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The U.S. Supreme Court today ruled 6 – 3 in Department of State v. Muñoz that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”
The case involved Sandra Muñoz, a U.S. citizen, who sued the federal government after her husband, Luis Asencio Cordero, a citizen of El Salvador, was denied a visa after a U.S. consular officer in San Salvador found he was inadmissible under federal law. His visa refusal letter referred to the applicable section of law, INA 212(a)(3)(A)(ii) (“other unlawful activity”), but did not provide a detailed reason for the denial. As part of the litigation record, the State Department later clarified that the basis for the refusal was that the consular officer had reason to believe Asencio Cordero was a member of the gang MS-13, based in part on his tattoos.
In 2022, the 9th U.S. Circuit Court of Appeals ruled in favor of the couple. The Biden administration asked the Supreme Court to reverse the ruling. Today, in addressing the primary issues, the court held that the consular officer’s decision for a basis of refusal was final and conclusive and it would not interfere with such policy choices despite the harm Muñoz endured because, ultimately, she does not have a constitutional right to participate in her spouse’s consular proceeding.
Additional Information: The dissent, written by Justice Sonia Sotomayor and joined by Justices Elena Kagan and Katanji Brown Jackson, found the ruling broad on marriage and narrow on procedure, citing supporting briefs from former consular officers that demonstrated consular decisions “often rely on stereotypes or tropes…even bias or bad faith.”
A transcript of the oral arguments presented before the court in April this year can be found here. Audio of the oral arguments can be heard here.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 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.
The U.S. Embassy and Consulates in India announced that 3,900 applicants had been interviewed during its annual Student Visa Day on June 13.
Key Points:
Additional Information: The establishment of Student Visa Day in India eight years ago is a joint effort between the Department of State, Mission India and EducationUSA to share information on studying in the United States and reflects the U.S. government’s commitment to prioritize students and facilitate their travel. “Today’s Indian students also represent tremendous potential — the knowledge you will unlock, the new skills and opportunities you will experience and the relationships you will build are worth the investment. … Together, we are taking the U.S.-India relationship forward,” said U.S. Ambassador Eric Garcetti.
BAL Analysis: The U.S. Mission in India set a goal of processing 1 million nonimmigrant visas in 2023, a target that was reached in September. The U.S. Consulate Mumbai conducted a “Super Saturday” visa drive on May 12, screening 1,700 first-time student visa applicants for approval. While visa services at some embassies and consulates remain delayed, the U.S. Mission in India said it would continue to “invest in the future of consular services in India and explore ways to provide more efficient and convenient services.”
President Biden announces a policy to protect undocumented spouses of U.S. citizens.
The administration moves toward streamlined work visa processes for some DACA beneficiaries.
And we sit down with the American Immigration Lawyers Association’s new president-elect, BAL’s Jeff Joseph, to survey the immigration landscape and discuss AILA’s focus on becoming more inclusive.
Get this news and more in the latest episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
The Department of State announced it will open six new passport agencies across the U.S. to meet growing demand.
Additional Information: Today, 48% of Americans have a passport and more than 99% live within 25 miles of an acceptance facility. Although the Department of State is issuing a record number of passports, passport processing times are at pre-pandemic levels.
BAL Analysis: When traveling abroad, we encourage foreign nationals to frequently check the validity/expiration date of their passport. Read more travel tips here.
President Biden announced plans for a new policy that would make certain undocumented spouses of U.S. citizens who are longtime residents eligible for a path to lawful permanent residency from within the U.S. and up to three years of parole and work authorization. The administration also announced other forthcoming actions to make it easier for Deferred Action for Childhood Arrivals beneficiaries to obtain a temporary work visa.
BAL Analysis: While this announcement outlines the administration’s plans to protect undocumented spouses and certain Dreamers, the specific details about how the processes will be implemented are still forthcoming. It is anticipated that the Biden administration will face court challenges.
Copyright © 2024 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.
Employers filing H-1B cap petitions for fiscal year 2025 are reminded that the filing period closes June 30.
BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the June 30 deadline. Employers may also wish to work with their BAL attorney to consider alternatives for registrations that were not selected in March’s lottery. BAL will continue to monitor whether USCIS will conduct a second round of H-1B selections for FY 2025.
It is no exaggeration to say that the 2024 presidential election may have dramatic consequences on U.S. immigration.
The Republican candidate, former President Donald Trump, and the Democratic nominee, Vice President Kamala Harris, differ not only in their rhetoric about immigration but also in the policies their administrations pursued in their respective terms in office. While unauthorized immigration and the border dominate the headlines, business immigration would bear the impact of a change in administrations as well.
So, what do employers think?
BAL recently surveyed business leaders about their immigration programs, how they plan to support their workforce and how they are preparing for the election. In all, we received 111 responses. Answers varied, but a few trends emerged.
Nearly 6 in 10 respondents (59%) said their organization found it “somewhat” or “much” easier to meet foreign talent needs in the last four years. Another 23% said there was not much change for their organization, while 18% said it was “much harder” or “somewhat harder.”
We also asked about the potential changes the administration should prioritize for the remainder of Biden’s term, allowing respondents to pick more than one answer.
Other priorities for employers included reducing Department of Labor wait times, stabilizing Deferred Action for Childhood Arrivals (DACA) and securing the U.S.-Mexico border.
While the election has the potential to disrupt immigration policies and procedures, employers remain committed to their foreign national employees.
Two-thirds of respondents (67%) said they “are doing as much as (they) can” with existing resources to protect the work status of foreign national employees prior to the election. An additional 15% said they are expanding resources.
Respondents were split regarding when they will start planning for possible changes, with roughly half saying they have already begun doing so or will this summer and the other half saying they will wait until the fall or after the election.
A plurality of survey respondents said they had not yet begun communicating with their organization’s leadership or foreign national employees but that they plan to do so.
It is understandable that many employers said they don’t know where to start when communicating about the election. The uncertainty of the outcome makes preparation and communication difficult.
There are steps employers can take now, however, including encouraging foreign national employees to move up their timelines for travel and visa renewals; prioritizing certain petition filings to take advantage of current policies; and reviewing employee populations and company policies to help identify the likely effects of a potential change in administration.
BAL is able to assist in these endeavors and will continue providing additional information and resources as we move through election season.
BAL’s election survey was open to the public May 14 through June 5. There was a total of 111 survey respondents, with immigration program sizes ranging from fewer than 10 petitions to more than 500 petitions filed per year. Respondents included a mix of in-house attorneys, immigration program managers and human resources and global mobility professionals, among others.
Respondents represented more than 20 industries, including:
Respondents represent businesses with small, mid-size and large immigration programs.
Steve Plastrik is a senior associate on BAL’s Government Strategies team. If you are interested in speaking with a BAL attorney about how to prepare for any election outcome, contact us. To learn more about BAL Community, visit https://community.bal.com.
Coalition for the American Dream published a report this week detailing the projected economic and societal costs of ending the Deferred Action for Childhood Arrivals program.
Additional Information: The report’s demographic and economic estimates and business impacts are based in part on data collected in the U.S. Census Bureau’s 2022 American Community Survey, the March 2022-2023-2024 Current Population Surveys and data from U.S. Citizenship and Immigration Services.
Coalition for the American Dream is an organization of more than 100 businesses, trade associations and other groups representing every major sector of the U.S. economy and more than half of American private sector workers. Its mission is to seek the passage of bipartisan legislation that gives Dreamers a permanent solution.
BAL Analysis: The report notes if DACA ended and work authorizations were denied renewal, 440,000 workers would be forced from the U.S. workforce over a two-year period, with the most acute impact on health, education and STEM occupations. The business community continues to show strong support for DACA and the crucial role Dreamers play in the U.S. economy. Given the uncertain environment, DACA recipients who qualify for a renewal are urged to apply for one as soon as they can. BAL will continue to follow the litigation challenging DACA and will provide updates as information becomes available.
The American Immigration Lawyers Association announced its newly elected officers at the 2024 AILA Annual Conference and installed Kelli Stump as AILA president and BAL’s Jeff Joseph as president-elect.
Additional Information: Founded in 1946, AILA is a nonpartisan, nonprofit, voluntary bar association that provides continuing legal education, professional services, information and expertise to more than 16,000 attorneys who practice and teach immigration law.
Its mission is to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of AILA members.
U.S. business leaders tell BAL it has become easier to meet foreign talent needs.
A new report examines the human and economic costs of ending DACA.
And Lynden Melmed, the head of BAL’s government strategies team, joins us to discuss one organization’s vision for a second Trump administration.