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A federal judge in Washington, D.C. has reaffirmed his April order that the Trump administration must continue to accept new and renewal applications under the Deferred Action for Childhood Arrivals program. However, the ruling has a delayed effective date and does not yet change the current DACA program rules.
U.S. District Judge John D. Bates ruled in April that the administration’s decision to end the DACA program was arbitrary and capricious, but gave the administration 90 days to provide sufficient justification for its decision. After reviewing new explanations provided by the Department of Homeland Security, Bates found no reason to change his original ruling.
Key points:
Background: The Trump administration rescinded the Obama-era DACA program in September 2017 with a delayed effective date of March 5, 2018, stating that the original program was unlawful and unconstitutional. On April 24, Bates ruled in U.S. District Court for the District of Columbia that the rescission violated the Administrative Procedure Act. However, he gave the government three months to either issue a new rescission order or provide adequate legal justification for its decision. During that time, DHS issued a memo supporting its original rescission order. On Friday, the judge declined to revise his April order, stating in a 25-page ruling that the DHS memo “fails to elaborate meaningfully on the agency’s primary rationale for its decision” and that most of the memo’s new policy rationales “simply repackage legal arguments previously made.”
Two other federal courts, in California and New York, have also ordered the administration to continue accepting DACA applications, but those decisions applied to DACA renewal applications only.
A court in Texas is scheduled to hear arguments Wednesday in a separate lawsuit filed by several states and led by Texas, which seeks to force the administration to end the DACA program. If the Texas court sides with the states, the administration will likely seek Supreme Court review.
BAL Analysis: The ruling does not have any immediate practical effect, as the judge delayed the decision for 20 days. However, if the government fails to appeal or obtain a longer stay and the ruling takes effect, it would differ from the other court orders in that the government would be required to restore DACA fully—to accept DACA applications not only from existing DACA recipients seeking to renew their benefits, but also from new applicants. BAL will continue to provide updates as these lawsuits continue to progress.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Under a bill President Donald Trump signed into law Wednesday, New Zealand has been added to the list of countries whose citizens are eligible for E-1 Treaty Trader and E-2 Treaty Investor visas.
BAL Analysis: The addition of New Zealanders to the list of nationals eligible for E-1 and E-2 visas is intended to enhance business, trade and investment between the two countries.
The 9th U.S. Circuit Court of Appeals has blocked the Trump administration’s 2017 executive order that freezes federal funds to “sanctuary” jurisdictions that decline to hand over information about individuals’ immigration status to the federal government.
The court ruled Wednesday that under the Separation of Powers doctrine and the Spending Clause, Congress—not the executive branch—has the sole authority to withdraw or impose conditions on federal grants. Several counties in California brought the lawsuit against the Trump administration, and won a nationwide injunction in a lower court. In the 2-1 ruling, the 9th Circuit upheld the injunction, but limited it to California.
The executive order has been met with lawsuits from multiple cities, counties and states. The 7th Circuit upheld an injunction in April, limiting it to Chicago, and a U.S. District Court in Philadelphia enjoined the executive order in June. (That decision is on appeal to the Third Circuit.) New York city and state have sued the administration over the withholding of millions in federal public safety grant funding.
BAL Analysis: Thus far, the courts have been unanimous in striking down the Trump administration’s efforts to defund local and state jurisdictions that refuse to assist federal immigration enforcement policy. For further analysis of the legal arguments, BAL Senior Counsel Jeff Gorsky looked at “How the Trump administration lost its sanctuary city case” in this Law360 article.
U.S. Immigration and Customs Enforcement (ICE) continues to ramp up audits and worksite investigations, according to figures released by the agency last week.
ICE said that the agency’s Homeland Security Investigations (HSI) unit has served I-9 Notice of Inspections (NOI) to more than 5,200 businesses since January. Most recently, in a five-day period earlier this month, the unit served 2,738 inspection notices and made 32 arrests. By comparison, ICE initiated 1,360 I-9 audits during the entire 2017 fiscal year.
ICE representatives said the investigations unit is undertaking an enforcement strategy that “focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law.”
Key reminders:
BAL Analysis: The recently released figures from ICE are strong reminders of the federal government’s increased compliance activity under President Donald Trump. Employers are encouraged to conduct an internal audit of their Form I-9s and have protocols in place in the event that they are inspected by ICE. BAL’s compliance team can assist in conducting internal audits and preparing employers for a Form I-9 inspection.
U.S. Citizenship and Immigration Services (USCIS) announced today that it has returned all fiscal year 2019 H-1B cap-subject petitions that were not selected in the computer-generated lottery.
Employers are reminded that it may take up to two weeks to receive all the returned petitions. A total of 190,098 H-1B cap-subject petitions were received during this year’s filing period. Data entry of all the H-1B cap petitions selected in the lottery was completed May 15. The agency then started to return rejected petitions.
BAL Analysis: Employers who submitted H-1B cap petitions during the April 2-6, 2018, filing period should receive either a receipt notice or a returned petition for their sponsored employees by Aug. 13. BAL has not yet received all returned petitions or receipts. As such, employers should continue to work with BAL if they have not received a receipt or a returned petition. In the meantime, BAL will continue to work with employers on possible alternatives for foreign workers who were not selected in the lottery.
U.S. Citizenship and Immigration Services (USCIS) announced today that it will temporarily delay implementation of a recent policy change that would initiate removal proceedings against foreign nationals who fall out of status when their immigration petitions are denied.
BAL Analysis: This announcement confirms that USCIS is not currently implementing the new NTA policy and will not begin implementation until operational guidance is issued. The delayed implementation gives businesses and foreign employees some additional time to prepare. The agency will be releasing operational guidance, which should make the impact of the policy memo clearer. Sources within the agency have indicated that officers are likely to be directed to grant a 30- or 45-day grace period before issuing NTAs to allow time for foreign nationals to appeal or leave the U.S. before the notice is issued. BAL is closely following this and other policy changes and will update clients as soon as information becomes available.
The number of H-1B visa denials and Requests for Evidence, or RFEs, rose sharply soon after President Trump issued the “Buy American and Hire American” Executive Order in April 2017, according to a new report by the National Foundation for American Policy.
Key figures:
The full report may be viewed here.
BAL Analysis: These figures released by U.S. Citizenship and Immigration Services confirm that recent policy initiatives are impacting adjudications of high-skilled immigration petitions. It should be noted that while all companies have experienced an overall increase in RFEs, the rates vary across industries, with IT consulting companies being particularly targeted for RFEs and H-1B denials.
HR managers and staff may be uncertain of which type of immigration-related questions they are legally permitted to ask job candidates in light of recent policy priorities set by the Trump administration supporting U.S. workers.
In furtherance of Trump’s “Buy American, Hire American” Executive Order, government agencies have launched various initiatives aimed at greater enforcement against employers who discriminate against American workers. In May, the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) entered into a formal memorandum of understanding to share information with each other about employers. This memorandum is for the purpose of investigating and prosecuting companies that use employment-based visa programs, such as the H-1B category and others, to discriminate against U.S. workers in favor of foreign workers. USCIS has also stepped up on-site employer visits and opened a hotline for individuals to report H-1B and H-2B visa fraud.
The policies encourage companies to hire American workers and remind them not to discriminate against U.S. workers. However, employers must also be mindful of discriminating against job candidates who are foreign nationals. While it is against the law to knowingly hire someone who is not authorized to work in the U.S., it is also unlawful to discriminate on the basis of citizenship, national origin, race or religion. Companies may be sued or face Equal Employment Opportunity Commission (EEOC) complaints if they ask questions that violate protected categories. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, on the basis of an individual’s citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. Furthermore, the DOJ Immigrant and Employee Rights Section (IER, formerly the Office of Special Counsel) cautions against asking detailed questions about job applicants’ specific immigration or citizenship status, since it could deter protected individuals (U.S. citizens, certain lawful permanent residents, temporary residents, refugees, and asylees) from applying. Additionally, such questions may lead individuals who are rejected for a job to allege that they were not hired because of their national origin.
Below are some common do’s and don’ts in the hiring process:
BAL Analysis: Employers should be aware of their obligations and restrictions in the current enforcement environment. Companies are encouraged to conduct regular reviews of their Form I-9 procedures, as well as their hiring practices, to ensure that they are in compliance with the law. BAL can assist in the review and internal auditing process.
The Department of Homeland Security is planning to propose a regulation aimed at tightening the B-1/B-2 business/tourist visitor visa to prevent fraud and abuse. The proposed rule was listed among the agenda items in the agency’s semiannual agenda released last month. While the item did not describe the nature of the rule under consideration, a letter dated May 30 from U.S. Citizenship and Immigration Services Director L. Francis Cissna to members of Congress who sponsored an immigration roundtable provides further details of what might be addressed in the rule.
The letter followed a roundtable between a subcommittee on national security and various federal agencies that discussed misuse of the B visa category. The roundtable included USCIS, the State Department, the Labor Department, Immigration and Customs Enforcement and U.S. Customs and Border Protection.
According to the letter:
Background: The B category allows foreign visitors to conduct certain business activities—such as negotiating contracts; participating in business conferences, conventions or seminars; conducting business meetings; and engaging in commercial contracts, among others—but prohibits day-to-day labor for hire. The BILOH allows overseas companies to send employees who remain on foreign payroll to the U.S. for short-term work, but has been closely scrutinized for abuse in recent years.
BAL Analysis: Companies sending business visitors to the U.S. should anticipate strengthened criteria for B-1 visas and possible curtailment or elimination of the BILOH. An analysis by BAL Senior Counsel Jeff Gorsky for Law360 looks at the history of permitted B-1 activities, how the scope of B-1 activities may change under the Trump administration, and why restrictions on B-1 activities may be vulnerable to litigation challenges. Read the full article here.
The Department of Homeland Security announced Thursday that it will extend Temporary Protected Status for Somalian nationals who qualify for the program.
Background: The U.S. first designated Somalia for TPS in 1991 and redesignated the status in 2001 and 2012. In a statement, Secretary of Homeland Security Kirstjen M. Nielsen said that DHS had determined that “ongoing armed conflict and extraordinary and temporary conditions that support Somalia’s current designation for TPS continue to exist.” DHS will review conditions in Somalia at some point before March 17, 2020 to determine whether TPS should be extended again or terminated. There are about 500 Somali TPS beneficiaries in the U.S., according to DHS.
BAL Analysis: The Trump administration has moved to end TPS designation for a number of countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. The administration has extended TPS designations for South Sudan, Syria, Yemen and, now, Somalia. BAL will provide details about re-registration processes once they become available.