenses by filing fraudulent immigration documents. Specifically, they filed Forms I-589, Application for Asylum and Withholding of Removal; I-130, Petition for Alien Relative; and I-765, Work Authorization. Most of the applications and petitions submitted to USCIS by the Cingaris contained materially false information, USCIS said. The Cingaris filed the fraudulent immigration documents to obtain USCIS I-797C Notices of Action. The Cingaris put their mailing address on all of the fraudulent forms so that USCIS would mail the Notices of Action to their business. They then sold the Notices of Action to their clients. The Cingaris charged their clients between $500 and $1,300 each for the fraudulent immigration applications.
More information on these cases is available here and here.
Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall
The Consolidated Appropriations Act of 2017, passed by Congress and signed May 7, extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, among other things.
The spending bill was also notable for what it didn't contain. For example, the bill did not include funding to begin construction of the border wall promised by President Trump.
Some observers believe that before that date, legislation could be enacted to change the EB-5 program, such as by raising the minimum investment amount, which currently is $500,000 in rural and high unemployment areas and $1 million elsewhere. The EB-5 program has received a lot of attention recently because of a particular EB-5 project in New Jersey being promoted by the Kushner Company. Jared Kushner, President Trump's son-in-law and a senior advisor to the President, stepped down as chief executive of the Kushner Company in January and has sold stakes in several properties to help allay concerns about possible conflicts of interest.
Read a statement by President Trump on signing the legislation here.
Click here for more information on this case.
USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that it had completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process. USCIS said it has begun returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS was unable to provide a definite time frame for returning these petitions. USCIS asked petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS said it would issue an announcement once all the unselected petitions have been returned.
Additionally, USCIS is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. USCIS will notify by mail those whose cases are transferred.
USCIS also reminded petitioners that it has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months.
Read the USCIS announcement.
USCIS Implements New Interpreter Policy, Form
U.S. Citizenship and Immigration Services (USCIS) announced the May 1, 2017, implementation of a policy memorandum issued on January 17, 2017. The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies, such as asylum and refugee interviews; credible fear and reasonable fear screening interviews; interviews to determine eligibility for relief under provisions of the Nicaraguan Adjustment and Central American Relief Act; and naturalization interviews, unless the interviewee qualifies for an exception to demonstrating adequate proficiency in reading, writing, and speaking English. The standards also do not apply to document translations or to interviews conducted at international field offices.
The guidance states that interpreters must be sufficiently fluent in both English and the interviewee's language, able to interpret competently between English and the interviewee's language, and able to interpret impartially and without bias. Those restricted from serving as interpreters include minors under age 18 (an exception for good cause may be granted for those age 14-17); attorneys and accredited representatives of the interviewee; and witnesses (unless an exception for good cause is granted). A witness is anyone who gives a personal account, orally or in writing, of something seen, heard, or experienced.
USCIS has introduced the new Form G-1256, Declaration for Interpreted USCIS Interview, as part of implementation of this guidance. Both the interviewee and the interpreter must sign the form at the beginning of the interview in the presence of a USCIS officer. The form includes a declaration stating that the interpreter must accurately, literally, and fully interpret for both the interviewee and interviewing officer, and requires the interpreter to agree not to disclose any personal information learned in the interview.
USCIS officers will receive training to implement the new policy.
Read the announcement.
Read the policy memorandum.
Read a related Web alert.
State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories
The Department of State's Visa Bulletin for the month of June 2017 notes, among other things:
- Continued high level of demand for the China and India employment-based first preference (EB-1) categories has required the establishment of a cut-off date for June. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2018.
- There has been an extremely large increase in China employment third preference applicant demand during the past month, due to the "downgrading" of status by applicants who had originally filed in the employment second preference. This has resulted in the third preference final action date being held for the month of June. Continued heavy demand for numbers will require a retrogression of this date no later than August.
- There also is continued high demand in the India EB-4 and special religious worker categories, which is likely to result in the India EB-4 per-country limit being reached in June. Therefore, implementation of July EB-4 and special religious worker final action dates for India is expected. The India EB-4 and special religious worker dates should once again become Current for October.
IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says
The Department of Homeland Security's (DHS) Office of Inspector General (OIG) recently found that U.S. Immigration and Customs Enforcement (ICE) relies on information technology (IT) systems that are "fragmented" and "ineffective," lacking in integration and information-sharing capabilities. As a result, OIG said, ICE personnel are forced to "laboriously piece together vital information from up to 27 distinct DHS information systems and databases to accurately determine an individual's overstay status." It can take months for ICE to determine a visa-holder's status and whether that person may pose a national security threat, OIG said, which contributes to a backlog of more than 1.2 million visa overstay cases.
Further complicating ICE's efforts to track visa overstays is DHS's lack of a comprehensive biometric exit system at U.S. ports of departure to capture information on nonimmigrant visitors. In the absence of such a system, OIG reported, ICE must rely on third-party departure data, such as commercial carrier passenger manifests, which do not include biometric land departure information reflecting those who cross the border on foot or using their own vehicles.
OIG made several recommendations to the DHS and ICE Chief Information Officers (CIOs) to improve information sharing, provide training and guidance, evaluate data reliability, and implement a biometric exit solution.
Read a related press release.
Read the full report.
New Publications and Items of Interest
How to safeguard your data from searches at the border is the topic of several recent articles and blogs. Click here for an example, and click here for a second example.
Airport Lawyer is a free Web app that is intended to help ensure that immigrants are treated fairly at airports. Arrivals information can be securely passed along to large groups of volunteer attorneys who have been organized to monitor arrivals.
Listings and links to cases challenging executive orders, and related available pleadings.
The latest E-Verify webinar schedule from USCIS is available.
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: